PITTSBURGH — Despite the U.S. Supreme Court’s order for a negotiated settlement, the Diocese of Pittsburgh says the federal government has adopted an “extremely aggressive” strategy to use the diocese’s own self-insured health-care plan to provide contraceptive coverage.

“Wait a minute: What happened to the discussion that was supposed to take place?” Bishop David Zubik of Pittsburgh said during a recent phone interview with the Register.

The federal government appears to be citing a passage in the high court’s May 16 decision in Zubik v. Burwell to argue that it can begin forcing the diocese’s third-party administrator to cover contraceptives, but Bishop Zubik contends that is not what the Supreme Court envisioned.

“When you look at what was written up by the Supreme Court, its direction and expectation was basically saying, ‘Okay, boys, let’s get to the circuit court of appeals and work this out, because we know there is a solution to this; and you both can work this out until both sides are happy and the government gets what they want, without us compromising our beliefs,’” Bishop Zubik said.

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, a public interest law firm that has represented several plaintiffs who have challenged the federal contraceptive mandate, including the Little Sisters of the Poor, told the Register that Bishop Zubik’s argument is correct.

“The point of the Supreme Court’s order was to allow the parties time to work out a different solution,” Rienzi said. “I’m not sure what the government is doing or thinks it’s authorized to do, but I am pretty sure that what the Supreme Court ordered was for everybody to work together on a solution that actually accommodates the religious exercise here.”

 

The Supreme Court’s Ruling

Shortly after hearing oral arguments and requesting additional briefs, in mid-May, the U.S. Supreme Court issued an 8-0 ruling in Zubik v. Burwell that vacated several lower-court decisions and remanded 35 religious nonprofit cases back to the federal appellate courts, with instructions that the federal government and nonprofits work out an arrangement to provide contraceptive coverage while preserving the plaintiffs’ religious-liberty rights.

In Zubik v. Burwell — a consolidated case that included the Diocese of Pittsburgh, the Little Sisters of the Poor and Priests for Life as plaintiffs — the high court did not take any position on the arguments. However, the court noted that the federal government and plaintiffs, in their supplemental briefs, confirmed that contraceptives can be delivered without directly involving the religious employers.

In remanding the cases to the appellate courts, the Supreme Court justices called on the parties to work out the details. The justices also said they expected the individual courts of appeal to grant the parties enough time to resolve any outstanding issues.

However, the Diocese of Pittsburgh said in a press release on Aug. 10 that the federal government has been slow to offer anything of substance to pursue a negotiated solution, except to mention its openness to future meetings.

“On the one hand, the government has been very slow on setting meeting dates, but then when you hear the government has already been in contact with providers and said, ‘You have to start providing the coverage that has been specified in the mandate’ — well, that’s a whole different story. That’s taking the process way beyond what the Supreme Court said,” Bishop Zubik said.

The Diocese of Pittsburgh also argues that, because it is self-insured, there is no obligation or authority for its third-party administrator to provide contraceptives. In addition, the Supreme Court made it clear that the religious nonprofits cannot be fined or penalized for refusing to comply with the contraceptive mandate while the negotiations with the federal government are ongoing.

 

Five-Year Battle

However, while the Supreme Court called for a negotiated solution, it also may have opened the door for the federal government, in the meantime, to begin the process of delivering contraceptive services to the objecting agencies’ employees. The justices wrote that nothing in their decision was meant to affect the ability of the federal government to ensure that women covered by the petitioners’ health plans could “obtain, without cost, the full range of FDA-approved contraceptives.”

The ruling also says that the plaintiffs, in filing their lawsuits, had in effect already made the federal government aware that they meet the requirements for the so-called accommodation that the government previously created for religiously affiliated nonprofits.

For more than five years now, religiously affiliated nonprofits and private employers have been fighting the U.S. Department of Health and Human Services’ mandate — made possible by the Affordable Care Act of 2010 — that employers cover all government-approved forms of birth control, including abortifacient so-called emergency contraceptives and sterilization procedures.

President Barack Obama’s administration has amended the mandate several times. In July 2015, the administration finalized its “accommodation” that requires religious nonprofits to notify HHS in writing about their objections to contraceptive coverage. The notification then triggers HHS to inform the insurers and third-party administrators, with separate payments then being made to enrollees for the coverage. The religious nonprofits object, arguing that it still makes them complicit and hijacks their health-insurance plans to provide morally objectionable contraceptive services.

On July 22, the Internal Revenue Service, HHS and the U.S. Department of Labor published a notice in the Federal Register opening a new 60-day public-comment period for anyone to suggest changes in how seamless contraceptive coverage can be provided while respecting the rights of religiously affiliated organizations. The deadline for the public comment period is Sept. 20.

“That request-for-information document strikes me as the government recognizing precisely what the Supreme Court said, which was to go work out some other way of doing this,” said the Becket Fund’s Rienzi, who added that he welcomes the public-comment period.

“It’s a good thing if the government is having an honest, good-faith effort to look at other ways to get people contraceptives — because there are a million alternatives, and the government doesn’t need nuns to do that,” Rienzi said.

 

Religious-Liberty Issue

While mainstream media coverage has often focused on birth control, Bishop Zubik and the other plaintiffs have long argued that religious liberty is the main issue.

“I keep on wanting to help people realize that this is a religious-freedom issue, because, I believe, if we lose this, then this is going to be a case that’s going to be used by the government to defend its actions on lots of different fronts as well, and it will continue to erode the religious freedom that has been guaranteed to us by the First Amendment of the Constitution,” Bishop Zubik said.

However, at least one scholar on religious liberty believes the federal government has not been particularly aggressive about instructing secular health insurers to provide free contraception.

“I have never understood why the government didn’t do that as soon as the various preliminary injunctions in these cases were vacated,” said Douglas Laycock, a professor at the University of Virginia Law School. “And I don’t understand why it doesn’t just do it now, instead of seeking confirmation or permission from the courts of appeal.”

Laycock told the Register that the Supreme Court’s decision in Zubik is “pretty clear” in allowing the federal government to provide contraception through health insurers.

“It does not need the permission of the court of appeals to do that,” Laycock said. “The diocese would need an injunction from the court of appeals or the district court to prevent it.”

Bishop Zubik told the Register that seeking an injunction could be a step that the diocese’s attorneys consider. He added that the attorneys are trying to see if the government will meet with them to work out the problem.

Said Bishop Zubik, “We will exhaust every legal avenue that we have to protect religious freedom.”

 

Register correspondent Brian Fraga writes from Fall River, Massachusetts.