In the News 2016

Supreme Court to Consider Compromise to Health-Law’s Contraception Rules

A four-year-old fight between the Catholic Church and the Obama administration reaches the Supreme Court on Wednesday, in a bishop’s challenge to the health-care law’s contraception requirements that could alter the boundaries of religious freedom.

Eight justices will weigh how far the government has to go to accommodate religiously affiliated employers that object to including contraception in workers’ insurance plans. The outcome could affect as many as a million Catholic nonprofit employees. The case comes after the court’s 2014 Hobby Lobby ruling that for-profit businesses could assert such objections.

The government says Health and Human Services Secretary Sylvia Mathews Burwell has expended considerable effort to address religious objections to the requirement. Churches are exempt, and a carefully crafted alternative, officials say, shields religiously affiliated workplaces from funding or promoting contraception while guaranteeing plan enrollees can still get it.

The Most Rev. David Zubik, bishop of Pittsburgh, says the system is inadequate because it still uses health plans that church-linked employers sponsor as the means of carrying out something they believe is immoral. The government has to respect that belief, he says, however easy the actions required of religious employers might seem to federal officials, or however many people support contraception.

“It’s not a matter of a popularity contest, it’s a matter of standing up for and defending the truth,” Bishop Zubik said in an interview.

Resolving the dispute will hinge on the court’s interpretation of the 1993 Religious Freedom Restoration Act, which bars U.S. laws that “substantially burden” religious expression unless they further a “compelling governmental interest” that can’t be achieved through less restrictive means.

Bishop Zubik was one of the earliest and most vocal critics of the contraception requirement when the Obama administration was considering it in fall 2011. A campaign by the U.S. Conference of Catholic Bishops drew hundreds of thousands of letters of opposition. In early 2012, amid a presidential primary furor, federal officials began developing a workaround system.

In May 2012, after regulations set out the system, the bishops’ conference called it unacceptable. Many dioceses, including Pittsburgh, swiftly filed lawsuits. Now the Pittsburgh case tops a list of seven cases the high court will consider, and Bishop Zubik’s name will become legal shorthand for a major decision in the case, Zubik v. Burwell.

The odds seem stacked against him. The death of Justice Antonin Scalia eliminates one probable ally. Justice Anthony Kennedy, the likely swing vote, has appeared to voice approval of the government’s workaround system as a solution for employers the court recognizes as having conscience rights. The prospect of a 5-3 loss is real, while a 4-4 draw might be a best-case scenario for the bishop.

The bishop’s involvement was prompted by Susan Rauscher, executive director of Catholic Charities of the Diocese of Pittsburgh, which employs around 100 people to care for the poor through a free medical and dental clinic, homeless centers, emergency assistance and a summer lunch program. The charity is a separate organization, linked to the church in its leadership, name and stated mission to fulfill Jesus’ instructions. Ms. Rauscher wears a red “Living His Example” wristband. The welcome center displays pictures of Mother Teresa, the bishop, and his mother, Susan Zubik, for whom the center is named.

The organization has pregnancy-support services but won’t refer to a nearby Planned Parenthood for abortion—and it doesn’t cover contraception in its health plan.

Most of its employees, clients and funding don’t come from the church. While parishes support the charity, almost half of its budget comes from government grants.

The Obama administration and its allies say if the bishop can use the Religious Freedom Restoration Act to stop an external insurer from providing contraception to the charity’s plan enrollees, religious adherents will be able to impede any number of other public policies with which they disagree.

“Petitioners’ sincere religious objections to the government’s arrangements with third parties do not establish a cognizable burden” under the religious freedom law, the Justice Department said in its brief. “Treating such objections as sufficient to establish a substantial burden … would have startling consequences” for government programs, the department said.

Church critics point to data suggesting almost all sexually active women—including Catholic women—use contraception. “They know that they’ve lost the argument with rank-and-file Catholics so what they’re trying to do now is influence public policy,” said Jon O’Brien, president of Catholics for Choice, a group that opposes church teachings on contraception.

Some Catholic officials acknowledge their contraception stance isn’t an easy issue to win support for, but Bishop Zubik says they have to fight to preserve all their religious teachings. “I get a little bit concerned when people perceive a weakening of beliefs,” Bishop Zubik said. “To be silent, to not speak up on where the church is on things, that wouldn’t be right.”

The bishop’s friends describe him as an adept leader with a down-to-earth approach. They cite his decision to sell the bishop’s mansion and live in a seminary apartment, his ease in going from a fish-fry to teach seminarians, and a walk-on part Thursday in the opening night of “Sister Act,” a musical playing in Pittsburgh. “He’s viewed as someone who grew up here and gets it,” said Mickey Pohl, a Pittsburgh Jones Day lawyer who brought Bishop Zubik’s case pro bono. They also say he is unwavering on certain matters.

Thomas Reese, a Jesuit priest and senior analyst for the National Catholic Reporter, said the decision to sue might lead to legal precedent allowing the government to override Catholic institutions on issues such as employees’ same-sex marriages, or assisted suicide.

“I would argue that losing this case before the Supreme Court could do more damage to the church in the future than accepting the Obama administration’s accommodation,” he said.

This article originally appeared in the Wall Street Journal.

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