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Appeal filed in HHS mandate lawsuit
archived from: 2013-02-01
by: Pittsburgh Catholic Staff Report

Parties are hopeful an accommodation can be reached

Bishop David Zubik, the Diocese of Pittsburgh, Catholic Charities and the local Catholic Cemeteries Association have appealed the district court order dismissing without prejudice their case challenging the Health and Human Services mandate.

The motion filed Jan. 23 requests that the Third Circuit reach a different conclusion regarding the jurisdictional arguments raised by the federal government.

This is one of approximately 40 cases nationwide challenging the HHS mandate as a violation of the constitutional right to religious freedom and religious expression.

The mandate requires certain religious organizations judged "non-exempt" by the government to provide medical coverage for practices directly contradicting their religious beliefs.

The HHS requirement would apply to all secular employers and faith-based entities.

A narrow religious exemption to the mandate is for faith-based entities that serve primarily members of that faith, employ primarily members of that faith and whose purpose is education in that faith.

As a result, the HHS mandate applies to all faith-based social service agencies and many other faith-based institutions, including universities and medical facilities, that cannot come within this exemption.

U.S. District Judge Terrence McVerry had dismissed the Pittsburgh lawsuit without prejudice based on the very narrow legal argument made by the federal government that there has yet been no real damage to the plaintiffs. The lawsuits, in legal parlance, are not "ripe." "Dismissed without prejudice" means the suit can be refiled by the plaintiffs.

He concluded that the claims by the diocese are not yet "ripe" for judicial review based on the federal government announcing that it would grant a one-year "safe harbor" until August 2013 on enforcement of the mandate, and penalties would not be imposed on the Pittsburgh faith-based entities until January 2014.

The diocese does not agree with his interpretation that the current state of the mandate causes no harm, since trying to plan for the future in the face of such a serious threat is nearly impossible.

Rita Ferko Joyce, diocesan general counsel, said there is a strong consensus among the attorneys and plaintiffs that "while we await the proposed resolution of this matter by the federal government, it is important to keep our case alive before the courts because of the gravity of this issue to the Catholic Church."

"We remain cautious yet hopeful that a reasonable accommodation can be reached that does not infringe upon our religious freedom and does not compel us to violate our conscience," she said. "Because there is yet no word from the government, we are convinced that there is no other recourse available to us other than to file an appeal."

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