A suit brought by the Roman Catholic Diocese of Pittsburgh arguing that the Patient Protection and Affordable Care Act, commonly called Obamacare, infringed on its right to freedom of religion was dismissed by a federal judge this week.
It was one of 40 similar cases brought nationwide, U.S. District Judge Terrence McVerry of the Western District of Pennsylvania said in his opinion. McVerry didn’t reach the substance of the claim because he dismissed the case after finding that it wasn’t ripe. He further held that the diocese didn’t have standing.
"In light of the clear and concrete steps that defendants are taking to address the concerns of plaintiffs, including their commitment not to enforce the challenged regulations against plaintiffs while accommodations are under consideration, and in any event no sooner than January 2014, plaintiffs’ claims are not ripe for judicial review and plaintiffs have not alleged an injury in fact under existing law sufficient to establish standing," McVerry said in Zubik v. Sebelius.
The diocese objected to the part of the law that requires group health care plans to include coverage for "preventive care" for women — a category it left undefined, handing the details to the Health Resources and Services Administration to determine. The HRSA is an agency within the U.S. Department of Health and Human Services, the secretary of which was the first defendant.
In the summer of 2011, after the law was passed, the HRSA issued the guidelines for women’s "preventive care" coverage, which included "the full range of Food and Drug Administration-approved contraceptive methods," according to the opinion.
That provision doesn’t apply to grandfathered health plans or to certain religious employers.
Early this year, the HHS announced there would be a "temporary enforcement ‘safe-harbor’ for group health care plans sponsored by certain nonprofit organizations with religious objections to contraceptive coverage that do not qualify for the religious employer exemption," according to the opinion.
The diocese, Catholic Charities of the Diocese and the Catholic Cemeteries Association of the Diocese of Pittsburgh, which are also plaintiffs in the suit, employ and serve people of all faiths. Two of the criteria for qualifying as a religious employer are primarily employing and serving people who share the organization’s religious beliefs.
The HHS announced it would "’work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, nonprofit religious organizations with religious objections to such coverage,’" according to the opinion.
In March, it published an advance notice of proposed rulemaking, notifying the public that it would amend its final regulations to help accommodate religious nonprofits that object to contraception, while still ensuring that beneficiaries under those organizations’ health plans get contraceptive coverage without cost sharing, McVerry said.
That process is still ongoing, which is largely why McVerry held that the case wasn’t ripe.
Relying on the U.S. Court of Appeals for the Third Circuit’s 2003 opinion in Peachlum v. City of York, the plaintiffs argued "that this case should be subject to a relaxed ripeness standard because it involves fundamental rights," McVerry said in a footnote. "However, even under this relaxed standard, their claims would still not be ripe. In Peachlum, the Third Circuit Court of Appeals indicated that, in such cases, ‘even the remotest threat of prosecution, such as the absence of a promise not to prosecute, has supported a holding of ripeness where the issues in the case were "predominantly legal" and did not require additional factual development.’"
Here, McVerry said, the government has promised not to enforce the law, through its safe harbor provision and, further, it is unclear how the law will end up affecting the diocese.
"In this case, the safe harbor provisions of the regulation itself protects all of the plaintiffs from any potential enforcement action until at least January 1, 2014. Further, the health care plan offered by the diocese, as well as three of the four health care plans offered by Catholic Cemeteries, share additional protection under the regulations insofar as they are each grandfathered under the ACA," McVerry said.
Once the amendments to the law are made final, the diocese will have the opportunity to challenge them in court, McVerry said.
Although McVerry didn’t need to address the issue of standing after holding that the case hadn’t met the bar for ripeness, he chose to.
Similar to his reasoning in evaluating the ripeness issue, McVerry said the diocese’s argument that it would be harmed by the potential effects of a not-yet-complete regulation didn’t meet the standard for injury in fact that is necessary for standing.
"Plaintiffs’ allegations of injury rest entirely on plaintiffs’ speculation that the contested regulations in their current form will apply to plaintiffs in January 2014. However, defendants have actively begun the process of amending the regulations to address the specific religious objections which plaintiffs raise in this litigation," McVerry said.
Bradley Humphreys of the U.S. Department of Justice represented the government and said he could not comment on the case because of department policy. John Goetz of Jones Day in Pittsburgh represented the diocese and couldn’t be reached for comment.
(Copies of the 28-page opinion in Zubik v. Sebelius, PICS No. 12-2246, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •