Roman Catholic Diocese of Pittsburgh asking Supreme Court to hear case | TribLIVE.com
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Aaron Aupperlee
U.S. Supreme Court in Washington, D.C.

A challenge to the Affordable Care Act from two Western Pennsylvania Catholic dioceses has a strong chance of appearing before the U.S. Supreme Court, attorneys and legal experts familiar with the high court said.

The dioceses of Pittsburgh and Erie petitioned the nation’s highest court Friday to hear their objections to provisions in the federal health care law mandating the church and its affiliate agencies provide coverage for birth control or file a form opting out.

The lawsuit attempts to stop a “slippery slope” eroding religious freedom, Bishop David Zubik of the Pittsburgh diocese said Friday during a breakfast marking the Roman Catholic Church’s World Communications Day.

“One of the things that I find frustrating is that so many people will pooh-pooh our concern about the issue as an issue of contraception and of abortifacients. That is not the argument,” Zubik said. “The argument is the government is telling us what we can or can’t do.”

Bishop Lawrence Persico of the Erie diocese said petitioning the Supreme Court is “an important next step in defending our sincerely held religious beliefs.”

The Department of Justice declined to comment.

The Supreme Court hears a fraction of the cases brought to it each year. Several factors would make the dioceses’ case attractive to the justices, attorneys said.

“It’s the significance of the matter,” said Bruce Ledewitz, who studies law and religion at Duquesne University. “This is obviously a very important issue. A lot is riding on it. The political parties are divided about it. The president’s signature issue is at stake.”

Sara Rose, a staff attorney with the American Civil Liberties Union of Pennsylvania, said the case is unique because it was heard at the circuit court level after the Supreme Court handed down in 2014 a decision in the Hobby Lobby case granting religious exemptions to for-profit companies.

The diocese case could decide exemptions for nonprofit entities.

The Supreme Court sent similar cases decided before the Hobby Lobby decision back to circuit courts for reconsideration, Rose said.

“The fact that there are so many of these cases percolating up through the court of appeals, the court is going to have to take one of these cases,” Rose said. “There’s actually a pretty good chance that the court would hear this case.”

The ACLU filed a brief in support of the government’s position when the case was before the 3rd Circuit, Rose said. The group would likely file another brief if the case went before the Supreme Court.

Keith Whitson, vice chair of the Allegheny County Bar Association’s Appellate Practice Committee, said while the Supreme Court will likely hear a case involving religious nonprofits and the Affordable Care Act, it might not be from the Pittsburgh and Erie dioceses.

Whitson, an attorney with the Downtown firm Schnader Harrison Segal and Lewis, said the high court typically hears cases after there has been a split of opinion at the circuit court level. Circuit Courts have consistently ruled in favor of the government, so the Supreme Court may wait until a split happens — perhaps in one of the pre-Hobby Lobby cases sent back down — to hear a case.

“The Supreme Court is really looking for those issues that are going to set a precedent, and they are particular interested in those issues where there has been a split of opinion,” Whitson said.

John Goetz, an attorney with Jones Day, the law firm representing the dioceses, said there is evidence of a split of opinion among the lower courts. Zubik and Persico present unique arguments and the most complete case that he has seen, Goetz said.

The bishops testified before U.S. District Judge Arthur Schwab during a hearing in 2013 that included testimony from other witnesses, evidence and exhibits that are part of the record in the case, Goetz said.

Schwab ruled in favor of the dioceses, exempting them from the mandates. The 3rd U.S. Circuit Court of Appeals reversed Schwab’s ruling and denied a further appeal by the dioceses.

U.S. Supreme Court Justice Samuel Alito issued an order in mid-April granting the dioceses temporary relief from the lower court’s decision that they must fill out a one-page form stating they morally object to the coverage or face hefty financial penalties.

The Catholic Diocese of Greensburg has filed a similar challenge and was granted a permanent injunction in August stopping enforcement of the mandate. The Greensburg case was put on hold pending the outcome of the Pittsburgh and Erie case, said Bishop Lawrence E. Brandt of the Greensburg diocese.

Goetz said he did not expect the Supreme Court to rule on whether to take the case until fall.

Aaron Aupperlee is a staff writer for Trib Total Media. He can be reached at 412-320-7986 or [email protected].

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