Feds’ Move On Contraceptive Coverage ‘Bullying’

Aug. 22--In what opponents call an "extremely aggressive" move, the U.S. Department of Labor is reaching out to private health care insurers and asking them to consider offering contraceptive coverage directly to employees of the religious entities in legal limbo amid a Supreme Court challenge to a provision of the Affordable Care Act.

"Highmark has received such letters," confirmed Pittsburgh-based Highmark insurance plan spokeswoman Wendy Morphew. "We are currently assessing each in light of our contractual obligations to our church plan clients, as well as the requirements of law."

Roman Catholic Diocese of Pittsburgh Bishop David Zubik -- lead plaintiff in Zubik v. Burwell, a group of related cases involving more than 50 religious groups -- said the unexpected letters threaten to further hamper progress in settlement talks that have stalled since late June.

"Just recently, without us knowing it, we learned the federal government was going to our third-party providers and saying, 'You better start providing the contraceptive services,'" Zubik told the Tribune-Review. "Well, that's not what you call sitting down at a table working out the differences."

Department of Justice spokesman Mark Abueg declined to comment. The Department of Labor did not return requests for comment.

The Pittsburgh diocese and Catholic Charities joined religious organizations nationwide in objecting to health care law rules mandating they and their affiliate agencies provide coverage for birth control or file a form opting out, after which the government could work with insurers to provide employees coverage without the religious entities' financial support.

Zubik and fellow petitioners argue that method is not a true opt-out, and would effectively make religious groups "complicit actors" in providing personal employee information to insurers for reasons they object to on moral grounds.

"The issue is not just the contraception, abortization or sterilization piece," said Zubik. "The issue is we need to be able to exercise our religious freedom as guaranteed by the First Amendment of the Constitution."

To avoid a 4-4 deadlock months after the death of Justice Antonin Scalia, the Supreme Court decided in May to send the grouped cases back to the lower courts -- and directed the parties to work at negotiating a compromise.

The Pittsburgh diocese's attorney, Paul "Mickey" Pohl, said he last met in person with the federal government's legal team on June 20. He said he was disappointed in how slow negotiations were moving, then became frustrated to learn government officials had begun soliciting their clients' secular insurers.

"That was a heavy-handed bullying move that surprised me somewhat," said Pohl, noting in addition to Catholic groups the 56 petitioners include Orthodox Jews and Baptists. "If they intended to go in that direction, I think civility and professional responsibility should have required them to just be candid with us.

"The issue is much more uncertain than the government is trying to tell the insurers," he said.

The high court's unanimous May 15 directive to send the cases back to the lower courts did not resolve any of the legal issues surrounding one of the most controversial provisions of the Obama administration's Affordable Care Act.

"The court expresses no view on the merits of the cases," Chief Justice John Roberts said as he read the Supreme Court's May opinion. "In particular, the court does not decide whether petitioners' religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest."

The health care law requires employers to provide insurance coverage for contraceptives and abortion-inducing drugs or face a fine of $100 per employee per day. The law exempts churches and other religious employers but not their nonprofit affiliates.

Practically, whether employees will have options for contraceptive coverage before a legal conclusion is unclear. "There's so many different types of plans and so many types of injunctions and court orders," Pohl said.

Representatives for Aetna, UPMC and UnitedHealthcare insurance plans declined to comment.

Douglas Laycock, professor of law and religious studies at University of Virginia, filed an amicus brief against religious petitioners in Zubik v. Burwell -- the first time he said he's sided with the government in 40 years of religious liberty disputes.

Unlike the Hobby Lobby case, religious groups "have been wholly exempted from providing contraception themselves," Laycock argued, "with segregated funds and segregated communications, through petitioners' secular insurers."

Laycock further argued that the petitioners' arguments actually "endanger religious liberty, both legally and politically," since "exaggerated claims and overreaching" to broaden narrow religious accommodations could make it so legislators steer away from making any future accommodations altogether.

"This can become a slippery slope that affects everything else," argued Zubik. "Any number of issues for any faith affiliation can be affected if we lose this battle."

Elizabeth Sepper, law professor at Washington University in St. Louis, said she believes the independent steps taken by the government seem to be within the scope of the Supreme Court's directive. But, she added, settlement gridlock and practical uncertainty also shows the high court's "dysfunction" and how its "unanimous decision was really a punt" until a ninth justice takes the bench.

"I can't tell if the government is moving in good faith and willing to talk about anything, or whether they're just going through the motions," Pohl said. "It may be that they are thinking they're going to win in the end, it may be that they're trying to come up with some new regulatory strategy, or it may be that the government just moves very slowly."

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