By Catholic News Service • Posted November 30, 2012

WASHINGTON (CNS) — After judges in two separate rulings Nov. 27 dismissed lawsuits filed by Catholic organizations and dioceses in Pennsylvania and Tennessee challenging the federal contraceptive mandate, Catholic leaders in both states expressed disappointment but also some hope the rulings left the door open to refiling their claims.

Two days later, a federal appeals court in St. Louis granted a temporary injunction against enforcement of the mandate while a Catholic business owner prepares an appeal of a lower court ruling that rejected his claim the federal requirement is a burden on his religious rights because he is morally opposed to providing contraceptive coverage.

In Pennsylvania, Pittsburgh Bishop David A. Zubik said Nov. 28 that he was disappointed in the U.S. District Court ruling but “very encouraged that it was ‘dismissed without prejudice.’ That means that we have every right to file again in the future.”

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The Diocese of Pittsburgh, along with Catholic Charities of the Diocese of Pittsburgh Inc., and the Catholic Cemeteries Association of Pittsburgh, filed suit in May against a U.S. Department of Health and Human Services mandate that requires employers to include coverage for contraceptives, sterilization and some abortion-inducing drugs free of charge, even if the employer is morally opposed to such services.

In Tennessee, the Nashville Diocese in a statement said the order of dismissal by the U.S. District Court there “does not foreclose the bringing of similar claims once the alleged administrative change to the mandate takes place.”

The Diocese of Nashville, joined by Catholic Charities of Tennessee, Father Ryan High School, Pope John Paul II High School, Mary Queen of Angels assisted living facility, Villa Maria Manor and St. Mary Villa Child Development Center and Aquinas College, which is owned and operated by the Dominican Sisters of St. Cecilia Congregation filed suit in federal court in mid-September against the HHS contraception mandate.

“The Diocese of Nashville and the seven Catholic entities continue to evaluate all of their options in light of the court’s decision,” it added.

In his Nov. 27 ruling, Judge Terrence F. McVerry of the U.S. District Court for the western district of Pennsylvania said the plaintiffs have not yet suffered harm from the mandate, because the government will not “enforce the challenged regulations against plaintiffs while accommodations are under consideration, and in any event no sooner than January 2014.”

He noted that the plaintiffs’ claims “are not ripe for judicial review and that the plaintiffs have not alleged an injury” under the existing law “sufficient to establish standing.”

The final rule on the mandate takes effect in August 2013. The Obama administration has put in place a yearlong period, called “safe harbor,” that protects employers from immediate government action against them if they fail to comply with the mandate.

On Jan. 1, 2014, the U.S. government begins imposing penalties on those who do not comply; the government also will fine individuals not covered by health insurance and employers that do not offer any coverage.

Bishop Zubik said the Pittsburgh Diocese and the other Catholic groups that filed suit will “now await in good faith the accommodation to religious freedom that the federal government has claimed it will offer,” but also stressed that “no modification to the original HHS mandate in regard to religious freedom has yet been made.”

He also noted that other courts “have reached differing conclusions in the challenges to the HHS mandate, so this remains fluid.”

“I do want to make clear, however, that we cannot and will not negotiate away our constitutional rights to religious freedom and religious expression,” he said.

The mandate, part of the Affordable Care Act, has a narrow exemption that applies only to those religious institutions that seek to inculcate their religious values and primarily employ and serve people of their own faith. It does not include a conscience clause for employers who object to providing such coverage.

In June, the administration finalized what it calls an accommodation, allowing those employers who object to providing contraceptives to pass on the costs of the mandated coverage to their insurance carriers or a third party, rather than pay for them directly. But many dioceses are self-insured, and Catholic officials say this policy offers no fundamental change.

In his Nov. 27 ruling, Judge Todd Campbell of the U.S. District Court for the Middle District of Tennessee, said in his ruling that the plaintiffs’ case “is not ripe for adjudication,” adding that the “plaintiffs’ desire to plan for future contingencies that may never arise does not constitute the sort of hardship that can establish the ripeness of their claims.”

In St. Louis, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit put the federal contraceptive on hold in a suit brought by O’Brien Industrial Holdings, a company that mines and processes ceramic and raw materials, pending the outcome of the appeals process.

In September, a federal court rejected the claims filed by Frank O’Brien, chairman of Industrial Holdings. The court ruled that the federal government’s contraceptive mandate was not a substantial burden on the employer’s religious rights. The judge also said that as a secular company, O’Brien Industrial Holdings “by definition cannot ‘exercise’ a religion and therefore cannot assert claims under (the Religious Freedom Restoration Act) or the First Amendment Free Exercise clause.”

Francis Manion, senior counsel of the Washington-based American Center for Law and Justice, which represents O’Brien and his company, said the temporary injunction “clears the way for our lawsuit to continue” and “sends a message that the religious beliefs of employers must be respected by the government.”