This case was one of 12 cases filed on May 21, 2012, in federal district courts across the country, by non-profit Catholic organizations challenging the ACA's provisions to ensure that employee health insurance covers birth control. In each, the plaintiffs objected to notifying the government or their health insurer that they were claiming a religious exemption from provision of contraception. That self-certification assisted the government in working with the insurer or health benefits provider to ensure that the plaintiffs' employees would have access to contraception. The employers who filed this group of cases argued that this approach violated their religious liberty because their certification started a chain of events that resulted in their employees receiving contraception.

This particular case was filed by Bishop Zubik, of the Roman Catholic Diocese of Pittsburgh, and the Catholic Charities of the Diocese of Pittsburgh.

(See Zubik v. Sebelius [II] for the second iteration of this claim, which is in front of the Supreme Court in the spring of 2016; on March 23, 2016, the Supreme Court will hear argument on whether the current regulation violates the Religious Freedom Restoration Act.)

In 2010, Congress passed the Affordable Care Act, which requires employers who offer their employeees health insurance to provide coverage of preventive care and screenings for women, without cost sharing (such as a copayment, coinsurance, or a deductible), following guidelines established by the Department of Health and Human Services (HHS). In 2012, HHS's regulation was issued, and required covered of were issued, and included “[a]ll Food and Drug Administration . . . approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. 77 Fed. Reg. at 8725. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R.
§ 147.130(a)(1)(iv).

The implementing regulations, issued in February 2012, authorized an exemption from contraceptive coverage for the group health plan of a “religious employer,” 45 C.F.R. § 147.131(a).

In order to qualify as a “religious employer,” an employer had to meet the following criteria:
(1) Has the inculcation of religious values as its purpose.
(2) primarily employs persons who share its religious tenets;
(3) primarily serves persons who share its religious tenets; and.
(4) is a non-profit organized as a church

At the same time as posting the regulations, HHS established a temporary enforcement “safe-harbor” for group health care plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage that did not qualify as religious employers. Such organizations were required to "self-certify" that they satisfied the safe-harbor criteria.

On March 21, 2012, HHS published an “advance notice of proposed rulemaking” (“ANPRM”), in which it announced its intention to propose regulatory amendments that “would establish alternative ways to fulfill the requirements of [the ACA] when health coverage is sponsored or arranged by a religious organization that objects to the coverage of contraceptive services for religious reasons and that is not exempt under the final regulations published February 15, 2012.” 77 Fed.Reg. 16,501.

The plaintiffs asked the U.S. District Court for the Western District of Pennsylvania to find that the federal government had violated their rights under the Religious Freedom Restoration Act (RFRA), the Administrative Procedure Act (APA), and the First and Fifth Amendments, by requiring them to start the process that would provide contraception to their employees. Represented by private counsel, they asked the court to issue a preliminary and permanent injunction prohibiting enforcement against them of the ACA's contraception mandate or certification requirement.

On November 27, 2012, the District Court (Judge Terrence F. McVerry) granted the government's motion to dismiss without prejudice for lack of ripeness and standing. 911 F. Supp. 2d 314, 318 (W.D. Pa. 2012). The Court found that since the government was amending the regulation to address the concerns of religious employers, the plaintiffs' claims were not ready for judicial review, particularly since the plaintiff hadn't yet been hurt by the regulations.

On January 23, 2013, plaintiffs appealed the District Court's order to dismiss. The parties then reached an agreement that was not made public, and on July 23, 2013, a clerk for the U.S. Court of Appeals for the Third Circuit (Marcia M. Waldron) dismissed the case pursuant to Fed. R. App. P. 42(b), without cost to either party.

The final regulation came out in July 2, 2013, On October 8, 2013, the plaintiffs filed a new lawsuit, again in the Western District of Pennsylvania. See Zubik v. Sebelius [II]. The Supreme Court will hear that case on March 23, 2016; decision is expected by the end of June 2016.

Joshua Arocho - 05/22/2012
Richard Jolly - 04/20/2014
Kate Craddock - 03/07/2016


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