Southern Nazarene University, Oklahoma Baptist University, Oklahoma Wesleyan University and Mid-America Christian University are all involved in a lawsuit over the birth control mandate through the Affordable Care Act. The lawsuit’s name is Southern Nazarene University v. Burwell. The case has been consolidated with several others, including the more prominent Little Sisters of the Poor Home for the Aged v. Burwell. The Supreme Court heard oral arguments for these cases on Wednesday, March 23.
The Affordable Care Act mandates that certain employers provide “preventive care” at no charge to employees in their group healthcare plans. The Department of Health and Human Services defined FDA approved contraceptives as preventive care. The four colleges object to a few of the contraceptives covered: Plan B, ella, certain IUDs and “related counseling.” These contraceptives may prevent the implantation of a fertilized egg, which the petitioners believe is killing a human life. They believe that the Ten Commandments, with its prohibition on murder, prevents them from “facilitating, assisting in, or enabling” the use of those contraceptives.
The Department of Health and Human Services does offer a partial exemption from the mandate for religious non-profit organizations (of which all four colleges are). HHS allows religious non-profit organizations to submit a form detailing a religious exemption. That form would then cause a third party to pay for the contraceptives. The department believes that this absolves religious non-profits because they would not have to pay for the contraceptives themselves.
However, the four colleges do not believe that the exemption is enough to absolve them from involvement with what they see as murder. They argue that they are still required to change their healthcare plans in order to provide contraceptives they find objectionable, to notify the government of the objection so that another party can offer the contraceptives, to authorize the provision of the contraceptives and to contract with a third party that will provide the contraceptives.
The four colleges’ suit primarily uses the federal Religious Freedom Restoration Act (RFRA). It requires courts to use strict scrutiny whenever there is a conflict between religion and an otherwise neutral law. That means, first of all, that whenever a law interferes with religion, that it does so only under a compelling government interest and by using the least restrictive means of achieving that interest. Basically, that means courts will expect the government to have a very good reason for a given policy and that there isn’t a less harmful way of achieving that end. Strict scrutiny puts the burden on the government to prove those assertions.
With the death of Antonin Scalia, it is much more likely that the Supreme Court will be equally split. If that happens, the resolution of the case will probably be based on the lower court rulings, which have sided with the government.