Supreme Court season is officially upon us, which means we can expect another round of HHS abortion-pill mandate cases and the strong possibility of the Supreme Court taking up one or more of them. And, thanks to the recent Dordt College victory in the Eighth Circuit, we have an official circuit split, meaning the probability of the Court taking one or more of these cases has significantly increased.
If you are scratching your head thinking this issue was already resolved with the Hobby Lobby/Conestoga Wood Specialties case a little over a year ago, you're half right.
While the Court said yes, a for-profit family business can operate their business in a way that is consistent with their beliefs and not be forced by the government to include life-ending drugs and devices in their employee health coverage, the Court did not resolve the same freedom issue for non-profit groups, including religious schools and ministries and pro-life organizations.
So, in an attempt to circumvent the inevitable continuing litigation (and despite an embarrassing losing streak in court), the government came up with a series of phony "accommodations" to pretend to solve the problem it had created. The current shell game has the non-profits sign a form that designates authority to their insurance company or third party administrator (TPA) to provide the drugs to their employees.
In other words, the government's solution to burdening the religious and moral convictions of its American charities and universities was to force them to sign a permission slip to be the government's drug mule. Specifically, the religious groups would be forced to: (1) buy a health plan with an insurer or TPA willing to provide abortifacients to their employees; (2) alter their health plan to ensure the provision of abortifacients, (3) notify or identify for the government their plan's insurer or TPA so that those people would provide the objectionable abortifacients , and (4) officially authorize those people as mules responsible for providing the abortifacients to which the religious groups object.
The so-called accommodation involves far more than sending notification of these organizations' religious objection. It legally and practically serves to bring about the provision of those drugs and devices, because the government forces a religious group to contract for the services in their health plans. The cost of not signing these permission slips? Crippling fines that would likely and quickly drive many of these non-profits out of existence.
What do we make of a government which forces elderly nuns and Christian universities to be the carriers of its objectionable drugs and devices—a government willing to attack the very religious convictions and life-affirming principles their institutions are founded upon? It defies common sense. No wonder the Pope met with the Little Sisters last week in Washington, D.C.
And so, in just a few weeks, the Supreme Court will begin the process of deciding which of these appeals, if any, they will address. Currently, there are seven petitions pending.
Though all parties are asking for their freedom to operate according to their life-affirming, religious beliefs, Southern Nazarene University et al. v. Burwell – a group of four Midwestern Christian universities –may just be the petition that gets granted. Here's why:
1. In Southern Nazarene, none of the relevant facts have ever been disputed at proceedings below. Courts like clean cases, so in a situation where they have the discretion to pick and choose as the Supreme Court does when they consider petitions of certiorari, they may be more inclined to choose one like Southern Nazarene that presents the issue without the baggage.
2. Similarly, no judge below suggested any deficiencies in the record. No baggage = an attractive case.
3. All of the elements of the Religious Freedom Restoration Act (RFRA) claims were briefed, argued below, and resolved. Thus, there is nothing that would need to be determined on this issue if the Court kicked it back on remand. If you remember the RFRA-pocalypse of the Spring, this in and of itself may be a reason for the Court to take a closer look at these universities.
4. Finally, and maybe most compellingly, Southern Nazarene provides a great vehicle to address a variety of health plans in a single case (similarly, the Geneva College case provides a similar "multi-plan" vehicle in the lower court's discussion). Health plans take various forms, and government bureaucrats made a mess of trying to impose this mandate on all of them. Consequently, the Court might want to review a case that involves a variety of health plan types, so it can resolve the various categories of religious non-profit challenges. A quick rundown: Oklahoma Baptist University and Oklahoma Wesleyan University offer insured plans to employees. Southern Nazarene University provides self-insured plans to their employees. Mid-America Christian University offers employee health benefits through a self-insured "church plan" as designated by federal employee benefits law. Additionally, Southern Nazarene University and Oklahoma Baptist University offer student health plans. All four of these universities object to drugs and devices that may prevent the implantation of a very early human embryo.
As both a woman and attorney, I hope to see the Supreme Court grant one or more of these petitions and put an end to the Administration's political and legal shenanigans. Indeed, the true #waronwomen is the agenda perpetuated by activist groups who reduce women to the sum of their sexual organs and activity. It is an agenda that paints women as a group obsessed with Plan B, determined to make their private sexual activity their bosses' business by demanding the government force them to provide those specific drugs and devices.
Isn't this kind of patriarchal thinking the very thing the feminist movement was created to combat? The Little Sisters of the Poor, the religious communities at these four Christian universities and many others deserve better. All Americans should oppose unjust laws that force people – under threat of punishment – to give up their fundamental freedoms in order to provide health plans that impose the government's view on human life and sexuality. Southern Nazarene provides a great vehicle for the Court to ensure justice is preserved.
Kerri Kupec is the legal communications director for Alliance Defending Freedom. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.