Guide to Zubik/Little Sisters Merits Briefs—Part 5 (Not Least-Restrictive Means)

by Ed Whelan

See Parts 1, 2, 3, 4

In order to prevail against the nonprofit religious challengers, the Obama administration would need to show both that the massive burden it is imposing on their religious beliefs furthers a compelling governmental interest and that it is the least restrictive means of furthering that compelling governmental interest. As I outlined in my Part 4 post, it can’t satisfy the first prong. The Little Sisters brief (pp. 72-78) and the Zubik brief (pp. 72-82) also show that the government can’t establish that the so-called accommodation is the least restrictive means of furthering whatever governmental interest exists. Among their points:

1. If any employees of the objecting religious nonprofits want a health plan that includes contraceptive coverage, they have the same option that the Obama administration has been touting for all Americans: obtain their insurance on an exchange. This, of course, is the very step available to the tens of millions of employees of entities that are exempt from the HHS contraceptive mandate. (See Part 2, point 1.)

The possibility that congressional action might be needed to ensure the availability of subsidies on the exchanges is immaterial, as the Court has routinely identified options that would require congressional action as less restrictive means. In any event, the Obama administration can’t complain about the need for congressional action when it is its own concoction of an ad hoc exemption for some religious employers that might create any such need.

2. The numerous other options that the Obama administration could pursue, and that are less restrictive of the religious liberty of the objecting religious nonprofits, include use of the existing Title X program.

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