It’s a strange sort of balance. The Constitution provides specific protection to only the first of the two goods being balanced (“religious freedom” and “increased access”). That protection contains no hint of a suggestion that it is up to federal regulators to strike whatever balance they consider appropriate between religious freedom and their other goals.
Administration officials defending the decision in a conference call said they have no estimate of how many people would have greater access to contraceptive services as a result of the regulation — an admission that undermines the contention that a careful balancing took place. Further weakening that claim is Sebelius’s reliance on a recommendation from the Institute of Medicine, which, to judge from its report, heard from no representatives of any religious organization before making it. . . .
It’s not as though the administration has been insisting on a rigid application of the law in all other cases. It has been notorious for handing out waivers freely — just not to religious groups.