Bench Memos

Is the HHS Mandate “Accommodation” Collapsing?

In the Hobby Lobby case, the Obama administration bore the burden under the Religious Freedom Restoration Act of showing that the HHS mandate was the least restrictive means of furthering a compelling governmental interest. The Hobby Lobby majority properly found it easy to conclude that the Obama administration hadn’t made its showing, as the Obama administration’s robust account of the supposed virtues of the “accommodation” that it has extended to religious nonprofits made it impossible for it to explain why it couldn’t extend that same arrangement to Hobby Lobby and other for-profit objectors.

It now seems that the Obama administration may have hoisted itself on its own petard of deceptions. As this article two days after the Hobby Lobby ruling discusses, the third-party administrators who have been tasked with administering the accommodation say that—surprise!—it “hasn’t worked in the real world” and, rather than being cost-neutral, has “left them stuck with the bill” for “potentially … millions of dollars … with no certainty they’ll ever be paid back.”

The immediate victims of the unworkability are the third-party administrators. But, as the article states, these administrators “may ultimately choose to drop clients with religious objections” to the accommodation. And they have every reason to oppose the extension of the accommodation to for-profit objectors. So the accommodation may be on the verge of collapse.

That the accommodation may be proving to be unworkable, I emphasize, is in no way an indictment of the Hobby Lobby majority’s reliance on it. Again, it was the Obama administration that had the burden to show the HHS mandate was the least restrictive means of furthering its interest, and the Obama administration’s representations—or misrepresentations—about the accommodation meant that it failed to meet that burden.

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