PEACEFUL COEXISTENCE

Commissioners’ Statements
79
O Centro, which was upheld by the Supreme Court, the “District Court concluded that the
evidence on health rises was ‘in equipoise,” and similarly that the evidence on diversion was
‘virtually balanced.’ In the face of such an even showing, the court reasoned that the
Government had failed to demonstrate a compelling interest ….” 169
In Hobby Lobby, however, the government survived application of the compelling interest test
only to be skewered by the least-restrictive-means test. 170 Justice Alito noted that the
government’s argument was fatally undermined by the existence of the so-called
“accommodation” for objecting religious organizations. 171 HHS could simply make this option
available to for-profit businesses, though concededly this may not satisfy all religious
objections. 172
Set aside the accommodation for a moment, as some religious businesses will likely consider it
to burden their religious exercise, as do a number of religious non-profits. Why is HHS so
fixated on providing contraceptives in this way? Presumably the government’s goal is not
merely to have contraceptives available for free to consumers, but for more women to actually
start using contraception regularly. If that is the goal, why doesn’t the FDA simply mandate that
all forms of oral contraceptives be sold over the counter? Plan B is now available over the
counter, and being able to purchase regular oral contraceptives over the counter would likely
reduce the cost of the drugs and would be less time-consuming than making an appointment for a
prescription and then going to the pharmacy. Or the government could simply reimburse
pharmacies directly for any contraceptives they dispense. That would not be more complicated
than reimbursing TPAs and insurers and providing them with an extra financial incentive. Or the
government could simply have contractors such as community health centers simply dispense
free contraceptives to all comers. None of these options need involve objecting employers at all.
Second, the government’s exemption of numerous classes of employers undermines the “least
restrictive means” prong as well as the compelling interest. “The regulatory scheme
grandfathers, exempts, or “accommodates” several categories of employers from the
contraception mandate and does not apply to others (those with fewer than 50 employees). 173
169
Gonzalez v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 426 (2006).
170
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
171
Id. at 2781-82.
172
In response to the Hobby Lobby decision, HHS issued new regulations extending the accommodation to closelyheld
for-profit businesses. Department of the Treasury, Department of Labor, Department of Health and Human
Services, “Coverage of Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41318,
41346-7 (July 14, 2015), available at http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf.
173
Department of the Treasury, Department of Labor, Department of Health and Human Services, “Coverage of
Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41318, 41332 (July 14, 2015)
(“Thirty-seven percent of employers offering health benefits offered at least one health benefit plan in 2014”),
available at http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf.