The Latest Conservative Challenge to the Contraceptive Mandate is an Embarrassment

Marty Lederman has two excellent posts about the oral arguments in Zubik v. Burwell earlier this week. The first deals with why the use of the “hikacking” metaphor to try to explain why the latest accommodation to employers with religious objections constitute a “substantial burden” is inapt.

Even if one assumes arguendo that these employers still face a “substantial burden” — and Kennedy’s position, like that of the other Republican nominees, seems to be that the word “substantial” should for all intents and purposes be read out of the statute — the government can still prevail if it can show that the new accommodation is the least restrictive means of advancing the compelling state objectives of the ACA. And here’s where the conservative arguments stop being merely implausible and become something worse. The proposed less restrictive choice available to the government posited by Alito and Roberts shows either egregious bad faith or nearly comprehensive ignorance of the relevant policy details:

The oral argument focused on one of the petitioners’ proposed alternatives, raised by Justice Alito–namely, offering women who work for an objecting employer the option of “obtain[ing] a contraceptive-­only policy free of charge on one of the Exchanges.” Because such contraception-only plans would not really be insurance plans in the typical sense–they would simply be a means of payment for preventive services that the women in question will purchase–such an option would have to be fully subsidized by Congress (for otherwise the insurance companies would have no incentive to offer such stand-alone “coverage”).

Such a “subsidized contraception-only Exchange plan” option would not be a less restrictive means of advancing the government’s compelling interests, for purposes of RFRA. Most obviously, it would, quite simply, result in fewer women having access to effective contraception–and thus more unplanned pregnancies–by creating (in the SG’s words) “precisely the kinds of barriers” to access “that Congress was trying to eliminate.” Part III-A-1-a of the Health Experts’ amicus brief (pp. 12-14), filed by Marcy Wilder and Hogan Lovells, offers a compelling explanation of why that’s the case: I set out that explanation below.

Before turning to that reason, however, there is an even more fundamental objection: A “subsidized contraception-only exchange plan” option cannot be a less restrictive means for purposes of RFRA because it would require a new legislative enactment, including a new appropriation (or some other financial mechanism, such as tax credits) to pay — in full — for the costs of the hypothetical contraception-only plans.

It’s worth clicking through to read the elaboration of the argument, which is definitive. I just wish I was equally optimistic about whether it will persuade Kennedy.