This thought suddenly occurred to me Monday night as I was prepping for a Google Hangout to discuss the Hobby Lobby ruling: The majority opinion gave a roadmap for how the Obama administration can essentially moot the ruling unilaterally. In fact, they can do it today if they want. Let me explain.
In the ruling, Justice Alito pointed out that the contraception mandate was not the least restrictive means of achieving the goal — the compelling state interest — of maximizing birth control coverage. One of the ways he said it could be done without burdening the religious freedom of companies by forcing them to pay for contraception would be to extend the accommodation already granted to religious non-profits and offer it to religious for-profits as well.
That accommodation means that if a religious non-profit objects to the mandate, they just have to notify the government and their insurance company must then provide a rider to cover contraception without charge to each employee that wants one. And the ruling says that they can just extend that accommodation to religious for-profit companies and that would be a constitutional way to achieve the goal. At first I thought that this would require Congress to amend the law, but I was wrong.That accommodation was not part of the original bill at all. It was an implementation rule written by the Department of Health and Human Services and released in December, 2012. So they can now amend that accommodation without congressional approval. To make sure I was on the right track, I asked my good friend Dan Ray, who teaches constitutional law, to comment on it. He said:
Yes, Ed, I think that’s right. HHS will modify the regs to extend the secondary accommodation to closely-held for profits. If the challenge to the secondary accommodation fails – as it should – then the immediate damage from the decision is limited.
I fully expect President Obama to do this pretty much immediately. That would, for all practical purposes, moot this ruling and make it irrelevant when it comes to contraception coverage.