4. Has the government satisfied the least restrictive means test?
None of these approaches to the case involves making new law. But if the Justices wish to rest the decision on a still narrower ground, it could hold that the government failed to prove that the mandate is the least restrictive means of achieving its claimed interests. Justice Breyer may have been laying the groundwork for this type of resolution by asking why employer coverage is the least restrictive way to provide that access. Tr. 63. A decision focusing on least restrictive means would be easiest for the Court to distinguish in later cases, thus leaving the most room for the government to win future RFRA cases when its claims might be more meritorious.

Even accepting (arguendo) the notion that insurance coverage for contraceptives is a compelling interest, it is hardly obvious that the least restrictive way to provide that coverage is by forcing employers to provide it. Indeed, the government’s argument that Hobby Lobby should just drop insurance altogether demonstrates that the government actually does not view it as essential that people receive insurance through their employers as opposed to from other sources. The important point for the government, it seems, is that employees who work at Hobby Lobby have access to this coverage from some source.

This could be structured in any number of ways. The government could extend the same accommodation to the small number of businesses with this conscientious objection that it already has to religious employers. It could subsidize the contraceptive coverage directly. Employers with conscientious objections could compensate for not providing contraceptive coverage by adding other valuable coverage to the employees’ plans, thus ensuring that the employer receives no financial benefit from the objection and that the employees bear no net burden. The government could allow employers to substitute cash for coverage on a tax-free and tax-deductible basis.

Ultimately, the government’s problem here is that it has essentially reduced its own compelling interest to a funding question: Who should pay for the contraceptive coverage the government has decided people should have? Almost by definition, where the government’s claimed interest is merely a question of who should fund something, there will always be less restrictive alternatives, because the government can always choose to fund its own priorities (which it of course does with a great many things that even the government would not claim to be compelling interests).

The political dynamics of this case have attracted extraordinary attention, but the Supreme Court is a court of law, not of politics. The excellent questions posed at oral argument are evidence that the Court intends to decide this case in accordance with standard principles of constitutional and statutory analysis. My guess is that in the cold light of legal principle, the challenge to the contraceptive mandate will carry the day.