In a prior post, I argued that the Hobby Lobby decision properly accommodated the relevant interests because of the availability of a less restrictive alternative. Under that alternative, closely held business corporations would be treated for these purposes in the same way as religious corporations. As the Court put it, that sort of treatment “achieves all of the government’s aims while providing greater respect for religious liberty.” The Court said that the “effect of the HHS-created exemption on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Relying on that language, I concluded that the women at Hobby Lobby would not be harmed by the decision.
I was too fast. I continue to believe that the effect on women under the accommodation would be precisely zero, but that assumes the accommodation is in effect. Changes in administrative regulations, however, are not achieved by the stroke of a pen. The wheels of government administration grind slowly. The accommodation mentioned by the Court has not been in effect and when it finally goes into effect the new regulation will not be retroactive. This means that the effect of the Hobby Lobby decision on women is not zero. They are being denied the insurance afforded by the Affordable Care Act because of the decision. Women will be protected in the future when the accommodation goes into effect, but the women of Hobby Lobby have been thrown under the bus.
In general, I think it may be important in some circumstances for courts to take into account the political realism of less restrictive alternatives. For example, if the Court had declared that a less restrictive alternative was available for Congress to implement, I think it would be relevant to recognize that the Congress is not about to do anything on this subject. I know that most commentators would regard such a determination as unjudicial. But I do not believe the Court is required to be blind to obvious political reality.
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