March 25, 2014
Least Restrictive Means
Posted by Brett Scharffs

The argument that there is no less restrictive means of accomplishing the government’s interest in providing contraceptives to women would appear to be even weaker than the argument that the government has a compelling state interest in imposing the burden of the contraceptive mandate on Hobby Lobby. There is a wide range of alternative ways the government could accomplish the objective of providing contraceptives to women who work at the small handful of companies that object to providing contraceptives or abortifacient drugs.

For example, the government could provide contraceptives to these employees through public clinics, or programs such as Planned Parenthood that receive large amounts of government funding. For those who do not live near a clinic, internet based systems and mail delivery could be used.

Or the government could provide a tax credit to women who work for employers with religious objections to providing the drugs in question. Such employees could make the certification themselves, and it could be checked in the way that other fraudulent claims are checked by the IRS.

Or the government could provide such employees with vouchers that they could use to obtain contraceptives.

Or the government could reimburse pharmacies that provide contraceptives to people who work for employers who have a religious objection to providing coverage.

These are just the alternatives I came up with after thinking about it for five minutes. Some strike me as better than others. Surely there are other alternatives that would relieve people with conscientious objections from being forced to provide contraceptives or abortifacient drugs. My point is simply this – this problem could easily be solved if we were living in an environment where there was a right and fulsome respect for religious conscience.

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