(For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on the interest in sex equality. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting sex equality, since it would provide women employees with the same benefits as they would get under the unmodified employer mandate.)
1. One version of this interest is in preventing intentional sex discrimination. When an employer refuses to cover contraceptives that can only be used by women, the argument would go, it is engaged in sex discrimination, just as if it paid women less — even only a bit less — than men. The Court would likely find the interest in preventing such sex discrimination in employment to be compelling. See Bob Jones Univ. v. United States (1983); Roberts v. U.S. Jaycees (1983).
The problem with this argument is that the Court has never treated regulations of abortion as tantamount to sex discrimination, even though only women can get abortions. (I don’t want to focus here on whether that’s right or wrong; I’m just speaking of what the majority view on the Court has been, and is likely to be.) Indeed, the Court rejected such an argument in Bray v. Alexandria Women’s Health Center (1993). It rejected an Equal Protection Clause challenge to the exclusion of abortion from federal funding in Maher v. [...]