A question that was only addressed, somewhat indirectly in Hobby Lobby, is how a compelling interest is determined. To recap, the Affordable Care Act did not specify which products must be covered under health insurance plans. For this task, they delegated the determination to a panel of appointed experts and the HHS bureaucracy. Then, the same bureaucracy determined that some, and not other religious groups would get an exemption to this rule.

Who gets to determine what is a compelling interest? Can a panel of experts and an administrative agency make this finding?

Justice Alito hints at this issue, with a reference to “arrogating the authority”:

Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi-pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Re- peatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausi- bility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).

This seems to be an oblique reference to Justice Kennedy’s question during Hobby Lobby about the “relationship between structure and rights.” As Justice Kennedy asked at the time:

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of ­­ of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

See also Ed Whelan and Adam White. That’s as far as this issue goes.

Beyond this, Justice Alito strongly doubts the government’s arguments concerning the “compelling interest.” Alito seems to scoff at HHS’s discussion of terms like “gender equality” as a “compelling interest.”

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49.

Justice Kennedy does not dispute these interests.

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to pro- tect the health of female employees, coverage that is sig- nificantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s opinion is its as- sumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.

Contraindicate is a fancy words which means that someone should not do something. So there are many medical conditions for which a person should not get pregnant.

Justice Ginsburg stresses that Justice Kennedy does not holding this view “grudgingly.”

23Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.).

Alito sees the benefit of affording access to contraceptives as, at best, a “marginal interest.”

This requires us to “loo[k] beyond broadly formulated interests” and to “scru- tiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).

Of course there is a difference between a right to obtain contraceptives, and a right to have your employer pay for it. Of course making someone pay for something makes it less likely they will consume it.

Alito summarizes, sympathetically, the arguments of Hobby Lobby:

The objecting parties contend that HHS has not shown that the mandate serves a compelling government inter- est, and it is arguable that there are features of ACA that support that view.

Alito offers a lengthy discussion on the grandfathered plans-an argument that I found somewhat besides the point. The real issue is that a governmentally-mandated benefit should not be considered compelling, in the context of other constitutional ends. In the end, he assumes, arguendo, that the interest is compelling

We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to con- sider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling govern- mental interest.” §2000bb–1(b)(2).

HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

What if the committee determined that third-term abortions were necessary, Justice Alito asks. Would that interest be compelling?

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in- stance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.

Justice Ginsburg describes the origin of the contraception mandate:

Congress acted on that understand-ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.

To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health. Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“co- payments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the spon- sors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This ex- panded access will reduce unintended pregnancies.”). As altered by the Women’s Health Amendment’s pas- sage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preven- tive care and screenings . . . as provided for in comprehen- sive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)(4). Thus charged, the HRSA devel- oped recommendations in consultation with the Institute

What exactly is the compelling interest? Access to birth control, or employer-provied birth control?

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contra- ception coverage enables women to avoid the health prob- lems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for Ameri- can College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107.