At SCOTUSBlog, Lyle writes:
Seven groups of religious non-profit hospitals, charities, and colleges on Tuesday evening gave their full endorsement to the Supreme Court’s new compromise proposal for deciding the legality of the Affordable Care Act’s birth-control mandate, saying that the idea would keep them from violating their faiths. They also argued that the mere suggestion of an alternative makes it clear that the existing ACA regulations on contraceptives are illegal under the Religious Freedom Restoration Act.
Respectfully, I don’t think this is a fair characterization of the Petitioner’s brief. They didn’t endorse the Court’s proposal. Rather, they said the fact that such an accommodation exists is proof that the exiting accommodation is not the least restrictive means. The brief specifically indicates that they do not endorse any alternative:
To be clear, that is not to say that petitioners endorse such an approach as a policy matter. Many of them most emphatically do not, as they sincerely believe that the use of some or all forms of contraception is immoral, and they are hardly indifferent to efforts to encourage or facilitate that use. For that reason, petitioners may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else. And petitioners certainly have the right, protected by the First Amendment, to make that disagreement known. At the same time, however, petitioners do not object under RFRA to every regulatory scheme in which the employees of a petitioner with an insured plan can obtain contraceptive coverage from the same insurance company with which the employer has contracted to provide a health plan. Petitioners simply object to having to play a morally impermissible role in the process through which those insurance companies (or anyone else) might provide contraceptive coverage to their employees. If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.
The petitioners only accept it for argument’s sake for purposes of the RFRA least-restrictive means analysis.
Update: Lyle repeats the same erroneous point at the National Constitution Center Blog:
Even so, there was some “give” on the government’s side, even on points that it would prefer not to forfeit, and there was, in fact, an almost enthusiastic acceptance of the court’s idea on the other side, by religious non-profit hospitals, charities and colleges that object to contraceptives, at least in some forms. …
The non-profits’ brief argued that the federal government could easily adapt to a regime in which the non-profit institutions with religious objections would simply be granted the equivalent of a total exemption from the ACA contraceptives mandate. And, they said, there were other available alternatives that would also keep them completely out of the process – such as the government setting itself up as the direct provider of birth-control devices and birth-control health coverage, or making contraceptives available through the new ACA health insurance exchanges, or marketplaces..
It was clear from the non-profits’ filing that they thought the court, in seeking reaction to its own suggestion, had sent a signal that it was ready to give them what they were seeking through the multitudes of lawsuits challenging the ACA mandate for contraceptives.
As Greg Lipper–who filed a brief in support of the government noted on Twitter last night–this is not right.
@JoshMBlackman Yep, Lyle got that wrong.
— Greg Lipper (@theglipper) April 13, 2016