In these cases, as in the for-profit ones, the government must establish
not only a compelling interest, but also that it has used the least restrictive
means to further that interest.
87 Here, the nonprofit plaintiffs argue that the
government can achieve its coverage goals by providing the contraceptive
services or coverage directly to the plaintiffs’ employees or through tax incentives to consumers.
88 Some district courts agree,
89 and the Supreme
Court is likely to ultimately resolve whether the accommodation violates
That decision, as well as the one in Hobby Lobby, will have broad implications, not only for health insurance benefits for women, but for employee
coverage in general. The Hobby Lobby Court wrote that it was not addressing other coverage requirements, such as immunizations and anti-depressants, or handing a “shield” to employers seeking to discriminate in
hiring on the basis of race or other prohibited factors.
90 But while those issues were not before Court, the Court did not explain why its analysis
would not apply equally to these other contexts. Indeed, broad potential
ramifications for civil rights and fair housing have also been noted.
91 Further, it remains to be seen which types and how many other corporations
could assert RFRA claims under Hobby Lobby.
IV. ROUND THREE: SEEKING TO ENFORCE THE ACA
Unlike previous litigation, which has overwhelmingly sought to strike
down or obstruct enforcement of the ACA, Round Three litigation is
emerging to enforce provisions of the ACA. In recent months, lawsuits have
asked courts to enjoin state laws that restrict the activities of individuals
who are federally certified to inform and assist uninsured individuals to en-
roll in qualified health plans (QHPs) under the ACA.
The ACA includes comprehensive provisions to ensure that consumer
assisters are available to provide individuals with accurate, impartial, and
timely information about their health insurance options and, thereafter, to
42 U.S. C. A. § 2000bb- 1(b)( 2) (West, WestlawNext through Pub. L. No. 113-93
(excluding Pub. L. No. 113-79) approved Apr. 1, 2014).
88. See, e.g., E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, 2013 WL 6838893,
at 23-24 (S. D. Tex. Dec. 27, 2013) (discussing less restrictive alternatives identified by
89. See, e.g., id.; Diocese of Fort Wayne-South Bend, Inc. v. Sebelius, No. 1:12-CV-
0159, 2013 WL 6843012, at 15-17 (N. D. Ind. Dec. 27, 2013).
90. Hobby Lobby Stores, Inc., 2014 WL 2921709, at 26.
91. Laurie Sobel & Alina Salganicoff, Kaiser Family Found.,
A Guide to the Supreme
Court’s Review of the Contraceptive Coverage Requirement 6 (2013), http://kaiserfamily
92. Hobby Lobby Stores, Inc., 2014 WL 2921709, at 38 (Ginsburg, J., dissenting).