[The government's] accommodation requires the institution to notify the government of its objection; that, the government argues, is enough to excuse that institution from any direct role in providing contraceptives to their female employees. From then on, it is the government, working with the institution’s health insurer, that actually provides the free access to contraceptives for those employees....The organizations argue that their exercise of religion is substantially burdened by this level of involvement in the process. If this need to avoid even direct participation counts as a substantial burden on religion, then the government must have a compelling interest and it must meet that interest with the "least restrictive means."
The religious institutions have countered that, because the plans that will provide for the access are those institutions’ own heath insurance systems, the government will “hijack” those to provide the contraceptives. The mere act of notifying the government of a religious objection, those institutions have contended, works as a “trigger” to the government to go forward with contraceptive coverage through their plans. That, the institutions have said, confronts them with the choice of violating their religious beliefs or paying the heavy fines.
In Hobby Lobby, the Supreme Court didn't decide but assumed that "the interest in guaranteeing cost-free access" contraception was compelling. It said that the government had certainly not used the least-restrictive means, because it didn't even give the accommodation that it worked out for not-for-profit organizations.
In these new cases, the question is whether even that accommodation is the least restrictive, a question Hobby Lobby left open. As the Court wrote in that case, the "most straightforward" accommodation "would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections."
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