The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. (Emphasis mine.)What does that mean? It means that if and when the government can demonstrate the least restrictive means of requiring these employers to provide cost-free access to those drugs that The Court may very well uphold the government's power to do so.
This decision was based on the Religious Freedom Restoration Act (RFRA) not on the constitutionality of the ACA.
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Government [from] substantially burden[ing] a persons exercise of religion even if the burden results from a rule of general applicabil- ity unless the Government demonstrates that application of the burden to the person(1) is in furtherance of a compelling govern- mental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
The SCOTUS said in the ruling:
“We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)”
http://www.nationalreview.com/bench-memos/381545/hobby-lobby-ruling-ed-whelan
From the ruling:
“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 consider 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. - Page 40
Few seem to understand this. It's a legal and judicial loophole, not it the Constitution, but in the demagogues' cunning misinterpretation and application of it.
There have been two schools of thought in modern SCOTUS decisions as to where to draw the line: one doctrine, which originated with Justice Brennan during the Warren Court era, said that the Government can force someone to violate their religious beliefs only if it has a "compelling governmental interest" in doing so (e.g., preventing murder or funding the Army) and the law used the "least restrictive means" of serving that interest.
Later, a narrow majority of the Court (ironically, led by Justice Scalia) overruled the Brennan test and said the Government could force someone to violate their religion as long as the law was "generally applicable" and didn't single out any particular religion for discrimination. (Under that view, the Contraception Mandate would be constitutional.)
Congress was unhappy with Scalia's view, and reinstated the Brennan test by statute in the Religious Freedom Restoration Act (passed unanimously by both houses of Congress-- no one liked Scalia's test).
Thus, the issue in this case was not whether the Contraception Mandate was Constitutional, but whether it violated the RFRA. The majority said that there may be a compelling interest in guaranteeing women birth control, but Congress can achieve that goal by a less restricitve means (e.g., having the Government pay for it directly.)