WASHINGTON -- The Supreme Court has taken four big whacks at the Affordable Care Act in as many years. But the conservative justices still don't seem to understand how it works.
During oral arguments this week in Zubik v. Burwell -- a set of seven challenges to Obamacare's contraceptive-coverage mandate on behalf of religious nonprofits -- Chief Justice John Roberts and his colleagues on the court's conservative wing gave the impression that they don't really grasp what the ACA's health insurance exchanges do, or indeed how the market for health insurance itself even functions.
In a nutshell, Zubik hinges on the question of whether it's a "substantial burden" for religious nonprofits to be required to fill out a form noting their objections to providing contraception under the law. The Little Sisters of the Poor and a smattering of religious nonprofits from across the country argue that it does -- that, in fact, it essentially makes them complicit in providing coverage for services they view as sinful. The federal government, which provided this accommodation, obviously disagrees.
During a back-and-forth in the courtroom about women whose employers don't cover contraception, and the subsequent lengths they must go to get it, Roberts suggested that it's not actually a big deal if women in such situations have to get their birth control covered some other way. Justices Anthony Kennedy and Samuel Alito appeared to share the same belief.
“They’re on the exchanges, right?” Roberts said, implying that women without access to contraception from their religious employers can just sign up to receive it through the federal insurance exchanges instead.
For Justice Sonia Sotomayor, this seemed to be the last straw.
“They’re not on the exchanges,” she said. “That’s a falsehood.”
Sotomayor went on to explain to Roberts -- and anyone else who needed to hear it -- how exactly the exchanges work.
“The exchanges require full-service health insurance policies with minimum coverages that are set forth that are very comprehensive,” she said.
Sotomayor is correct: There is no such thing as a "birth control only" policy. The Affordable Care Act simply doesn't allow any type of insurance that isn't comprehensive to be sold on the exchange marketplaces. Roberts either didn't know that, or was pretending not to. In most states, even dental plans for adults are only available to those who also are buying full-coverage medical insurance.
In other words, it is impossible, under current law, to go out and buy contraceptive-only coverage on the exchanges. That would amount to "creating a new program," as Sotomayor said. These marketplaces are intended for people whose employers don't even offer them health benefits, not for people seeking supplemental coverage of some kind.
Even if the law were changed to make it possible to buy "birth control only" coverage, insurers would have little incentive to offer it. Insurance works when lots of people buy it and only some people use it. A customer in the market for an insurance policy that covers only one thing -- like contraception -- presumably intends to use that benefit, which undermines the entire point of insurance.
U.S. Solicitor General Donald Verrilli repeatedly argued Wednesday that despite what Roberts and Alito evidently believe, it's not easy for women to get contraception covered some way other than their health insurance.
At one point, Verrilli urged Roberts to “put yourself in the position” of a woman without contraceptive coverage. As Verrilli pointed out, the underlying aim of the so-called birth control mandate is to ensure that virtually all insured people have access to this benefit as part of their regular insurance coverage for preventative medicine.
"It is precisely the problem," Verrilli said in response to a question from Alito urging a contraceptive-only plan. "It's not a less restrictive alternative, because it has precisely the problem Congress was trying to overcome in the preventive services provision."
Thus, the proposed "fix" for the disagreement in Zubik would leave all of these employees without birth control benefits -- a scenario that would directly contradict Congress' intent.
The consequence of this kind of diminished access is clear when it comes to another medical service that provokes a religious backlash: abortion. The Affordable Care Act doesn't require all health insurance companies to cover abortion, and it prohibits federal subsidies from being applied to that end. Health insurers that want to cover abortion have to "segregate" the funds and pay for that coverage separately.
Prior to Obamacare, abortion was a standard covered benefit in most private health insurance. But state lawmakers have clamped down, and many states now forbid insurance from covering abortion, even for women who don't receive federal subsidies for their insurance.
As a result, health insurance coverage for abortion is now more limited than before the ACA. A ruling in Zubik v. Burwell that eliminated contraceptive coverage for workers at employers like the Little Sisters would similarly leave women paying out of pocket for birth control, because there would be no alternative.
After Sotomayor's effort at correcting Roberts on the facts, the chief justice seemed to want more clarification from Verrili. “Is that true with every policy sold on the exchanges?” he asked.
The answer was obviously yes. But Roberts continued probing and questioning how the exchanges work, apparently unwilling to let go of the idea that somehow a woman could get covered simply by “signing a paper” to get on an insurance exchange. At one point, he even suggested that “constitutional objections” to a faulty law are sometimes what lead to its improvement.
Roberts wasn’t alone. Kennedy also latched onto the idea that it's "so easy" and "so free" to sign up for a contraceptive-only plan, and likened a religious employer's providing contraception to “subsidizing conduct that they deemed immoral.”
Alito at one point suggested that women who work for small employers, and who thus must buy policies on the exchanges, somehow “frustrate” the government’s desire to give all women access to free contraception. Verrilli set him straight immediately.
“No,” Verrilli said flatly, “because in that circumstance... the only option that that employee has is to buy an individual policy on the exchange. And that individual policy will contain the contraceptive coverage from your regular doctor as part of your regular health care.”