Sorry, SCOTUS, Your Ideas For Getting Women Contraceptives Won’t Work

The male conservative justices on the Supreme Court had a brilliant idea for everyone fretting over a world where religious-minded employers could deny female employees contraceptive coverage.

Let’s just let those women buy contraceptive-only coverage through the ACA exchanges!, Chief Justice John Roberts, Justice Samuel Alito and Justice Anthony Kennedy all proposed during Wednesday’s Zubik v. Burwell hearing.

As Solicitor General Donald Verrilli tried (mostly unsuccessfully) to make clear, that idea shows a basic misunderstanding of how the Affordable Care Act works. It also ignores basic concepts about how insurance functions, and it completely misses the whole reasoning behind including the preventative care provision in Obamacare in the first place. Furthermore, the proposition has virtually no chance of survival in the current political climate.

“The idea is pretty much at odds with everything about how insurance works,” Larry Levitt, vice president at the Kaiser Family Foundation, said in an email to TPM

Alito was the first to bring up the idea that women deprived of contraceptive coverage in their employer plans could just go to the exchanges. But even after Verrilli, who was defending the Obama administration’s work-around, pointed out that such coverage options don’t currently exist and likely never would, Roberts returned to the assumption again, prompting Justice Sonia Sotomayor to call the notion “a falsehood.”

Timothy Jost, a health law specialist at the Washington and Lee University School of Law, confirms that no such plans exist right now, in part, because Obamacare forbids them.

“The statute explicitly prohibits exchanges from offering anything other than qualified health plans and pediatric/dental plans,” Jost told TPM. “So it would be illegal for an exchange to offer a contraceptive-only plan.”

Roberts cheekily suggested that executive branch could “deal” with that problem by not enforcing that aspect of the law. Again, here, Jost pointed out, that the administration would still face some significant challenges.

“Well, Congress would probably sue them if they did,” Jost said. “[The Obama administration] would clearly would have to allow illegal action to take place to pursue that remedy.”

Verrilli was willing to play along in the “hypothetical world” where women could simply access contraceptive coverage through the exchanges and that system, he pointed out, would undercut the very point of requiring preventive care in the first place by adding hurdles to access.

But the idea of contraceptive-only plans also defies health care economics 101.

“It’s hard to say how a plan like this would work – and how you could incentivize insurance companies to provide them,” Laurie Sobel, Kaiser’s senior analyst for women’s health policy, told TPM in an email. Insurance, after all, functions on the trade-off of healthy people paying for benefits for sick people on the hedge that they too might be sick one day.

“It seems that all the women signing up for the [contraceptive-only] plan would plan on utilizing the services,” Sobel said. “It is also a question about how plans would provide a network for doctors for just contraceptives. Plans would need to negotiate with providers for these contraceptive-only plans.”

The rationale for insurance companies to fund contraceptive coverage as part of comprehensive health care coverage is that it saves them in the long-run on the pregnancies, deliveries and postnatal care they would have otherwise have to pay for — and not to mention on the other medical conditions for which women use birth control.

“How would you even price a contraceptive coverage policy if you weren’t providing for all the services that you’re spared if you provide contraceptives?” Jost said. And what happens to the comprehensive plans when contraceptive coverage is removed and insurance companies now have to calculate the additional costs that come with unwanted pregnancies?

The logic that the conservative justices put forward Wednesday that somehow the challengers’ health plans had been “hijacked” by the government is also divorced from health care reality, Jost said.

“Some of the justices don’t seem to understand how employee benefits works,” Jost said, arguing that government has always imposed requirements on plans, dating back to ERISA in 1974 and state laws before that.

“[The government has] always ‘hijacked’ employee benefit plans for carrying out various public purposes,” Jost said. “Again, I don’t think they really understand how these various things work.”