In it, but not of it. TPM DC
The case, Zubik v. Burwell, was not a challenge to the overall contraception mandate, but rather the accommodation provided by the Department of Health and Human Services to religious nonprofits who object to birth control on religious grounds. The challengers say even filling out the form declaring that they have an objection to covering birth control is a burden on their religious faith, because at that point the government steps in to work with their third party administrator to ensure their employees receive the coverage separate from the employers’ plan.
The challengers argue there other ways for female employees to receive the contraceptive care. Solicitor General Donald Verrilli, who was defending the accommodation, and some of the liberal justices countered that those alternatives ignored the original aims of the Affordable Care Act. But the conservatives on the court seemed to agree with the challengers and wondered, Why can’t all these female employees just go out and get a second insurance plan for their birth control?
“What type a burden does that impose? Is it because these exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges?” Justice Samuel Alito asked, snarkily, about the Obamacare health insurance exchanges used by those without employer-based health care plans.
Verrilli pointed out that those sort of contraceptive-only policies don’t even exist on the exchanges, and in a hypothetical world where they did, that extra effort undercuts the reason Congress passed a mandate for preventive care in the first place.
“Her regular doctor has to say to her, 'Sorry, I can't help you.' It's not just that you don't get the prescription paid for. It's not just that he can't write the prescription, he can't counsel or educate the patient,” Verrilli said.
Alito didn’t believe that is what would happen, arguing that her regular doctor would just be paid for by whatever second plan the woman purchased. Verrilli countered it wouldn’t all happen so seamlessly.
“She'd have to go out and buy the separate plan, find a doctor who is willing to take the separate plan,” Verrilli said, but Alito's disbelief continued: Why can't Congress could simply subsidize second plans for affected female employees to purchase?
Verrilli reminded him that created the sort of jerry-rigged system Congress sought to avoid.
"Even those small barriers work as a sufficient disincentive that many fewer people use contraception,” Verrilli said.
The debate was important because it cut to the heart of what the conservative majority promised in their 2014 Hobby Lobby decision, the last Supreme Court challenge concerning Obamacare’s contraceptive regulations. The 5-4 decision saying certain for-profits didn't have to cover birth control pointed to the very accommodation for religious nonprofits that the nonprofits are objecting to now.
“The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero,” Alito wrote then.
Furthermore, Justice Anthony Kennedy issued a opinion concurring with the decision stressing that contraceptive coverage for women does amount to a compelling interest for government.
Defenders of the contraceptive coverage took that opinion as a signal that he would side with them in upholding the accommodation. But in a troubling sign for them Wednesday, Kennedy seemed to buy the arguments that the women would be fine if the contraceptive coverage was not provided through their employer plans.
“If it's so easy to provide, if it's so free, why can't they just get it through another plan?” Kennedy asked Verrilli later on in the arguments. Chief Justice John Roberts jumped in:
“So it comes down to a question of who has to do the paperwork? If it's the employee that has to do it, that's no good. If it's the religious organization that has to do it, that's okay?” he said.
As Roberts continued to insist that women could simply get contraceptive coverage on the exchanges, the liberal justices finally had enough with the idea.
“They're not on the exchanges,” Justice Sonia Sotomayor interjected. “That's a falsehood. The exchanges require full-service health insurance policies with minimum coverages that are set forth that are very comprehensive. We're creating a new program."
Justice Stephen Breyer offered an explanation of the concerns about women who are “inertia bound,” meaning people who would benefit from contraceptive coverage but wouldn't have the initiative to get it on their own. Meanwhile Justice Ruth Bader Ginsburg pushed back on Roberts' suggestion it was just a matter of paperwork.
“Is it just a matter of filing the form for her, or is there a real difference between an employer saying we're not going to cover contraceptives ... and the woman who suddenly doesn't have it as part of her package and has to go out...” she said, as Verrilli jumped in to elaborate on the distinction.
A 4-4 tie would result in a patchwork of rulings across the country where the accommodation would be allowed to stand in some but not all states. To avoid that world, Kennedy would have to reject the argument Roberts espoused: That challengers’ objections to filling out a simple opt-out form, since it’s a religious objection, trumped the bureaucratic hurdles women would have to jump to get coverage, as well as the larger implications for public health.
“The difference is this: It's not just about filling out paperwork," Verrilli said in response to that argument. "If you're a woman employee, you go to your regular doctor, you say you have a medical condition that puts me at risk of being pregnant, or I just want contraceptive coverage, or I need contraception to treat a medical condition ... the doctor has to say, 'I cannot help you with that.'"