Thursday, March 24, 2016

Oyez, oyez, oy vey!

As I was saying just the other day, we have to be really careful about what we ask our Courts to do,  because we're getting sheer nonsense like this:

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?
“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 that 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.

We're pretty much heading for the 4-4 tie that leaves a patchwork of decisions in place around the country, which should please his nibs Sen. McConnell, but won't exactly excite anyone else.  What we have here are Justices living in la-la land, as ignorant of the healthcare marketplace as the out-of-touch politician who can't tell you the price of milk.  When you consider that,  it almost makes you grateful for representative government.

Well, at least the latter isn't a lifetime appointment.*

*And for those of you keeping track:  filling out a form = substantial burden, even a "hijacking" (Alito and Roberts' term) of health insurance; driving 200 miles to obtain an abortion, and having to do so twice or spend the night (since you can't get it the day you ask for it)?  Not a substantial burden.

"Burden" is in the eye of the beholder.


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  2. Oh, but this kind of thing doesn't really make any difference, according to the Bernie or Bust guys.

    I'm just beginning to read what Louis B. Boudin, of all people, had to say about the dangers of judicial activism and depending on the courts to do what should be done by the legislature, especially his skepticism in regard to judicial review. That much touted benefit to civil rights and progress in my youth has certainly turned out to be double-edged sword. I'm beginning to suspect that the political identity of Louis Boudin probably has a lot in it to learn from, just as his niece and her buddies in the Weather Underground taught its own lessons in disastrous, counter-productive "leftism".

  3. Not original, but I read somewhere, "Do the conservative justices know where babies come from? Maybe a crash course in basic sex education?

    Their questions were mindbogglingly stupid. I doubt the justices are as ignorant as they appear; they simply don't believe women should have access to free birth control.

    And the poor Little Sisters of the Poor would have the onerous task of signing a form. Surely too much to ask of them. Besides, they would be sinning. How many degrees of separation are required by their god before they are free from guilt for the "sins" of others?

  4. I heard a report on NPR about the Little Sisters of the Poor, etc. without anyone bothering to mention that most Catholics in the United States use birth control at about the same levels as the rest of the population. I don't know a single Catholic who isn't OK with both birth control and having it covered under Obamacare.

  5. June--I'd agree with you, except I've encountered people (mostly on Medicare) who have no idea how insurance works in the modern world. So the questions of the justices (while not without the implication that women don't "deserve" birth control coverage; that's clearly the largest part of the assumption) ring true to me. Ignorant, but true.

    It's the ignorance as much as the assumption that gets to me.

    And yes, the Little Sisters are making as dubious an argument as I can imagine. As Sotomayor said, if everyone has a religious objection government can't investigate or verify, how does government (or society, for that matter) function?

  6. I meant the part about where babies come from as a joke. I understand that many people do not understand how health insurance works, but the justices should be up to speed when they rule on an issue that will affect millions of people. They should be ashamed of their ignorance and their preconceived biases that led them to believe they needn't bother to learn how health insurance works. They look like fools.

  7. Yeah, I agree. Which is what distresses me: how little they know about the cost of milk, so to speak.