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.