The Supreme Court requested the Zubrick attorneys to file a supplemental brief to explain how employees of religiously affiliated groups could receive no cost sharing contraceptive coverage without the religiously affiliated do jack shit. The goal is to see if their precious fee-fees won’t be offended while offering their female employees contraceptive coverage. The brief is here and it shows an amazing lack of understanding of insurance and Congressional intent in the ACA design.
There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs. Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed….
If commercial insurance companies were to offer truly separate contraceptive only policies along the lines envisioned in this Court’s order, then the employees of petitioners who selfinsure or use self-insured church plans could enroll in those separate contraceptive-only insurance policies as well. Those policies would obviously be separate from the coverage provided by the self-insured employers or the church plans, and petitioners’ employees would be free to enroll in those policies if they choose. Accordingly, among the many less restrictive alternatives available to the government is to require or incentivize commercial insurance companies to make separate contraceptive coverage plans (of the kind contemplated by the Court’s order for petitioners with insured plans) available to the employees of petitioners that self-insure or use selfinsured church plans, without requiring petitioners to facilitate that process or threatening them with ruinous fines unless they do so.
I’ll let the lawyers take a whack at the legal argumentation as I’ll take a whack at the mechanics.
Contraception as a cost center is overwhelmingly focused on females who have some idea if they will want to use contraception at some point during the policy’s active period. Men don’t have to pay for prescription contraception, and women over a certain age don’t either. Individuals whose partner(s) have had permanant sterilization or medical infertility don’t need contraception either. Contraception is a near perfect case example of an adverse selection problem when it is unbundled from a larger medical insurance policy.
Requiring women who work for religious organizations to buy separate contraception only policies transforms part of their compensation (second question are the women getting a pay raise to make them whole?) from participation in an insurance scheme to participation in a discount buyer’s club. Almost everyone who would buy a separate policy with a twelve month coverage period for contraception only will use contraception. There is no risk pool. It is just a bulk buyers’ pool.
Congress in the ACA advanced a strong federal interest that there would be no gender discrimination in premiums offered to women. This was expressed as a significant interest for well over a generation in the group market and it is an expressed interest in PPACA for the individual market. Congress also has a strong interest in bending the cost curve. One of the major theories of change to bend the cost curve is to increase the use of evidence based preventative care. The means to increase birth control utilization is to reduce the cost of birth control. If all of a sudden secondary policies have to be created the monetary and the hassle/friction costs go up significantly for the people who would benefit the most from increased access to this form of preventative care.
update 1 This is the oh so onerous and oppressive form that must be filled out under the current accommodation for their fee-fees:
If you’ve never looked at the form the Little Sisters of the Poor say is oh so burdensome, you should. pic.twitter.com/VdNbTMOvX6
— Kaili Joy Gray (@KailiJoy) April 13, 2016