START OF 2018 OPEN ENROLLMENT PERIOD

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Is it too much to ask that Supreme Court Justices understand how the ACA actually works?

Don't get me wrong, I was obviously happy when Chief Justice Roberts sided with the Obama administration (mostly) in NFIB v. Sebelius back in 2012, and when Roberts and Justice Kennedy sided with the administration in the King v. Burwell case last summer, while also being disappointed in their decision in Burwell v. Hobby Lobby in 2014.

HOWEVER, this development in the Zubik v. Burwell SCOTUS oral arguments is just embarrassing. As Jeffrey Young and Cristian Farias of the Huffington Post report:

During oral arguments this week in Zubik v. Burwell — a set of seven challenges to Obamacare’s contraceptive-coverage mandate on behalf of religious nonprofits — Chief Justice John Roberts and his colleagues on the court’s conservative wing gave the impression that they don’t really grasp what the ACA’s health insurance exchanges do, or indeed how the market for health insurance itself even functions.

The short version is that, similar to the Hobby Lobby case, this one has to do with whether religious nonprofits are required to provide contraception coverage as part of their employer-provided healthcare policies.

During a back-and-forth in the courtroom about women whose employers don’t cover contraception, and the subsequent lengths they must go to get it, Roberts suggested that it’s not actually a big deal if women in such situations have to get their birth control covered some other way. Justices Anthony Kennedy and Samuel Alito appeared to share the same belief.

“They’re on the exchanges, right?” Roberts said, implying that women without access to contraception from their religious employers can just sign up to receive it through the federal insurance exchanges instead.

For Justice Sonia Sotomayor, this seemed to be the last straw.

“They’re not on the exchanges,” she said. “That’s a falsehood.”

Sotomayor went on to explain to Roberts — and anyone else who needed to hear it — how exactly the exchanges work.

As Young and Farias note, all ACA exchange policies have to include comprehensive coverage. You can't go to Healthcare.Gov or Covered California and only sign up for a "Standalone Contraception Policy; it's all or nothing. (Exception: Dental coverage isn't included with most plans, but can only be purchased stand-alone via a few state-based exchanges. I'm not sure what the status is re. vision coverage).

Roberts seemed to be under the impression that an employee of an anti-contraception nonprofit could simply use their employer coverage for most medical issues while using the ACA exchange for contraception only.

It doesn't work that way at all, of course. Not only is there no such thing available on the exchanges, but under the ACA, even if the employee wanted to take a pass on the employer policy and sign up for a full policy via the exchange (including contraception), they wouldn't be eligible for federal tax credits to help pay for it...because they had declined the employer policy.

Young/Farias go on to note that:

Even if the law were changed to make it possible to buy “birth control only” coverage, insurers would have little incentive to offer it. Insurance works when lots of people buy it and only some people use it. A customer in the market for an insurance policy that covers only one thing — like contraception — presumably intends to use that benefit, which undermines the entire point of insurance.

There's more, but that's the gist of it. You'd think that after having to sit through not one, not two, not three, but four Obamacare-related cases over the past 5 years or so (possibly more? I might've missed a few), Roberts, Kennedy and Alito would at the very least understand the basics of the law even if they don't particularly like it. Apparently not.