Hobby Lobby: Unintended Consequences for ACA Exchange Enrollment???

OK, I could be dead wrong about this; if so, I've provided a second Hobby Lobby-related item to justify having this blog entry. Let me put the 2nd item out there just in case:

The Washington State Insurance Commissioner just issued an interesting immediate response to the SCOTUS Hobby Lobby decision...interesting, because I'm a bit surprised that a state insurance commissioner (which I generally thought of as a fairly non-partisan job...although this jackass from Georgia obviously proved me wrong on that one) would post something like this, especially so quickly:


Media contact: Public Affairs (360) 725-7055

Kreidler: Supreme Court dealt a blow to women’s reproductive rights today 

OLYMPIA, Wash. – Today, the U.S. Supreme Court issued a ruling that threatens women’s access to contraceptives in Burwell vs. Hobby Lobby Stores, Inc.

“Today’s ruling by the U.S. Supreme Court is a direct hit against reproductive health. It is an injustice to everyone who has fought for decades to bring health insurance parity to women in Washington state and nationwide,” said Insurance Commissioner Mike Kreidler.  “The court has essentially said that a corporation’s religious affiliation can trump women’s health care choices.”

Under the federal Affordable Care Act (ACA), health insurers must make FDA-approved contraceptives available free of charge, without being subject to deductibles or copayments.

Hobby Lobby argued that it should not be required to pay for employees’ contraceptives because of the religious beliefs of its owners. The corporation argued that it had religious freedom rights that were more important than the government’s interest in protecting women’s access to reproductive health care. The Court sided with Hobby Lobby, allowing certain for-profit corporations to refuse to pay for employees’ contraceptive coverage based on religious grounds. The Court left room for the federal government to find another way to ensure women receive contraceptives.

Washington state has long recognized the importance of women’s reproductive health care. In 1991, Washingtonians affirmed this commitment by voting for Initiative 120, which guarantees every individual the fundamental right to choose or refuse contraceptives. This public policy is reflected in Washington’s insurance rules, which require insurers to cover contraceptives at parity with other prescription drugs. 

The Court’s ruling today may impact how certain employees access contraception, but Washington’s strong commitment to reproductive health remains intact.

“It’s too soon to say definitively how this decision may impact consumers’ existing insurance coverage. Now it’s up to Congress or the U.S. Department of Health and Human Services to take swift action in clarifying how women can access these critical health services. If they do not, I will investigate every option we have for maintaining women’s reproductive health choices in Washington state,” Kreidler said.

Anyway, here's my main point (on which, again, I could be very wrong):

Employees of companies which provide Employer Supplied Insurance (ESI) can, of course, choose to instead purchase their own private insurance policy via the ACA exchanges.

However, it's my understanding that the ACA states that if they opted out of an ACA-compliant ESI policy for an Exchange QHP instead, they don't qualify for any tax subsidies. Basically, the government is saying "Hey, your employer offered you a compliant plan, so you can't expect us to subsidize you just because you didn't want theirs".

The thing is, being an "ACA compliant plan" includes contraceptive coverage, right? So yes, Hobby Lobby etc. can no longer be penalized for not including contraceptive coverage...but that still doesn't make the plans that they do offer ACA compliant, right?

It seems to me that if this is the case, that an employee could instead choose to opt out of their ESI policy, go to the ACA exchanges and enroll in a QHP there instead...including whatever tax subsidy that they'd normally be entitled to based on their income, etc.

If I'm correct about this, it therefore seems to me that the Hobby Lobby decision could, ironically, result in quite a few women (and possibly men who have wives/daughters/other female dependents) enrolling in an ACA exchange QHP who would otherwise have taken up their employer's ESI policy.

I threw this out there on Twitter with Yevgeniy Feyman and Sean Parnell (both of whom are opposed to the ACA, but both of whom are also considered pretty knowledgable about healthcare policy/etc) and their immediate responses were (without delving into it heavily) "Maybe" and "Probably Not" respectively.

However, their immediate arguments against this consequence were mostly based purely on the economics of such a decision: Basically, in most cases it would still cost the woman less to take the ESI and pay for her own birth control than it would for her to opt out and go the exchange QHP route (even with the subsidy).

I agree that this is likely to be true in most cases, but there's also an emotional factor: Some women/men may choose to go this route simply on principle, even if they can't afford to quit their job completely.

However, Parnell suggests that today's ruling means that "closely held" corporations such as Hobby Lobby would instead be held to the same lower standard as non-profit organizations and therefore their non-contraceptive providing policies would still be considered ACA compliant...thus denying subsidies to employees who opt out of them.

It seems to me that if they're held to a non-profit standard on this, they should also be required to reform as a non-profit organization (and thus be required to turn over every dime of their profits for the past, say, 10 years to the Treasury Dept.), but that's just me.

So, we have two possibilities here: Either Exchange QHP enrollments will shoot up as a result, thus increasing the amount that the Federal Government has to pay out in tax credits (which conservatives would hate)...or female employees of Hobby Lobby and other "closely held" corporations are kind of screwed when it comes to contraception (which, of course, conservatives love, bless their hearts).

Of course, seeing how 58% of women use contraceptive at least partly for non-pregnancy related medical reasons, they're also screwed even if they aren't, to put it crudely, screwing.