Does the ACA require "seamless" access to contraception?

No. That phrase came from Judge Pillard's opinion in Priests for Life.

|The Volokh Conspiracy |

At several points during oral arguments in Little Sisters of the Poor v. Pennsylvania, Justice Ginsburg stated that the ACA requires "seamless" coverage of contraception.

JUSTICE GINSBURG: The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage. Seamless, no-cost, comprehensive coverage….

And I just wonder if I --if there is no substantial burden, how can the government justify an exemption that deprives those women of seamless coverage? …

JUSTICE GINSBURG: I would ask Mr. Clement the same question I asked the government. The --at the end of the day, the government is throwing to the wind the women's entitlement to seamless, no cost to them.

The word "seamless" does not appear anywhere in the ACA. (Indeed, the ACA makes no mention whatsoever to contraception.) The Obama administration adopted that phrase from Judge Pillard's decision in Priests for Life v. HHS (2014).

"The accommodation is the least restrictive method of ensuring that women continue to receive contraceptive coverage in a seamless manner while simultaneously relieving the eligible organizations of any obligation to provide such coverage."

Then-Judge Kavanaugh dissented in that case. (See pp. 509 of Unraveled.) 

Later in the arguments, Clement explained that the demand for "seamless" coverage made a resolution impossible:

MR. CLEMENT: I –Mr. Chief Justice, in the wake of the Zubik remand order, there was a lot of back and forth between the religious objector –objectors and the government, and I don't think that there really was a mechanism to find sort of some third way because the government has always insisted on seamless coverage, with seamless, essentially, being a synonym through –for through the Little Sisters' plans.

So long as supporters of the mandate demand "seamless" coverage, there really is no way to work out this conflict. Clement made this point:

Clement: I don't think that there really was a mechanism to find sort of some third way because the government has always insisted on seamless coverage, with seamless, essentially, being a synonym through --for through the Little Sisters' plans.

That argument works with another employer who does not use a church plan.

NEXT: What will Chief Justice Roberts do in Little Sisters of the Poor v. Pennsylvania?

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  1. Our health care system is quasi government run health care system mostly administered by the states. So we fund it with what amounts to a VAT and the states heavily regulate the policies employers can provide. The employers treat health insurance as a line item on a budget (like a VAT) so they pass those costs along to the consumer. I just don’t think employers should get all paternal and think they are doing something great for their employees when health insurance is so regulated that it is pretty much out of their hands and a quasi government program that all Americans pay for by purchasing goods and services. So every good or service purchased in America includes someone else’s health care costs.

    1. Outside the fact that you are completely wrong on how health care is run in the United States – I would like to bring it up that the vast majority of Employers don’t want the overhead or the cost of managing health insurance. They WANT the government to offer options.

      As for me – I want the freedom to leave my job for another and not have to worry about health insurance. Which I can’t do because health insurance is frequently tied to employers. Employer managed health insurance is drag on freedom in this country.

      1. Prior to the ACA I agreed with you. The problem with the primary market being the individual market would be how to solve the preexisting conditions issue and paying premiums once a policy holder got sick. So the group market is an extremely business friendly market that the federal government created and now multiple Fortune 500 companies exist because the New Deal Democrats and UAW created that market…and then made it even more business friendly by creating Medicare.

        So believe it or not the most logical health care system is actually a single payer government because you get the biggest risk pool possible, and obviously in developed countries nobody would tolerate people dying in the streets. The least logical system is an individual market even though that would be the system most consistent with American values. So our health care system is a hybrid system that is quasi government run with substantial single payer with Medicare and Medicare. So we fund our system with the VAT, payroll taxes, and deficit spending thanks to Medicare Part D and Obamacare. So the biggest argument for keeping the employer provided aspect is it’s paid for with the VAT and Republicans love paying that VAT!!

        1. “So believe it or not the most logical health care system is actually a single payer government because you get the biggest risk pool possible, and obviously in developed countries nobody would tolerate people dying in the streets. The least logical system is an individual market even though that would be the system most consistent with American values. ”

          All you’ve done here is to declare somebody else’s values to be “logic”. This is violating the “is/ought” distinction; Logic can tell you how to achieve ends, it can’t tell you what ends, what values, you should have.

          1. Lol, no. My “logic” is dictated by risk pools and feasibility in the context of preexisting conditions. I don’t care about “values” other then acknowledging that Americans would never accept people dying in the streets due to lack of health care access.

            1. The value of larger risk pools is subject to diminishing returns, there’s no particular gain to be had in making the entire population of a country as large as the US the same pool. And a great deal to be lost given the government’s one size fits all mentality, and the natural tendency to use any program like this to enforce ideological preferences.

              Even the contraceptive mandate is an example of that. Contraception is a predictable expense, it makes about as much sense to include it in health insurance as it does to require dental insurance to pay for toothpaste.

              1. Everyone requires health insurance so the biggest risk pool is the best.

                I agree with you that maternity and contraception should have nothing to do with health insurance. I would have a separate government program for maternity that is paid for by taxpayers. So 25 year olds generally don’t have $10k in the bank which is what a typical delivery costs. And it goes without saying we need federal paid parental leave.

                1. Sebastian — it didn’t cost that when the father had to pay cash….

                2. “Everyone requires health insurance so the biggest risk pool is the best. ”

                  Everyone doesn’t require health insurance; People with substantial assets find it more economical to self-insure. In fact, were my employer willing to pay me their portion of my health insurance premium, I’d find it more economical to join a medishare program.

                  And, again, the marginal gain in increasing the risk pool from 1% of the population to 100% of the population is negligible, even 0.1% of the population would, as a practical matter, capture all of the real gains. There’s no actuarial reason to insist the risk pool be the entire population. It’s just an excuse to force everybody onto the same insurance plan, eliminating their choice of what the features will be. The customer base of CostCo, the NRA’s membership, fraternal organizations like the Elks, these all have large enough memberships to provide a big enough risk pool to capture all the gains that are there to be gotten.

                  1. Uh, if we had a nationwide risk pool that would literally be “medishare”. So there is no “insurance“ necessary when everyone is sharing everyone’s health care costs. Btw, most large employers don’t have actual health insurance they “self fund” health care costs…but they still employ TPAs to manage their employees’ “health insurance”.

                    1. Sebastian….We are not interested in a government run healthcare program in the hands of unelected bureaucrats who can arbitrarily change the rules to suit their fancy at a particular point in time. No thanks.

                    2. “Uh, if we had a nationwide risk pool that would literally be “medishare”.”

                      No, it wouldn’t, because the government doesn’t, so far as I know, dictate in excruciating detail what these medishare programs must and must not.

                      The only thing you get by making a single nationwide risk pool with the government providing the insurance, is the ability of the government to force everybody into the same one size fits all program, rather than allowing people to pick what they actually want.

                      I understand you see taking people’s choices away from them as desirable. Why should the people having their choices taken away share your enthusiasm for this?

                    3. Lol, do you have a plan that doesn’t cover heart disease?? Countries like Canada and UK make it work and obviously so could America. In fact Medicare for All actually makes more sense at the state level which is the entity that regulates your health care right now. Once again, I don’t support M4A because Republicans currently support our VAT funded health care system and we pay for it so why mess with success??

                  2. Brett,

                    What you say about the size of the risk pool is correct, but plans aimed at voluntary associations like the Elks or NRA suffer from adverse selection.

                    The problem is not the size of the pool but its makeup. As soon as you say, “Join the NRA and you can be part of its health plan,” you are strating a downward spiral, as people start to join only because they have no better plan available.

                    1. Not terribly likely in the case of large organizations for which there are independent reasons to join. And, after all, a private organization is perfectly capable of pricing the premium you pay based on a physical, and excluding from coverage undisclosed pre-existing conditions.

                      If they’re not legally barred from it. The death spiral is a consequence of compelling insurers to offer below market rates to people who are already sick.

                    2. Lol, the Kushner brothers figured out how to prevent the “death spiral” so that is why Obamacare is stronger than ever under Trump.

                    3. The death spiral is a consequence of compelling insurers to offer below market rates to people who are already sick.

                      No it’s not.

                      It’s a consequence of having relatively open enrollment. Even giving physicals, which the insurers aren’t going to do, wouldn’t do a lot to stop it. And just because an organization has lots of members doesn’t mean they all will participate in the health plan, so there’s no reason to think participants will be a random sample.

                      But the main problem with all your theories is that they fail to take into account the term of the policy. Say it’s a year. Year ends and it’s time to renew, but meanwhile you develop a problem. Ah. Pre-existing condition. Rates go up, way up. So it turns out you didn’t have an insurance policy at all. Maybe you’re guaranteed a reasonable renewal rate regardless, as long as you stay in the plan, and the plan exists. Then what? Or what if the organization kicks you out for some reason?

                3. Actually dummy, belonging to the pool of consumers with the least risk is best. That means naturally letting people opt for such things as pools for non smokers or pools for non fatties.

                  You’re terrible at logic and dont understand risk estimation.

              2. But men have teeth….

            2. You would gain a larger pool and lose the competition that makes markets so efficient. What a sorry deal. The only real monopolies are created by governments and destroyed by markets.

              1. I support the status quo for that reason. Our substantial government run single payer health care, Medicare and Medicaid and Obamacare, benefits by having some private market forces to help allocate resources and set prices…it’s expensive CYA.

              2. Having a large pool would not outlaw smaller pools that could separately compete with the larger one.

      2. The simplest resolution to this is to simply give all health care expenditures the same tax status, so that the employer can pay your entire compensation in this thing they call “money”, and then you go buy insurance yourself.

        The rest of the issues would be resolved by letting people get their health insurance through non-employer organizations, where they’d be part of a large pool, and remain with the same insurer through job changes and moves. CostCo. The Elks. The NRA.

        Finally, make health insurance a nation-wide market by ending any requirement that you obtain it in your home state.

        This, of course, does not solve the “pre-existing condition” problem, but since when has insurance EVER covered an expense which already was incurred before the policy originated? You can’t go out and buy home owner’s insurance after your house catches fire, and expect the fire damage to be covered.

        The demand for pre-existing conditions to be covered isn’t an insurance issue at all, it’s a demand for a welfare program, and should be taken care of in that way, not by requiring insurers to pretend they don’t already know you’re sick when they set your premium.

        1. Lol, you are broken. When Florida couldn’t get insurance companies to offer property insurance in their state Jeb Bush didn’t tell people to stop moving to Florida, he started a state run property insurance company. Private health insurance is a pretty dumb idea but somehow dumb America has made it work and in fact we have the best health care system in the world.

          1. I doubt it would be possible for you to be more obvious about the fact that you just view this as an opportunity to impose your own values on a nation that doesn’t share them.

            1. My “values” are to support the status quo because we actually pay for it with a VAT that Republicans support. So Medicare for All would result in the biggest windfall ever for well off Americans because any tax Democrats implement would be cut the next time Republicans gained power. Republicans have won the game of “chicken” so the only new federal program I support is paid parental leave which will get passed even if Trump were to somehow win re-election.

              Here is the reality—just like Trump bailed out the coal miners pension to the tune of $10 billion every one in America is going to get the health care they need. So at the end of the day all this partisan back and forth is just a waste of time.

              1. Your economics comes straight from Politics 101 and has nothing to do with Econ 101.

                1. Politics 101–Trump bailed out the coal miners union to the tune of $10 billion because West Virginia is his best state. Trump secretly supports Obamacare because the Kushner family is heavily invested in the ACA Exchange subsidies. Sometimes Trump’s corruption helps Democrats. 😉

        2. If you get a condition which makes future insurance more expensive, the increase in expense of that future insurance is an expense *caused by the condition*, which means that your *present* insurance should pay for it.

          So in theory, if you switch policies, your second insurance company should be able to charge you extra for the “preexisting conditon”, but when you were under the first policy, the first company should have looked at their statistical tables, said “statistically, you have an X% chance of switching companies and your total lifetime premiums will go up by an average of $Y”, then paid you $Y, and you would have been able to use the $Y to absorb the increase in cost from the second company.

          Just making the second company directly cover the preexisting condition, rather than making one insurance company pay in advance based on their guesses of when you’ll switch companies and how much your premium will go up, is (averaged out over many people) essentially the same thing, but with less paperwork and relying less on statistical averages.

          1. And, yes, in general, you don’t see a cost increase for health insurance due to a pre-existing condition that appeared *while you were insured by a prior insurer*. Insurers expect to have sick people entering and leaving their pools, it averages out.

            It’s when you’re going uninsured, get sick, and then go to get insurance, that the pre-existing condition isn’t normally going to be covered, because then you have people waiting until they get sick to buy insurance. And if that catches on, insurance becomes economically impossible.

            1. If only there was a way to, say, use the tax code to require that people buy their insurance whether or not they are already sick. That might solve that problem…..

              1. Why, so you can mandate sex change surgeries?? Fool me once and you chop off my penis…there ain’t no fool me twice after that!

                1. Look, a squirrel!

                  1. It reminds me of my nuts…before Obamacare mandated they be cut off!

              2. If only there was a way to, say, use the tax code to require that people buy their insurance whether or not they are already sick.

                But, but…

                Broccoli!

              3. Yes, people actually having choices IS a “problem”, from a certain perspective. After all, people with choices sometimes make the wrong choice.

                And if you assume that, having their choices taken away, they’ll be compelled to do the right thing, rather than the wrong thing, taking their choices away become a no-brainer, doesn’t it?

                But the sort of people who are into taking choices away aren’t generally doing it for the welfare of the people losing their choices. That’s just basic human psychology: People willing to push you around don’t typically do so for your own good, though they’ll often claim they are.

                And the insurance mandate under the ACA was NOT intended for the benefit of the people being forced to get insurance. It was intended to benefit the people with pre-existing conditions, who the insurance companies were commanded to insure at below cost.

                Because the insurance companies would predictably lose money on every pre-existing condition policy they were forced to issue, they had to get the money someplace else, and that someplace else was other people, whose insurance would end up costing considerably MORE than it was worth.

                People tend to avoid buying things they know are more expensive than they’re worth, so, to keep the insurance companies from going out of business, people weren’t given a choice in the matter, they were mandated to allow themselves to be ripped off.

                1. “And the insurance mandate under the ACA was NOT intended for the benefit of the people being forced to get insurance. It was intended to benefit the people with pre-existing conditions, who the insurance companies were commanded to insure at below cost.”

                  This makes no sense. The obvious idea was to reduce the number of “preexisting conditions” by forcing people to be insured before such conditions materialize, meaning they won’t be preexisting.

                  I am far from the biggest fan of Obamacare, but you should at least be honest as to what it is trying to do.

            2. in general, you don’t see a cost increase for health insurance due to a pre-existing condition that appeared *while you were insured by a prior insurer*. Insurers expect to have sick people entering and leaving their pools, it averages out.

              You don’t? Of course you do. You certainly are going to see that in a market where everyone buys their own policy. I certainly saw that when I was in the market for an individual plan.

              Why wouldn’t an insurance company charge more for someone with, say, diabetes, if they could?

  2. We’re all way off topic with respect to the post, but here goes…
    Govt funded and directed healthcare, which we are ~70% into, works fine as long as everybody is reasonably happy with the product. There is a product, no choice, so if you are a Little Sister, or a Big Brother, and the govt plan doesn’t fit what you need, you’re out of luck. It’s bad enough if you have to pay for stuff you don’t need, or can’t buy coverage that you want (think infertility coverage), but when your forced participation is against moral or religious teachings that you adhere to, the Bill of RIghts comes into play.
    It’s not about healthcare, it’s about control. The ACA makes the healthcare analog of homeschooling illegal, just like some on the left want to make homeschooling illegal. Can’t have anybody taking care of herself, now, can we?

    1. No, Our Lady of the Worthless Miracle has no say over how its employees spend their wages and health insurance is tantamount to wages. The government mandates what benefits they provide so they should provide them and STFU!

      1. Give to Ceasar what is Ceasar’s, and to God what is God’s. If they paid wages, and, after payment, the employee was required to sin with the money, from the employer’s point of view, oh well.

        But this ain’t that.

        1. Sebastian’s position is basically, “Render unto Caesar what is Caesar’s. Oh, and by the way: That’s everything.

          1. Honestly, I’m not sure what his thesis is, other than a cauldron of hot takes on health care.

            1. My thesis is pretty simple—health insurance should be treated like wages. Mary Katherine that works for Our Lady of the Worthless Miracle can use her wages to get an abortion.

      2. You got the first half of that right, anyway.

        And your last line basically sums up your perspective: “Obey, scum!” Why you bothered with the rest of it I don’t know.

        1. Our Lady of the Worthless Miracle demands you care about their beliefs that emanate from their little hobby of praying to Jesus. Sorry, in America I don’t have to care about your hobbies just like you don’t have to care about my hobbies. The only difference is religion is in the BoR while playing fantasy football isn’t in the BoR. Nobody actually has to take advantage of the birth control that is offered under their insurance policy so I am not sure what they are complaining about other than demanding we care they have a hobby that makes them believe certain things.

          1. Wow, did Kirkland pass the reins to you while he’s on vacation or something?

          2. Apparently one of your hobbies is telling people what sort of insurance they have to have or offer to their employees.

            1. Wow you are dumb. Why should one’s boss tell their employees how to spend their wages?? Do you want to go back to Pullman towns because you want your boss to wipe your ass?

  3. There is a solution for this problem. Planed parenthood. It provides abortion services so why not also preventative services also? Plan Parenthood receives lots of government funding so it could use this money to provide birth control to all females from puberty to menopause. But I guess this would bit into their money making part of their service.

    1. I’m a little confused. We once lived in very rural Wyoming, and Planned Parenthood not only offered the whole spectrum of gynecological services (Pap smears to birth control), it was the only such provider in a radius of 100 plus miles.

  4. Contraception is not necessary to preserve her life (she can keep her pants on) while blood pressure meds are necessary to preserve mine. Other than it reflects a social policy of a war on men, how can this be justified?!?

    1. War on men? Birth control pills are pretty convenient for us too, you know…

      1. Speak for yourself, I’ve been sterile ever since my cancer.

        1. I’ll allow it’s a war on Bretts, but a war on men seems quite overbroad.

          1. No pun intended.

            1. So many puns intended, but not that one.

    2. If contraception coverage is npot mandated by the ACA I believe the ACA required that DHS develop a list of “essential” medical coverage to be provided by all plans. The Government chose to include contraception that list. One could argue that contraception is not essential since it applies to only about 25% of the population, that is women of childbearing age and some of them choose not use contraceptives for a variety of reasons. Having plans which exclude contraception which costs a modest amount of money per year does not seem too much a burden. Medicare, paid for by the government, could cover it for poor people, silver or gold plans for those who opt for them could cover it.

  5. All this talk is about who pays, not about what health care costs. I think we should restore health care to 6% of GDP rather than 19%. IMO, that change came because Medicare/Medicaid/ERISA transferred everyday health care into the same insurance bucket as hospitalization. Consumers became disconnected from the costs.

    Do we get better care, better drugs with 19% of GDP rather than 6%? Yes. But we have been robbed of the freedom to spend only 6%. The “right” to have universal health care conflicts with the “right” to manage our own budgets. This is not a fight for human rights, it is a conflict of rights.

    A consequence of these government policies is that we overpopulate the world and the country. We deplete every possible kind of non-renewable resource and spoil the climate. Population depends on the balance between birth rates and death rates. We have seriously messed with both sides of the balance, to the extent that I challenge better health care to be in the best interests of mankind.

  6. Maybe it is the penumbras of the ACA?

  7. Too bad Ginsburg’s parents didn’t have and use “seamless contraception” and spare us from her.

    1. This pro-life edgy take brought to you by the 1980s.

      1. I’m not pro-life, and never have claimed to be.

        1. Well then why are you stealing their edglord posts?

  8. Among the many aspects of health that the health care system does to modify disease state or bodily function, contraception is one where people can do just fine largely without input from the health care system.
    Hormonal birth control is but one effective method, and seamlessness of delivery is not nearly so problematic as say delivery of many pharmaceuticals, such as spiking MI rates following abrupt discontinuation of beta blockers, CVAs from hypertensive emergencies if interrupting anti-hypertensives, chemo for cancers, anti-coagulants for a-fib, anti-epileptics…. For these, and myriad other conditions, seamlessness is vital to life, and for which no useful alternatives exist simply within the patient’s control.
    Contraception, by comparison, has many options available to the lay person, requires no office visits, co-pay, and many assorted colors and flavors. And is also free.

  9. I’m shocked at the suggestion that a woman in her 80s is losing whatever mental acuity she once had.

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