In a world in which lots of people have separate policies for specific kinds of healthcare—separate dental plans, vision plans, prescription plans, abortion plans, Medicare Part D, etc.—the Court’s suggestion that contraception could be provided outside the religious employer plans was a logical one. That’s why the Little Sisters embraced the Court’s proposal.
But after saying it was possible to provide these services outside of the Little Sisters' plan, the government told the Supreme Court in its final brief that contraceptive-only plans—one of the most obvious solutions—are impossible.
Here are just a handful of reasons why the government’s resistance to the Supreme Court’s solution is baseless.
1) Preemption. The federal government says that state regulators might not allow separate contraceptive-only policies. But the federal government doesn’t need to worry about state regulators because federal law trumps state law. If there is a conflict between the Affordable Care Act and state law, the Affordable Care Act wins. That is actually one of the reasons the ACA was enacted.
2) The government says that no one has ever done this. That is not true. States were already doing this before the Affordable Care Act was passed. And the reports were that opt-in contraceptive policies in many instances worked better than providing contraceptive coverage automatically.
3) Perhaps the most surprising fact is that the federal government already provides separate contraceptive coverage for millions of people through Medicaid* contraceptive-only policies. And those plans allow women to sign up for the coverage they want, which experience has shown to work better than providing automatic coverage.
All of this makes the government’s claims that contraceptive-only policies just won't work just bizarre—if they won’t work, why is the government using them right now? It’s akin to the government’s argument that there are many easy ways for the tens of millions of women with corporate and government plans exempted from the mandate to get these services but that asking women on the Little Sisters' plan to use those same alternatives would be a huge burden.
The fact is that there are a lot of solutions available, including contraceptive-only policies. The Supreme Court has recognized this. The Little Sisters have been saying it for a while. And the government has even admitted it. It is possible to protect religious freedom and ensure that any woman who wants contraceptives can get them. The government just needs to take yes for an answer.
* According to the Guttmacher Institute, 2.7 million women received contraceptive-only coverage through Medicaid in 2011, and the number of states offering standalone contraceptive plans through Medicaid has increased by 27% since 2011, meaning that number is likely much higher today. These are women who do not otherwise qualify for full Medicaid coverage, so all they get is family planning services. This stand alone contraception coverage provided by the federal government in coordination with states not only shows such plans are possible, but that they are being used by millions of American women.