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dotCommonweal Blog

Existence and Pre-existence

The first three words of the first item of Donald Trump's healthcare plan are "Completely repeal Obamacare".

I was surprised to see this stated so starkly and unambiguously.  Because if this were to happen, along with everything else, the pre-existing condition ban would go away.  This could cause several million people, including people in mid-treatment, to lose their insurance.  And many of these people are people paying their own premiums with no subsidy from the government.

Most people think they know what "pre-existing condition" meant.  But it was far worse and more complicated than most people know.  The pre-existing condition problem was part of an overall underwriting philosophy that covered both individual policies and small groups (defined as 2 to 50 employees).  The Affordable Care Act not only eliminated pre-existing conditions as a means to deny coverage, it eliminated the underwriting of small groups, which had been underwritten in a way that carried the pre-existing condition philosophy into the commercial group market itself.  To explain how this worked, and what it would mean to go back to the way things were until only recently, I'd like to tell you a story about how I think I saw the old system kill someone once.

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Hillary Attempts to Add Alka-Seltzer to the Healthcare Stew

Hillary Clinton has now updated her health care proposal.  In addition to the usual promises to improve quality and cut costs and prices blah, blah, blah that all the politicians are making, there are two possibly substantive proposals.  The first is that people might be allowed to go on Medicare from age 55.  The second is a mysterious thing called the “public option”.

The lowering of the eligibility age for Medicare (ironic in a climate of raising the Social Security eligibility age) seems pretty straightforward in that she didn’t specify that this new age group would get anything other than standard Medicare.  But the “public option” could change the rules of the healthcare game, depending on what it really is.  And she left some clues.  Let’s take a closer look.

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Death Wish: The Politics of American Healthcare

Bernie wanted a single payer system: Medicare for All.  Hillary wants to tinker with Obamacare in a slow transition to God knows what.  Trump wants voters, but has no plan.  But Ryan does and his plan is to keep alive the part of Obamacare that everyone likes (no pre-existing conditions), but to separate the sick voters who want things he doesn’t think they deserve from those young healthy voters who might go Red in the future.

As for the electorate, like the American girls in the Rolling Stones song, they “want everything in the world that you can possibly imagine”.  Some for just themselves and some for everybody.

Sorry.  Nobody is going anywhere.  Bernie was right about single payer, but it’s not enough to just get elected.  One must also rule.  President Bernie would never have been able to lift that rock, for reasons I shall go into.  Hillary knows she has to rule, so in her usual cunning fashion she is setting the bar as low as possible for herself right at the start.  And Trump/Ryan are looking for a neutron bomb that will kill all the really sick people and leave a core of friendly voters and all the businesses standing.

What would we need to do to fix things and why can’t we do it?  Read below.  And weep.  I’ll try to keep this one simple.

 

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Paul Ryan, Clever Fellow

The Internet is abuzz with the rumor that Paul Ryan wants to reintroduce pre-existing health condition denials of insurance into the American health care system. In fact, that's not the plan. But has Ryan finally figured out a way that the Republicans can attack Obamacare in a way that sticks?

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Trump Health

The Donald lays out his plan:

  • The repeal of the Affordable Care Act, more popularly known as Obamacare, as well as the individual mandate that requires Americans to purchase health insurance.
  • Allowing the sale of insurance across state lines by repealing the McCarran–Ferguson Act.
  • Allowing individuals to fully deduct health insurance premium payments from their taxes, as businesses can.
  • Allowing all individuals to use health savings accounts, rather than just those with high-deductible health plans.
  • Requiring “price transparency” from healthcare providers, including doctors, clinics and hospitals.
  • Turning Medicaid into a block grant to the states, decentralizing the social welfare program from federal control.
  • Removing “barriers to entry into free markets for drug providers that offer safe, reliable and cheaper products”, weakening control of the pharmaceutical industry and the Food and Drug Administration over drug testing, production and approval.

Let's see if there's any meat on this little chicken wing.

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What Do You Want in a Health Care System?

I am find a lot of articles about people wanting "single payer" or a continuation/improvement of Obamacare or the destruction of Obamacare and its replacement by something else.  Most of these talk about financing, with some lip service about improved quality.  But I am not finding any description from anyone about exactly what a post Obama health care system needs to have.

When we do corporate strategic planning in the private sector, this is the first question we ask. What do people want?  Without answering that question, we have no idea where to get to, much less how much it should cost.

Judging from people's complaints and working backwards (which is not the same as starting with a model and working forwards), people want access to all available providers (which is to say that all providers are in-network), they want zero out of pocket expense, and they want some sort of quantitive clarity about how good a provider really is before they receive services.  This pretty much covers everything.  Is there anything else?  And more importantly, for any system, if you had to settle for less than this, what would you tolerate?

Obamacare in Flames - Part Three - The Plague on All Our Houses

The Attacks on both Obamacare in particular and our healthcare system in general are fragmented and hard to talk about in a very systematic manner. People have specific things that they think are great and that they think are terrible. They focus on these to criticize or glorify the whole. I find this infuriating. To fix things, we have to know exactly how things work, and what and what doesn't work well. My response, then, will be broken into parts which I hope will make sense when you put them all together.

The questions are whether Obamacare has been worth it, can it survive, should it be replaced, and what should replace it.  To answer these questions, I think we have to go back to some basic concepts. Hold on. It's going to get ugly.

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Obamacare in Flames - Part Two - Mama Don't Want No Market Playing 'Round Here

"We can't really subsidize a marketplace that doesn't appear at the moment to be sustaining itself" —Stephen Hemsley, CEO, United Healthcare

It's a commonplace in American business that the difference between a brilliant statement and a stupid one usually depends on who is saying it. When Steve Hemsley asked his C-Suite crew why it looked like United Healthcare would be losing half a billion dollars on Obamacare in two years, I doubt anybody said "Gee, boss. I guess the marketplace must not be sustaining itself." Or if someone did, they're certainly not working there anymore.

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Obamacare in Flames - Part One - The Strange Life and Sudden Death of the Co-Ops

"As the camel falls to its knees, more knives are drawn" —Bedouin Proverb.

Despite the fact that the Affordable Care Act (Obamacare) has significantly reduced the number of uninsured in the United States, it has also failed to live up to its promises and has seen a great number of failures. The number of uninsured is still high, premiums are growing, networks are narrowing, insurers are losing money, and the Co-Ops, set up as a significant innovation of the program, are failing and will continue to fail everywhere.

In this hot election season, this has brought out enemies on the Left and the Right. The Left wants Obamacare dumped and replaced with a single payer system. The Right just wants it dumped.  Both sides attack the program with cherry picked examples that are nonsense and half truths. It's like watching a mud wrestling match where you know you hate one of the wrestlers, but you can't tell them apart anymore.

I am going to post three articles where I try to get to the bottom of what is really happening. I find the sniping on the Right and the Left mostly useless, but also infuriating. The system is broken and Obamacare has revealed all of the cracks. In the first article, I will talk about the Co-Ops and why they had to fail given the structure of the current insurance system. In the second, I will discuss what's going on with market risk and how the big insurance players, despite their massive resources and sophistication, also found themselves sucked into the whirlpool. In the third article I will talk about what we can and can't do about it.

***

The Affordable Care Act contained a provision to establish and fund the creation of 50 statewide non-profit insurance Co-Ops. There were several reasons for this. First, there was the concern that the current commercial insurers would not enter the ACA marketplace in large enough numbers to support millions of newly insured. Second, it was rightly believed that insurance markets in the United States tend to be dominated by one main insurer and the Co-Ops would add badly needed competition. Third, the Co-Ops were a compromise meant to forestall a government run "Medicare" option that might have a potential to move the entire country towards single payer insurance. And last, many people unclear of the concept of not-for-profit and citizen boards of directors in the United States thought that the Co-Ops would be less greedy and more consumer friendly.

Because the funding for this program was prematurely and summarily cut during one of our GOP manufactured budget crises coupled with Red State resistance to the idea itself, only 23 Co-Ops were eventually established. Of these, half have failed outright. Most of the rest are very weak and a significant number of these have been quietly put under some form of direct regulatory control. With the sole exception of the Maine Co-Op, the Co-Op program will fail unless radical measures are taken (which I will outline in article three).

The provision of all that sweet, sweet government money ($1.6 billion) drew into it two kinds of speculators. The first were the normal kind who wanted a crack at The Big Federal Pie. The second consisted of people who wanted the program to succeed for various political and occupational reasons. Most, but not all, were blinded by the fact that the mass establishment of these Co-Ops was probably the riskiest start- up venture in American history. While the insurance risk factors played a part in this (and the risk factors are what people focused on) I will argue that structural factors played a bigger role in creating risk here and I will try to outline these as briefly as I can.

A. Creating a Network

One of the main things that insurance companies do in the United States is obtain discounted rates from providers. These rates and their terms are set by individual private contracts. Insurance companies and providers are always recontracting with each other, hoping to gain an advantage. Any insurance company's contracting staff will be large and well funded with the latest complex modeling software and contract language software. And this will be true of any insurance company that already has a well developed network.

The insurance company will try to get the best terms and steepest discounts and then will aggregate these discounts to find an average discount so that it can begin to design its different benefit packages and price them. (It is also necessary to know in what way its member population uses the providers, but I will discuss this later).

The Co-Ops started out with no networks at all, no contracting staff or infrastructure, and a mandate as THE state Co-Op to be prepared to cover any member in the entire state.

What most Co-Ops did was to create "instant networks" by using what is called a "rental network." A rental network is a broad, usually multi-state network that has a very shallow discount with a large number of providers. They are usually used in cases where a business (typically a hospital) will want to create a quasi-network for its own employees, where these workers will get a steep discount for using their own hospital and hospital owned doctors, but will also get some sort of small discount should they go somewhere else. Rental networks are not meant to be used as full networks by insurance companies, because their discounts are so small that they can't compete with regular insurance companies with their own sets of contracts.

The Co-Ops plan was to start with the rental network in order to establish an "adequate" network per the state regulatory rules of wherever they were located, and then as quickly as possible, recontract the providers within it with their own more deeply discounted contracts on their own terms. If they did this quickly enough, they would have a network that would cover everyone, but they would also be able to eliminate the main rental contracts with their own competitive ones.

In practice, given the magnitude of the task and the fact that they were literally starting with nothing, they had no idea how long it would really take or what Co-Op contracts would actually be in place when the Co-Ops "went live" and actually started taking on new members. So in their business planning, they worked backwards from what they knew to be the average discount in the state to the average discount of the rental network. From this they created a fairy tale business plan and sent this to the regulators for approval. No one at either end of this chain believed the plan, which is why the Co-Ops were expected to lose money for the first one to three years of their existence until they could get a real network together. The vast majority of Co-Ops lost money in the first two years, even those that did not fail, because (in part) they simply could not build the network they needed. They had no market clout and their contracting infrastructure was mostly immature.  

B. Building an Infrastructure

Modern health insurance companies have massive expensive IT infrastructures. It is commonly said in the insurance business that insurance companies are now basically IT companies with insurance companies attached to them.

The core of the infrastructure is the claims payment system. This system has to be able to adjudicate electronically all claims per all the various separate provider contracts that an insurance company has. The claims system also has to be integrated with the member enrollment system, the billing and payment system, the banking system, the accounting system, the hospital contracting system, and the member services system. All of these are separate things. The work of the large insurance companies is to have all of these systems "in house" and seamlessly integrated with each other. For the Co-Ops, all of these separate systems had to be rented from separate vendors. It was the integration of these systems, which were generally not designed to be integrated, that was usually done in house. For many of the Co-Ops, some of the systems weren't even designed to do what the Co-Ops needed them to do, either in their basic functioning or in the volume of transactions that were required. And in some cases, multiple versions of a system were needed. For example, there were cases where a Co-Op needed one enrollment system for individual members and another for employer group members.  Both needed to be integrated with the rest of the system. Against this, the Co-Ops generally had inadequate staffs and had to rely on consultants who themselves were often inadequate, although terribly expensive.

To add to this, the Federal government was building its own enrollment and claims system from scratch (the latter not to pay claims but to do member level claims risk calculations) and required the Co-Ops and anyone else participating in Obamacare to able to integrate with their systems.

As you can imagine, there were massive, expensive, service affecting integration problems within the Co-Ops, within the government (which hit the news), and between the Co-Ops and the government. The Co-Ops did not figure these costs in their start up planning, and why should they have? No one had ever done this before.

C. Building a Staff

The Co-Ops had several staffing problems right from the beginning. The first was the acquisition of qualified management.  Co-Ops were, by definition, start up companies and risky ones at that. The best executives and managers in the insurance industry could tell how risky they were, if only by listening to their own senior managers panicking about Obamacare. Not many people were willing to leave safe well developed jobs late in their careers to join a Co-Op at any price. This was not only true of the executives but also the middle managers. And even those seasoned executives and managers who did come over had little experience starting an insurance company from scratch. Nor did they have the "turnaround" experience they would need to fix the inevitable mistakes. And there was another problem with capital. While the Co-Ops were relatively well funded, with a Federal capital development fund that was separate from the claims guarantee fund, the manager found problems with how to spend the money. Aside from the fact that at the beginning there did not exist such things as purchasing departments, which meant that that the Co-Ops (having to build up quickly) were screwed by almost everyone they did business with, they had trouble figuring out how to staff up. They couldn't take their time, which caused hiring standards to slip. But they also didn't know if they should staff up quickly against the possibility of small enrollments (and therefore risk spending to much right off the bat) or staff up slowly against the possibility of high enrollments and therefore risk being understaffed and having basic service issues). What usually happened was the worst of all worlds. They didn't anticipate the integration problems, so they didn't staff for them. They tried to forestall permanent staffing, so they outsourced a lot of things they should have taken in-house right away. In some cases, especially in the second year of Obamacare, their membership increased dramatically over the course of a month or two and they found themselves very understaffed against the volume of membership. The IT integration problems, the staffing quality and quantity problems, the in-sourcing of activities and the inevitable initial mistakes all had to be addressed in "real time" as the Co-Ops were providing health services to actual people. And they had to do this while painting rosy pictures to the Boards of Directors (who being appointed from the membership often had no idea how insurance companies worked to begin with) and regulators who were often hostile towards them.

The impossibility (there, I've said it) of constructing an adequate and competitive provider network in the face of major insurance companies, creating a fully integrated claims, enrollment, and financial structure, and a well trained, well organized experienced staff made working conditions at the Co-Ops stressful as they lurched from one catastrophe into another. The level headed leaders who actually thrive in this kind of environment turned out to be rare. So the lights began to go out to a chorus of "I told you so" from politically motivated groups who had their own reasons to want the Co-Ops to fail.

But what about the major established insurance companies with solid networks, infrastructures, and stable well trained staffs? When they entered the Obamacare market, what happened to them?

Here the question of risk enters the picture. With the Co-Ops' basic structural problems, we can look at the questions of pure insurance risk as the coup de grace. But how did the sophisticated risk experts at places like Blue Cross and United Healthcare manage to also shoot themselves in the face?

 

 

Will Marco Rubio Slay Obamacare?

As Congressional budget negotiations came down to the wire this week, Senator Marco Rubio (R-FL) was once again successful in inserting a provision aimed at destabilizing key elements of the Affordable Care Act.   At Rubio’s insistence, last year’s budget agreement included language restricting the ACA’s payments to insurance companies that enrolled less healthy patients.  The change has disrupted insurance markets, leading some new plans to declare bankruptcy and even industry giants like United Healthcare to wonder whether participating in the ACA’s exchanges is a good idea.

One might think that disrupting insurance coverage for hundreds of thousands of Americans would not be something a legislator would want to take credit for.  Rubio’s supporters, however, are crowing that while other presidential candidates have talked about killing Obamacare, he is the only one who has actually drawn blood.

The ACA’s critics have been trying to destroy it for so long that it is understandable that they would cling to every bit of what they see as good news.  Nevertheless, like Charlie Brown, they are likely to find that the ACA’s underlying resilience has once again pulled the football away.

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Roberts’s Pragmatism, Scalia’s Precedent

Supreme Court Chief Justice John Roberts has for the second time helped preserve the Affordable Care Act, again by seeing sensibly through to what the intent of the law is. Not persuaded by plaintiffs’ contention that the four words “established by the state” forbid the federal government from providing subsidies in states that do not have their own exchanges, he also noted the consequences of cutting subsidies for millions of people:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. … Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them … If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.

Antonin Scalia again has put himself at the center of a decision with the petulant language he has chosen – this time precedent-setting – in siding with Clarence Thomas and Samuel Alito in the minority: “We should start calling this law SCOTUScare,” he wrote, which apparently is the first time the term “SCOTUS” has appeared in a SCOTUS decision. There was also this: “The cases [concerning the ACA] will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” Finally, Scalia departed from custom by concluding his dissent with a concise “I dissent,” forgoing the adverb that typically divides the declarative: “respectfully.” Though it could be argued his use of it in previous dissents may have implied its absence.

New issue, new stories

Featured right now on the website, the latest from E.J. Dionne Jr., as well as our June 12 issue, just posted today.

In writing on the presidential candidacy of Bernie Sanders, E.J. discusses "The Two Santa Claus Theory" put forth by supply-siders in the 1970s and says that Sanders may be tapping into something:

The senator from Vermont has little chance of defeating Hillary Clinton for the Democratic presidential nomination. But he is reminding his party of something it often forgets: Government was once popular because it provided tangible benefits to large numbers of Americans...

Read all of "The New St. Nick" here.

And, among the highlights from our new issue is Robert Gascoigne writing on the affinities between Christians and the "secularists" who "share with Christians many of the key ethical values that can motivate and energize democratic political life."

[The] significant commonality of ethical and political ideals between secular humanism and the contemporary Catholic Church has a complex and turbulent historical background. The litany of suffering of members of the church at the hands of revolutionary political movements is a long and terrible one. Yet the relationship between the Catholic Church and movements for democratic change and social justice has happily, and surprisingly to many, developed into a shared commitment to defending human rights.

Read all of "Shared Commitments" here.

And, Rand Richards Cooper pens a Last Word on the troubling ubiquity of smartphones and the baffling "universal desire to be connected everywhere and all the time":

[T]hat’s America these days: people everywhere with their heads bent, fingertips flicking at their screens. Couples in restaurants, silently flicking. A schoolbus full of teenagers, heads bent as if in prayer.... But what happens when what we’re farming out is consciousness itself—the ability to be ourselves, with ourselves, amid the glories of creation?

Read all of "Flick, Flick" here, and see the full table of contents for the June 12 issue here.

Koched up.

In the fall of 2013, the Catholic University of America announced a $1 million pledge from the Koch Foundation, one of the many not-for-profit outfits with strong ties to the billionaire libertarians David and Charles Koch. The money, according to the university, would go to the business school, allowing it to hire professors and offer a course on "principled entrepreneurship." You may remember the Kochs from their charitable efforts to undermine public-employee unions, to support a campaign against renewable-energy standards, to suppress the vote, or to discredit the minumum wage (which the U.S. bishops want to raise).

A group of about fifty Catholic theologians certainly remembered. They sent a disapproving letter to Catholic University, voicing their concern that by accepting the grant, the university was sending "a confusing message to Catholic students and other faithful Catholics that the Koch brothers’ anti-government, Tea Party ideology has the blessing of a university sanctioned by Catholic bishops." But university president John Garvey and business-school dean Andrew Abela remained unmoved. They replied by pointing out that several of the professors cash paychecks from universities that accept Koch money, and accused them of trying to "score political points."

If any of those theologians were clinging to the hope that, given enough time, Garvey and Abela might come around to the idea that there's something odd about a Catholic business school accepting money from people who are so deeply committed shrinking the social safety net, cutting taxes, weakening environental regulations, ending the minimum wage, and busting unions, they can let go now. Because Catholic University's business school recently accepted another $1.75 million pledge from the Charles Koch Foundation (in addittion to $1.25 million from other donors).

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Obama administration proposes another new abortion disclosure rule.

Yesterday, the Departments of Health and Human Services, Labor, and Treasury published a proposed new rule that would require all insurance plans available on the health-care exchanges to disclose whether they cover abortion in their summary of plan benefits.

As I reported last year, and earlier this year, finding out whether the plan you're shopping for includes abortion coverage has been nearly impossible. According to the new proposed rule, an insurer offering plans on a health-care exchange must explicitly indicate whether or not elective abortion services are included. That is, if such coverage is included, the summary of benefits must list it "in the covered services box," according to the proposed rule. If  abortion is not covered, the insurer must list "abortion" in the "excluded services box." Finally, "plans that cover only excepted abortions [elective abortions] should list in the excluded services box 'abortion (except in cases of rape, incest, or when the life of the mother is endangered)' and may also include a cross-reference to another plan document that more fully describes the exceptions."

The new rule, if adopted, would strengthen another rule, proposed by the Obama administration last month, requiring insurers to disclose their plans' abortion coverage before a customer signs up for the policy. Previously the Affordable Care Act only required insurers to disclose abortion coverage "at the time of enrollment." It wasn't clear whether that meant before a person signed up for a plan, at some point after she had begun the signup process, or after she had already completed it. These two rules, if finalized, would allow customers shopping on the exchanges to readily tell whether the plans they're considering cover abortion well before they've purchased a policy.

Obama administration proposes new disclosure rules for abortion coverage.

According to a new rule proposed by the Obama administration, some insurance companies that sell coverage on the health-care exchanges will have to disclose whether their plans include elective abortion—before consumers enroll. The move comes a day after two prolife groups launched a website to help consumers determine which plans available on the exchanges cover abortion. They note that in four states the exchanges offer no plans that exclude elective abortion. The proposed rule will be published in the Federal Register on Monday.

Nearly a year ago I reported that finding out whether exchange plans covered elective abortion was nearly impossible. And in some states, you can't buy a plan without such coverage. The administration indicated that it was looking into the problem, but nothing changed. This past September, a Government Accountability Office report revealed that eighteen insurers across ten states were not in compliance with the Affordable Care Act when it came to abortion coverage. It found that some insurers were failing to segregate premiums for elective-abortion coverage from all other premiums, and others were still not disclosing whether their exchange plans included such coverage, even though the law requires such informtion be available "at the time of enrollment." The GAO also found that some insurers were not filing their plans with state regulators, who are responsible for monitoring compliance with the law. Again, Obama administration officials said they were examining the issue. This new rule appears to be the administration's first step to address these longstanding problems.

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SCOTUS gets another shot at gutting the ACA

Be sure to read Linda Greenhouse's powerful column in the New York Times on the Supreme Court's decision to hear arguments in King v. Burwell -- which Jonathan Chait called "a mind-blowing development" -- and how, in terms of politicizing in the court, it's even "worse" than Bush v. Gore. In this case, Greenhouse writes,

There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law....

This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect....

There is simply no way to describe what the court did last Friday as a neutral act.

Given the naked cynicism of the challenge to the ACA, and the lack of a clear need for the SCOTUS to intervene, why would the Court decide to hear this case? [Update: the rest of this paragraph has been revised to correct a silly misreading of Greenhouse in the original.] Greenhouse presumes the willingness of four members of the court known to be hostile to Obamacare to prioritize ideology over jurisprudence (a state of affairs Brian Beutler calls "the only reason left to worry," but it does seem like a good reason). She doubts that Chief Justice John Roberts would have provided a fifth vote - not necessary in any case - given the threat to his legacy the case could represent. But, she wonders, could it be that the four most conservative members of the court voted to hear the case "precisely to put the heat on John Roberts"?

Along with being a clear explainer on what the furor over this decision is all about, and a strong expression of exasperation on the part of a careful observer of the Court, Greenhouse's column is a reminder that John Yoo is still out there offering his opinions on legal matters (from an elite academic perch) -- and doing so in astonishingly moralistic terms, considering the source.

Professor Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote [for National Review] that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” John Yoo — yes, the Bush administration lawyer whose “torture memos” attempted to justify that administration’s “enhanced interrogation” policies — is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.

Greenhouse doesn't quote the line where Yoo breaks the irony barrier: "the insincere misreading of the statute will grate especially hard on Roberts’s professionalism." Insincere misreadings of statutes have a way of doing that.

So, how much is Roberts's conscience likely to determine the outcome here? We'll have to hope for the best. After all, to quote Yoo once more: "We shouldn’t discount the possibility that the Justices just want to do the right thing!"

Abortion coverage on the health-care exchanges: still a fine mess.

Several health-insurance companies across ten states are not in compliance with the Affordable Care Act when it comes to handling elective abortion coverage, according to a new report from the Government Accountability Office. The investigation, which was requested last winter by several members of the U.S. House of Representatives—including Speaker John Boehner—did not set out to measure whether insurance companies were following the law. Rather, it was intended to discover which health plans on the exchanges cover elective abortions, how they charge for that coverage, and how enrollees can determine whether the plans they’re considering cover such abortions. But over the course of its research, the GAO discovered that many of the insurance companies they surveyed—eighteen total—fell significantly short of the law's requirements. And some of them didn’t even realize it.

The Department of Health and Human Services has promised that it will soon issue further guidance to bring insurance companies into full compliance with the law.

The ACA allows insurers to sell policies that cover elective abortion on the state health-care exchanges—unless state law says otherwise—but it governs key aspects of those policies. The law and its implementing regulations prohibit the use of federal subsidies to pay for elective abortion coverage. To make sure that doesn’t happen, insurers selling such plans on the health-care exchanges must do three things: They have to estimate the monthly cost of elective abortion coverage on an average actuarial basis, which cannot be less than $1 (that prevents insurers from giving it away). Then they must collect from enrollees a separate payment equal to that cost. Finally, after they receive that payment, issuers have to segregate it from any other premiums collected from the enrollee. But before the insurer even gets to the billing stage, regulations require that customers be able to tell whether the policy they’re considering covers elective abortions. That was the plan, anyway. But it doesn't look like things are proceeding according to plan.

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On abortion, Hobby Lobby looking wobbly.

The owners of Hobby Lobby want you to know they take their moral commitments seriously. The Green family's stores don't sell shot glasses. They're closed on Sundays. They don't even allow their trucks to "back-haul" beer shipments. As supporter Ben Domenech pointed out, all those practices "could make them money, but they just bear the costs." The Greens are so serious about their Christian beliefs that they've made a federal case out of their objection to paying insurance premiums that would allow their employees to choose to receive contraceptive products that the Greens deem no different from abortion. "I doubt this is the type of company to spend one dime on this contraception mandate," Domenech wrote. "They will just drop coverage, and pay employees the difference...rather than compromise their beliefs." Except now it looks like they've been doing just that--for quite some time.

At Mother Jones, Molly Redden reports that Hobby Lobby's employee retirement plan "held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions." And Hobby Lobby makes significant matching contributions to the 401(k)--nearly $4 million in 2012, according to the company's 2013 disclosure to the Department of Labor. In other words, Hobby Lobby invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans--products they believe cause abortions. As Redden notes, other holdings in Hobby Lobby's mutual funds include companies that make drugs used to induce abortion, drugs administered during abortion procedures, and insurers that cover surgical abortions.

This raises an obvious question: If the Greens are so committed to the belief that they cannot in good conscience pay health-insurance premiums that might result in employees using products that could prevent the implantation of fertilized eggs, then why are they OK with spending millions annually on companies that manufacture drugs that will certainly cause abortions? In other words, as Nick Baumann put it, "either remote cooperation with abortifacients is a red line for you or it's not."

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Justice Kennedy's Logic Puzzle

Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.

But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”

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Franck vs. Posner on 'Notre Dame vs. Sebelius'

Matthew J. Franck is not happy with Judge Richard J. Posner. He doesn't like how Posner treated attorney Matthew Kairis during oral arguments at the Seventh Circuit Court last week (which I wrote up here). Kairis represents Notre Dame in its lawsuit challenging the HHS contraception mandate. Franck writes:

In a colloquy with Matthew Kairis...Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.

Of course, Posner has never been known for going easy on lawyers. One law blogger said this was Posner "at his cantankerous best." Others weren't so sure. But whatever you make of Posner's approach, Kairis didn't help matters by talking over the judges and failing to answer their questions directly--or without speechifying. "Any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question," wrote lawyer and blogger Bill Wilson.

Franck's displeasure isn't limited to Posner's attitude. No, he thinks Posner has missed entirely the point of Notre Dame's complaint. Actually, it's worse than that. Franck believes he's identified "Posner's inability to perceive what's at stake in this case" (my emphasis). But judging from Franck's post, it's not clear that he has a terribly firm grasp of the issues in play.

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