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tv   Zubik v. Burwell Oral Argument  CSPAN  May 16, 2016 8:41pm-10:19pm EDT

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across the country to a group of nuns called the little sisters of the poor, it says that the government can go ahead and take this as notification that these groups object to providing this coverage and that government can then go ahead and try to find a way to provide it on its own. >> robert burns covers this up in court and writes about the court for the washington post, you can read more at washington apollo's reporting on twitter@scotus reporter. thank you for joining us. >> you are very welcome. thank you. >> the supreme court sent challenges back to the lower courts on the healthcare law contraceptive mandate. the
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justices had been considering whether religious affiliated groups can be exempt from having to pay for, or indirectly allow birth control and other reproductive coverage in their health plans. the court did not rule on the merits, but instead sent court did not rule on the merits, but instead sent the seven cases back to the appeals court. this oral argument, subic versus -- was heard back in march. >> your argument this morning, case of 14-14 versus burwell in the consolidated cases,. >> thank you mr. chief justice. the little sisters of the poor and their co- petitioners face a dilemma that the religious freedom restoration act does not allow. they can adhere to their religious beliefs and paid millions of dollars in penalty, or they can take steps that they believe to be religiously a morally objectionable and that the permit deems necessary for them to provide contraceptive coverage through their healthcare plans. the government concedes the sincerity of these religious beliefs but it attempts to recast them as an objection to the very acts of opting out from injecting. with all due respect, that is simply and demonstrably not true. >> could you explain to me the analogy with military objectives during the war? many of them felt that in
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genuine belief we were pacifists, that if they registered as pacifists, that would mean other people would have to serve in their -- there are going to jail and many of them did go to jail because of this to believe. why is going to jail less burdensome, or less important then paying a financial penalty? >> i do not think it is. but let me stick with the conscientious objector example. i think the way to analyze a conscientious objective is to say that because they face jail time there is clearly a substantial burden. of course, you get to the second part of the analysis and you probably would insist on a conscientious objector actually objecting. >> no let's stop there.
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to the extent that a conscientious objectors good faith belief is that if i register, someone will serve in my -- what burden is that on the government meaning if you are looking at it in terms of scrutiny, the government sends out how many notices to people to come and serve a thousand, 1200, do you really think it makes a difference if it knows whether or not one person is not going to show up, if we are going down that road of what is the difference, why would that survive? >> i think it would because it would be very difficult to administer that kind of system if either you cannot even know about the objection where you cannot take any steps on the government part to fill the spot. >> well is not that the same
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thing here, if if you don't know who can pay, or who is not eligible, or who is eligible to pay, how does the system work? >> two things your honor. one, this is perhaps the unique government program where the government can provide an exemption without actually requiring someone to opt out because that is exactly what they do for the churches, for the integrated auxiliary. >> are you telling the church plans have to tell the government, tell someone has to tell the government who is eligible or not eligible, how is that different than military service? >> first will your honor that is just not true in respect to their churches, integrated that stick to their knitting and only engage in religious activity.
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but the more important thing your honor, i would distinguish between the situation where someone has an objection to opting out because the government is going to take independent steps to find somebody to fill their spot and a conscientious objector to objecting on a form where the only way they can object is if they list the name of somebody else who is draft eligible will then be obligated to serve. >> you began by saying the government mischaracterizes the position, i was just not quite sure whether argument was taking. you're getting more into the specific seven now, could you just begin again there and what were talking about. >> i be delighted to do that. >> my point was simply that my clients do not object to objecting. part of the reasons you know that is they had not been shy about objecting. they told the government and the revelatory process that they were making a mistake when they limited the true exemption for religious orders to only those religious orders that stuck to
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purely religious thing. my clients, the litter sisters going qualify because they go out and they serve the elderly poor on a nondenominational basis. that's why they don't qualify for the objection. they objective when they filed the lawsuit, they reaffirmed their objection when they filed a notice i was necessary to comply with this court's interim objection. >> that might be so, but what happens if someone did just object? it seems as though all of your arguments would apply the same way. in other words someone comes in and says i do object to objecting because objecting will make it easier for the government to fill my spot. that is a perfectly thing to say and that's part of my sincere religious belief and you say, the sincere religious belief is what controls and their two it would seem, under your very theory, you would have to say that's a substantial burden,
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even if it is just objecting to objecting. >> and two things, first it would only qualify for substantial burden if the objection requirement was enforced with massive penalties. that is a relatively rare situation. >> yes, i mean we have the same penalties arse are here in the person is just objecting to objecting and that is part of the religious belief because that will make it more likely that the government will be able to fill the slot and to take efforts to provide contraceptive. >> i understand he that brings me to the second part my answer which is i think the right way to understand that hypothetical and as i was explain it to justice kennedy, the apathetic all. >> it's a hypothetical that is directly appliqu├ęd by your very theory of the case. your theory of the case says that everything depends on a person coming in saying this is against my religion and that beings the and all of the deal. >> i do not think that is our position. our position is our sincerity of the religious belief the ever making question them is a legal analysis of the substantial
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burden but the substantial burden analysis in this case is very clear because of these millions of dollars a penalties. the the exact same penalties issued in hobby lobby and the court said it would be unsubstantial. >> just answer the question. >> with eldest do respect him trying to. that brings you to the second part of the river analysis. i would would think that if our objection, contrary to fact were that we absolutely object to objecting, if you come in and the government, based on our objection the government provides this service through service through the exchanges, through title ten, through aetna huber policy where everybody gets their contraceptives from an overall government policy, then we in fact object to none of those things. but, if we did i think we would lose under the second half of the river analysis. >> okay i understand that answer. it is that if a person had a sincere religious belief and object to objecting was a form
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of complicity than that would control and you would have to go to the second part of the analysis which is to say, is there compelling interest, has the government response been narrowly tailored? but essentially the objecting, the difference between objecting to objecting and your clients position is not a difference at all. with respect to the burden analysis. >> well, i do think my clients objection is distinguishable on the hypothetical. this is not an objection from objecting. one way to understand this is if there were in fact two forms, one was an opt in form, one was an authorization form, my clients would have no objection signing the opt out form. they're very much have an objection for the authorization for. the government. >> i guess what i'm saying is if i understand the factual distinction that you're making, but the factual distinction doesn't matter given your own legal analysis. >> i don't think it does based on this course presidents either. even if i am wrong about that, you constantly write an opinion that says that there are
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three legs to the stool in this case. there's the fact that the government demands more than an objection, the fact that it enforces it with massive penalties, and the reality that if that happens then they are going to hijack our health plans and provide the coverage against our will. >> what i don't understand is when will any government law that someone claims burdens their practice ever be insubstantial? because every believer that has ever come before us, including the people in the military, are saying that my soul will be damned in some way. i'm not naysaying that is a very substantial perceived personal burden by them. but if that is always going to be substantial, how will we ever have a government that functions? how will we ever have anything that the government can demand
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people to do in objecting that will not be a problem question. >> two things. the first is, that i do think that what you are saying that the government not been able to function under the substantial burden and then the least restrictive alternative analysis, that is exactly what justice glia said for for the court in the smith decision. justice o'connor took a different view and they had a healthy debate. you can question who had the better of the debate but there's no question which side of the debate -- >> 's is the debate that is settled that is if were not asked skin you to do something except and identify yourself and if who is going to do the action is either the government or a third-party, that is the balance that we have structs. it it is not a substantial burden if someone else is going to do the
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act that you are objecting to. >> justice souter meyer, that is the only action involved is a third-party action like an part of the board and against roy case, you're right, that's not a substantial burden, but when the government says and it needs more, i want to be as clear, admits on pages 87 - 89 of their brief that they need more just to know that we raise our hand and opt out. they also need additional information out. they also need additional information about our insured. they require more. >> so who is the and then they have an independent contract. the insurer or the tpa is if as an independent obligation that is imposed by the government. not the company.
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>> justice ginsburg, that is true if and only if we provide the form. it. it is not just the information on the form, the government treats that form as an authorization in the case of self-insured plans. >> if you had an authorization the law, the regulation requires it, it doesn't matter whether you say yes or no, you could say i fill out the form, i do not authorize, do not permit, it will not make any difference. >> it makes all of the difference justice ginsburg. if we don't provide the form, then the coverage doesn't flow. we have not provided the form in these cases. as a result, the coverage habit hasn't flowed. i think it's most obvious with respect to the self-insured plans but it is true of all of them, the government thinks it needs something from us so that it can take that something and make it a plan document. >> because the government has another interest at stake. one thing that you said and i want to clear it that this is
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not involved, at all, no one doubts for a moment the sincerity of the belief of your client and all the others. the sincerity of their believers excepted and it's off the table any more of the sincerity of the belief of the parents in the roy case. none of these cases is that an issue. that is accepted. but what's active in this case, as you know the original healthcare didn't provide these programs and services for women and it saw compelling interest there and indeed, that was marginally ignored up until then. so as in all things, it cannot be on my way, there has to be an accommodation. that is what what the government is trying to do. >> i agree, but just because they call it an accommodation
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does not mean it is immune from analysis. if if what they gave my clients is what they gave the 345,000 churches, their integrated auxiliaries in the purely integrated auxiliaries and the purely religious activities of religious orders, if they gave that accommodation to my client, we would fill out any form they wanted to. but the problem is, we have to fill out a form and the consequence of us filling out that form is that will be treated very differently from those other religious employers. >> you started to talk about self-insured plans. is it the case that the form or the notice to hhs in that instance becomes a plan instrument? >> in in both cases it becomes a plan instrument. the government thinks that our government is the functional equivalent of the form.
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and the reason why they required it is that the way regulations were designed, you did not raise your hand until the government i object, object, you send a form directly to the insurer or directly to the tpa that they then treated as a permission slip to provide coverage. >> it's out now. >> know it's not out now -- the alternative thanks to this court in the interim relief is that we now can file an objection that the government treats exactly the same way. all they do that is different is, it's essentially a mailing role, they take our objection and they provide that objection to the third-party administrator and at least with the self-insured plans that comes every bit as much a plan to document as the form 700. with all due respect, it's a little rich with the government to say, this is not your plan, don't worry about this. when variable interest is put into terms of seamless coverage.
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if it seamless to the end user than i do not think the little sister's perception that it is seamless to them, and they are in fact is it is an irrational belief by any stretch. >> is the essence of your argument and your objection that contraceptive coverage is deemed them through the health insurance? >> i think that is a fair description of the justice kennedy. i think the only problem the government is having understanding our position is that the health plan is somewhat intangible. i think if you put this in more tangible terms, if the consequence of us filing the form was that they would come into one of the little sister's home and set up shop in a room, they could pay his rent and it would not cost us a thing and they operated title x clinic out of our homes, i think everyone would understand that of course we're complicit. in the coverage that is provided on our premises.
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just because this is more intangible, i don't think the principle is any different. >> could do we except your clients view on complicity or do we have of an analysis -- to we just accept your view on complicity and just see whether the accommodation is a possible or at least raise addictive? >> i think that is your role that they had in the court. i don't don't think they want the truth detector test and that is not just the hobby lobby decision, goes back to the commons decision. if you remember that decision you had a religious adherent will have no objection to formulating cylindrical things that would go into tanks. there's another jehovah's witness those in the record that said you don't need to object to that is not a big deal. this clip specifically said, we're
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not going to get into the business of refereeing these disputes. we're not. we're not going to be in the business of trying to figure out and second-guessing whether mr. thomas is really correctly understanding his faith. here you have a ton of briefs that reinforce religious believes that are at issue here for the little sister's them for my other clients are not at all idiosyncratic, or not at all wrong as a matter of faith. that is not an area should get into. >> are you finished? >> sim. >> -- yes i am. >> i want to assume that purposes of the question, this is not just a matter of signing a form with an objection. your client is involved in the health care plan in major ways. they probably sign papers every five months or every day and they choose insurance and do all kinds of things. it is the topping, the icing on the cake that pushes it over the edge which is that you have to
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fill out the form thing, i object, this is my insurance then you can contact my employees. a whole bunch of things. so the question is, putting it all together now are they protected? i think the reason the court went from sherbet and -- over to smith is that they cannot figure out how to apply sherbet. this is at least one difficulty with it which is where i am going. i have gotten from religious purposes and i'm trying to find out something from being a member of society. sometimes when a religious person is not her mentor a monk is a member of society, he does have to accept all kinds of things that are just terrible for him. think of the quakers will object to be at nine. think of the people who objected to laws
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protecting blasphemy. think of the people who object to's shoveling the snow in front of the walk that will lead to the abortion clinic. think of the christian scientist who know when they report the accident that the child will go to the hospital or the adults and receive medical care that is against their religion. so there are loads of things that i've given you four. think of the taxes, there is no question that doesn't violate the religious class. plenty of other things too. so what is the line? why do the quakers have to pay the taxes for vietnam? but, you don't find the religious jew or muslim getting an extra day off during the week when the law says no one can work on sunday because their sabbath is on saturday. what is the line? i have been we reading and reading to try to find a fairly clear, simple statement of what that line is and how it works.
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and to repeat the difficulty of sherbet and -- which is what refer does, quite honestly does not help me. but you might. i'm going to try. >> i'm going to try. what i would say to you is you are exactly right. smith was a much more administrable world. but congress -- here's the way you work and draw the line. you first ask, is, is there a substantial burden on religious exercise. that is going to weed out some claims. if i was going to claim that attacks on wine for example. >> know the quaker, you think that was in a substantial a substantial burden? >> no. i'm just telling you that's one step that will lead up weed out some claims. i think there are some fairly obvious differences between a regime where essentially the government itself by its own action show that people cannot
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opt out, still important, is too universal. then you are a case like this are sherbet itself, the thing that made sherbet and easy cases government of south carolina had are ready taking care of the sunday objectors. at that point the argument that the whole system would collapse if we take care of this cemetery is, is not a persuasive argument. here they're taking care of the churches, the religious order just like the little sister's. if only the little sister's would not go out carefully elderly poor. they have demonstrated this is an easy case. >> thank you counsel. >> mr. francesca? >> mr. chief justice. the government here has the same interest that it had with respect to every other employee in this country who doesn't get contraceptive coverture from an employee base plan. yet, all of these other employees the government tells us that it furthers its interest in other ways. the government therefore needs to prove that those other ways are somehow insufficient when it
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comes to petitioner employers. the sum total of their showing in this case is limited to less than one column of one page of the federal register. that is simply insufficient before the government can demand that organizations like catholic charities, and the the little sisters of the poor engage in conduct that all agree here they regard a simple. instead instead what we have is a religious employer definition that is, those organizations that get the full-blown exemptions as opposed organizations like the petitioners here, they give a full-blown exemptions to organizations even if they do not object to providing contraceptive coverage, that treats identical organizations differently. where you have a catholic school on the west side of town that has taken place. >> are you suggesting that once you have this category, the church, than any other organization, religiously organ
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a has to come in that same category as the church itself? the government cannot treat the church and give it a redemption that it does not give to religious organizations? >> no your honor, i'm not necessarily saying that but when you look at what it has done in particular, when you look at what congress has done, that is the line the congress has drawn. both in the title vii exemption where churches like the house of worship religious organizations like our clients get treated the same. like in the tax exemption regime. here it is drawn for the tax world and they defined those have to to file informational -- >> the government could do that but it doesn't have to. that is can the government say we're going to treat the church itself also protected, religious oriented organizations are
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protected but not at the same level. >> your honor, no. i don't pay they can do that in the context of this regime. i don't think they can take the position that the little sister of the poor are less then a church than a house of worship. >> the same with university? >> excuse me? >> the same with the university. >> yes your honor. when you look at how congress has drawn the line, universities get the title vii exemption, churches do,. >> but then you're answering really to the affirmative to justice ginsburg question. want to give it to a church you have to give it to any other religious organization. that's your position. >> not quite your honor. i think the palm is the government has to draw definition that is coherent and rational. i think the problem is the definition from the tax regime that does not apply when he carried over to this regime. in the tax world, when the churches, when universities and
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little sisters of the poor file that tax return they actually get the exact -- >> it will be very difficult to write an opinion that once you have a church organization you have a religious university the same. i find that very difficult right. >> your honor, were not suggesting that. what we are suggesting is that when a government has the same interest here as it has for all the other employees in this country that cannot get coverage from an employer base plan, it's not just the religious and players, such as the grandfather plans, you have the self employed, unemployed, it employs a small businesses. the government has the same interest with respect to all those organization -- >> i think there is very strong tradition in this country which is when it comes to religious exercise churches are special. we have said this most recently in hosanna -- but it's a long line of cases that says there's something very special about churches themselves. if you're saying that every time congress gives an exemption to
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churches and synagogues, and mosques that they have to open that up to all religious people, then the effect of that is that congress just decides not to give an exemption at all. that is whether some people who are extremely strong supporters have deserted this cause right here, professor laycock among them because of the mortal danger that it poses to churches. >> your honor, just to be clear i'm not suggesting that whenever you give an exception to churches that exemption has to apply to all other religious organizations. when i'm suggesting is that when the government has the same interest with respect to both the religious and secular employees, the churches, religious religious employers, employers of small businesses and the government furthers that interest with respect to all those employees, whether the affordable care act, whether it's title 10, medicare, medicaid, at a minimum the government needs to explain why all of those other ways are
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sufficient to all those other employees. >> that's transitional. and there are many statutes that treat small enterprises differently. i said that once the government makes, recognizes exempts from the law the small business, once it has a number like an title -- that's it, the flight gates open and it has to open whether it's an exemption for the small business to everyone. >> not at all. what i am saying is if title vii had an extension that said you cannot discriminate on the basis of race and let you have a pre-existing policy of racial discrimination, in which case you can maintain that policy in perpetuity is loose you do not change it, that's fine. i think that would undermined the purpose of title vii and that is precisely the type of exemption that you have in the contraceptive mandate. >> couldn't congress or perhaps the executive survey the employees of churches and of
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other religious nonprofits, and categories of religious nonprofits, the little sisters, big university, and determine the percentage of employees in each of those groups who are members of the religion and then draw a distinction among those groups based on that survey? >> they could do that and many other things as well. >> well, we could also, why don't we just assumed that if they are part of, if the majority a part of the religion that they're not going to buy contraceptives. that is their religious tenant. so why are we worried about this case at all? >> we are worried because some women who don't adhere to that particular religious tenant and
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will have, we perceive the government has determined that they have a real need for contraceptive. >> i think that goes to the larger problem which is the utter absence of evidence. >> what is the utter absence? there's plenty of evidence relied upon to show that when contraceptives are provided to women in the seamless way, that the number of unintended pregnancy dramatically false. as does the number of abortions. so, that health risk to women who want contraceptives who cannot get it is proven, scientifically and otherwise. >> for justice, the problem with seamlessness or burden us that the problem that exists not just with respect to the employees but respect to every other employee who,. >> but we exempts certain
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employers of certain size. it's not peace as we do not believe that racial discrimination is a bad thing. or that we are not committed to eradicating that problem, but because of a certain point we have assumed as a society, or as a government, that you cannot do everything. so you cannot take care of the health needs of 100% of women but you can of a significant number. why is that? why is that a judgment that is not entitled to some respect? >> i thank them is one of two things. it had the government is willing to tolerate all of the problems that identified the petition with respect to the employee's grandfather plans. we understand we understand there about 44 million of those. with respect to the employees of small businesses, or religious employers. the unemployed are the self employed. either there
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are there are willing to tolerate the problems with all of those people than it really does question whether they have a compelling interest in forcing these particular to comply. on the flipside they're not actually willing to tolerate with respect to all of those other people, but instead but instead think they can further their interest in other ways, the question becomes, why are all those other ways sufficient for all those other people suddenly insufficient what a big comes to petitioner employees? that's the breakdown of the government cited the case. more generally we see an absence of evidence on many of the critical issues here. let's assume for the sake of argument we knew what the size of the problem was. how many women out there lack access of contraceptive coverage. we don't know the answer to that. let's further assume we knew how much of a problem would be reduced by forcing organizations like petitioners to comply, reduce it by one percent. 15 percent, 50 percent, 50%, and we don't know that. we still don't know whether the government could achieve a comparable reduction through less burdensome knee.
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the very less burdensome and needs said to further its interest with respect to its other employees who like the petitioner employees, don't get contraceptive coverage by an employee base. >> i have to admit not to quite understanding this argument. it seems as though the most important laws, the laws that serve a compelling interest often have exceptions in the. there they're often small business exceptions. there are often transition rules like that grandfathering provision here. if every time that existed somebody could come in and say, the government must not really believe in this law because there is an exception to it. they would allow some people, then we might as well pack it all inches there's not a lot in town that does not have exceptions like that. >> i do not think that is right.
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first of all, the grandfather plan is not transition rule, it -- >> it it gets lower and lower every single your. >> it got more for the first few years and then leveled off. >> if you make any change in your health plan, then you are out from under the grandfather and it's inevitable that over the course of years, any employer is going to make changes in their health plan. so it is a diminishing transitional period, once you make a change in your plan, you, you are out from under the grandfather. >> yes, except to allow employees to raise copayments at the rate of medical inflation without losing status and you can continue to add people to the plan without losing status. which is why it is leveled off at about 25% of the last 32 years. even putting that aside, once you john a massive exemption for both secular and religious reasons, it tends to undermine and do one or two things. either it shows your interest really is not that compelling because you
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are willing to tolerate a bunch of bad stuff for a bunch of other people, or, and i don't think that's what means here. i think what it means is the government is telling us that it has the same interest with respect to grandfather -- >> what incentives would you put into place. you be saying to congress, next time you pass a law, don't put in an exemption for churches, you're going to get in real trouble doing that. don't write transition rules that will help you, help them adjust, you're you're going to be in trouble doing that, don't right exemptions for small businesses, even though they're very particular concerns that small businesses face, you're going to get in trouble for that. those are terrible incentives to give to late legislator, are they not? >> your honor, think what it means is that when the government claims an interest, the overwhelming interest before his petition like petitioners to violate their sincerely held religious believe that yes, will this is where going to exempt some organizations rate nearly
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secular at some for political, and others for religious, then it does -- >> your point is, let's imagine whitesburg government program filled with exemptions, their smaller group of people who need an exception for religious regions. we look at those other exemptions, some some have good reasons, some terrible reasons, we really, under the first amendment should exempt religious two, right? >> yes. >> okay i just described to the united states tax code. we know that you do not have to have an exemption for those who are religiously objecting, for example to pay in taxes because it was support a war. >> sure. but. >> okay so i'm looking for the same question i'm not asking to refute you, i'm asking to look
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for the what the distinction actually is. for the reason i just said, i don't think the distinction can be well, you have exempt and some people so you have to accept the religious people to because that would run for the government of the united states. so we know there is a distinction, or at least i believe you when you tell me there is i want to know what you think. >> these are factual issue. >> no they're not. >> will go ahead. >> i think when you're looking at a regime, like this one that has both religious exemption, that has large exemptions or totally nonreligious reasons and has the same problem the government claims petitioners present with respect to all of the other in the country just like petitioner employees -- >> that's not the thrust of my question. the thrust is, i have not found it yet. i want to find what the real distinction is with you call it
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-- i don't care what you call it. i'm trying to buy the basis between the distinction of those things we do require, people to do despite their religious objection and those things that we don't. if you want to think there is no such difference, just read, as you have read newborns, and this more than two pages, some one way some of the other way. he says people are involved, what's your answer. >> i would agree. that's a tough line. >> i don't think there is a clear line for what things we rica choir and what we don't. >> give me a hint. >> i think with the law works is that it says, are you allowed to require them to do this particular thing that violates their belief. in making that decision you look at how the government is treating other similar situations. it is here the government is in fact saying, with it respect all those people who don't get the coverage of their players and were willing to tolerate it or else willing to address the
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issue in other ways, then under -- then you have to look at those other ways to see whether they are sufficient for these employees or if they are uniquely insufficient. >> may ask a question? is there any accommodation that the government would offer that would in fact results in women employees of your clients, or students of your clients getting health care as part of an employer-based plan, or student base plan, getting contraceptive coverage? is there any accommodation that would be acceptable? >> rana, the accommodation that we have excepted in our brief would all be acceptable. >> no, no, no. in other words -- you object to this notification. is there any notification that would be acceptable? >> your honor, if i submitted this notification or any other that we got the same treatment as the religious employers, then this notification -- >> the religious employers, their employees do not get
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contraceptive coverage through the employer-based plan. i am suggesting, i'm asking whether there is any accommodation that would result in the women employees getting contraceptive coverage seamlessly through an employer-based plan that you would find acceptable? >> your honor, possibly so, possibly not, if i could explain. we have not been offered that kind of alternative to consider. i think the more distance you put between the petitioners on the one hand and the provision of the objective of the coverage on the other, the less problematic it is. >> well what might be acceptable? that put enough distance. >> easily, not distances we have filed a notice of objection and the government furthers its interest in the same way it furthers its interest with respect to all of the other employees who do not get coverage from in a play base plan. the employees. >> so the your answer is wrong. basically you are saying, even if all you do is a knockdown, i raise my hand i tell you that i
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am a religious objector and they somehow from the suit, they know who your third-party administrator is, they have a general law that requires no all plans, insurance companies companies to tell them who their clients are. that if your insurer is involved in any way -- >> not necessarily. as it there is sane there is an insurance policy where a company that the government picked to provide contraceptive coverage to all woman in this country and we happen to use at night, i think we probably be formed. >> paper by the government? >> yes, your honor. >> the question was, college students, they want to get the same coverage that is available to as all other conditions. as far as i understand your say no, it has to be some other plan. the government provides its own
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plan but as long as you connect the inshore that is ensuring the religious organization, as long as that insurer is linked then the students will have to get something else. it cannot get what all the students get for all other health protection. >> justice ginsburg, trying to be careful because we have many clients that have many different views. i think as a general matter i concert we see the case that if they're seizing control of our plan, the plans that we are required to provide under threat of penalty, using those plans as the vehicle to delivering the objectionable coverage to our employees, silliest lives there and rolled on this plan which is what this does, then it's really then i could truly see while many clients would be that as a
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substantial burden under the religious plea. that is not the end of the analysis. we then turn to less restrictive alternative and i will conclude here, it is quite clear that the government has alternatives. as a same alternative that it uses for everybody else. if all the alternatives are fine with them, they at least need evidence explaining why it they're not fine for us as well. >> thank you counsel. >> mr. chief justice. the accommodation the petitioners challenge in this case strikes precisely the sensible males between religious liberty and compelling governmental interest that congress sought to point in enacted. this court recognized in hop lobby the accommodation seeks to respect the religious liberty of petitioners by exempting them from the contraceptive requirement and to respect the interest of petitioner employee. >> is it fair to me to infer from the way you opened your remarks that you can see there is substantial burden here?
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and the question then is, what is the permissible accommodation in the least restrictive alternative? do you can see there is substantial burden. >> we do not concede there is substantial burden. we can see that the religious belief is sincere. we are not questioning the sincerity of the believe, we do do not think a case in which when a question is this, when religious objection is made to the independent arrangements that the government makes a with third parties to fill a regulatory gap created by granting an exemption from a generally applicable rule that that qualify. >> to question their belief that they are complicit? in the moral realm question it. >> no, we do not. >> well, that it seems to me that is a substantial burden. the next question is, whether there is accommodation in which that is least restrictive? >> i'm happy to discuss the substantial burden further.
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i do want to go, to what i think is a critical point on the question with how it applies. it is this. mr. francesca spent a lot of time talking about the various alternatives the government might be able to use instead of the accommodation. i think there is a real problem with every single one of them. every single one of them defeats the very purpose for which congress imposed the prevented services requirement. not just with respect to contraceptive, but with respect to all preventative services. the point here and i think you can see this if you look at the relevant statutory provision which you can find on page four a of the appendix our brief which is the preventative services provision. the point here this provision is that a group health plan, that
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health plan that covers people through their employer, or individual health insurance coverage, for example the kind of coverage that's sold on the exchanges shall include cost free all of the preventative services. the whole point of this provision, the whole point of it was to ensure that people who got health insurance would get the preventative services as part of their regular care, from the regular dr. -- >> in other words your compelling interest is not that women obtain the services your compelling interest is that women obtain the contraceptive services to through the insurance plan of the third-party administrator hired by the petitioners, hired by the little sisters. in other words, seems to me that you cannot say that what you're trying to do is make sure everybody has this coverage, you want to make sure they have it through the program set up through the little sisters and that's what they object to. >> yes, that's i understand that. assuming and i'm happy to discuss that. assuming for a moment, the point
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i'm making here and i think this is critical is that none of these options that the petitioners have identified, going out on the exchange of buying a separate individual policy, a contraceptive only policy, title 10, medicare, medicaid, you have to change the law to make them even eligible. even if you could change law, every you could change law, every single one of them creates the very problem that congress is trying to solve in this provision. it would require setting up a one off, jerry rig separate channel to get contraceptive coverage. >> ..
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>> >> they object to having them provided through the mechanism that they have set up because they think whether you or i or anybody else thinks, they think that. >> i am understand that mr. chief justice and that is their position but does that constitute a substantial burden? we take it does not because the way this accommodation is structured, although you are quite right for the employee to make sure they get protection from the
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perspective of the employer that this is provided through a separate program. >> you say don't worry religion you are not the implicit. >> no. that is up to you but there is the objective when it of the recognizable burden if that was true with case law previously unrecognized there was no doubt that whether or not there were less restrictive bull -- alternatives. >> but as i said your honor is certainly is the least restrictive alternative. >> if it is possible for a woman who has not yet had contraceptive coverage come
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under a plan offered by a church or offered by a religious nonprofit. to obtain the a contraceptive only policy free of charge on one of the exchange's? why is that not a less restrictive alternative? >> that is the problem precisely that congress is trying to overcome with a preventive services provision. >> what type of person does that impose? that they are so one workable even with the help of the navigator that a woman who wants to have free contraception coverage has to sign up on one of the changes. >> know your honor. >> she will have to insurance program one from the employer and one from this plan. some people have insurance card for medical and one for prescription.
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>> for the very reason the employee has to go out to get the separate policy even in the world that does not exist now because they cannot be sold on the changes now. >> we can talk about that but continues. >> even in that hypothetical world it is that equal the effective because the whole point is you get this care for your regular doctor and regular health care without any barriers including co pay. think of the perspective of the woman employee. she has a health plan from her player. -- employers she goes to her regular doctor. she may have a medical condition that makes pregnancy a danger this is about 15% of those who need that to treat aids medical condition or maybe just what is appropriate for her.
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what happened ears -- and what happens is a doctor says he cannot help you. not just the isn't a prescription but we cannot council or educate. >> he is paid under the contraceptive plan. >> that is not her regular doctor she has to buy a separate plan, find a doctor >> and shoes -- assuming they will be willing to sell those separately. >> so the whole point is justice alito most would perceive sashayed small barrier because the medical textbook said even as part of the regular coverage it
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works eggs a sufficient disincentive they an otherwise. that is the great barrier. >> what about those who have been grandfathered? >> those offered no contraceptive coverage. >> talk about them. i will answer your question directly but the broader context matters. the number of people have dropped 50% there is a reason this will not continue to drop and it does over the last four years we will be at zero very soon. >> in the interim when is the reason congress did not require contraceptive coverage right away under the grandfathered plans?
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for those 25 rolls to get under the parents health-insurance? there was no great administrative difficulty to put an end contraceptive coverage right away. but congress said and we have to do that right away but including the other things not to provide that coverage for as long as you maintain that. >> when congress passed with the american with disabilities act it didn't have the immediate requirement every building be retrofit what it said in the context was when it was feasible to do so within the
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new buildings shall have the access requirements. no one would say that with a compelling interest to enforce americans with disabilities act because congress decided on a transitional system. this is a big program and they understood this would drop dramatically over time. the declaration of the diet plan diocese of page 86 speaking with a grandfather plan now because we don't want to trigger the contraceptive department so we have to change that is the reality with respect to contraception is self comedy is you of medicine and said that contraceptive coverage is standard practice now
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with 86 percent of all contraception coverage now it will not be cost free. >> to come back to the point of of americans with disabilities act that is a good .8 k and be very expensive to retrofit facilities to accommodate people with disabilities. but are you saying that burden to simply institute coverage for preventive care and that is comparable to make architectural changes? >> no. but i'm like the exemptions under title seven millions of people are under discrimination and it does so permanently. this is a chance is an old device where overtime where
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nobody is in this situation is summer getting some form of contraception coverage anyway. >> can we go back to the substantial burden question? justice breyer is talking about how to draw space. what is it that government has to have to accommodate? >> some have suggested at least to be drawn some clarity to the case which is if what you're religious belief is asking the government to do with this change its behavior with the regulatory behavior with respect to others than it cannot be a substantial
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burden because he lived in a society in which government has to function. hadn't -- and with the voluntary objective you cannot say no you cannot draft somebody else. you cannot spend your money on war. if you want to use others that you are entitled. does this make any sense? is the government not to use their regulatory power with third parties who don't have a religious objection? and in forcing a of a burden on women who are trying to help. to burden them spirit that is our position i believe
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trying to answer justice breyer's question comes from there is that objective thought that it did not doubt that the government actions would have a devastating impact. >> this is not just a case of the government dealing with the third party based on the petitioners object should the government is hijacking their process that they have hired and set up for the service is i understand the distinction you cannot compel people with the religious police. that is not what is going on but the relationship between the insurer and the third-party administrator
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with respect to other entities is used by the government to provide these services. not just they want to third parties to take action. >> but that is the context that it occurred. there is the relationship for the government but the two points that our critical in the first is what we're doing when we act is to make alternative arrangements, as close as we can to those a police you may not share the petitioners while at the same time to insure the employer has no legal
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obligation to pay for the coverage or provide the coverage in any way. >> the practical features the employer cannot be charged the insurance company or third-party in administrator has separate notices and a separate insurance card to the employee for this part of the coverage. so it is the independent arrangement of third parties >> but it is the insurance company they have hired the third-party administrator is seems that it is clear. you want the coverage for contraceptive services as he said previously though one insurance package that is a
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compelling government interest for those who have sincere religious objections through the third-party administrator with the government's compelling interest to outweigh those since your religious objections. >> bad is one fair understanding of the case. >> is there another one that is more fair? [laughter] >> we would be content if the court would conclude with substantial burden it could assume a substantial burden but the government is satisfied the burden to show a compelling interest. >> you're not giving up on substantial burden? >> no. we do think it is a hard question that is why we fight on that.
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>> that is exactly what i found it difficult to exactly your brief said that but it isn't the type of burgonet counts -- the burden is that of a certain kind? you say where it arises out of the fact we have a program that affects their parties in a big way. with vietnam, a church, that they have to meet in the basement of the house and the parking regulations stopped the congregation's think about that we could put that into the context.
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so i can think of counterexamples bet widespread administrative rules where they have leeway with the third-party widespread administrators. i am trying to get the thinking of those you thought about this for you and the others would is the best way to treat the burden ? >> with people go into society assumes some burden. >> with. >> to those principles that are articulated are in the situation where the
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government is making arrangements with third parties to fill a regulatory gap created by the government to grant an exemption. >> can you address the hypothetical where the government comes into the unoccupied room with the facilities not used for anything that a winter felt -- interfere and there is no financial burden there is financial benefit. >> so in that situation at that is a different entity and blue cross is different. the government makes its
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arrangements with each separately we make those arrangements and other insurance companies like aetna to other third parties and the employees. >> so you would mitt in the case of the self insured plan, the notice becomes part of the plant. this is their health insurance plan its you are putting a new objectionable elements into the plan? mcfadyen cents quite right there has been some confusion on the petitioners side there is to separate notices on this self insured the first is the employer provides the government that is the erisa plan but that is to exempt the employer from any obligation to provide contraception coverage.
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then there is the second to document the different document to said to the third-party administrator that has a legal effect to create the obligation on the part of a third-party administrator to provide the coverage. that is the exempting document. >> you it may you put something into their plan that they object to on religious grounds. >> one involves something tangible physical property be other involves something intangible. >> it is a set of rules it becomes the up plan administrator for it this portion of the plan.
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even if this did create a substantial burden, it's not true about church plans though is switching from the third-party administrators situation to the insurance company is the insurance policy part of the plan. >> the way they provide the benefits available. >> and the government makes an arrangement and operates in parallel to that. >>. >>. >> what about pittsburg gore that catholic charities? >> this gets to their church exemption and i will try to explain that it is helpful
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to understand how we came about. initially hhs said it would create a an extension for churches but then the religious nonprofits the government made a judgment it was unwilling to extend the exemption but for the accommodation that we thought was the best way to protect their religious liberties. the wave day comply with the mandate. >> they don't have to comply
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but space is perfect and with some overlap. it then to identify earlier in that category those that apply but but that connection the you have to draw the line. could you apply the same requirements to the church entity itself? >> and if it has the same compelling interest the we have constrained ourselves
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and that is what the governments do. >> a few have a law of exemptions and underlines the argument. >> i will try to walk through this carefully. they have identified three. i tried to show you i don't thank you can argue with that. under the compelling interest. if you have those employees that anybody in that category is not getting contraceptive coverage as part of the regular health care and i will explain that. but the truth is that
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several petitioners are in that group of fewer than 50 employees so they are asking for the claim because when they provide coverage they get the coverage from their regular doctors regular health plan. but did you go on the exchange to purchase on the exchange in then that policy provides with contraceptive coverage as part of your regular health plan with your regular doctor or so as part of your regular health plan from your regular doctor. >> but if he doesn't offer health insurance does that arrangement frustrate the compelling interest?
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>> the only option they have is that the individual policy will be part of the health care but the difference is when somebody works or a grandfather plan for a church so for them it is an obstacle because it is the insurance policy. because their compensation is the health insurance they are getting. >> but they are subsidizing. >> so the way it is
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structured employers are not to bear any financial all burden for eartha contraception and coverage in the funds have to be segregated so it is carefully designed to avoid that. >> if it is so easy then get it through another plan. >> and they have to sign up and pay for a second plan that is precisely the obstacle congress was trying to insure that did not exist with this statute. no whole idea is that they get the care from the regular doctor as part of their regular health care without the added obstacles to sign up for another plan and find the doctor who will provide coverage or the
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obstacles the congress tries to eliminate because it comes down to who has to do the paperwork if it is a religious organization and then it is okay. >> put yourself in that position. >> that is a falsehood the changes require full care with minimum coverage better comprehensive. >> is that true with every policy sold? yes. >> except for pediatric. >> but separate health coverage products we do that already but we could not do that aren't -- and they're current loss. >> but it works buy you may have to change current law.
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[laughter] but you don't have to get to that question if there is an obligation to change current law because even if you did have a contraception only policy available that is precisely the barrier that congress tries to eliminate. that creates budget disincentives that i have this coverage. >> that substantiates the point of food does the of paperwork? >> as they have said to be used as the vehicle. i'm not saying it comes out one way or another but just trying to focus on what is at issue.
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>> guest: the employee or the sisters to sign the paper? in the other cases of violation. but the point is that congress and the institute of medicine made a judgment this does impose a very significant obstacle with significantly less use of necessary services. >> it is why governments interest has advanced in the most effective manner. >> is this right that for
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them to ask for their coverage because quite a few who have religious objections than there is that middle set since they're already inertia bound we cannot say so because if they get the contracept give that lowers the cost later. the government has an interest in that and therefore there is an interest of some kind to not have a system. do i have that right? >> what about the other part? does not hijacking with the infrastructure the
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contraceptives plan belongs to the insurer not the person who buys the insurance. >> that is why when we make an arrangement with blue cross board aetna it is not with the petitioners. >> but with what is the available policies are available for comprehensive coverage so could they say we're not going to take any action against insurers to have contraception only policy is but we will subsidize those with the self insured plans.
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>> why is that not a valid exercise? >> bennett presents the same problem of the obstacle which creates the problem but if congress itself the whole statutory provision. >> like to do you do that in accordance with your understanding of executive power? >> don't think that will address the problem spinach bed difference between the employer but for contraception for many and other people that those who
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do not have the coverage has to give from someplace else. for or is there a real difference between the employer saying we will not cover contraception? and the woman to doesn't. >> that is the point. though woman employee asking what the difference is it is unjust about filling out paperwork you go to your regular doctor to say you have a medical condition that puts me at risk of being pregnant or i just need contraception entry to a medical condition. the way it works now if granted of the exemption the doctor has to say.
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>> that is the interest on the one side of the equation. >> sanders stand the complicity. >> which way does it cut with that balance? >> in this situation because the interest are compelling none of those have come close if we have that coverage to and to be told by your regular doctor i cannot help you or even callously you numerous physicians have filed declaration that it will not cover any counseling you have to find another doctor and you have to find a way
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to pay for that and it is a whole host of obstacles not just about signing a form. >> what if she would go for other services under the plan is unwilling under of a separate plant? >> but then the doctor has to be under the same plant -- plan. >> we have used this analogy why isn't this day hijacking >> the best we to explain that the goal is to exempt your employer in with their
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involvement live with like to do to follow-up with your answer those contraceptive services are pursuant if you're hired by a religious organization it will not be in that brochure it cannot be because there has to be separate communication from the insurance company to savor getting this separately. >> but if aetna offers a separate policy think it is inadequate accommodation? >> every says the problems identified.
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>> but he says general leave that to aetna under another policy on the exchange that want to go that it's okay. that is what they do. that is the same thing. >> to policies instead of one. >> that is provided by government regulation. >> but doesn't have to be separately. >> i do want to make a point about the notice edits and just about us using the plan but it can't constitute a substantial burden because it is derivative to set up a
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third-party arrangement anything he told you that this wording because of the government did not take that step will be happy to provide any information so that tells you that objection and not the notice per se. >> just to ask the informational question of the little sisters, their regular third-party administrator role not provide the coverage even if they were to comply with the form of the notice requirement so therefore they probably cannot have a way under erisa to obtain contraceptive coverage for
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their employees and less you confined and other third-party administrator. in that situation with the sisters still be subject to the to fines for failing to comply? >> i don't think so. >> weighed the alternatives but before you in this case. on the one side you have the serious effort to respect the religious beliefs that allows them to exempt themselves in a straightforward manner to protect fundamental rights and dignity of their employees who may not share their religious beliefs what you have is a demand that those rights and employees to be extinguished until
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such time as congress creates and enacts a different program to require a separate one off jerry read channel that will impose precisely the burdens that congress said with a statutory provision are unacceptable for all of those services. >> that is one way to characterize the issue could also say that it is the case where a great array of religious groups who orthodox jews and muslim groups jesus christ of latter-day saints to set this presents the unprecedented threat and
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what would you say to that? >> i think what eight courts of appeal has said to require a sensible balance. said in a pluralistic society that everybody can work side by side the accommodation it achieves the balance and then it should be different. >> four minutes. >> mr. chief justice in rebuttal ever to start with the university justice kennedy don't think it is the case that just because congress exempts churches and passed to exempt the university. but it needs a rationale to draw the line.
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the line does not have to be perfect in the least restrictive alternatives but the line that they have drawn is absurd look at the amicus brief filed and the former head of the tax division in dick's planes the airline did they pick of the tax code makes no sense that disease dialling requirement but no substantive difference if they file a form they get the same tax-exempt status as the church. the only difference if you file the form the substance is the same so to use that to draw a distinction between churches in tunis -- universities is a terrible line to draw. >> but it has been mentioned several times by a leading
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proponents to discuss this problem. >> i say that leads to the next point limit just finish this point to the original justification justice kennedy is the exempted organizations are more likely to hire religions and less likely to have employees that would use the product. byproducts equally enjoy the titles of the exemption to hire those said the original rationale applies to my clients you have to draw a sensible line. will respectfully disagree with the professor. >> with the churches you have to tell us because not every church is religious has this sow is that what you prefer? the incentive that you put
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out there that is the message you are giving there is lots of rules to apply differently because we recognize they are special? it is clear to tell what a church is. >> it applies to religious orders of they would just stick to their knitting and they would qualify. but to insert together not all exemptions are created equal. the professor is a great scholar but he had committed to the details of this particular plan. for these entities then even she would recognize the important point is that not all are created equal that is a rational exercise to create an exemption for the
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scheduled five senses that is less dangerous maybe the government would have looked but the problem is the olivetti looked at the scheduled one substance so why couldn't they provide day exemption for another substance? they all have to be treated the same no excuse to do the hard work to see if they make sense. one of the cases that congress clearly wanted to embrace was a relatively hard case because of the state provided the extension than that would have been an easy case. with the exception of their grandfather plans. that is the grandfather
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provision if you like the plan you can keep it. my clients with but to be a conscientious objector but the government's insist they are a collaborator but there is no such thing. >> the case is submitted.
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>> i am pleased and honored to have with us today israel's ambassador to the united states. ambassador was raised in miami beach florida where his father and brother served as mayor. you can consult the summit with his dirty from miami to be appointed as israel's ambassador in 2013. what did his most trusted geysers and as the emissary to the united states during a


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