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tv   Politics and Public Policy Today  CSPAN  April 4, 2016 5:00pm-7:01pm EDT

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it's a bunch of things. putting that all together now, are they protected by rifra? the reason that the court went from sherbert and verner over to smith was they couldn't figure out how to apply sherbert and verner. sherbet and verner rifra picks up. this is at least one difficulty with it, which is where i'm going. i even read st. benedict, not for religious purposes, i'm trying to find out something of being a member of society. sometimes when a religious person who is no the a hermit or 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. the quakers, who objected to vietnam. think of the people who object to laws protecting blasphemy. think of people who object to shoveling the snow in front of the walk that will lead to the abortion clinic. think of the christian scientists who know when they report the accident, the child will go to the hospital or the
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adult and receive medical care that is against their religion. so, there are loads of things. i've just given you four. think of the taxes. there's no question that doesn't violate the religious clause, but plenty of other things do. so, what's 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 in the week when the law says nobody can work on sunday because their sabbath is on saturday. what is the line? i've been reading and reading to try to find a fairly clear, simple statement of what that line is and how it works and to repeat the difficulty of sherbert and verner, which is what rfra does, quite honestly, doesn't help me, but you might. >> i'm going to try. i'm going to reserve my time for
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rebuttal. i would say you're exactly right, that smith was a more administerable world but congress -- >> tell me -- >> absolutely, here's way you work it and draw the line, you first ask, is there a substantial burden on religious exercise that is going weed out some claims. if i was trying to claim that a tax on wine, for example -- >> no, the quaker, the quaker, you didn't think that was a substantial burden? >> no, that's one step that will weed out some claims oop think there's work to be done on the second half of the test. i think there are fairy obvious difference between a regime where the government itself by its own actions has showed that people can't opt out, it's too important, it's too universal. then you come eight case like this or sherbet, it was the government of south carolina taken care of the sunday objectors, their on argument that the whole system would
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collapse if we take care of -- if only the little sisters wouldn't go out and care for the elderly poor. they demonstrated this is an easy case. wry i reserve my time. >> thank you, counsel. >> mr. francesca. >> mr. chief justice, may it please the court. government here has the same interest that it has with respect to every other employee in this country who adopt get contraceptive coverage from an employer-based plan. for all these other employees, 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 comes to petitioner's employees, but 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
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that organizations like catholic charities and the little sisters of the poor engage in conduct that all agree here they regard as sinful. instead, what we have here is a religious employer definition. that is, those organizations that get the full-blown exemption as opposed to the organizations as the petitioners here, full-blown exemption even if they don't object to providing contraceptive coverage. that treats identical organizations differently where you've got a catholic school on the west side of town that has to comply -- >> are you suggesting once you have this category, the church, than any other organization, religiously organized organization has to come into that category as the church itself? the government can't treat the church as special and give it an exemption that it done give to
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religious oriented organizations? >> no, your honor, i'm not necessarily suggesting that. in this case if you look what the government has done, in particular, when you look what congress has, in fact, done, that's the line that congress has drawn, both in the title 7 exemption, where churches, like the houses of worship and religious organizations like our clients, get treated the same. here, the government's entire line is drawn from the tax world where the line -- they define those who have to file informational taxes -- >> the government could do that. but does it have to? that is, can the government say we're going to treat the church itself ultraprotected, religious oriented organizes are protected but not at that safely level? >> your honor, no, i don't think they can do that in the context of this regime, i don't they i government can take the position that the little sisters of the poor are any less at the core of a quote, unquote, church, than a house of worship. >> same with a university? >> excuse me, your honor?
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>> the same with the university? >> i think with a university, yes, your honor. again when you look at how congress has drawn the line, universities get the title 7 exception from religious hiring. churches do. little sister of the poor do. >> you're answering them really to the affirmative to justice ginsberg's question, once you 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 problem is that the government has to draw a definition that is coherent and that is rational. and i think the problem here is that they've drawn a definition from the tax regime that doesn't apply when you carry it over to this regime. in the tax world, when the churches, when the universities, when the little sisters of the poor file that informational tax return, they actually get the exact same -- >> it seems to be very difficult for this court to write an opinion that says once you have a church organization, you have to treat a religious university the same. i find that very difficult to write. >> your honor, we're not suggesting that. what we are suggesting is that when the government has the same
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interest here that it has for all the other employees in this country that don't get coverage from an employer-based plan -- not just the religious employers, not just the grandfathered plans. in addition you have the self employed, unemployed and employs of small businesses. the government has the same interest with respect to all those organizations -- >> i thought there was a very strong tradition in this country, which is that when it comes to religious exercise, churches are special. and, you know, we've said this most recently, but it's a long line of cases that says there's something very special about churches themselves. and if you're saying that every time congress gives an exemption to churches and synagogues and mosques that they have to open that up to all religious people, then the effect of that is that congress decides no to the give an exemption at all. that's why there are people who are strong rfra supporters who
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have deserted this cause right here, professor lacock among them, because of the mortal danger that it poses to churches. >> your honor, to be clear, i'm not suggesting that whenever you give an exemption to churches that exemption has to apply to all other religious organizations. what i am suggesting is that when the government has the same interest with respect to both religious and secular employees, churches, religious employers, employees of small businesses, employees of grandfathered plans and the government furthers that interest with respect to all of those employees, and many other ways, whether it's the affordable care act exchanges, title 0, medicare, medicaid, eight minimum, the government needs to explain why those other ways are sufficient for all those other employees -- >> there are many statutes that have grandfather provisions that are transitionalle and many statutes that are treat small enterprises differently.
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are you saying that once the government makes -- recognizes exempts from the law, the very small business -- once it has a number, like in title 17 15 employees, that it. the flood gates open and it has to open what is an exemption for the very small business to everyone? >> not at all, your honor. what i am saying is if title 7 had an exemption that said you can't discriminate on the basis of race unless you have a pre-existing policy of racial discrimination, in which case you can main thain that policy in perpetuity as long as you don't change it, that's fine. i think that would undermine the purpose of title seven. that's precisely the type of exemption you have in the contraceptive mandate. >> couldn't -- >> congress were perhaps the executive survey the employees of churches and of other -- of religious nonprofits and categories of religious nonprofits little
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sisters, a big university, and determine the percentage of employees in each of those groups who are members of the religion and draw a distinction among those groups based on that survey? can congress do that? >> justice alito, they could do that and many other things as well. >> we couldalso -- >> why don't we just assume that if they are part of the -- if the majority are part of the religion that they're not going to buy contraceptives. that's their religious tenet. so why are we worried about this case at all? >> your honor because -- >> we're worried because there are some women who don't adhere to that particular religious tenet and have, we perceive, the government has determined, have a real need for contraceptives. >> justice sotomayor, that goes to the larger problem with the government case here, the utter absence of evidence. assume for the sake of argument --
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>> what is the utter absence? there's plenty of evidence that was relied upon to show when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls, as does the number of abortions. and so that that health risk to women who want contraceptives and can't get it is proven, scientifically and otherwise. >> that problem, whether you call it seediness or burdensomeness, that exists with not just with respect to petitioners or employees but every other employee who liked petitioner employees -- >> we exempt certain employers of certain size from title 7. it's not because we don't believe that racial discrimination is a bad thing. and it's not that we're not committed to eradicating that
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problem but because at a certain point we have assumed as a society or as a government that you can't do everything. so you can't take care of the health needs of 100% of women but you can of a significant number. why is that a judgment that is not entitled to some respect? >> because i think it means one of two things. either the government is willing to tolerate all the problems with respect to employees of grandfather plans and we understand there are around 44 million of those, with respect to employees of small businesses, with respect to religious employers. the unemployed and the self-employed. if they're willing to tolerate problems with all of those people it does question whether they have a compelling interest in forcing these particular petitioners to imply. if, as they suggest in their beliefs, they instead think they
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can further their interest in other ways, the question becomes why aall of the other ways sufficient for all of otter 0 people suddenly insufficient when it comes to petitioners' employees? that's the fundamental breakdown in the government's side of the case. we see an absence of evidence on many critical issues here. let's assume for the sake of everything how many women out there actually lack access to contraceptive coverage. we don't know the answer to that. let's ooh sum how the problem would be reduced by forcing organizations like petitioner's to comply, reduce it by %, 15%, 50%. we don't know that. we still don't know whether the government could achieve a comparable burdensome means. and the very less burdensome means that it says sufficient to further its interests with respect to all of the other employees who like petitioner employees don't get contraceptive coverage -- >> i have to admit to not
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understanding this argument. it seems as though the most important laws, the laws that serve the most compelling interests, are often have exceptions in them. there are often small business exceptions. there are often transition rules, like the grandfathering provision here. if every time that existed somebody can come in and say the government must not believe in this law because there's an exception to it. the state allows some people -- we might as well pack it all in. there's not a law in town that has exceptions like that. >> i don't think that's right, your honor. first of all, the grandfather plan is not a transition rule. contains no sunset provision. >> it gets lower and lower every single year. >> lower for the first couple of years and it's levelled off in the last couple of years 25%. >> if you make any change in your health plan, then you are out from under the grandfather.
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and it's inevitable that, over the course of years, any employer is going to make changes in the health plan. so it's a diminishing transitional period. once you milwaukee a change in your plan, you're out from under the grandfather. >> yes, your honor, except they allow employees to raise co-payments at the rate of inflation without losing status allow you to continue adding employees to the plan without losing grandfathered status, which i think partly explains why it's levelled off at 25% over the last couple of years. but even putting this aside, i think once you've drawn a massive exemption for both secular and religious reasons, it tends to undermine -- it tends to do one of two things. either it shows your interest isn't that compelling -- because you're willing to tolerate a whole bunch of bad stuff for a whole bunch of other people or -- and i don't think that's really what it means here -- what it means here, the government is telling us that it has the same interest with respect to grandfathered employees.
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>> here are the incentives you would put into place, mr. francisco. you'd be saying to congress, congress, next time you pass a lot, 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 people adjust to a new legal regime. you're going to get in real trouble doing that. don't write exemptions for small businesses even though there are very particular concerns that small businesses face. you're going to get in trouble for that. those are terrible incentives to give to a legislature. are they not? >> your honor, i think what it means is that when government claims an interest, the overwhelming interest to force petitioner, organize organizations like petitioners to violate their sincerely held religious beliefs, yes. when it says we're going to exempt some organizations for purely secular reasons, some for religious reasons, then -- >> your point is that let's imagine widespread government program filled with exemptions. there are smaller group of
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people who need an exception for religious reasons. we look at those other exemptions. some seem to have good reasons. some seem to have terrible reasons. really, under the rfra or first amendment should exempt the religious, too. right? >> sure, your honor. >> i've just described to you the united states tax code where we know that you do not have to have an exemption for those who are religiously objecting to paying taxes because it would support a war. >> sure, your honor. but i think -- >> that's what i'm looking for. same question, i'm not asking to refute you. i'm asking it because i'm looking for what the distinction actually is. and for the reason i just said, i don't think the distinction can be, well, exempted some people so you have to exempt the religious people, too. because that would run throughout the government of the united states. so what -- we know there is a distinction, at least -- i
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believe you -- when you tell me there's one. i want to know what you think it is. >> justice breyer, they're finely grained factual issues. >> no, they're not. well, go ahead. >> when you're looking at a regime like this one, that has both religious exemptions, that has large exemptions for totally nonreligious reasons, and that has the exact same problem that the government claims petitioner's present with respect to all the other employees in this country who just like petitioner's employees don't -- >> i got where you're going with exceptions but that's not the thrust of my question. the thrust is, i haven't found it yet. i want to find out what the real distinction is. whether you call it rfra or smith, i don't care what you call t i'm trying to find the basis for the distinction between those things that we do require people to do despite their religious objection. and those things that we don't. if you want to think there's no such difference, just read, as
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you've read, newborn's brief, lists them all in two pages. some go one way, some go the other way. he says, because of other people being involved, that might be the answer. but what's your answer? >> that's a tough line but -- >> what is the right line? >> i don't think there's a clear line. what things we require and what things we don't require. >> give me a hint -- >> the way the law works, it says are you allowed to require them to do this particular thing that violates their beliefs, and in making that decision, you look at how the government is treating other similar situations. and if here the government is, in fact, saying with respect to all these other people who don't get the coverage from their employers, we're willing to tolerate it or willing to address the issue in other ways, then under rfra, the answer is you have to look to those other ways to see if they're sufficient for these employees or uniquely insufficient for these employees. >> may i ask a question? is there any accommodation that the government would offer that
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would, in fact, result in women employee of your clients or students of your clients getting health care as part of an employer-based plan or student-based plan, getting contraceptive coverage? any accommodation that would be acceptable? >> your honor the accommodations that we listed in our briefs would all be acceptable. >> no, no, no. through -- in other words, is there -- you object to this notification. is there any kind of notification that would be acceptable? >> your honor, if by submitting this notification or any other notification, we got the same treatment as the religious employers, then this notification is acceptable. >> no. the religious employers, their employees do not get contraceptive coverage through the employer-based plan. i'm suggesting -- i'm asking whether there's any accommodation that would result in the women employees getting contraceptive coverage seamlessly through an
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employer-based plan that you would find acceptable. >> your honor, possibly so, possibly not. if i could explain, we've 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 objectionable coverage to their employees on the other the less problematic it is. >> well, what might be acceptable, that puts enough distance? >> sure. easily enough distance is we filed the notice of objection, the government furthers its interest in the same way it furthers its interest with respect to all the other employees who don't get coverage from an employer-based plan. >> so your answer to justice kagan is wrong? basically you're saying, even if all you do is an opt out, i raise my hand, i tell you that i'm a religious objector, and they somehow, from this suit, know who your third party administrator is, they have a general law that requires
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now all arisa plans to tell them who their clients are, that if your insurer is involved in any way, you object? >> not necessarily, your honor. if there was an huber insurance policy where aetna was the company that the government picked to provide contraceptive coverage to all women in this country -- we happen to use aetna -- i think we would be fine. >> paid for by the government? >> yes, your honor. the problem is -- >> justice kagan's question was, these college students want to get the same coverage that is available for all other conditions. you -- as far as i understand you're saying no. there has to be some other plan. the government boys, the government provides its own plan, but as lon as you connect the insurer that is insuring the religious organization, as long as that insurer is linked it's
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get something else that can't get what all of the other students get for all other health protection? >> justice ginsburg, i'm trying to be careful because we have many clients with many different views but as a general matter, i could certainly see the case that if they're seizing control of our plans, the plans that we are required to provide under a threat of penalty and using those plans as the vehicle to delivering the objectionable coverage to our employees solely as long as they're enrolled on those plans, which is what this does, i could certainly see why many clients would view this as a substantial burden on their religious beliefs. that's not the end of the analysis. we then turn to less restrictive alternatives and, your honor, i'll conclude here, it's quite clear the government has alternatives because it's the same alternatives that it uses for everybody else. if all of those alternatives are fine with them, they at least need evidence to explain why they're not fine for us as well. >> thank you, counsel.
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>> mr. chief justice, may it please the court, >> may it please the court, petitioner's challenge in this case strikes precisely the same balance that congress sought when it enacted rfra. as it recognized in hobby lobby, the accommodation seeks to respect religious liberty by exempting them to contraceptive requirement and to respect the interest of petitioner's employees -- >> is it fair for me to infer from the way you opened your remarks that you concede there is a substantial burden here? and the question then is, what is a permissible accommodation? what's the least restrictive alternative? do you concede there's a substantial burden? >> we do not, justice kennedy. we concede that the religious
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belief is sincere. we're not questioning the sincerity of the belief. we den think the case -- when the question is this, religious objection is made to the independent arrangements that the government makes with third parties to fill a regulatory gap created by granting an objection to generally applicable rule that that qualifies us. >> do you question their belief that they're complicit? in the more 8le wrong? >> no, we do not. >> well, then, it seems to me that that's a substantial burden. the next question is, whether there is an accommodation and whether that's the least restrictive. >> so, look, i'm happy to discuss the substantial burden further but i do want to go to what i think is the critical point on the question of how rfra scrutiny applies, if it does apply. and it's this.
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mr. francisco spend a lot of time the various alternatives the government might be able to use instead of the accommodation. i think there's a real problem with every single one of them in that every single one of them defeats the very purpose for which congress imposed the preventative services requirement, not just with respect to contraception, but with respect to all preventative services. the point here -- i think can you see this if you look at the relevant statutory provision, which you can find on page 4a of the appendix to our brief, the preventative services provision, the point of the provision is that a group health plan, i.e., the health plan that covers people through their employer, or individual health insurance coverage, i.e. the kind of coverage that's sold on the exchanges, shall include cost-free all of the preventive services. the whole point of this provision, the whole point of it, was to ensure that people
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who got health insurance would get the preventive services as part of their regular care from their regular doctor. >> in other words, your compelling interest is no the that women obtain the contraceptive services. your compelling is that whim obtain the contraceptive services through the insurance plan or the third party administrator hired by the petitioners, hired by the little sisters. in other words, it seems to me you can't say that what you're trying to do is make sure that everybody has this coverage. you want to make sure they have it through the program set up by the little sisters. that's what they object to. >> yes. i understand that, youren. assuming that for a moment, and i'm happy to discuss financial burden further, assuming we're in rifra scrutiny, the point i'm making here, and i do think this is critical, is that none of these options that the petitioners have identified going out on the exchange and buying a separate individual policy, contraceptive
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coverage-only policy, title 10, medicare, medicaid, with respect to every one of them, you have to change the law to make them even eligible here. even if you could change the law, every single one of them creates the very problem that congress was trying to solve in this provision because it would require setting up a one-off channel to get contraceptive coverage. >> the point is that it's the form in which the services are provided that you object to. not the fact that they be provided or not because these not the question. in other words, the petitioners use the phrase hijacking. it seems to me that's an accurate description of what the government wants to do. they want to use the mechanism that little sisters, other petitioners have set up to provide services because they want the coverage to be seamless. maybe that's a sufficiently compelling government interest, the form in which is the services are provided, but the interest is not whether or not women receive contraceptive services.
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the petitioners do not on the to the fact that the people who work for them will have these services provided. 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 complicity is sinful. >> i understand, mr. chief justice, i understand that's their position. let me engage with you on the question whether that constitutes a substantial burden. we think it doesn't constitute a substantial burden because the way that this accommodation is structured -- although you're quite right it seeks from the perspective of the employee to make sure the employee gets protection that congress designed, from the perspective of the employer, that this is provided through a separate program. >> but you're saying don't worry, religions, you're not complicit. that's what you're saying. >> no, we're saying that
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judgment about complicity is up to you. on the scope of a recognizable burden, that that was true in the pre-smith case law before rfra and recognized in laying and bowen and those are cases -- >> it seems the analysis has to be whether or not there are less restrictive alternatives and is this the least restrictive alternative? >> well, as i said, your honor, if rifr scrutiny applies, this certainly is the least restrictive alternative. >> let me mention one of them. is it possible for a woman who doesn't get contraceptive coverage under a grandfathered plan or plan offered by a church or by a religious nonprofit to obtain a contraceptive-only policy free of charge on one of the exchanges?
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why would not not be a less restrictive alternative >> it's not -- >> it's precisely the problem congress is trying to overcome -- >> what type of a burden does that impose? is it because these exchanges are so unworkable? even with the help of a navigator, that a woman who wants to get free contraceptive coverage needs to sign up for that on the exchanges? >> no, your honor. >> she'll have two insurance cardans stead of one. she'll have one from the employer and she'll have one from this plan, just as a lot of people have one insurance card for medical services and one for prescriptions. >> yes, your honor. >> for dental or vision. >> for the very reason the employee has to go out and get a separate policy, in the world that doesn't exist now, because policies can't be sold on exchanges now -- >> we can talk about that in a
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minute. condition. >> even in that hypothetical world, that is not equally efixive achieving the government's interest because the whole point is you get this care from your regular doctor as part of regular health care without any barriers, including any co-pay barriers. consider this from the perspective of the woman employee. she has a health plan from her employer. she goes to her doctor, her regular doctor. she may have a medical condition that makes pregnancy a danger for her. she may be one of the women -- this is 15% of all prescribed contraceptions, to treat a medical condition -- or maybe she just wants the contraception that's appropriate for her. what happens under this -- under petitioner's regime, the regular doctor has to say to her, sorry i can't help you. it's not just that he can't write the prescription, he can't counsel or educate --
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>> why would that be? he would be paid under the contraceptive plan. >> it wouldn't be her regular doctor. she would have to go out and buy the separate plan, find a doctor willing to take the separate plan, assuming of course, there are insurance companies willing to sell them separate. >> don't you think they would be willing to in the case of those who provide services under self- insured plans? >> the whole point here, justice alito, congress wanted to eliminate what was perceived most small barriers, $5 or $10 co-pay because the medical experiments said even when you're getting it as part of your regular coverage, small barriers work as a sufficient disincentive that many fewer people use contraception than would otherwise, and that -- and the barrier -- and the system the honor is pos itting imposing a significantly greater barrier. >> what about the women in grandfathered plans?
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in grandfathered plans that offer no contraceptive coverage. what about them? >> grandfathered plans, let's talk about them. i think the broader context matters here. this is a transitional device. the number of people who are grandfathered plans has dropped by 50%. there is no reason to think it's not going to continue to drop. if it does continue to drop at pace of last several years -- >> in the long run, we're all dead but what's going to happen in the interim? what was the reason why congress did not require contraceptive coverage right away under the grandfathered plans? required coverage right away under the grandfathered plans for 25-year-olds so they could get coverage under their parents' health insurance plan. it would have been no great difficulty for the grandfathered
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plans to put in contraceptive coverage, preventative care coverage right away, just as they did for the 25-year-olds. yet congress said, for the really important things like covering the 25-year-old graduate student, yes, you have to do that right away. but for these other things, include what we're talking about today, you can continue to not to provide that coverage for women as long as you maintain your grandfathered status. >> your honor, when congress passed the americans with disabilities act, it made -- it didn't impose an immediate requirement that every building be retro fitted so that access for the disabled be possible. what it said was, in that context, where it's feasible to do so, buildings shall retrofit and new buildings shall have access requirements. no one would say the government lacks a compelling interest in forcing americans with disabilities act because congress decide on a
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transitional system. tles w this was a big program. congress decide on transition, understood that this number was going to drop dramatically over time. a good place to know why it's go heing to drop dramatically. look at the declaration from the diocese of pittsburgh where they say we're sticking with our grandfathered plan now because we don't want to trigger but it's costing us a fortune. it has to change. that's the reality. that's why it's going to go down. and with respect to contraception itself, your honor, the grandfathered plans, the institute of medicine and its study on record, said that contraceptive coverage is standard practice now and we cited a study that said 86% of all plans have contraceptive coverage. so most of these women are going to have contraceptive coverage. they're not going to have it cost-free. >> to come back to the point that you were making about the americans with disabilities act, that certainly is a good point
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for the americans with disabilities act. it can be very expensive to retrofit facilities to accommodate people with disabilities. are you saying the burden of simply sfluting burdenen for care is done for coverage for 25-year-olds is comparable to making actual changes? . >> no. i'm saying unlike small employees, exempting 17 million people and does so permanently, this is a transitional device where over time you're going to get down to a situation where virtually nobody has -- is in the situation, being in a grandfathered plan and most of them are getting some so contraceptive coverage anyway. so i don't think it undermines a compelling interest one bit. >> can we go back to the
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substantial burden question. >> i think that justice brier has been talking about how to draw this line. when is it that government has to act to accommodate and when doesn't it have to act to accommodate. >> some have suggested a line that at least to me helps draw some clarity to the cases, our cases, which is, if what your religious belief is asking the government to do is change it's behavior -- it's regulatory behavior with respect to other, then it kander can't be a substantial burden. we live in a pluralistic society in which government has to function. and hence, you're a military objector. you can't tell the government no, you can't draft someone
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else. you have to -- you can't spend your money on war. we don't have to use you to promote the war but if you want to use others to promote the war, you're entired to do that as government. does this line make any sense to you? >> yes, your honor. what the religious groups, i understand they're asking, is the government not to use regulatory power with third parties who don't have a religious objection and forcing a burden on the women who it's trying to help, third parties that don't have the same religious objection? >> i think -- >> and burdening them to do other things. >> i think that is the essence of our position your honor. i believe in trying to answer justice breyer's question where that comes from, i believe ling and bowen, which recognizes there is an objection. and the court said that it did
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not doubt that government actions would have a devastating affect on religious exercise. >> this is not just a case of the government dealing with a third party based on the petitioner's objection. the objection is that the government is hijacking their process, their insurance company, their third party administrator, that they have hired and set up to provide these services. i understand the distinction, yes, you can do what you want but you can't compel other people to take actions consistent with your religious beliefs. that's not what's going on here. it is the relationship between the insurer, the little sisters have hired or the third party administrator with respect to other entities, that is being used by the government to provide these services. it's not just a third party that's being compelled. it's not just that they want third parties to take certain action. >> i would agree with you to this limited extent, mr. chief
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justice, that that's the context in which the government action occurs here, that the fact that there is this relationship between petitioner's and their employees is the occasion for government acting. but there's two points that are critical, i think, and go to why we shouldn't consider this to be a cognizable burden. and the first one is that what we are doing when we act here is trying to make an alternative arrangement that comes as close as we can to ensuring that the employees, who may not share the petitioner's religious beliefs, get what the law entitles them to while at the same time ensuring that the employer does not have any legal obligation to pay for the coverage, to provide the coverage, in any way. i think the practical features of this are critical. the employer cannot be charged for the coverage.
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insurance plan, self-insured, cannot be charged the insurance company or third party administrator has to use separate segregated funds, has to provide separate insurance cards to the employees for this part of the coverage. so in that respect it is an independent arrangement with third parties. and we -- >> they're not third parties. they're the insurance company that the petitioners have hired. it's the third party administrator that they've hired it seems to be that the balance is pretty clear. you want the coverage for contraceptive services to be provided, as you said, seamlessly, you want it to be in one insurance package. that is the compelling government interest. and on the other side the question is whether or not people who have sincere religious objections in being complicit in that through the hiring of the insurance company, the third party administrator, on terms where it's provided, whether the government's compelling interest outweighs
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those sincere religious objections. is that a fair understanding of the case? >> i think it is one fair understanding of the case. we think -- >> is there a fairer one? >> let me put it this way, mr. chief justice, we would be content if the court were to conclude that, with respect to substantial burden, it could assume a substantial burden but that the government has satisfied its burden under rfra to show a compelling interest and this is the least restrictive means -- >> you are giving up on the substantial burden. >> we're not giving up on it. we do think the discussion this morning suggested it's a hard question and it's important to us and that's why we're fighting on it and not giving up. >> that's exactly what i found difficult. exact. and i read the brief. newborns, your brief said that. but will look to see it's not the kind of burden that counts for purposes of rfra or the oral or the first amendment.
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where the burden is of a certain kind, now what kind, and would you say, well, a kind where it arises out of the fact that we have a program that affects third parties in a big way. okay. we have the vietnamees church of the escapees in los angeles so poor they have to meet in the basement of a house. and the parking regulation stopped their congregation from coming even they want to meet only on sunday. think about that when we can put that easily into the context of third parties being hurt. so they can't practice their religion. so that one i can think of a lot of counter examples, but maybe you couple that with what we have in the tax cases. administrative, widespread, administrative rules the
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government has leeway where third parties, widespread, administrative. you see, i'm trying to get the thinking of the people who have thought about this, which are you and the others here on what's the best way to treat that burden. it's not hard to find in religious writing people when they go into society assume some burdens they're going to find totally -- >> we're not urging you to state a comprehensive standard here. >> well, then what do i do? >> i think we're urging a more incremental approach that recognizes that the principles articulated apply in a situation where the government is acting making arrangements with third parties in order to fill a regulatory gap that has been created by the government granting an exemption to a religious entity. >> could you entrust mr. clement's hypothetical about
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where the government would come in to an unoccupied room in the little sisters facility, it's not being used for anything, they don't interfere at all, they even pay rent. and they come in there and establish a title 10 clinic and distributing contraceptives, is that different and if so why? >> yes, we think that would trigger and be a substantial burden. the difference is in that situation you're actually on their premises. and in this situation, try to get back to what i was discussing with you, mr. chief justice, aetna is a different entity from petitioners, blue cross is at different entities. the government makes arrangements with aetna or blue cross and we make arrangements with other insurance companies and tpas to provide contraceptive coverage to third parties, the employees. >> but you say in your brief, you admit in your brief, that at
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least in the case of the self-insured plan the notice -- the form or the notice becomes part of the plan. this is their health insurance plan established under arisa and you are putting a new objectionable element into the plan. isn't that correct? >> i don't think that's quite right, justice alito. i think there's been some confusion about that on the petitioner's side. there are two separate notices that operate here on the self-insured plan. the first is the notice that the employer provides to the government. that's an arisa plan document. but the legal effect of that dockment is to exempt the employer from any obligation to provide contraceptive coverage. there is a second document, a different document that the government then sends to the third party administrator. that document is the document that has a legal affect that creates the obligation on the third party administrator to provide the coverage. so is not the case that the
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document that comes to us isn't authorizing document. that's an exempting document. >> it's their plan. and you admit that you are putting something into their plan that they object to on religious grounds. so the difference between that and mr. clement's hypothetical is one involves something tangible, physical property and the other involves something that's intangible. that's the distinction. >> it's not that it's just like intangible property. the plan is really a set of rules. and the third party administrator becomes for purposes of administering this, it becomes the plan administrator, the sole plan administrator, for this portion of the plan. but even if one thought that there was -- that this did create a legal exhibition to find substantial burden for third party administrators, it's not true about situation with insurance companies. it's not true about church plans so it's whether switching from a self-up sured third party
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administrator situation to an insurance company situation -- >> in the case of the insurance plan, isn't the insurance policy part of the plan? isn't the insurance policy the way in which the employer provides the benefits that are available? >> yes. and then the government makes an arrangement with the insurance company that operates in parallel to that plan. and so -- but it isn't through that plan, it's in parallel to that plan. so i think there's a significant difference there. >> what is the government's interest in requiring compliance by catholic charities of pittsburgh but totally exempting catholic charities of erie? >> so this gets to the question of the church exemption, your honor. let me try to explain that. i think it's helpful to understand how it came about. the church, initially hhs decided it would create an exemption for churches. and then there was some back and forth, regulatory proceedings, petitioners participated in
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that, created the exemption for churches. and then the religious nonprofits came in and said, well, the exemption ought to be extended to us. the government made a judgment that as a categorical manner it wasn't willing to extend the exemption to all religious nonprofits but instead would use this accommodation, which we thought was the best way that we could both protect their religious liberty and -- >> the difference as it's properly phrased in the briefing is the accommodation is the way in which the organizations comply with the mandate, with respect to catholic charities of erie though they don't have to comply through the accommodation or anything. they are exempt. >> the reason we drew the line is because -- and i think professor's brief is quite instructive on this point. while no line is perfect, and i'm sure this line is imperfect. and there's going to be some overlap between entities that maybe you would think of look closer to being on one side of
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it's largely for the reasons justice kennedy identified earlier. in that category, maybe entities that ark peer close to those who have exemptions will have lots of others whose connection of that religious mission is much more. >> could you a ploy the same requirements that you apply to the little sisters themselves? >> i think we could and it would be appropriate. if we had the same compelling interests and make the same argument, but we have to constrain ourselves and be careful with the houses of worship. we said this in cases like others. if you have a lot of exemptions,
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this is a compelling interest. >> let me try to walk through this carefully. i think it's important. they have identified three. first the grandfather. they had a lengthy discussion about that. i don't think you can argue about that exemption undermines the government's compelling interest. they claim there is an exemption for employers who have feer than 50 employees. that's wrong. there is no reason to think that virtually anybody in that category of employees of those small employers is not getting coverage as part of their regular health care and the regular doctors. there is no exemption for that group. they are asking for the riff ra claim here.
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that's because they have to meet the requirements and they get it from their regular doctors and health plan. also if your employer is not providing the coverage then you go on an exchange and you purchase a policy on the exchange. that provides you with coverage as part of the health plan. you apply for medicaid and that gives you coverage as part of the health plan from your regular doctor. >> they work for a small employer and they don't offer health insurance. >> no because in that circumstance, your honor. only option they have is to buy the individual policy and that individual policy will contain the contraceptive coverage from your doctor as part of the health care.
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the difference is when somebody works for a grandfather plan in that category. for a church, those people are already getting insurance. so for them it's an obstacle. it's purchasing the separate policy and that becomes a penalty and part of their compensation they get is from theirs. >> that underscores that they are subsidizing the conduct of being immoral. the worry is that they are not subsidizing it, the way in which the combination is structure side that they are not to bear the burden for the contra centive coverage that has to be provided without changing the employer and funds have to be
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segregated. >> if it's so easy to provide, why can't they get it from another planet? >> they have to sign up for a second plan to pay for a second plan. that's precisely the obstacle that they want to ensure did not exist with the services provision of the statute. the idea is to ensure that the employees get the health care and get this coverage and this care from the regular doctor as part of the health care without these added obstacles and the need to sign up for a plan and find the doctors. they are what congress is trying to eliminate. >> it comes down to who has to do the paperwork. if it's the employee, that's no good. if it's the religious organization, that's okay?
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>> it's a lot more than that. you have to find it. >> put yourself in the exchanges. >> they require health insurance policy with minimum coverages set forth that are comprehensive. >> that's true with respect to every policy sold. you might have to change current law. >> in this circumstance, you don't need to get to that question of whether there is an obligation to change current law. even if you did have a second contcentive only available on an
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exchange, that would be precisely the barrier that congress is trying to eliminate. you have to have two policies instead of 1 and that creates disincentives. a lot of employees i'm sure will reach the conclusion that we have the coverage over here. >> that's the question of who does the paperwork. yes, it is a hassell to go to the exchange and i heard about how easy it is. it is to be used by the vehicle. i'm not saying it comes out one way or another, i'm trying to focus on what is at issue. it's the question of whether you want the employee to sign a paper. or you want the little sisters to sign a paper. it's an administrative burden, but in the other case it's a
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violation. they made a judgment that this imposes a significant obstacle with these requirements that result in significantly less use of medically necessary services. it's not -- it doesn't just come down to this. they are advanced in the most effective manner. >> is it right? the reason that you don't want the women to have to ask for the coverage is because vast numbers of women will and quite a few
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won't and a middle set is inertia-bound. we can't say so what. poor people who don't object religiously as they get the contraceptives, that lowers the cost of health coverage later on. so the government has an interest in that and therefore an interest of some kind in not allowing a system in not having a system where the inertia-bound have to take initiative. have i got that right? do i have the other part right? this is not hijacking. there is a federal regulation that says the infrastructure of the insurers, contraceptive related plan belongs to the insurer and not to the person who buys the insurance. am i correct? >> that's all correct.
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when we make arrangements, we are not making arrangements with anything that petitioners own. >> can they deal with the problem of what's available spent this this way. policies are available that provide coverage. could the executives say as a matter of our enforcement discretion, we are not going to take any action against insurers we are going to subsidize at 115% just as we do in the situation of the self-ensured plans. >> why is that not a valid exercise of your discretion? >> i don't think it would be, but even if it were, it presents the problem of creating the obstacle that creates the inertia problem that you should mines the interest that is not
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just a compelling interest of the newest medicine. if congress itself get it is the statutory provision. why is it not something you could do? >> i don't think we could address the problem. >> can we explain the difference between the employer or filing a form and identifying an insurer like aetna or blue cross that covers contraceptives for many other people. the difference between that note and a woman who now doesn't have this coverage has to go out affirmatively and get it from someplace else. is it just a matter of filing the form for her or is it a real difference between an employer saying we are not going to cover
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contraceptives? just our insured's name. a woman who suddenly doesn't have it and has to go out. >> that's exactly the point here. the woman employee and -- >> i'm sorry, the difference you were asked what the difference is? >> it's not just about filling out paperwork. you say you have a medical condition or i want contraceptive coverage and i need that. the way this works now, if an exemption is granted here, the doctor has to say i cannot had been you. >> what are do you think as the interest? >> i understand it's avoiding the complicity and we take that seriously. >> which way do they cut in
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analyzing that balance? >> they cut in this situation quite decisively in favor of the government because the interests are compelling. as we tried to explain, none of the alternatives they proposed have come close to being equally effective in ensuring that women get this coverage. and the obstacles they get told i can't help you. i can't counsel you about this. nu numerous petitions said our insurance won't even cover counseling. you have to find a way to pay for the doctor and then the contraceptive. it's a host of serious obstacles that are not just about signing a form and that gets to the heart of the problem. >> why does it get to the doctor to whom the woman would go and
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would be unwilling to provide the services under a plan or a separate plan that would be a happen stance. >> somebody will offer the separate plan. the doctor has to be the same. >> the reviews the hijack analogy that has been mentioned. you can explain why you don't see this as a hijacking? >> the way we tried to explain why this hobby lobby, the goal is to exempt the employer and to exempt them and provide in a separate place and separate funds without their involvement and it's not hijacking. i would like to do this. the services will be provided
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pursuant to what plan? they are hire and you get a brochure with all the insurance coverage and everything it is and where would the contraceptive services be listed? >> it won't be in that brochure. there has to be a separate thing getting it separately. he gives insurance that he thought that would be an adequate accommodation. >> that raises all the problems. >> i meant he said generally if aetna under another policy offers it on the exchange to women who might want to buy the policy. that's okay. if that's what they do.
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what's different from that from what happens here? it's the same thing, isn't it? >> two policies instead of one. you have to pay. >> it is two instead of one. the contraceptives are provided by government regulation. the only seamlessness is that the woman doesn't have to apply and pay separately. >> i want to make a point that we raised the yet it was not just about them using the plan. that notice argument cannot constitute a burden because it is derivative of the objection to us setting up this third party arrangement. if government didn't take this step, we would be happy to provide any information they want on a form.
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what that tells you is the objection here and the looks is the arrangement for separate coverage. >> could i ask you this informational question about this particular situation of the little sisters. their third party administrator also will not provide the coverage even if they were to comply with the form or the notice. you say they probably cannot be and there is no way to obtain contraceptive coverage for their employees unless you can find another third party administrator that you can deal with would they still be subject to finds for failing to comply? >> i don't think so. if i could, what i asked the
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court to do is weigh the alternatives. on the one side, you have a serious thoughtful effort to respect the beliefs by creating a system that allows them to exempt themselves from the requirement in a straight forward manner and that protects the fundamental rights and liberties and dignity of their employees many of whom may not share religious beliefs. on the other side of the scale, what you have got is a demand that those rights be extinguished. until such time as congress creates and enacts a different program that will require a separate one off jerry rigged
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channel for them to provide and obtain coverage that will impose precisely the burdens that congress said and the provision is unacceptable for all preventive service. >> that's one way of characterizing what is involved here. it can also be said that, and it is true, that this is a case in which this is a great array of religious groups. not just catholics and baptists of evangelicals and orthodox jews and muslim jews and the church of jesus christ latter day saints and an indian tribe have said that this presents a threat to religious liberty this this country. what would you say to that? >> what courts of appeals have said, they require a sensible balance. a sensible balance is essential
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in a pluralistic society like ours. people of every faith live and work side by side and they have to administer rules. the accommodation achieves that balance. petitione petitioners's position is very, very far from that balance and therefore the courts should be affirmed. thank you. >> thank you, counsel. four minutes. >> thank you, mr. chief justice. i would like to start with the university's justice kennedy. i don't think it's the case that just because congress exempts churches it has to exempt the universities. it needs a rational for drawing the line. my friend said the line doesn't have to be perfect. it has to be pretty good. the line they have drawn is absurd and i would urge you to
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look at the dominican sisters and authored by a former head of the tax division. it explains the line they picked using 60-33 of the tax code makes mow sense. that's a filing requirement, but there is no difference. if my clients filed before them, they get the same status as the churches. the only difference in that provision whether you filed the form. the treatment is exactly the same. to use that line to draw a distinction or the little sisters of the poor is a terrible line to draw. >> did you say that was wrong.
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for the line they drew, the organizations would be more like ly that gives them the right i will respect flee disagree. >> not every church is religious and is that the sort of incent incentive you need and lots of rules apply differently because we recognize they are special. it's clear to what a church is.
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>> the kpelgz exemption a plis and if they stuck to their knitting and not tried to help the poor, they would qualify. even he admitted he didn't understand. he said that if there was a requirement for these, not all are created equal. if you create an exemption, that's a rational exercise. if you create an exemption, if the exemption is for a scheduled 5 substance, maybe the government would have won. the problem is that the government had the schedule one
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substance and they had a hard time arguing. all of these have to be treated the same. there is no excuse. if the state provided an exemption for the mennonites and where schools are further apart, that would have been an easy case. you can't make an exemption and it's not a sunset provision. they linked to the idea that if you like your plan, you can keep it. they would love to be an
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objector. >> cases submitted. >> this week on c-span, the cases that shaped our history come to with the c-span series landmark cases. historic decisions. they explore real live stories and dramas mind the most significant decisions. it puts central themes about the conditions and during times of emergency. >> the chief justice reaffirmed and said as you did, the case came to be accepted by the culture. >> it was a sweeping decision and isolated the u.s. as one of only four nations.
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it has not settled the issue at all. >> youngstown sheet and tube company. it it was unconstitutional for them to seize the steel mills because it was not authorized by congress. >> the corn ghee endowment for peace talked about the irchl elementation of the deal. the joint comprehensive plan of action with the agreement of north korea in 1994 and discussed sustaining the agreement with iran and this is about an hour and 45 minutes. >> i'm the vice president for
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studies and it's my pleasure to welcome you today for the final installment of our serious of programs entitled past is prologued we are addressing one of the more challenging and persistent issues facing the western and eastern alliances and that is how to deal with the iran proliferation cases and looking at how that may be informed by experiences they had. we started this serious led by my colleague in 2015 during the 70th anniversary of the end of world war ii. that was a good time to reflect and these included the impacts
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of borders and unresolved territorial disputes and the use of nuclear weapons. as well as the establishments of the united nations and other postwar institutions. as we try to put the reflections to productive use and apply it to the issues of the future. it seemed appropriate to think about the agreed framework with the dprk and how that experience might give us insights into what to do and not to do as we go for the joint comprehensive plan of action with iran. and japan was obviously important in the dprk framework as kind of a key element of the overall regional structure and ultimate
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ultimately it's less obvious that japan's central iity and japan and iran was prior to the revolution, but also persisted after that. japan is an important country in iran's eyes and also a number of business and commercial relationships to be had between japan and iran. stay with us and also from the standpoint of iran going forward. it's another reason to have this discussion today and to think about incentives for maintaining
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compliance. we are honored to have many distinguished presenters and panelists here today. jim will introduce the first panel, but i would like to make a special mention of thanks to two colleagues who came from tokyo to be part of this discussion. it's a long way to see the cherry blossoms or will before tomorrow. with that i will get out of the way and we will keep you involved here. good afternoon, everyone. it's been a lot of fun putting
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this prologue series because it's given me free license to wander further on a variety of foirn foreign policy issues. we looked at japan and southeast asia over 70 years. the issue of nuclear nonproliferation. i wanted to add that this is more than an exercise.
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it poses a lot of challenges and foreign policy challenges with the nuclear missile development. clearly theests to stop from acquiring nuclear efforts, we can discuss whether or not we had workable options. one of the most initiatives ever attempted. that had been an article that made me think about that. i think that's a theme we may revisit throughout the course of the afternoon. two of the three more north korea and iran.
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i think the how do leverage this. we had two sessions today. i will be moderating both and the first examines the history of the framework and implementation from multiple angles and assesses the strength strengths and weaknesses. and looks ahead to the present day woo we may look at how the negotiation might impact dealing with north korea. the second session will be a
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discussion about national interest and facing the iran deal followed by other nations to sustain a successful agreement. at the conclusion, we will have a reception. to the right is a professor at the school of law. he focuses on disarmament and he has been in a variety of consultative groups and defense and atomic energy commission and the regulatory commission of
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japan and was an adviser to the delegation and the review conferences. the doctor on the far left was distinguished in georgetown university. he serve said as president of the foundation. he began his foreign affairs career at the arms control and back in 1974 and served the policy planning staff and as assistant secretary of state for the military affairs. the leader of the program nj he works on nuclear strategy and
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issues with south korean security and has been a member of the national academy of sciences and international security in a number of other accomplishments. we have a great panel to dive into north korea and talk about iran as well. the second will be kind of a talk show format. >> thank you very much. thank you. i would like to thank you for inviting me. the timing i enjoyed and them from downtown and i asked him to stop by.
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so i took this with the frame and the association with the north korea. i mostly forecast and in 2000 and how they agreed and was failed. what role the world of japan played. also that gives them the small hints to set up a framework for the comparison. i may have to go.
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when we discuss the success or failure of the nuclear deals, what would be a criteria? and the vision, there was two objectives. nonproliferation and the security. the nonproliferation is of course achieving the denuclearization ideally or containing the weaponization capabilities at least. at least for the time being. and that level, the security concern is from the side of north korea. that would be an important thing. the question is do we see the regime change or transforming into the more cooperative and
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non-threatening regime. at the regional level in the area of nonproliferation in the region, and through the nuclear deal, we would like to seek the more stable strategy environment. in east asia and the middle east, these four different objectives. they were in a rough assessment and failed in early 2000. there is obviously gaps between
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them and the goals of the deal. north korea had a sense of security even though the united states provided assurance and the stage of a negotiation, north korea was able to trust them. so then north korea had a complaint and of course it's very much to do with the u.s. domestic politics and a lack of consensus and low priority
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strong support outside of the government. reluctant to provide them. obviously the biggest problem is lack of north korea's commitment to the implementation and denuclearization program. it's something to do with the arrangement. and which should come first and what would be the conditions for providing incentives. that's a clear contrast between the case. he provides a better sequence
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and the agreement and verification of incentives. second low there differences in the perceptions among the major stakeholders like the united states, japan and china. is north korea kept on exporting the arms and engaged with the countries. we have been questioning about the thoroughness of the chinese implementation on the other sanction. they are the threats and the difference is among the major players affected.
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the differences in the level of commitments. other than the nuclear nonproliferation. japan's perception in the 90s against north korea is mostly with the troops with the abduction issues. it was not so clear until they successfully conducted the missile launch test in 1998.
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politics and normalization talks, the japanese commitments are also very much overshadowed by a political priorities. japan's strategy by north korea in particular in early 2000 was two-fold. is try to achieve the stability and supporting the security on the global scale. that's between japan's support for the u.s. & consent on the pursuit on the solution or they tried to pursuit their strategy
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for the region. through the talks. it didn't go well because of problems. this issue prevailed. throughout the process of the six-party talks. that's unfortunate probably with the other element of the commitment and the objective of nonproliferation and that's the level. it's actually public was not so much concerned about it.
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so here my talk is about north korea and iran. you have to think about the elements. if you compare the cases, we see major differences. one, with regard to the dialogue, in case of north korea, the major stakeholders included in the talks. that's why it was difficult to make an agreement because of the priorities. in case of iran, the stakeholders are outside the top regime. the major powers are able to agree. the outstanding question remains how to engage in the frame that
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is more long standing. if you compare and the level is much higher with the north korean case with turkey. and that's china. if we successfully were to provide sanctions as well as positive incentives, that would be more successful in the case of iran. with the leader, the political
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assistance. that means and actually expected the economic with the government dispute. that level of commitment in association with the regime, in case of north korea, they are always stretching to leave the regime. in case of iran, they cent saying that the regime are keeping the commitment of the regime. their intention to leave is very small. that made a difference with the distribution as well. finally the key strategy
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objectives that's against the u.s. pressure. they have a sense that the united states will not really threaten the survival of a regime. they have more about seeking the power of maximization in a given environment. with this analysis, what can you do or what did we learn for the solution of the other on the nuclear deals in particular for the reference of the ongoing escalation of the nuclear crisis.
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they need to share a common vision and how to shape among the major stakeholders will be an important question. in 2000, the negotiations in 2000, i think the chinese concern in north korea is not about the nuclear capabilities, but more about the case with the south koreans. that kind of a regional security arrangement or concerns. for that we need to reaffirm
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commitment of both sides and in order to support the objectives. they didn't need to coordinate the united security council in which japan sees an empowering member next year. and also working together. they think export control is the key. the key is to include implementation by other states. and finally they are sharing
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sanctions and that means to remind the commitment of implementing the scheme. thank you very much. >> you have given us a great head start now on the discussion. i would like to turn to bob to reflect about the framework involved and coming about and looking after some of the implementation. >> we were just in another session before coming here in which one of us said with the north korea deal looks harder than the iran deal. i'm not sure about that
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continuum. i think the north korea deal was much simpler than the iran deal. it doesn't have the length and the detail that the iran deal has. in the spring of 1993, we had by my recollection now very simple goals. i was told to get the north doreens to agree to come back and they announced their attention to leave the treaty and giving the formal notice. the second was get them to accept the safeguards at which
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are pursuant to the npt and a provision in the safeguard agreement as they say 153 for special inspections. that phrase may if you are old enough if you remember 23 years ago, it may resonate. we want to have special inspections and look at the site. we get him to accept the special inspections that the north koreans had and about how much they had separated whether it was graham qualities or more. when they did that, they were able to figure out more
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campaigns and there was stuff to be found there. and it could be discerned. that was how the crisis began. get them to include the special inspections even though you have been around since 1957. how many special inspections have you done? so you are the first? as we got to talk about this stuff, it's clear that we didn't want them to separate from that.
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if they accepted the denuclearization between pyongyang and seoul, there would be no reprocessing or enrichment on the peninsula. that was rolled in too. it wasn't given a lot of stuff to give to north koreans to get this. they had a pretty thin briefing book and they can make it part of the asian miracle. i had no idea what that meant. neither did they. i can tell them if south koreans agree, they could visit bases in
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south korea and confirm no nuclear weapons there. who said we want to do that. we just figure you might. there was not a lot going on here, but avoiding a crisis was something and we were able to get through the new york stage of the talks to get to the geneva stages of talks through the next month. all of them meant it was one 200 mega watt reactor. all gas graphite reactors.
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that is moderated. none of them connected that estimate worn 00 kilograms each year. the idea was to do something about that too. if they helped them get too modern in the united states, they built in south korea and built all over the world. off we went then. the negotiations went on for another year as to how that would happen. there is a little complexity about the staging and there three are three stages and we
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open office it is here and things both sides do and start removing sanctions and second phase, they start really dismantling stuff. we start delivering real nuclear equipment for these reactors and the third phase, they have two reactors. that was the deal. the wonderfulness of the deal was the best i could tell, lost on washington. they were very excited to tell them they would give out the reactors. so what. two big so whats. one is that you can't get them to give up processing if they
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have the reactors. the processing is integral to that. they gave us a basis for which to continue to insist. if you knew a little bit, it was a breakthrough. the reactors were production in ways that they were reactors or not. so the deal with the north koreans was complicated. not nearly as much as the iran deal. they were doing things we wanted them to do and looking at 30 weapons a year production where they can bear that with no
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production. one asterisk is right in the middle of this, when i'm going to go off to the hill to explain the wonderfulness of the deal, the ic, intelligence community, comes out with a judgment, that hadn't gone public yet, north korea more likely than not has produced one or two nuclear weapons. well, since the whole deal was designed to stop producing nuclear weapons, the intelligence community to announce they've already got them sort of took a little wind out of our sails so i needed to persuade the intelligence community to say something else that was true, which is, they actually didn't know whether north korea had nuclear weapons or not. and if they would say that, that was helpful. so that's what they said. before the congress. in fact, at that point we didn't know, which comes to a second point that i want to make
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to you and that is, if we look at some of the slides, you will notice there's a very painful slide my colleague put up and it says, reasons why the agreed framework failed. i don't think the agreement framework failed. i think the policy failed. in other words i think the framework was fine. the north koreans cheated on it. i think it's a fair question, when did they start cheating? right? how did they when they did? i actually don't know the answer to that. i don't know, for example, when i was sitting opposite at those wonderful lunches and dinners in geneva whether they were cheating then. i don't. i know when roughly we caught them which was in the late '90s but i don't know when they were doing it. then if you asked why they were doing it depending on when they started you might have one answer which puts a lot of responsibility on us and another answer puts the responsibility on the north. if they started late then my theory of a negotiation which i'm now going to share
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with you, might still be true. my theory of the negotiation was they were prepared to genuinely give up the program which was a plutonium based program at the time and maybe not even pursue an enrichment program if they got a relationship with the united states that made the u.s. launching a policy of regime change entirely inappropriate. in other words, they were looking for a political settlement. they did not get a political settlement. they got frozen out right after we did the deal. and, you know, i went on to do other things. other people did other things. yes, we did establish the korean peninsula ngo organization. we didn't really tend to the u.s.-north korean relationship upon which i would have said the thrust of the deal was based. in other words, how is it that the north then could agree to give up nuclear weapons when now
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everybody seems to say it's impossible to concede to give up the nuclear weapons program. not for me. it requires, in fact, they have a relationship with us. a relationship with anybody won't do. it has to be with us. no, please, don't ask as i witnessed last week the chinese to offer security assurances to the north koreans. that's not where i think we ought to go. so, let me say one or two other things here. actually about japan, which i'm supposed to say something about. japanese -- understand that this deal was a bilateral, not six parties. united states met with the north koreans afterwards. every single time we met with the north koreans in geneva, afterwards we met with a small delegation from the republic of korea and a small delegation from japan. that were in -- then in
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residence in geneva, and i debrief them what happened during the day. i would say very often those sessions of debriefing were very difficult with representatives from the republic of korea that were suspicious that we americans were selling them out. and if you remember, that was a theme for the president of south korea at the time, which made things difficult for us. the only person who really enjoyed the way the south koreans were torturing those of us who were doing negotiations, north koreans who would not hesitate to pull my string when we got into a meeting about how our allies were commenting on all this. so i understood that. because we were negotiating over something which is vital to south korea's security. so it is not at all inappropriate. i didn't think it was
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inappropriate. that they should be deeply interested in. similarly with japan, what the japanese by my recollection, i would put this way, much more relaxed about the negotiations than the south koreans. the one point they were not relaxed came when the north koreans asked for an assurance if what they were really getting out of all this whole deal to give up their nuclear weapons was light water reactors. they wanted reassurance from the united states if for reasons not their fault those reactors are not delivered by whatever international consortium we might create, the united states of america would commit to building those reactors. so i bought that back to washington where they laughed heartily. i need the president to write something. as it turns out as you may know, the united states congress
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appropriates money, not the president of the united states. so the president, he was advised, could write something like this, but it was contingent for execution on the congress actually voting the money. still, the willingness of the president to do this depended upon us having, if you will, a financial plan for how this would be paid for. and as it turned out, everybody wanted to build these reactors in north korea. the russians did, the germans did, everybody. nobody wanted to pay for them. [ laughter ] so south koreans said they would i think the phrase used was pay for the lion's share. but they wanted some help from tokyo. we said, because we're really nice people, we'll pay for the heavy fuel oil which we almost couldn't do. so then i was off to tokyo to get the japanese to fill in whatever is left after the lion provides his share. and that was very, very uncomfortable.
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and the japanese, senior japanese diplomat who was present for that has actually said at a forum, much like this, that i was beyond rude in pressing japan to come up with this commitment. and he was absolutely right. i was panicked because if i couldn't get the japanese to pay their part i couldn't get the south koreans to pay their part and then i couldn't get the president to sign the letter which i needed to give. so eventually rudeness paid off, and i got a deal putting those things together and off we went. but that little bit of diplomacy if that's what it was stands out as a little bit unusual. so i'm going wrap up and say
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that it's never -- the modality for these talks has never been particularly important in my mind provide consultations are close and continuing. in other words, you know, when you have six-party talks there are 100 people in the room not much gets done. you have it on the side. if you have bilateral talks between u.s. and north korea as long as consultations with our allies actually occur, and of course, one consults with china as well i think that will work. i think, second, that the deals, the iran deal and the north korean deal, are political deals. they got a lot of technical bells and whistles on them for sure. but they're political. and if the governments don't take proper care to mind the politics which i don't think we did in the mid-'90s after the agreed framework was negotiated and i pray there's an implementation team that stays on iran there will be trouble
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because always both sides expect even though there's a declaratory position on the iran deal that they're not looking for a broader political settlement, they are looking for political performance. and certainly on the u.s. side we are, we need to be careful of that. thank you. >> thank you very much, bob. appreciate that. it's a very interesting and useful story. fills in a lot for us. i asked george if he would be willing to discuss and add his thoughts on the agreed framework. and then maybe bridge us a little bit into some of the issues we're dealing with today. >> i'll be brief. thanks, jim. i think the two presentations we just heard were really good so let me just be brief and say


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