tv U.S. House of Representatives Legislative Business CSPAN May 16, 2016 12:00pm-2:01pm EDT
little, who grew up dealing with health issues and started wondering what it would be like if you live somewhere else? he took charge of a student nonprofit and work with people in australia and cambodia to address the aids epidemic. our generation has so much energy to impact the world, he said. my peers give me hope that we will overcome the obstacles in society. that is you. is it any wonder i am optimistic? throughout our history a new , generation of americans has reached up and bent the arc of history in the direction of more freedom and more opportunity, and more justice. class of 2016, it is your turn now to shape our nation's destiny. so get to work! make sure the next 250 years are better than the last. good luck.
god bless you. minutes, but in no event shall debate continue beyond 1:50 p.m. the chair recognizes the gentleman from massachusetts, mr. mcgovern, for five minutes. mr. mcgovern: i ask unanimous consent to address the house for five minutes. the speaker pro tempore: without objection. mr. mcgovern: mr. speaker, thousands of people will gather in washington, d.c., this weekend for feeding 5,000, an event designed to bring awareness to the issue of food waste. participants will be served a communal meal made entirely out of food that would otherwise have been discarded. in other words, wasted. since 2009, feed back, a global environmental organization, working to end food waste, has hosted dozens of feeding -- feeding the 5,000 events in cities across the globe. i'm pleased to see so many local partners, including government agencies, charitable organizations, n.g.o.'s, industry, and chefs joining together to call attention to
food waste because the truth of the matter is we'll need all these partners working together to solve the issue of food waste. last year the usda announced their first ever food waste reduction goal, calling for a 50% reduction in food waste by 2030. usda is working with charitable organizations, faith-based groups, and the private sector and i believe this goal is 100% achievable. american consumers, businesses, and farms spend an estimated $218 per year growing, processing, transporting, and disposing of food that is never eaten. up to 40% of all food grown is never eaten. 40 million to 50 million tons of food is sent send to land phils each year -- landfills each year. this food waste translates into approximately 387 billion calories of food that went unconsumed. with 50 million americans, including 16 million children,
struggling with hunger every year, these are startling figures. we know food waste occurs throughout the supply chain from harvesting to manufacturing, to retail operations and consumer habits. but we must do more to reduce food waste at every stage. recover food that would have otherwise been waysed, and -- wasted and we cycle as animal feed, compose, or energy. thankfully there is a lot of work being done to raise awareness about the problem of food waste. last week i attended the screening of a documentary film called "just eat it" organized by the foodman of massachusetts. it follows a couple as they stop going to the grocery store and live solely off of foods that would have been thrown away. jen and grant were able to find an abundance of perfectly safe, healthy food available for consumption that would have been thrown awafmente it's exciting to see new partnerships forming to study
food waste and find ways to use this perfectly good food to reduce hunger in our communities. one such private-public collaboration, refed, has brought together over 30 business, government, and n.g.o. leaders o committed to wide scale solutions to u.s. food waste. in march, 2016, refed released a road map that charts the course for a 20% reduction of food waste within a decade. the road map calls for farmers to reduce unharvested food and create secondary markets for imperfect produce. it calls on manufacturers to reduce inefficiencies, make packaging adjustments, and standardized date labeling. it calls on food service companies to further implement waste tracking and incorporate imperfect produce and smaller plates in restaurants. and it urges the federal government to strengthen tax incentives for food donations and consider standardized date labeling legislation. the good news is that many in the industry are already taking steps to dramatically cut down
on wasted food by emplementing robust donation programs. for example, starbuck's recently announced it will soon scale up its successful food donation pilot program nationwide. starbuck's will donate unsold food for more than 7,000 company operated stores. salads, sandwiches, and other refrigerated items to feeding america food bank network. by 20 it 1 that amounts to almost 50 million meals. our college campuses are also stepping up. both the campus kitchen project and food recovery network with college dining facilities and students to provide hunger relief in their local communities. in my congressional district, becker college, holy cross college, smith college, and the university of massachusetts amherst all have campus food recovery initiatives. over the past 35 years, feeding america has democrat straight an outstanding commitment to
ensuring food that would have otherwise been wasted, makes its way to food banks across the country and into the homes of families in need. there are dozens of other industry leaders also taking steps to reduce food waste by implementing manufacturing upgrades, maximizing harvest, and utilizing recycling initiatives. i appreciate the efforts of the food waste reduction ally in bringing together industry, -- industry partners to shrink the environmental food print, and alleviate hunger in our communities. reducing food waste is one step we can take toward our goal of ending hunger in the united states. i'm pleased to see partners at every level taking action to reduce food waste but there is still more that needs to be done. let's solve the problem of food waste and let's end hunger now. i yield back my time. the speaker pro tempore: the chair recognizes the gentleman from minnesota, mr. erm, for five minutes. -- mr. emmer, for five minutes. mr. emmer: mr. speaker, i rise
today to celebrate ramsay fire chief dean kapler who recently announced his upcoming retirement. since 1993, dean has been responsible for every aspect of the ramsay fire department. a responsibility that he handles with determination and enthusiasm. over the past 23 years, dean has recruited and trained 55 firefighters and maintained three fire stations. additionally, he has worked tirelessly to provide better coverage and expand fire service for the ramsay area. the dedication that dean has displayed to his home city of 37 years is further proven by the retirement date he has chosen. his retirement will be determined by the completion of the new fire department, a project that he has supervised and insists on seeing through to completion. i want to thank dean for all the work that he has done for the city of ramsay, and i wish him happiness in his well earned retirement.
mr. speaker, i rise today to celebrate excel energy's monticello nuclear generating plant for receiving the above and beyond award from the u.s. department of defense. this award recognizes employers who have gone above and beyond the legal requirements of supporting guard and reserve employees. by giving nonrequirement benefits. the role of a reserve member is critically important to national security, but it is a job with an uncertain future. thankfully, the month shello plant welcomes the work ethic, leadership, and applied knowledge veterans bring to the position. those who serve and sacrifice to keep our nation safe not only deserve our respect but also our help when they come home. that is why excel's commitment to hire our veterans is so important. i commend them for hiring our veterans and for assisting employees who are serving in
>> working on legislation that we already passed but we'll see the f.c.c. bring up more spectrum which will enable these devices to be built to be used to communicate. we are on the run. putting in the legislation ebb couraging those states to start to make -- look at how do you build a road. dealing with the companies that are here today what do you need for your technology to be -- to work better. >> from the very first generation that we launched almost a decade ago, our focus has been on making your device as useful as possible in the car in a way that lets you keep your hands on the wheel and eyes on the road. for us that's always been about voice technology. >> ford understands there is great demand for more spectrum for unlicensed use. we are working with our
colleagues to come up a sharing solution. we are working with our colleagues at ntia, department of transportation, federal communications commission. >> watch the communicators tonight at 8:00 eastern on c-span2. the campaign 2016 bus continues its travels to honor winners from this year's student cam competition. the bus made a stop at he cherry hill high school east in new jersey to recognize six time student cam winner madeline for her second prize video when the house becomes a home. she was honored in her of her classmates and community members before having a chance to visit the bus. it then traveled to west scranton immediate school to honor eighth graders for their second prize winning video "national immigration issues." during the ceremony they donated $500 of their $1,500 winnings to the local charity. following this event the bus drove to clinton township
middle school to celebrate jeremy's the next big problem. over 250 classmates, teachers, family members, and elected officials joined in the ceremony for zachary. a except thanks to our cable partner, comcast. as you can view all the winning documentaries at student cam.org. >> today the supreme court sent seven consol dated cases challenging the health care law's contraceptive mandate back to the lower courts. it deals with the mandate in health care law and religious liberty. religious groups challenged an accommodation created by the obama administration that allowed nonprofits with religious ties to opt out of providing contraceptive coverage, allowing insurance companies and administrators to provide the coverage the court said the parties involved should work out a compromise. it was argued before the supreme court in march. here are the arguments now. they ran about an hour and a half.
>> we'll hear argument this rning in case 141418, zubick versus burwell. mr. clement. >> thank you, mr. chief justice. may it please the court. 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 cleefs and pay millions of dollars in penalties, or they can take steps that they believe to be religiously and morally objectionable, and that the government deems necessary for them to provide contraception coverage through their health care plans. the government concedes the sincerity of these religious beliefs, but it attempts to recast them as an objection to the very act of opting out or objecting. with all due respect, that is simply and demonstrably not true. >> could you explain to me the analogy with military objectors during the war many of them
felt that genuine belief they were pacifists, that if they registered as pacifists that that would mean other people could have to serve in their lieu. they were going to jail. many of them did go to jail because of this belief. why is going to jail less burdensome or less important than paying a financial penalty? >> don't think it is, but let me stick with the consciencious objector example in the draft context because i think the way to analyze a consciencious objector case 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 consciencious objector actually ok'ing. but i think it's important to distinguished -- >> let's stop there.
to the extent that a consciencious objector's good faith belief is that if i register someone will serve in my lieu, what burden is it on the government? meaning, if you're looking at it in terms of strict scrutiny, the government sends out how many notices to people to come and serve, 1,000, 1,200, do you really think it makes a difference if it knows whether or not one person is not going to show up? and if we are going down that road of what's the difference, why would that law survive? >> i think it would because i think it would be very difficult to administer that kind of system if either you couldn't even know about the objection or you couldn't take any steps on the government's part to fill a spot. i think what's critical -- >> isn't that the same thing here?
if you don't know who can pay or who -- who is not eligible or who is eligible to pay, how does this system work? mr. clement: two things, your honor. this is perhaps the unique government program where the government can provide an exemption without actually requiring somebody to opt out because that's exactly what they do for the churches, for the integrated auxiliaries. justice sotomayor: their church plans have to tell the government their church plans. somebody has to tell the government who is eligible or not. mr. clement: that's just not true with respect to the churches, their integrated ucks allries -- auxiliaries and religious order that stick to their n.i.t.ing. fact actually there is that -- knitting. factually there is that distinction. when somebody has an objection
to opting out because the government will take steps to find somebody to fill their spot and consciencious objector who objects to objecting on a form were the only way they can object is if they list the name of somebody else who is draft -- eligible who to serve in their stead. >> you began by the government mischaracterizes your position. i was not quite sure where that argument was taking. you are getting into the specifics of it. could you begin there. mr. clement: i would be delighted, justice kennedy. my point was simply my clients do not object to objecting. part of the reason you know that is they have not been shy about objecting. they told the government in the regulatory process that they were making a mistake when they limited the true exemption for religious orders to only those religious orders that stuck to purely religious things. my clients, the little sisters, couldn't qualify because they go out and serve the elderly, poor, on a nondemom national
bay sifments that's why they don't qualfifmente they objected then. they objected when they filed this lawsuit. they reaffirmed their objection when they filed the notice that was necessary to comply with this court's interim objection. >> that might be so. what happens if somebody did just object to object? justice kagen: it seems all your arguments would apply the same way. in other words, somebody comes in and says i do object to objecting because objecting will make it easier for the government to fill my slot. that's a perfectly understandable thing to say. and that's part of my sincere religious belief. and you say the sincere religious belief is what controls. and there, too, it would seem under your very theory, would you have to say that's a substantial burden, even if it is objecting to objecting. mr. clement: two things, first it would only qualify as a substantial burden if the objection requirement was
enforced with massive penalties. that's a relatively rare situation. justice kagen: the person is just objecting to objecting and that's part of the religious belief because that will make it more likely that the government will be able to fill he slot and to take efforts to provide contraceptives mr. clement: i understand. that brings me to the second part of my answer. the right way to understand that hypothetical, as i was explaining -- justice kagan: it's your theory of the case says that everything depends on a person coming in saying this is against my religion and that being the end-all and be-all. mr. clement: i don't think that's our position. our position is the sincerity of our religious beliefs, the government can question them, they conceded to them here, there is a legal analysis about the substantial burden, but the substantial burden analysis in this case is very clear because
of these millions of dollars of penalties, the exact same penalty that is were issue in hobby lobby and the court said it was -- justice kagan: you're not answering the question. mr. clement: if you have everything else the same, that brings you to the second part of the analysis. i would think if our objection contrary to fact where we absolutely object to objecting, if you come in and the government based on our objection, the government provides this service through the exchanges, through title 10, through anet in a uber -- aetna uber policy, we object to none of those things, but if we d. i think we would lose under the second half of the analysis. justice kagan: if i understand that answer, it's that if a person had a sincere religious belief that objecting to objecting was a form of complicity, then that would control and you would have to go to the second part of the
analysis which is to say is there a compelling interest. has the government's responsible be narrowly -- response be narrowly tailored. the difference between objecting to objecting and your clients' position is not a difference at all with respect to the burden analysis. mr. clement: i do think my client's objection is distinguishable from the hypothetical. this is not objecting to objecting. one way to understand this if there were two forms, one was an opt out form, one was an authorization form. my clients would have no objection to signing the opt out form. they would very much have an objection to the authorization form and the government -- justice kagan: as i understand the factual distinction, but the factual distinction doesn't matter given your own legal analysis. mr. clement: i don't think it does based on this court's precedence, either, even film' wrong about that you could certainly write an opinion that says there are three legs to
the stool in this case. there is 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 hydrogen our -- 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? justice sotomayor: because every believer that's 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 that is a very substantial perceived personal burden by them. but if that's 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
people to do in objecting? that won't be a problem. mr. clement: two things, justice sotomayor. the first is i do think what you're saying about the government not being able to function under the substantial burden and then the least restrictive alternative analysis, that's exactly what justice scalia said 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. there's no question by side of the debate -- justice sotomayor: if we are not asking you to do something except identify yourself, and if who is going to do the action is either the government or a third party, that that's the balance that we struck, that it's not a substantial burden if someone else is going to do the act that you're
objecting to? mr. clement: justice sotomayor, if the only action involved is a third party action like in part of the bowen against roy case, you're right. but when the government says, and it needs more, i want to be as clear as i can about this, the government admits at pages 87 through 89 of their brief they need more than just know we raise our hand and opt out. they also need additional information about our insurer or t.p.a. they require more. mr. sotomayor: hogs the t.p.a., who is the insurer, that's all. justice ginsburg: then they have an independent contract. he insurer or the t.p.a. is -- they are not dealing with the employer at all. it has an independent obligation that is imposed by the government on it. and not the company. mr. clement: justice ginsburg, that's true if and only if we
provide the form. it's not just the information on the form. the government treats that form as an authorization. in the case of self-insured plans with t.p.a. -- justice ginsburg: the law, regulation requires it, but it doesn't matter whether you say yes or no. you could say i fill out the form, i do not authorize, i do not permit, it won't make any difference. mr. clement: it makes all the difference, justice ginsburg, if we don't provide the form, then the coverage doesn't flow. we haven't provided the form in these cases. and as a result, the coverage hasn't flowed. the government thinks -- i think it's most obvious with respect to the self-insurance plans, but it's true of all of them, the government thinks it needs something from us so it can take that something and make it a plan -- justice ginsburg: because the government has another interest at stake. one thing you said, and i want
to clear this is not involved at all, no one doubts for a moment the sincerity of the belief of your client and all the others and the sincerity of their belief is accepted. it's off the table. any more than the sincerity and belief of the parent in the roy case was questioned. in none of these cases is that an issue. that's accepted. but the government has acted in this case, as you know, the original health care plan didn't provide these services for women, and it sought compelling interest there that was largely ignored up until then. so as in all things it can't be all my way. it has to be an accommodation. that's what the government tried to do. mr. clement: i agreement just because they call it an accommodation doesn't mean it's
immune from rifra analysis f what they gave my clients is what they gave the 345,000 churches, their integrated auxiliaries, and purely activities of religious disorder, if they came that accommodation nigh client, we would fill out any form they wanted to. the problem is we have to fill out a form and the consequence of us filling out that form is we will be treated very differently from those other religious employers. >> you started to talk about self-insured plans. justice athleteo: -- justice alito: is the case that the form or notice to h.h.s. in that instance becomes a plan instrument? mr. clement: in both cases, your honor, it becomes a plan instrument. the government thinks our notification in this case is the functional equivalent of the epsis 700 form.
the reason they required the form -- it shows you it's not an opt out. the way the regulations were originally designed you didn't raise your hand and tell the government i object. you sent a form directly to the insurer or to the t.p.a. that they then treat it as the permission slip to provide the coverage. it's not out, that's still one of the ways -- >> you don't have to do that. mr. clement: the alternative thanks to this court and interim relief is that we now can file an objection that the government treats exactly the same way. all they do that's different is they essentially it's a mailing rule. they take our objection and provide that objection to the third party administrator, at least with the self-insured plans, that becomes every bit as much a plan document as the epsa form 700. with all due respect it's a little rich for the government to say this isn't your plan, don't worry about this, when their whole interest is put in terms of seamless coverage.
if it's seamless to the end user, then i don't think the little sisters' perception that it's seamless to them and they are in fact complicit is an irrational belief by any stretch. > the essence of your argument if your objection is the contraceptive coverage is being done through the insurance that you contract with? mr. clement: i think that's a fair description of it, justice ken dirks and i think the only problem the government's -- justice kennedy, and i think the only problem the government's having is the health plan is somewhat intangible. if you put this in more tangible terms, if the consequence of us filing the form was that they would come in to one of the little sisters homes and set up shop, they could pay us rent, it wouldn't cost us a thing, and operated a tight 10 clinic out of our homes, i think everyone would understand of course we are complicit in the coverage that's provided on our premises.
just because this is more intangible i don't think the principle is any different. certainly from the perspective -- justice kennedy: do we accept your clinal's view on complicit -- client's view on complicity? or do we saw how far the causation goes. do we accept your view and see whether or not the accommodation is possible and least restrictive? mr. clement: that's the role your courts have had 230r the court because i think they don't want to get in the role of having the truth detector test. that's not just the hobby lobby desifplgts that goes back to thomas. if you remember that decision you had a religious add heernt who objected to forming sill lynn trickal things that would go into tanks. there was another gentleman hofea's witness who said you don't need to object to that. this court specifically said, we are not going to get in the business of refereeing those disputes. we are not going to get in the business of trying to figure
out and second-guessing whether mr. thomas is really correctly understanding his faith. here you have a-l of amicus briefs that reinforce that the religious beliefs at issue here for little sisters and my other clients are not at all idiosyncratic or wrong as a matter of faith. that's not an area you should get into. justice kennedy: -- justice breyer: you must have thought about this question, i suspect. i'll assume, i want to assume for purposes of the question, this isn't just a matter of signing a form with an objection. your clients are involved in the health care plan in major ways. they probably -- sign papers every five minutes or every day. and they choose insurers. they do all kinds of things. it's the topping, icing on the cake that pushes it over the edge. which is that you have to fill
out the form thing, i object, this is my insurer. you then can couldn't tact my employees. it's a whole bunch of things. so the question is, putting that all together now are they protected by rifra? i think the reason that the court went from sherbert and werner over to smith was they couldn't figure out how to apply sheshert and werner. this is at least one difficulty with it bye which is where i'm going. i even read st. benedict. for religious purposes i'm trying to find out something about being a member of society. sometimes when a religious person who is not 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 object to vietnam. think of the people who object to laws protecting blasphemy.
think of the 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 adult and receive medical care that is against their religion. so there are loads of things, i have given you for, think of the taxes. there is no question that doesn't violate the religious clause. but plenty of other things do. 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 during the week when the law says nobody can work on sunday because their sabbath is on saturday. what is the line? i have 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 sheshert and -- sherbert and werner doesn't help me. but you might. mr. clement: i'm going to try and then i'll reserve my time for rebuttal. what i would say to you is you're exactly right that smith was a much more administerable wormed. but congress -- here's the way that you work it and draw the line. you first ask is there a substantial version on religious exercise. that is going to weed out claims. if i was trying to claim attacks -- justice breye the r: the quaker. mr. clement: i do think there will be work to be done on the second half of the test. and i think there are fairly obvious differences between a regime where essentially 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 at a case like this or like sherbert itself.
the thing that made sherbert an easy case was the government of south carolina had taken care of the sunday objectors. at that point their argument that the whole system would collapse if we take care of the saab tearians was not persuasive. here they have taken care of the churches. they have taken care of a religious order just like the little sisters, if only the little sisters wouldn't go out and care for the elderly poor. they demonstrated this is an easy case. i reserve my time. >> thank you, counsel. mr. fran cska. mr. fran cska: mr. chief justice, may it please the court. the government here has the same interest it has with every other employee in this country who doesn't get contraceptive coverage from an employer-based plan. for all these other employees the government tells us it further this interest in other ways. the government needs to prove that those other ways are somehow insufficient when it
comes to petitioners 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 that organizations like catholic charities and 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 organizations like the petitioners here, that gives a full-blown exemption to organizations even if they don't object to providing contraceptive coverage, that treats identical organizations differently where you have a catholic school on the west side of town that has to comply -- >> are you suggesting once you ave this category, the church, then any other organization, religiously oriented organization, has to come
within that same category as the church itself? justice ginsburg: if the government can't treat the church as special and give it an exemption, that it doesn't give to religious oriented organizations. mr. clement: no, your honor. -- mr. francisco: no, your honor. but when you look what the government has done in t. what congress has done, that is the line that congress has drawn. both in the tight 7 exemption where churches -- title 7 exemption where churches 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 -- >> it doesn't have to. can the government say we are going to treat the church itself also protected. justice ginsburg: religious oriented organizations are protected but not the same
level? mr. frisco: i don't think they can do that. i don't think the government can take the position that the little sisters of the poor are any less of a church than a house of worship. >> same with a university? mr. francisco: yes, your honor. because when you look at how congress has drawn the line, universities get the title 7 exemption for religious hiring. churches do. the little sisters -- >> you're answering to the affirmative to justice ginsburg question. once you give it to a church you have to give it to any other religious organization. that's your position. mr. francisco: not quite. the problem is the government has to drawn a definition that is coherent and rational. i think the problem here is they have drawn the 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 filed that informational tax return, they actually get the exact --
>> it would be difficult for this court to write an opinion which says once you have a church organization you have to treat a religious university the same. i find that very difficult to write. mr. frisco: we are not suggesting that. when the government has the same interest here that it has for all of the other employees in this country that don't get coverage from an employer-based plan, and it's not just the religious employers, it's not just the grandfather plans. in addition you have the self-employed, unemployed, and employees of small businesses. the government has the same interest with respect to all of those organizations -- >> it was a very strong tradition in this country, which is that when it comes to religious exercise, churches are special. and we have said this most a ently in hosanna, it's long line of cases which says there is something very special about churches themselves. justice kagan: fair saying every time congress gives an exemption to churches and synagogues and mosques they have to open that up to all
religious people, then the effect of that is the congress just decides not to give an entionemmings at all much that's why there are some people who are extremely strong rifra supporters who have deserted this cause right here, professor laycongress among them, because of the mortal danger it poses to churches. mr. francisco: i am not suggesting whenever you give an exemption to churches that has to apply to all other religious organizations. what i am suggest something that when the government has the same interest with respect to both religious and secular employees, the churches, religious employers, employees of small businesses, ploitees of grandfather plans and the government furthers that interest with respect to all of those employees in many other ways whether it's the affordable care act exchanges, title 10, medicare and medicaid, at a minimum the government needs to explain why all of those other ways are sufficient for all of those other employees.
>> there are many statutes that have grandfather provisions. justice ginsburg: there are ny statutes that treat small enterprises differently. are you saying that once the vernment makes -- recognizes exemption from the law, the small business, very small business, once it has a number like in title 7, 15 employees, that's it. the floodgates open and it has to open what is an exemption for the very small business to everyone. mr. francisco: not at all. what i am saying if title 7 had an exemption that said you can't discriminate on a basis of race unless you have a pre-existing policy of racial discrimination. in way case you can maintain that policy in perpetuity as long as you don't change it. that would undermine the purpose of title 7 and that's precisely the type of exemption you have in the contraceptive mandate. >> could the congress or perhaps the executive survey
the employees of churches and of 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 draw a distinction mong those groups based on that survey? mr. francisco: justice alita, they could do that and other things. >> why don't we just assume if they are part -- if the majority are part of the religion, thatter in not going to buy contraceptives. that's their religious tenet. justice sotomayor: why are we worried about this case? we are worried because there are some women who don't adhere to that particular religious tenet and who have, we perceive, the government has
determined have a real need for contraceptives. mr. francisco: that goes to the larger problem with the government's case here which is the utter absence of evidence. let's assume for the sake of argument. justice sotomayor: what is -- there was plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way that the number of unintended pregnancy dramatically falls. as does the number of abortions. so that health risk to women who want contraceptives who can't get it is proven. scientifically and otherwise. . francisco: that problem of burdensomeness, that's the problem that exists not just with respect to the employers or petitioner employees but with respect to every other employee who like petitioners'
justice sotomayor: we exemption certain employers from title 7. it's not because we don't believe that racial discrimination is a bad thing. and it's not that we are not committed to eradicating that problem. but because at a certain point we have assumed the society or government that you can't do everything. so you can't take care of the health needs of the 100% of women, but you can of a significant number. why is that a judgment that is not entitled to some respect? mr. francisco: it means one of two things. either the government is willing to tolerate all the problems that identifies for petitioners employees with respect to employers of grandfather plans. we understand there are around 44 million of those. with respect to the employees of small businesses, with respect tote employees of religious employers the unemployed and self-employed, either they are willing -- if they are willing to tolerate
the problems with all those people, then it does question whether they have a compelling interest in forcing these particular petitioners to comply. on the flip side as they suggest in their brief they are not willing to tolerate the problem with respect to those people but think they can further their interest in other ways, the question becomes why are all of those other way that is are sufficient for all those other people suddenly insufficient when it comes to petitioners' employees? that's the fundamental break down in the government side of the case. more generally i think 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 to contraceptive coverage. we don't know the answer to that. let's further assume we knew how much of the problem would be reduced by forcing organizations like petitioners to comply. we reduce it by 1%, 15%, 50%. we don't know that. we still don't know whether the government coup cheemb a come prabble reduction through less
burdensome means. and the very less burdensome means that it says are sufficient to further its interests with respect to the other employees, who, like petitioner employees, don't get coverage -- >> i have to admit to not quite understanding this argument. justice kagan: the most important laws, the law that serves the most compelling interests, are often have exceptions in them. they are often small business exemptions. there are often transition rules like the 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 allow some people, then -- we might as well back it all in. there is not a law in town that doesn't have exceptions like that. mr. francisco: don't think that's right. the grandfather plan is not a transition rule.
justice kagan: it's gotten lower and lower -- mr. francisco: if you make any change -- >> if you neighboring mi change in your health plan you are out from the grandfather. it's inevitable over the course of years any employer is going to make changes in the health plan. justice ginsburg: it's a diminishing, transitional period once you make a change in your plan, you are out from under the grandfather. mr. francisco: yes, your honor. except they allow employees to raise co-payments at the rate of medical inflation without losing status and continue adding employees to the plan without losing status which explains why it's leveled off at about 25% over the last couple years. even putting that aside, i think that once you have drawn a massive exemption for both secular and religious reasons, it tends to undermine -- to do one of two things. either it shows your interest really isn't that compelling because you are willing to
tolerate a whole bunch of bad stuff for a whole bunch of other people. or -- i don't think that's what it means here. i think what it means here is the government is telling us it's got the same interest with respect -- >> here's the incentives you would put into place, mr. francisco. you would be saying to congress, next time you pass a law doubt put in an exemption for churches. are you going to get in trouble for 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. justice kagan: don't write exemptions for small businesses even though there are very particular concerns that small businesses face. are you going to get in trouble for that. those are terrible incentives to givele to a legislature, are they not? mr. francisco: i think what it means is when the government claims an interest, the overwhelming interest to force petitioner organizations to violate their sincerely held religious beliefs, yes, when it says we are going to exemption some organizations for purely secular reasons.
some organizations for political reasons, and other organizations for religious reasons, then it does -- >> your point is that -- let's imagine a widespread government program filled with exemptions. there are a smaller group of people who need an exemption for religious reasons. we look at those other exemptions, some think you have good reasons, some terrible reasons. we really under the rcra or first amendment should exemption religious, too. mr. francisco: sure. justice breyer: i just described the united states tax code where we know you do not have to have an exemption for those who are religiously objecting, for example, to paying taxes because it would support a war. that's what i'm looking for. same question and i'm not asking to refute you. i'm asking it because i'm looking for what the distinction actually is. for the reason i just said, i don't think that the
distinction can be, well, you have 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 believe when you tell me there is one. mr. francisco: these are factual issues. but i think that 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 petitioners present with respect to all of the other employees in this country who just like petitioners' justice , don't -- breyer: the thrust is i haven't found it yet. whether you call it rcra or -- 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. and if you want to think there is no such difference, just read -- as you have read, newborn's brief, list them on two pages. some go one way, some the other way. he says because of other people involved. what's your answer? mr. francisco: i agree. i don't think there is a clear line tore what things we require and what we dofpblet that's the swayway the law works. i think the way the law works it says are you allowed to require them to do this particular thing that violates their beliefs. in making that decision you look at what the government -- how the government is treating other similar situations. here the government is in fact saying with respect to all of the these other people who also don't get the coverage from their employers, we are willing to tolerate it or address the issue in other ways, then under
rcra, you have to look to those other ways to see whether they are sufficient for these employees or uniquely insufficient. >> may i ask a quefment is there any accommodation that the government would offer that would result in women employees of your clients or students of your clients getting health care as part of an employer-based plan or student-placed plan, getting contraceptive coverage, is there any accommodation that would be acceptable? >> your honor, the accommodations we listed in our brief would be acceptable. justice kagan: no. in other words, is there any -- you object to this notification. is there any kind of notification that would be acceptable? mr. francisco: your honor, if by submitting this notification or any other, we got the same treatment as the religious employers, this notification -- justice kagan: the religious employers, their employees do
not get contraceptive coverage through the employer-based plan. 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. mr. francisco: possibly so. possibly no. 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 objectionable coverage to their employees on the other, the less problematic it is. justice kagan: what might be acceptable? mr. francisco: we file the notice of objection and the government furs this interest in the same way it further its interest with respect to the other employees who don't get coverage from an employer-based plan. the employees -- >> justice kagan is wrong. basically you're saying even if all you do is a knock down, i raise my hand, i tell you that
'm a religious objector, and they somehow from this suit they know who your third party administrator is, they have a general law that requires all erisa plans and insurance companies to tell them who your clients are, that if insurer is involved in any way, you object. mr. francisco: not necessarily. as mr. clement was saying. if there was an uber insurance policy where aetna was the company the government picked to provide contraceptive coverage to all womenn this country and we happened to use aetna, we would be fine. >> paid for by the government? mr. francisco: yefment 7 >> the question was, these college students. they want to get the same coverage that is available for all other conditions. as far as i understand you're saying no. justice ginsburg: it has it be
some other -- to be some other plan. as long as you connect the insurer, that is insuring the religious organization, as long as that insurer is linked, it's how these students will have to get something else. they can't get what all the other students get for all other health protection. mr. francisco: i'm trying to be careful because we have many clients that have many different views. i think as a general matter i could certainly see the case that if they are seizing control of our plan, the plans we are required to provide under threat of penalty and using those plans as the vehicle to delivering the objectionable coverage to our employees solely as long as they are enrolled on those plans, which is what this does, coy certainly see why many clients would view that as a substantial burden on their religious beliefs. that's not the end of the aal sifments we then turn to less restrictive alternatives, 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 those alternatives are fine with them, they at least need evidence explaining why they are not fine for us as well. >> thank you, counsel. >> mr. chief justice, may it please the court. the accommodation the petitioners challenge in this case strikes precisely the sensible balance between religious liberty and compelling governmental interests that congress sought when it enacted riff a. this court recognized in hobby lobby, the accommodation seeks to respect the religious liberty of petitioners by exempting them from the contraceptive requirement and to respect the interest of petitioners employees. >> is it clear fr for me to infer from the way you open your remarks that you concede there is a substantial burden here and the question then is
hat is permissible accommodation. do you concede there is a substantial burden? >> mr. verilli: we do no. we concede the religious belief is sincere, justice kendy. we are not questioning sincerity of belief. we don't think the case in which -- when the question is this, when religious objection is made to the independent arrangements of the government makes with third parties to fill the regulatory gap created y granting an exemption from a squean rule -- >> do you question their belief they are complicit? mr. verrilli: no. justice kennedy: it seems to me that's a substantial burden. the question is whether there is an accommodation and whether that's the least restrictive. mr. verrilli: i'm happy to
discuss the substantial burden further. i do want to go what i think is the critical point on the 's stion of how rifra scrutiny applies. mr. francisco 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 in that every single one of them defeats the very purpose for which congress imposed the preventive services requirement. not just with respect to contraception but respect to all preventive services. the point here, i think can you see this, if you look at the statutory provision, can you which you could find at page 4-a next to our brief, which is the preventive services provision, the point here of this provision is that a group health plan, i.e. the health plan that covers people through their employer, who individual health insurance coverage, i.e.
the kind of coverage it 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 people who got health insurance would get preventive services as part of their regular care from their regular doctor -- >> in other words, your compelling interest is not that women obtain the contraceptive services chief justice roberts: you're compelling interest is women object taint services through the insurance plan or third administrator hired by the petitioners, the little sisters. in other words, it seems to me you can't say what you're trying to do is make sure everybody everybody has this coverage. want to make sure they have it through the program set up by the little sisters. that's what they object to. mr. verrilli: yes. assuming for the moment, i am happy to discussion the substacks burden further, the
point i'm making here, i do think this is critical, is that -- noven these options that the petitioners have identified going out on the exchange and buying a separate individual polcy, contraceptive coverage only polcy, title 10, medicare, medicaid, with respect turnover one of them, you have to change the law to make them even elingeible here, but 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 jury-rigged separate channel to get contraceptive coverage. .
>> i understand that, mr. chief justice. i understand that's their position. let me engage with you on the question of whether that constitutes a substantial burden. we don't think that constitutes a substantial burden because the way this accommodation is structured, although you're quite right. it seeks from the perspective of the employee to ep sure the employee gets the protection that congress designs, that from the perspective of the
employer that this is provided through a separate program. justice roberts: but you are saying religion is not complicit? mr. verrilli: no, we're saying that it is up to you but there is it is on the scope what have is a recognizable burden, that that was true in the free smith case law before rfra and it was recognized in ling and bowan and there were cases there was no doubt -- justice kennedy: but there are alternatives ve and is this the least restrictive alternative? mr. verrilli: as i said, your honor, if rfra scrutiny applies, then this certainly is the restrictive one of them. >> suppose it were possible for get n who does not contraceptive coverage under a grandfathered plan or under a plan offered by church or under
a plan offered by a religious nonprofit to obtain a contraceptive-only policy free of charge on one of the exchanges. justice alito: why would that not be a less restrictive alternative? mr. verrilli: it is not a less restrictive alternative because it is precisely the problem congress is trying to overcome. justice alito: what type of burden does it impose? ven with the help of a 1/2 navigator, a woman that wants to have it has to sign up with on the exchanges? mr. verrilli: no. justice alito: she'll have two cards. one from the employer and one from this plan, just a lot of people has one insurance card for insurance coverage and one for prescription, dental or vision. mr. verrilli: for the very
reason that the employee has to go out and get a separate policy, even in the world that doesn't,ist now, because those policies can't be sold on exchanges now. justice alito: we can talk about that in a minute. mr. verrilli: even in that hypothetical world, that is not equally effective achieving the government's interest because the whole point of this provision is you get this care from your regular doctor as part of your regular health care without any barriers, including any co-pay barriers. think about -- consider this, please, from the perspective of the woman employee. she has a health plan from her employer. she goes to the -- 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 -- and this is about 15% of all prescribed contraceptions who needs contraception to treat a medical condition or maybe she wants the contraception that's appropriate for her. what happens under this -- under petitioner's regime is
the doctor has to say to her, her regular doctor has to say to her, sorry, i can't help you. it's not just that you don't get the prescription paid for, it's not that he can't write the prescription. he can't counsel or educate. he would be paid under the contraceptionive plan. it wouldn't be her regular doctor. she would have to buy a separate plan, find the doctor that would take the separate plan. assuming there are insurance companies that will sell it. justice alito: if you subsidize them at 115% which is what you were doing in the case of those who provide services under self-insured plans. mr. verrilli: but the whole point here, justice alito, is that congress wanted to eliminate what were perceived as small barriers, like a $5 or $10 co-pay because the medical experts said even though small barriers -- even if you're getting it as part of your regular coverage, even those small barriers work as a
sufficient disincentive that many people use contraception than otherwise. that your honor is depositing imposes a significant barrier even with -- justice alito: what about the women in grandfathered plans? under -- in grandfathered plans that offer no contraceptive coverage, what about them? mr. verrilli: so grandfathered plans, let's talk about them. i will answer your honor's question directly but i do think the broader context matters here. this is a transitional device. the number of people in grandfathered plans dropped by 50%. there is no reason to think it's not going to continue to drop and if it does continue to drop in the pace of the last four years we are be zero soon. justice alito: we will all be dead. what about in the interim? what was the reason that congress did not require contraceptive coverage right away under the grandfathered plans? it required coverage right away under the grandfathered plans
for 25-year-olds so they could get coverage under their parent's health insurance plan. it would have been no great administrative difficulty for the grandfathered plans to put in contraceptive coverage, preventive care coverage right away just as they did for the 25-year-olds, and 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, including what we're talking about today, you can continue to have -- not provide that coverage for women as long as you maintain your grandfathered status. mr. verrilli: your honor, when congress passed americans with disabilities act, it made -- it didn't impose an immediate requirement that every building be retrofitted so that access to the disabled was possible. what it said was in that context that it's feasible to do so, buildings should receipt refit and new builds should
have these access -- buildings should have these access requirements. it's not saying that congress -- enforcing the americans with disabilities act because congress decided on a transitional system. this was a big program. there were reliance interest. congress decided on transition. understood this number would drop dramatically over time. the reason, look at the declaration from the dieas of pittsburgh page 86 of the joint appendix where they say, we're sticking with our grandfather plan now because we don't want to trigger the contraceptive coverage requirement but it's costing us a fortune, we have to change and that's the reality and that's why it's going to go down and with respect to contraception itself, your honor, with the the ather plans, institute of study says the contraceptive coverage is standard practice now. 86% of all plans have
contraceptive coverage so most of these women will have contraceptive coverage. now, they won't have it cost-free. justice alito: the americans with disabilities act, that certainly is a good point with the americans with disabilities act. it can be very expensive to retrofit facilities to accommodate people with disabilities but are you saying that the burden of simply instituting coverage for preventive care as it was done for coverage for 25-year-olds is comparable to making architectual changes? mr. verrilli: no, but what i'm saying your honor is this is unlike the exemption for small employees under title 7 which exempts 17 million people from these fundamental protections against race and gender and religious discrimination and does so permanently, this is a transitional device where over time you're going to get to a situation where virtually
nobody is in the situation, being in a grandfathered plan, and most of them are getting some form of contraceptive coverage anyway. justice society owe mayor: can we go -- justice sotomayor -- can we go back to the substantial burden question? i think justice breyer has been talking about it. when does government have to act to accommodate and when doesn't it have to act to accommodate? there are some that have ggested a line that at least to me helps give some clarity to the cases, our cases is, if what your religious belief is asking the government to do is to change its behavior with respect to -- its regulatory behavior with respect to others, then it can't be a substantial burden because we live in a pleuralistic society
in which government has to function. nd hence you're a military objector. you can't tell the government, no, you can't draft someone 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 entitled to do that as government. does this line make any sense to you? mr. verrilli: yes, your honor. justice sotomayor: the religious groups, i understand what they are asking. is the government not to use its regulatory power with third parties that don't have religious objection? and forcing a burden on the woman who they're trying to help, third parties that don't have the same religious objections, and burdening them to do other things. mr. verrilli: i think that is the essence of our position on substantial burden, your honor.
and i believe trying to answer justice breyer's question about where that comes from, i believe that comes from ling and bowan which both recognized there is an objective. in ling, for example, the court said that it does not doubt that the government actions will have a devastating impact on religious exercise. >> this is not just the case of the government dealing with the third party based on the petitioner's objection. justice roberts: the objection is that the government is hijacking their process, their insurance company, their third party administrator that they hired and set up to provide these services. i understand the distinction between -- yes, you can do it you want, but you can')t compel other people to take action that are consistent with your religious beliefs.
that is not what is going on here. it is the relationship between the insurer, the little sisters that they have hired or other administrators, that is being used by the government to provide these services. it is not just a third-party that is being compelled. it is not just that they want third-party to take certain actions. mr. verrilli: i agree with you to this limited extent, mr. chief justice, that is the contex that this action occurs. the fact there is this relationship between petitioners and their employees is the occasion for government cting. the first one is that what we are doing when we act here is try 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 lawsuit entitlements 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.
now, i think the practical features of this are critical. the employer cannot be charged for the coverage. insurance man, self-insured, either way, cannot be charged. the insurance company or third-party administrator has got to use separate segregated funds, has got to provide separate suggest regaited notices. in some it has a separate insurance card for this part of the coverage. so in that respect, it is an independent arrangement with --rd parties and justice roberts: they are not third party. it's the third-party administrator that they hired. it seems to me that the balance is pretty clear. you want the coverage for contraceptive services to be provided, i think as you said, seamlessly. you want it to be in one insurance package. that's the compelling government interest. and on the other side, the question is whether or not
people who have sincere religious objections to being complicit in that through the hiring of the insurance company, the third-party administrator on terms they provided whether the government's compelling interest outweighs those incere religious objections. is that a fair understanding of the case? mr. verrilli: i think that's a fair understanding of the case. justice robots: is there a fairer one? mr. verrilli: 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 in that this is the least restrictive means of achieving it -- justice ginsburg: so you are giving up on substantial burden? mr. verrilli: no, we are not giving up on it. it's a hard question and it's important to us and that's why e're fighting on it.
justice breyer: that's what i found exactly. your brief said that. we'll look to see it's not the kind of burden that counts for purposes of rfra or the first amendment. where it's a 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, ok? we have the vietnamese church the escapees in los angeles that they are so poor that they have to meet in the bayment. think about that when we can put that easily into the context of third parties being urt.
so you maybe couple with that e have in the tax cases. widespread administrative rules where the government has leeways where third parties widespread administrative. so i'm trying to get the thinking of the people who have thought about this which were you and the others here on what's the best way to treat that burden. it is not hard to find a religious writing, people assume some burdens. that they are going to find totally -- mr. verrilli: we are not urging you to state a comprehensive standard here. justice breyer: what do i do? mr. verrilli: we are urging a more incremental approach that recognizes the principles articulated apply in a situation where the government is cting,
making arrangements with third parties in order to fill the regulatory gap that has been created by the government granting an exemption to a religious entity. justice alito: could you address the hypothetical about where the government would come in an unoccupied room and little sisters civility not been used or anything, they even pay rent, they come in their and establish a title x clinic and artistry reading contraceptives distributing contraceptives. mr. verrilli: yes. they are actually on their premises. trying to get back to what i was discussing with you, mr. chief justice. aetna is a different entity from petitioners. blue cross is a different entity with petitioners. they make arrangements with
aetna and blue cross and other insurance companies and p.p.a.'s to provide contraceptive coverage to other third parties. the employees. >> you say in your brief -- you admit in your brief at least in the case of the self-insured plan the notice or the form or the notice becomes part of the plan. justice alito: this is their health insurance plan established under erisa and you are putting a new objectionable element into the plan, isn't that correct? mr. verrilli: i don't think that's quite right, justice alito. i think there is confusion on the part of the petition's side. there are two things to operate here. the first is the notice the employer provides to the government. that's an erisa plan document. the legal effect of that document 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 effect that creates the obligation on the part of the third party administrator to provide coverage. so it's not the case that document that comes to us is an authorizing document. that's an exempting document. justice alito: it's their plan and you are admitting you are putting something into their plan that they are objecting to on religious grounds. one involves something tangible, physical property and the other involves something that's not intangible. that's the distinction. mr. verrilli: it's not that it's intangible property. 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 there was -- that this did create a legally sufficient reason to find a substantial burden for
third-party administrators, it's not true about the situation with insurance companies. it's not true about church plans. and so it seems to me the question of switching having a self-insured third-party administrator situation to an insurance company situation would -- whether that would be justice alito: isn't the insurance policy the way in which the employer provides the benefits that are available? mr. verrilli: yes, and then the government makes an arrangement with the insurance company that operates in parallel to that plan. but it isn't through that plan. it's in parallel to that plan. so i think there's a significant difference there. but -- >> what is the government's interest in requiring comploins by catholic charities of pittsburgh but totally exempting catholic charities of erie? mr. verrilli: so this gets to the question of the church exemption, your honor, and let me try to explain that. i think it's helpful to understand how it came about.
the church initially h.h.s. decided it would create an exemption for churches. and then there was some back and forth, regulatory proceedings, petitioners participated in 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 matter it wasn't willing to exchange the exemption to all religious nonprofits as requested but instead use this accommodation which we thought was the best way we could both protect their religious liberties and the -- justice robs: the accommodate -- justice robots: with respect to catholic charities of erie, though, they don't have to comply with the accommodation. they are exempt. mr. verrilli: the reason we
drew the line and i think the professor spoke quite instructive on this point. no line is perfect and i'm sure this line isn't perfect and there will be some overlap of some entities that look to be closer to one side than the other. the line is a valid line and it's a valid line largely for the reason justice kennedy stated earlier. nonprofits, maybe some entities like the one your honor identified appear very close to entities that have an exemption. but there will be lots of other entities whose connection to that core religious connection is -- justice robots -- roshtes: could you apply it to -- justice robert: could you apply it to the other? mr. verrilli: yes. if we have the same compelling interest and we make the same narrowly tailored means argument but we have constrained ourselves. we have to be careful with
houses of worship and that's what governments do. justice roberts: and we said this in cases like ocentro and others. if you have a lot of exemptions it undermines your argument that this is such a compelling interest. mr. verrilli: let me try to walk through this carefully because i do think it's important. they've identified three. first is grandfathered plans. we've had a lengthy discussion about that. i don't think you can argue that exemption undermines the government's compelling interest. they claim there's an exemption for employers who have fewer than 50 employees but that's just wrong. in fact, there's no reason to think that virtually anybody in the category of those small employers isn't getting contraceptive coverage as part of their regular health care from their regular doctors and let me explain why that is. there is no exemption from the contraceptive coverage requirement for that group. proof of it is that several petitioners are in that group of fewer than 50 employees and
they're asking for the -- and raise asking for the -- the rfra claim here. that's because when employers in that group provide coverage, they have to meet the contraceptive requirements so employees get the requirement from their regular doctor, part of their regular health plan. then, also if your employer is not providing coverage in that group, then you go on an exchange and then you purchase a policy on the exchange and that policy provides you with contraceptive coverage as part of your regular health plan from your regular doctor. or you -- if you are eligible, you apply for medicaid and medicaid gives you contraceptive coverage as part of your regular health plan from your regular doctor. justice roberts: if they work for a small -- justice alito: if they work for a small employer, does that arrangement frustrate the government's compelling interest? mr. verrilli: no, because in that circumstance, your honor, the only option that that
employee has is to buy an individual policy on the exchange and that individual policy will contain the contraceptive coverage from your regular doctor as part of your regular headaches heark. the difference is when somebody works for a grandfathered plan, for example, that category or for a church, those people are already getting insurance. and so for them it is an on stackingle because you're asking them to get a second policy. the health insurance they're getting from their regular -- >> that just underscores that church plans here, religious organization plans here are in effect subsidizing the conduct that they deem immoral. mr. verrilli: so, your honor, i think answer to that they're not subsidizing it because the ay in which this plan is structured is that they are not
-- the employers are not to bear any financial burden for the contraceptive coverage. that has to be provided without charging the employer. funds have to be segregated and all activities has to be segregated. so it will avoid subsidy. so we talked about -- justice kennedy: if it's so free why can't they get it through another plan? mr. verrilli: because then they have to sign up for a second plan and pay for a second plan, your honor, and that's precisely the kind of obstacle that congress ensured it did not get when they passed the preventive part of the statute. it is to ensure the employees get the health care, get this coverage, get this care from their regular doctor as part of their regular health care without these added obstacles and the need to go out and sign up for another plan and find the doctors who are going to provide coverage under that plan. all of those are precisely the kind of obstacles that congress is trying to eliminate because
all the -- >> so it comes down to the question of who has to do the paperwork? if it's the plore it's not ok and if it's the religious organization that's ok. mr. verrilli: you have to find the separate -- justice roberts: they're in the exchanges, correct? justice soto may yor: it requires full health insurance policies with minimum coverages that are set forth, that are very comprehensive. creating a new program. justice roberts: is that true to other -- what about pediatric dentistry? mr. verrilli: except for that one. justice roberts: you could have separate health products sold on the exchanges? you do it already. mr. verrilli: you can't do it. justice roberts: you might have to change current law. mr. verrilli: but in this
circumstance i think you don't need to get to that question of whether there is an obligation to change current law. because even if you did have a second contraceptive only policy available on an, change, that would be precisely the kind of barrier that congress is trying to eliminate. you have two policies instead of one policy. that creates the disincentive. a lot of the women employees i'm certain will reach the conclusion that, well, i got this coverage over here. justice roberts: i guess it substantiates the question i was trying to make, who does the paperwork? it is a hassell to go to the exchange. we heard about how easy it is. you get an exchange, you get it. or you allow your infrastructure, as petitioners have said, to be used as the vehicle for providing it. i'm not saying it comes out one way or another from your perspective. i'm just trying to focus exactly what is at issue. it's a question of whether you want the employee to sign a paper or you want the little
sisters to sign a paper. in the one case it's an administrative burden, as you've said. in the other case, it's a violation of a basic principle of faith. the errilli: no, i think point, your honor, is that congress and the institute of medicine, congress made a judgment here that this does impose a very significant obstacle with these kinds of requirements result in significantly less use of medically necessary services. and it's not -- it doesn't just come down to this. justice kennedy: that's why it's necessary to hijack the plans. mr. verrilli: your honor, it's why the -- it is why the government's interest is advanced in the least restrictive manner. in the most effective manner. justice kennedy: is it right? the reason i get that you don't want to -- jn justice breyer: is it right? the reason you don't want women
to ask for coverage is vast number of women will? quite a few who have religious objections won't? and then there will be that middle set of people who are in inertia bound and since they are inertia bound we can't say, no, that lowers the cost of health coverage later on? so the government has an interest in that. and therefore, there is an interest of some kind in not allowing a system in not having a system where the inertia bound have got to take initiative, do i have that right or do i have the other part right which is it's not hijacking because there is a federal regulation that says the infrastructure of the insurer's contraceptive-related plan belongs to the insurer,
not to the person who buys the insurance, am i correct? mr. verrilli: that's all correct, your honor. and that's why when i say when we make arrangement with aetna or blue cross we are not making an arrangement with petitioners or anything that petitioners own. >> can the executive deal with the problem on what's available on the exchanges in the present time in this way? justice alito: of policies are available that provide comprehensive coverage, could the executives say as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive-only policies and in fact we are going to subsidize those insurers at 115% just as we do in the situation of the self-insured plans? mr. verrilli: no, i don't believe we would -- justice alito: why would that not be a valid exercise of your
enforcement discretion? mr. verrilli: i don't think it would be but even if it were, it presents the same problem of creating the obstacle which creates the inertia problem which undermines the compelling interest which is not just the compelling interest of the institute of medicine and h.h.s. but congress itself because the whole point of the statutory provision here is this is supposed to be part of your lr justice alito: -- justice alito: why would this not something you could do with your understanding of executive power? mr. verrilli: i don't think it would address the problem, justice alito. justice ginsburg: you explained the difference between the employer filing a form, identifying an insurer, say, aetna or blue cross, that covers contraception for many other people that it insures, the difference between that notice and the 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 this a real difference between an employer saying we're not going to cover contraceptive coverage, just the insurer? and the woman who suddenly doesn't have it as part of her package and has to go out and -- mr. verrilli: i think that's exactly the point here. the woman employee -- and i do what the ed difference is. justice roberts: if you're a woman employee, you go to your regular doctor, you say you have a medical condition, that puts me at risk of being pregnant or i need contraceptive coverage or i need contraception to treat a medical decision. if the rfra exemption is granted here is that the doctor has to say, i cannot help you with that.
>> what do you understand the interest to be on the other side of the equation? mr. verrilli: it is avoiding complicit. we take that very seriously. justice roberts: in which way does rfra cut in analyzing that balance? mr. verrilli: i think rfra cuts in this situation quite decisively in favor of the government here because the interests are compelling. and the -- as we tried to explain, none of the alternatives that the petitioners have proposed have come anywhere close to being equally effective in ensuring that women get this coverage. so the -- in the obstacles, we get told by your regular doctor, i can't help you. i can't even counsel you about this. numerous of the petitioners have filed declarations saying that our insurance will not cover even any counseling about contraception so you got to go out and find another doctor and then you got -- and you got to find a way to pay for that doctor and then find a way to pay for the contraceptive coverage. it's a whole host of very
difficult obstacles. it's not just about signing a form. that gets to the heart of the problem. justice alito: why would you say that doctor would be unwilling to provide those services under a plan -- under a separate plan that covers contraception, why do you make that assumption? mr. verrilli: that is a happenstance. somebody has to offer that separate plan and then the doctor, she goes to her regular doctor, has to be the same -- has to be under the same plan. there's no reason to think that -- hijack sotomayor: the analogy has been said. can you explain why that is not a hijacking? mr. verrilli: the way i try to explain that, your honor, we ve tried and i think hobby lobby, it's exempting the employer from providing contraceptive coverage. through to have it in separate
funds and therefore it's not hijacking. what i would like to do if i could, i would like to make one point -- >> to follow up on your answer before you do. the contraceptive services would be provided pursuant to what plan? mr. verrilli: if you're hired by one of the religious,, you get your insurance coverage, everything it is and where -- justice roberts: if you're hired by the religious organization, you get the insurance coverage, everything it is and where -- mr. verrilli: it is telling the employee, you're getting this separately from us. that's how it works. now, there is a justice sotomayor: mr. francisco said if aetna offers a separate policy giving insurance he thought that would be an adequate accommodation. mr. verrilli: i think that that raises all the problems identified. justice sotomayor: he says generally if aetna under some
other policy offers it on the exchange to women who might want to go on the exchange and buy that policy, that's ok. f they -- if that's the -- what they do. what's different from that, from what happens here? it's basically the same thing, isn't it mr. verrilli: two policies instead of one. you have to pay for that policy. justice sotomayor: the contraceptives are being provided by government regulation. he only seamlessness is that the woman doesn't have to apply and pay separately. mr. verrilli: i think if it's a separate policy you have to pay separately. i want to make one thing about the notice. i know my friend on the other side raised the issue about notice. it's not about us using the plan but the notice they provide. that notice argument i think can't institute a substantial burden because it's entirely derivative of the objection to this third party
arrangement. mr. clementa told us, if the government didn't take the step of providing coverage, we would provide them with any information they want on a form. that tells us the objection here, the looks of the objection is the -- is the arrangement to provide the separate coverage and not the notice, per se. on its own terms it's objectionable. >> can i ask you this informational question about the particular situation of the little sisters? justice alito: their regular third-party administrator also will not provide -- has said it will not provide the coverage if -- even if they were to comply with the form or the notice requirement and therefore you say they probably cannot be -- there's probably no way under erisa to obtain contraceptive coverage for their employees unless you can find another third-party
administrator that you could deal with there. in that situation would the little sisters still be subject for fines for failing to comply? mr. verrilli: no, we don't think so. if i could in closing. what i ask this court to do is to weigh the alternatives that's been put before you in this case. on the one side, you got a serious thoughtful effort to respect petitioners' religious beliefs by creating a system that allows them to exempt themselves from the requirement in a straightforward manner and that protects the fundamental rights and liberties and dignity of the -- of their employees, many of whom may not share their religious beliefs about contraception. on the other side of the scale, what you got is a demand that those rights of those employees who may not share petitioners' liefs be extinguished,
extinguished until such time as congress creates and enacts a different program that will require a separate one-off jerry rigged channel for them to obtain contraceptive coverage. that will impose precisely the burdens that congress said in a relevant statutory provision unacceptable for all preventive services. >> that's one way of characterizing what's involved here but you could also -- it can also be said -- justice alito: and this is true that this is a case in which an groups, eligious orthodox jews, the church of the jesus christ of the latter day saints, indian tribes, they said this provides an unprecedented threat to religious liberty in this country. what would you say to that?
mr. verrilli: what i would say to that, your honor, i think what essentially eight courts of appeals have said which is that rfra requires a sensible balance. a sensible balance is essential in a pleuralistic site -- society like others which people on every faith live and work side by side. the government has got to administer rules that are fair to everyone. the accommodation -- the accommodation achieves that balance. petitioners' position is very, very far from that balance. and therefore, the courts of appeal should be affirmed. thank you. >> thank you, counsel. mr. clement, four minutes. mr. clement: thank you, mr. chief justice. i would like to start with the universal, justice kennedy, because i don't think it's the case just because congress exempts churches it has to exempt the universities. what it needs, though, is a rationale for drawing the line. now, my friend on the other side says the line doesn't have
to be perfect. well, under compelling interest and least restrictive alternatives it at least has to be pretty good and the line they've drawn here is absurd. i would urge you to look at the ameekas brief filed by the dominican sisters and authored by a form her head of the tax division because it sprains the line they picked using 6033 of the tax code makes no sense. that's an informative filing requirement but there's no substantive difference. if my clients filed the form they get the same tax-exempt status as the churches. the only difference in that provision is whether you filed the form. the substantive treatment is exactly the same. to use that line to draw a distinction between churches and universities or the little sisters of the poor is a terrible line to draw. if you go back -- justice ginsburg: you go to that line drawing problem in a brief that's been mentioned several times about this joint committee by a leading proponent of rfra discusses
this line drawing problem, would you say that's wrong? mr. clement: no, i would say that gets me to the next point. if i could finish this point for one second. the original justification for the line they drew, justice kennedy, was the exempted organizations would be more likely to hire co-religionists and less likely to have employees that would use the products. my clients equally enjoy the title 7 exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. you have to draw a sensible line. as to the exemptions, i will respectfully disagree with the professor. [inaudible] justice soto may yor: not every church is religious -- has the same religious tenants. is that what you would prefer? is that the sort of incentive you want to put out? is that the message you're giving which is there's lots of
rules that apply differently to churches because we recognize they're special? it bothers me. to be special like them but it's hard to -- mr. clement: it applies to religious orders. if my clients stuck to the knitting and not help the elderly poor they would qualify. to answer both of these together, not all exemptions are created equal. and the professor is a great scholar but he admitted he didn't understand the details of this particular plan. he didn't get into that. he left it at the party. and i think he subsequently said if there really was a requirement for these entities to contract, and there is, then even he would recognize there's a substantial burden. but the important point is not all exemptions are created equal. if you create an exemption for small employers, that's a rational exercise of enforcement discretion. if you create an exemption for - take the ocentra case.
if the exemption for pay oaty for a schedule 5 substance maybe the government would have won. the problem is the government exempted the sacramental use of payote for a substance 1 exemption. they couldn't provide an exemption for a schedule 1 substance. all of these have to be treated the same. justice breyer, there's no excuse, no other way of looking at the exemptions and seeing whether they make sense. one of the cases that congress clearly wanted to embrace in rfra was yoder. yoder was a relatively hard case because there basically were no exemptions. if the state of wisconsin would have provided an exemption for the mennonites and for the students upstates where the schools were further apart, yoder would be an easy, easy case. you can't make an exemption for all of these grandfathered plan. if you like at page 956, they link the grandfathered provision to the idea if you like your plan you can keep it. so that's not going away.
just in closing, my clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. there is no such thing. thank you. >> thank you, counsel. the case is submitted. >> today the supreme court decided to send the cases challenging the health care laws contraceptive mandate back to the lower courts. saying the parties should work out a compromise. the court's opinion says they should be afforded an an opportunity of going forward. that is petitioners' religious exercising while at the same time women have full and equal health coverage including contraceptive coverage. >> c-span.org is a video rich complement to your c-span viewing. most of our government-related programs like the house, senate and congressional hearings stream live on the site. so if you are away from your
television, you can watch on your desk top, laptop and even your tablets and it archives it on the c-span video library. if you missed an episode of "washington journal," "book tv" or any program, you can find it online and watch at your convenience. in fact, the c-span video library contains more than 200,000 hours of c-span programs. and its powerful serge engine helps you find and watch perhaps going back many years. to watch on your television, c-span publishes onair schedule for all three networks and radio station. just click on the schedule link. c-span.org is a public service on your cable or satellite provider. so if you're a c-span watcher, check it out. it's on the web at c-span.org. >> the campaign twoucks bus continues its travels to honor winners from this year's student cam competition. the bus made a stop at cherry hill high school east in new
jersey to recognize the six-time student cam winter madeline for her video "when the house becomes a home," madeline was honored in front of her classmates, family. the bus traveled to west scranton interneedate school. to honor the second-prize winning video "national immigration issues." during the ceremony, fiona and abby donated $500 to a local charity. following this event, the bus drove to clinton town schill middle school in new jersey to celebrate zachary's second prize winning video, "the next big problem." er 250 classmates, family, even congressman leonard lance to honor him. thank you to comcast for coordinating these visits. ing view all the winning documentries at studentcam.org. >> on capitol hill, the u.s. house meets in just a few
minutes, 2:00 eastern time to begin legislative work. members have nine bills scheduled. debate on those measures beginning at 4:00 eastern. one of them dealing with identity theft. any votes requested will take place at 6:30. live coverage from the floor of the house here on c-span. we talked with a capitol hill report ber what to expect in the week -- reporter about what to expect in the week to come. >> in the coming week the house takes up the $610 billion defense authorization bill. the bill that sets pentagon programs and policy for the 2017 fiscal year. we're joined by john donnelly who's senior defense reporter for "c.q." and "roll call." what will you see debated? john: you will see a lot debated. this bill authorizes spending for not just the defense department but also for nuclear weapons programs and the energy department and a few other scattered programs here and there. it doesn't actually contain dollars. it authorizes the spending. it sets policy. the money is appropriated
separately. and -- but it obviously runs the gamut. i guess the most significant thing is something that the authorizers, the armed services committee, has tried to do this year to add more money for defense spending. what they've done is they have included in the so-called overseas contingency operations account, the war pot of money, $18 billion that orderly would be part of the core defense department budget. and they've done that without increasing the total amount of money for the war by only providing seven months worth of funding for afghanistan, the middle east and elsewhere. host: so is that a cut in spending? john: no, it's not. the top line, the total amount of money for the core budget and the war budget are the level that the president
requested. but the war budget is the level that the president requested only because they have subtracted money from the funds that would go to war operations and instead used that space, if you will, for $18 billion worth of programs, mostly procurement programs such as more fighter jets, that the president didn't quest officially but the generals and admirals have said we'd like to have. host: i understand there is a provision in there as well that would require women to register for the draft starting in a couple of years. how is it that make it in there and are all members onboard with that provision? john: well, they made it in under an amendment by duncan hunter, a republican from california, who is actually opposed to it. he was testing the waters and ironically i guess you would say it ended up becoming adopted by the around services committee on april 27. so now it's part of the bill. what it would do would not
require women to go fight. let's back up. the defense department has said women may compete for any combat job, including ones that were previously closed off to them, and so the logical extension of that to many members is if they can hold any job, then they should at least register for a draft if a draft were to occur. so that's a couple steps removed from putting a rifle in their hands. host: i understand that pete sessions is opposed to it and wants to file an amendment to remove that from the bill? john: that's correct. there would be a floor fight. sessions chairs the rules committee who decides what amendments are made in order. there are hundreds filed. not sure how many would be made in order. i bet sessions would be one of them. host: another marathon session in the rules committee. the headline at cq.com talked about the armed services markup of the bill. house armed serviceses advanced
ndaa, wrapping up a marathon markup. you also reporting on the chairman thornberry's amendment slashing the size of the national security council. why does he want to do that? john: he would do it in an indirect way. he would say if the national security council is going to be more than 100 people, then the president's national security advisor must be confirmed by the senate. the senate armed services committee, by the way, did a more directly, capping the level of that national security council staff at 150. so the reason he wants to do it is because he thinks that the staff has become too large, overleaning and micromanages the war efforts. a way of pushing back the obama administration. we'll see what happens in the next administration. host: you're righting in "c.q." about a floor fight over
helicopters. what's that all about? john: yeah. back in february, "c.q." disclosed there was an urgent alarm bell going off in the armed services committee about the fact that these vietnam era helicopters that are supposed to be able to respond if there were a terrorist attack on one of the icbm silos in the northern great plains, that these helicopters are too old to be able to do the job. and the head of strategic command has led the way in saying, we need to replace these helicopters asap. this is' two schools of thought on how to do that. one school says, we can't have time for a competition. we need to buy helicopters now to replace these old aircraft. but then the other school says, no, you should hold a competition. whether or not it takes a little bit longer and there are
plenty of helicopter manufacturers that are chomping at the bit for what could be a $2 billion-plus market. host: the house getting set to take up the defense authorization bill. as we wrap, john donnelly, the armed services approving their authorization bill. if you can give us a quick snapshot of the differences between the house and senate, where are they on these separate measures? john: i've been covering this a long time this is one of the widest discrepancies i've seen between the bills and it's because of that $18 billion gamut that the house armed services committee did. the senate armed services committee did not go along. they are going to stay at the president's level. they are not going to provide half the funding for half a year -- seven months out of the year funding for the war effort. and so, for example, the $3 billion worth of fighter jets i mentioned that are in the house bill, they're not in the senate bill. that will be a huge lobbying fight to get that many planes
worth that much money to try to get them authorized. but the real fight is going to occur in the appropriations committee. going back to what i said at the beginning, there's no money in these authorization bills. the real money is in the appropriations bills and they -- house appropriations defense bill does the same thing that the house armed services committee does. so let's see what the senate appropriations defense bill does. and that's where the real fight's going to occur. host: lots of defense debate ahead. you can final it at john donnelly at cq.com and you can follow him on twitter at jm donnelly. john: mile pleasure. >> we spoke with republican congressman fred upton from michigan, chair of the energy and commerce committee, and bill shuster from pennsylvania, chair of the transportation and infrastructure committee. we also interviewed innovators from ford motor company, sgrecktiffs jerry and andrew about new technology, spectrum issues and the upcoming spectrum auction. >> look where we are today in
terms of communication, job creation. mr. upton: we're working on legislation that we already passed but we're going to see the f.c.c. free up more spectrum which will enable these devices to be built, to be used, to communicate. we're on the run. mr. shuster: encouraging them to look at how do you build a road in the future? dealing with the companies that are here today, what do you need for your technology to be working better? >> from the very first generation that we launched a couple decades ago, it is making your device as useful as possible in the car to keep your hands on the wheel and eyes on the road and that's voice technology. >> ford understands there's great need for more spectrum for unlicensed use. we're working with our colleagues to come up with a sharing solution in the 5.9 band. we're working with our
colleagues at ntia. we're working with our colleagues at the department of transportation and the federal communications commission. >> watch "the communicators" tonight at 8:00 eastern on c-span2. >> congratulations to the class of 2016. today is your day of celebration and you've earned it. >> the voices crying for peace and light because your choices will make all the difference to you and to all of us. >> don't be afraid to take on cases or a new job or a new issue that really stretches your boundaries. >> spend your summer abroad on real ships rather than internships and the specter of living in your parent's basement after this graduation day is not likely to be your greatest concern. >> throughout this month, watch commencement speeches to the class of 2016 in their entirety. from colleges and universities
around the country by business leaders, politicians and white house officials. on c-span. >> and live coverage here on c-span from the floor of the house, meeting for legislative business at 4:00 eastern debating nine bills, including one dealing with the i.r.s. and identity theft. and tomorrow, work beginning on defense department programs and policy for the next fiscal year. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]