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tv   Supreme Court Oral Argument on Health Care Law Birth Control Mandate...  CSPAN  May 6, 2020 5:00pm-6:42pm EDT

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acknowledger rating. "new york times" want to take that the flu was a much bigger threat than the coronavirus? would be like to take back the government should not respond aggressively to the coronavirus? maybe you are have some answers in a few days. thank you. >> because of the coronavirus, the supreme court held oral arguments during teleconference. they are challenging new rules that expand the number of organizations that can file for religious or more exemptions
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from the health care laws birth control mandate. this is one hour 40 minutes. the chief justice and the associate justices of the supreme court of the united states. oyez, all persons having businesses are admonished to give their attention for the court is now sitting. god save the united states under this honorable court. we will hear arguments in case number 19-431. little sisters of the poor versus pennsylvania and the consolidated case. general francisco? >> mr. chief justice and may it please the court. in 2011, the government advised employers to provide coverage for contraception. including religious employers who objected.
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sparking years of litigation. traditions the best of this country's commitment to religious liberty, the government thought to resolve the issue by propagating new rules, exempting those employees who subjected to the mandate. those exemptions are lawful for two reasons. are authorized by section 1384 of the aca, which requires employers to provide the types of -- that the services administration's for and supports. it authorizes the agencies to require most employers to provide contraceptive coverage while exempting the small number of employers who have objections. it does not create an all or nothing choice required coverage for everyone or no one. otherwise, the long-standing church exemption, the exemption for self-insured church plan responded understanding of the accommodation itself would also violate the statute since the
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employer's group health plan don't provide the mandated coverage. they authorized the religious exemption. it prohibits the government from imposing a burden on religious belief, subject to a discretionary objection. it may burden religious believes satisfies scrutiny. but they do not require the government to do that. otherwise, the government would have to design the stingiest accommodations that the court would uphold, guaranteeing the law in every case. neither requires that result. i would like to begin with section 1384, which inquires -- requires employers employers that it supports. >> before you get to that, i would like to ask you a question of your point. i wonder why it does not sweep too broadly.
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it is designed to address the concerns about self and what the little sisters call the hijacking of their plan. but it reaches far beyond that. not everybody who seek the protection from coverage has i wondere objections if the reliance on it is too broad? >> i don't think so for a couple of different reasons. first, it prohibits the government from imposing -- imposing a substantial burden. when you look at that -- exception, it says the government may impose that burden if it can satisfy strict scrutiny. once there is a substantial burden, the government has the flexibility to lift it in different ways, including
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through a traditional exemption. otherwise this does not make a whole lot of sense. the government could consider further modify me accommodation, even assuming it fully satisfies this. that does not make sense if it cohabited anything that it does not affirmatively required. thank you, council. justice thomas. justice thomas? we will come back to justice thomas. justice ginsburg? justice ginsburg: the wearing feature of what the government has done in expanding this exemption is to toss to the winds entirely. winds entirely.
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's instruction that women need and shall have seamless no cost companies of coverage. seamless, no comprehensive coverage. this leads to women to hunt for other government programs that might cover them and for those who are not covered by medicaid where one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what congress did not want to happen. in this area of religious major trends not to give everything to one side and nothing to the other side. we have had a history of -- hearation, tolerance respect for the employers
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workers, and students who do not share the employer's or the universities objections to contraceptives. and every time we have dealt with the subject, we have assumed that there would be a thato provide coverage would not involve any cost-sharing by the individuals. assumedbby lobby, we the self certification was ok because women could receive coverage without any organizationby the , the group health plan, or the participants. in wheaton, we said nothing in the interim rules affects the ability of employees and students to obtain without cost the full range of fda approved
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contraceptives. to put in place in accommodation of employers religious exercise while at the same time ensuring women covered by employer's health plans, ensuring women perceived full and equal health coverage including contraceptive coverage. you have just tossed entirely to the wind what congress thought was essential, that is women be provided these services with no .assle, no cost to them instead, your shifting the employer's religious beliefs, the cost of that, unto these employees who do not share those religious beliefs. i did not understand rfra to
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authorize harm to other people, which is evident here -- the women and of getting nothing. they are required to do just what congress did not want. general francisco come could you respond? >> respectfully, your honor, i think i would disagree with the premise of your rusted because there is nothing in the aca, as this court recognized in hobby lobby, that requires contraceptive coverage, rather it delegated to the agencies the discretion to decide whether or not to cover in the first place. we think that also includes the discretion to require that most employers abide it but not the small number who have conscientious objections. otherwise, the original church exemption likewise would be illegal as with the effective inception for self-insured church plans. the church itself has enjoyed traditionally an exception, from the very first
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case, the mcclurg case, the church itself is different from these organizations that employ a lot of people who do not share the employer's faith. and i thought that congress had delegated to hrsa for its expertise in what contraceptive coverage women would need. >> reflexology francisco? exemptionfully, the for self-insured church plans is much more broadly. it encompasses not just churches in the auxiliary but luminary schools, high school, colleges, universities, terrible organizations, hospitals, and other health care organizations. i don't think they are authorized by the so-called ministerial exception, rather 13a4 and rfration
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. get in youras you last answer, suggest hcra has honest unlimited authority to both create guidelines and exceptions from those guidelines. first, if you would give us just an idea of what standards are to and theeir discretion services that are provided as well as the exemptions that are offered by the guidelines. >> yes, your honor. i think there are three limitations i would point to. first, because it has the discretion not to require any contraceptive coverage at all as his court acknowledged in hobby lobby, i think that plainly encompasses the required coverage by most employers but not the small number with sincere conscientious objection. secondly, further constrained by
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the apa's requirement for recent decision-making, which prohibits arbitrary -- arbitrary exemption. third, i think the term preventive services in the statute itself potentially provides yet another limitation since at the very least that would encompass the types of things that governments traditionally take into account when regulating in this area, including the impact that their regulations would have on religious believers. and i point to you to the federal register 83 federal register at 50 85 98 where the government goes through and detail the history of according conscientious objectors protectors when regular in these very sensitive medical areas. >> at what point do you run into a nondelegation problem? folks -- clubs i don't think we have a nondelegation problem at all here for the reasons we have said. i think all of this would establish limiting principles, including the phrase preventive services, which at the very
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least would limit what the government can do to the types of things that traditionally it has done when regulating in this area. if i can give you a quick hypothetical. suppose the department of the congress delegated to the department of defense the authority to create a draft. i think that would necessarily include the authority for the department of defense to craft conscientious objection to the draft precisely because that is the type of thing that governments traditionally consider in that area. likewise here in regulating attentive medical areas, government traditionally take into account the impact of the regulations have on conscientious objectors. >> thank you, general. justice breyer? >> good morning, general. i had the same question as justice thomas' first question. but what are the standards that govern when the agency can make exceptions and how and what they must look like. so if you have anything to add
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on that, do. if not, thank you very much and we can go on to the next question. >> your honor, the only thing i would add is i think all of these limitations would fully they'ree that any time exercising their discretion they are doing so in a rational way. after all, this is the very same discretion used not just to adopt the church exemption, but also the effective exemption for self-insured church plans and under respondents understanding of the accommodation, even the accommodation itself. in each one of those three instances, the employer's benefits plan is not providing the mandated coverage and in two of them, nobody is providing the mandated coverage. and so if you concluded that the agencies did not have this discretion, that would undermine the validity of the church exemption, the effective exemption for self-insured church plans, and the accommodation more broadly. >> justice alito?
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general, what factors other hcra --cal need can hrsa take into account in deciding which preventive services under the degree to which preventative services would have to be covered by insurance plan. for example, could it take cost into account? close your honor, if it took cost into account, i think the first question would be whether the manner in which it took cost into account satisfied the arbitrary and capricious standard. i certainly do think they could take cost into account in deciding what types of preventative services to require. for example there was a particular type of preventative service that was a new technology that was actually quite helpful but it was cost prohibitive for just about every employer or any insurance company to cover, i certainly that into could take
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account in deciding whether or not to require it pursuant to the guidelines issued under section 13a4. >> this broad issue has been before the court a number of prior occasions. until this case, i had not seen the argument that the affordable toe act did not allow hrsa make any exceptions based on conscientious objection. when did this argument first surface? >> to my knowledge, your honor, it first surfaced in this litigation. and if you look back to the promulgation of the original church exemption back on august 3, 2011, and you look at the federal register notice, it makes crystal clear the church exemption was based on section 13a4 describing it, the
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government determined that it had the authority under 13a4 to promulgate the exception and in the why the exception accommodation more generally is underse lawful under 13a4 myford's position on the others, i think all of those things would violate 13a4. >> thank you, general. justice sotomayor? all, youl, first of keep calling it a small number of women who won't get coverage. but i understand that figure to be between somewhere between 75 -- 750,000 -- 75000 and 125,000 women, correct? close your honor, yes, that is the number that would be affected by the exemption as compared to the original church exemption and affective exemptions that cover -- that affected around 30,000 women.
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i would note in this particular litigation, the respondents have not yet identified anyone who actually accessed contraception as a result of these rules. i think presumably because contraceptive -- access to contraception is widely available in this country for many other means besides -- >> let's go there. hhs decided that contraceptives were preventive service required under the act. now you say it has to take care to go promulgate the act and accommodate religious injections. but in your calculus, what you have not considered or told me about his the effect on women who now have to go out come as justice ginsburg said, and search for contraceptive coverage. if they cannot personally afford it.
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if there is no substantial burden, how can the exemption justify an that deprives those women of seamless coverage? >> so, your honor, two points. first of all, i think 13a4 provides than the discretion to do it, which is what they did in the effective exemption that covered self-insured church plan that imposes no more or less a burden than this exemption does. a putting that to the side, rfra itself in section 2000 db -- four explicitly permits any exemption that doesn't violate the establishment because. here i don't there's any plausible argument that the exemption violates the establishment clause under this court's decision in the case that upheld two religious employers which after all other is a religious employer's to fire an employee for religious reasons. and since it is permitted under
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rfra and permitted under section 13a4, i don't think any of these undermine the validity of these final rules. >> thank you, counsel. justice kagan? >> good morning, general. i would like to go to the chief justice's first question, which was about whether this role sweeps too broadly. i understand your concern about giving agencies some leeway so they don't have to think through thousands of accommodations in their head and then find the narrowest one possible for every person. but that is not really the situation we are in with respect to this. there was existing accommodation in place. some employers had objections to that accommodation. the little sisters and some others. even assuming those objections needed to be taken into account, the rule sweeps are more broadly than that and essentially scraps
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the existing accommodation even for employers who have no religious objection to it. and sorted by definition, doesn't that mean that the rule has gone too far? >> no, your honor, for two reasons. first of all, the accommodation is available. it is not been scrapped. secondly, including contraception, it does not cost employers anything. so there is no reason why an employer doesn't object to providing contraception as part of their plan, whether through the accommodation or otherwise, would invoke the exemption since they would be depriving their employees of a valuable benefit to which they do not object and that doesn't cost them anything. but i guess i would add -- >> do you have any evidence that -- isrrent exemption is
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it only employers of the little sister clients who have complicity of factions are now taking advantage of the exemption? i would think there will be a lot of employers who would say, you know, we don't have those complicity beliefs, but now that they're giving us an option, sure, we will take it. >> i respectfully think that would be irrational given that employers would then be depriving their employees of a valuable benefit that doesn't cost them anything. because it does not cost any money to add contraceptive coverage to an insurance plan. it a cost-neutral coverage provision. >> why can you just have written the rule to cover only those who have objections to the existing accommodation? in other words, those who have the complicity-based beliefs that the little sisters have? >> well, because, i think there's no reason to think anybody would do what you're suggesting and the original
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burden stems from the contraceptive mandate itself. so i guess what i would .2, case don'tichie, which if you accept my broader argument, gives the government collectibility in the case that could potentially compete statutory obligations. that is the case -- >> just as gorsuch? >> general, i would like to get the rest of your answer. richwas focusing on against stefano, which i think it's the government flexibility when it is facing potentially competing obligations. that is the case where the court said employer could violate title disparate treatment position if it had substantial ground against believing would otherwise be violating title vii disparate impact provision. it is the way that courts reconcile statutes that put parties in the place of having to decide whether to violate one at the expense of the other. here i think we had the very least have a strong basis for
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believing that the prior regime violated the religious freedom restoration act, and that gives us the discretion to adopt a traditional exemption -- which, after all, is the way the governments have traditionally accommodated religious beliefs. i think that is particularly both here since, one, rfra applies to and supersedes the aca. there is nothing in the ac that prohibits exemption. >> thank you, general. justice kavanaugh? close thank you. good morning, general francisco. on the other side, says the text and structure of the aca may claim that congress delegated 13a4 30 to oversee guidelines to finding what preventive services for women must be covered, not
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who must cover them. can you respond to that argument? close yes, your honor. respectfully, that is not what the aca says. section 13a4 says that employers have to provide whatever coverage it provides for and supports. here hrsa does not provide for and support coverage by the small number of employers with conscientious objection, but it does provide for and support coverage by everybody else. so i think our position follows plainly from the plain text of itself where his respectfully i think my friends position on the others is irreconcilable with that statutory text. they're trying to put sentences into that text is simply do not exist. >> thank you, general.
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mr. clement? >> esther chief justice, and may it please the court, from the very beginning, the government recognize that it's contraceptive mandate implicated deeply held religious beliefs. and so exhibit a and some religious orders. congress recognize that mandate was not some sort of categorical imperative that demanded universal compliance, so it exempted tens of millions of employees under grandfathered plans. that's from the very beginning, the government's refusal to separate the little sisters and ms abilities has posed a glaring rfra problem. the federal government finally got the message and exempted the little sisters. that exemption remedied that rfra violation and followed the best of our traditions. nonetheless, the third circuit invalidated by concluding the regulatory accommodation satisfied rfra and the government was powerless to go further. that decision is doubly flawed as the regulatory mechanism plainly violate rfra and rfra
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does not impose a real of parsimony or limit the government to the least accommodating alternative. the third circuit's reasoning was plainly mistaken as to the substantial burden analysis as its reasoning really cannot be squared with this court's decision in hobby lobby. after all, the penalties that enforced the mandate here are the exact same penalties that underlies the basic contraceptive mandate in the hobby lobby decision itself. when the government imposes a burden on legion by telling the little sisters that they have to comply with the mandate or the accommodation or else, when the war else is massive penalties that plainly provides substantial burden on religious exercise. at the same time, the compelling interest analysis also works in favor of the little sisters for two basic reasons. first, the government has shown its ability to exempt churches
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and other religious orders from the very beginning. secondly, in the grandfathered plans exemption the government has shown its ability to exempt tens of millions of employees who did not even have religious objections, but only object or only exempt different reasons of administration of convenience. >> the little sisters do not object to their employees having coverage for contraceptive services, right? cooks they don't have any objection if their employees receive those services from some other means. there objection essentially is to having their plans hijacked and being forced to provide the services to their own plan and plan infrastructure. >> so if you had a situation where the certification was not necessary, in other words, the government's -- the government finds out the employs do not have contraceptive coverage through some other means and you
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do not have the hijacking problem that you referred to because the insurance cover would not provide the services through the little sisters plan but could provide them directly to the employees, why isn't that sort of accommodation sufficient? i did not understand the problem at the time of zubic and i'm not sure i understand it now. >> i don't think we would have an objection to the government and then if the government has some way to provide the contraception services independently of us and our plans. we have never had an objection to that. the government has insisted throughout this whole process that we not just be able to have an opt out form and objection form, but that same form serves as a permission slip to allow the government to track down pp a's and others to provide services through our plan. and that is outside of our
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objection. it is never been an objection to objecting itself. >> the problem is neither side in this debate once the accommodation to work. the ones i doesn't wanted to work because they want to say the mandate is required. and the other side doesn't wanted to work because they want to impose the mandate. is it really the case that there is no way to resolve those differences? mr. chief justice, in the wake of the zubic remand, there was a lot of back-and-forth between the religious objectors and the government. i don't think there really was a mechanism to find sort of some third way because the government has insisted on seamless coverage with seamless essentially being a synonym for through the little sisters plans. justice thomas? thank you, chief justice.
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you toment, i would like have an opportunity to comment the questionable standing of the states in this case, as well as the proliferation of nationwide injunction, such as the one in this case. >> certainly, justice thomas. eat -- at this juncture, we don't really have an objection to the state standing, but i think their standing have to depend on that precedent because, as general francisco alluded to, throughout this litigation, they have not been able to identify a single person who would lose coverage in such a way you would increase the burdens for the state of pennsylvania -- states of pennsylvania and new jersey.
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the only way they can have standings in this case if they are excused on the requirement to specify certain individuals to increase their burdens. think there is a mandate that says that is ok, but that is certainly the absolute outer limit of standing to be sure. with respect to the nationwide injunction, that is an issue where i think it is particularly inappropriate to have a nationwide injunction in a case like this. the one thing we should have learned from years of litigation over the affordable care act, and its contraceptive main debt -- contraceptive mandate is that the state do not come to uniform decisions, so sometimes the view and circuit courts are rejected by this court. and so, under those circumstances, for a single district court judge to think he or she has a monopoly on the
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reasoning here, and should impose a remedy that affects people across the nation seems to me to be very imprudent and not something consistent with equity practice, or really just good practice in the way that our judicial system works, since it really depends on having the circuits look at these issues independently when they divide this court case review, and these nationwide injunctions, short-circuit circuit, all of that, and puts enormous pressure on this court, and forces this court to hear -- >> thank you, counsel. justice ginsberg. >> at the end of the day, the government is going to the wind the women's entitlement to them,ss, no cost to requiring those women to pay for contraceptive services.
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first, they would have to search for a government plan. and if it turns out, as it will for many of them, there is no other plan that covers them, then they are not covered, and the only way they can get these contraceptive services is to pay for them out of pocket. precisely what congress did not want to happen in the affordable care act. so, this idea, the balance has -type all four organizations and not all of the women -- it seems to me to rub it against what is a history of accommodation, of tolerance, of respect for divergent views. >> justice ginsburg, i would say two things in response. first, i would echo what the solicitor general said in pointing out that congress itself cannot even specify that
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contraception would be included in the preventative health mandate. and congress went further and said, with respect to grandfathered plans, there were other mandates in the affordable care act like coverage for people up to age 26, and pre-existing conditions, that they would impose even on grandfathered plans, that they did not impose the preventative mandates, so congress itself recognized that tens of women's of employees could be in the same position as employees of the little sisters of the poor, even though there is no religious objection whatsoever. we do are going to give those kind of exceptions to people for secular reasons, then you need to give those kind of exceptions to religious believers. >> justice breyer? .> i have two reactions one of course is, that the point of the religious clauses is to
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try to work out accommodations because they could be some of the most difficult to resolve disputes, and they could substitute a kind of hostility for harmony. from that point of view, i really repeat that if you want to add, the chief justice's questions, i don't understand why this cannot be worked out. but if you can't, from what has been said so far, it seems to me the proper legal blocks to work it out in is whether his particular rule is arbitrary or in abuse of discretion. after all, the religious group say they have a real basis in objection. and the other say, these are women who will be hurt, who have no religious objection, and moreover, the insurance will be heard because it will raise -- will --her hurt -- it
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the insurance companies will be hurt because it will raise costs. the question is whether this is a reasonable effort to accommodate? and that i think, is arbitrary, capricious, abuse of, but that is the one thing that isn't argued in this appeal. so what do i do? breyer, i think you're absolutely right that that is not the nature of the objection that has been raised by the other side. they have not said, for example, yes, this exemption might be ok if it were limited to the little sisters and others, who object to the accommodation, but they went too far. that is not the nature of the challenge. they have not brought that kind of challenge. i think what you would do is, you would reject the challenge that is before you because i don't think any of the grants litigated before you were a valid, and you can make clear in your opinion that if somebody, down the road, has an objection to the scope of the objection,
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say they work for a for-profit company, and with respect to that profit company, they are not getting their services at net is because the apa -- because the rule is too broad, that would be a separate apa challenge that i don't think rejecting the challenge here would four i think that is the path forward. >> justice alito? >> i certainly agree with my colleagues that our best tradition in this area is to accommodate diverse, religious views. so i am going to ask you about the interests that are involved here. on the one hand, what with the little sisters feel compelled to do if they lose this case, and they are told, you must provide this coverage through your plan? and on the other side, i want to
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ask you -- this has been going on for some period of time -- whether you have -- you have identified a number of women who work for the little sisters, who want contraceptives, but they cannot get them through their employers' plan or the insurance plan, or a government program, and cannot easily afford to purchase them on their own. justice alito -- justice alito, first, the little sisters believe that complying with this mandate is simply inconsistent with their faith. and so, if this burden is imposed on them, they will have to reconfigure their operations. one of the anomalies here is that the government, from the beginning, has exempted religious orders, but they refuse -- if they stick to their bidding and do only religious
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hand,es -- on the other they do with the little sisters to is go out and provide care for the elderly, poor, and for the sick, then they don't qualify for the exemption. with a little sisters will have to reconfigure their operations, but there is nothing they can do that will allow them to, compliance with the plan. and so, with a government's mandate. i think that is what congress had in mind because they understood that when people are faced with a government obligation, that their religion absolutely forbids them to comply with, that is something the government should try to avoid at all costs. to answer the second part of your question quickly, the little sisters have never complied with the mandate throughout this entire litigation. and so, we what that means is two things. one, no one will lose their
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coverage that they have now at the little sisters are given this exemption. heard of a have not single employee who views this as a problem. presumably because many of these employees, even if they are not catholic because a little sisters hires on a non-discriminatory bases, but they come with a little sisters with the understanding with their mission and i don't think they would want to put them in the position of maybe having to stop serving the elderly/poor. >> justice sotomayor? assume that the government passes a law that says every insurance company must reimburse fory policyholder they have the covid-19 vaccine. they say nothing about whether it is in your policy are not.
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if someone has a religious objection, they say they can be exempted from it, but you -- but your insurance carrier must pay anyone who has a policy with you , for anyone who submits for covid-19 vaccine. object toployer paying to that policy? >> i think the answer is no. i would like to explain how it works. rules thatthe same contraceptives, meaning all they have to do is tell the government that they object to vaccines, and by the -- thatboth know they there are religious groups that objective vaccines, and they don't want their plans to be complicit in providing vaccines. your --ce sotomayor
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your, ice sotomayor want to explain in what it works. the government obligation was imposed directly on the insurers. i don't think the employers could object at all. had i think an insurer that a sincere, religious objection to providing the coverage, say like the christian brothers, they might be able to object. i don't think they have an objection, but they could in theory if they objected to providing compensation for that coverage. they could object, and i think it probably would be a substantial burden in the context of covid-19. i think that you might strike -- the government might be able to carry its burden, but i think that would be the way to think through that hypothetical. >> justice kagan? >> good morning.
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i would like to start by asking you about the response you gave to the chief justice because you said there, you have no objection to object in the little sisters. i have taken that to mean you're consistent position throughout the litigation, but what if an employer did have an objection to object? in other words, had an even more say extended view of complicity, so the employer thought that extending itself made him complicit because it led to a chain reaction, whereby the employees were eventually going to get coverage. would you say about that? would depend on additional factors, like whether the government enforced its requirement an objection with the same massive penalties we have here. if they did, then i think the way to think about that particular, sort of objection,
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would be that if that objection is sort of -- if that objection is prevented by the person's religious beliefs and the person is enforced a massive penalty, there is a substantial burden in the analysis was shipped to the compelling, least restrictive alternative test. i think the government would be able to submit or sustain its requirement of at least having an objection. the irony is that this may be the one context they can't because they have never required the churches, their religious auxiliaries, the other orders that engage in only religious activities -- they have never had to object. >> even in that case, where object into objecting is the only thing that you would think the employer would prevail? make all the same arguments that women can get contraceptive coverage elsewhere, and there are other
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exemptions to this. so, the employer would prevail, even if it were only objecting to objecting? i thinkto be clear, that has to do with the linda government has operated this whole program. since they never were hired to churches or other religious orders, or the grandfathered plans to object, i think that puts a government in a difficult position in this hypothetical situation. justice gorsuch? >> a major feature of the opinion below and the arguments in the briefs, at least, is the government failed to comply with the procedural requirements of the apa, and i did not want that major component of the case to go unaddressed today. i want to give you a chance to respond to that. >> thank you, just as gorsuch. on the apa, there are a number of different ways to come out
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differently than the way the third circuit analyzed it. -- think the third circuit e we think the third circuit erred . we think the original was satisfied. we think the good claws was satisfied for the same reasons that the government had good cause for example to make immediately effective moderations in light of the court's order. we think likewise, my friends on the other sides as there was good cause for the original exemptions and the like in the mandate because they needed to make changes quickly for additional upcoming plan years. we think all of those same things apply here. another way to rule against the third circuit on that issue is to recognize that there are specific statutory authority here to propagate benefit plans,
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which probably recognizes the benefit plans will often have to be changed in ways that will affect certain future plan years, so changes need to be made quickly, but a third way is to reject the reasoning of the third circuit is to say, even if there was some original sin in -- propagation, consequently, one feature of the third circuit opinion i want to draw attention to is the third circuit never faulted the government for responding to the thousands and thousands and thousands of comments a god in any kind of insufficient way. so, the government has complied with all of the textual requirements of the apa procedurally and yet, they have still been found to be out of a-textual based on an text. >> justin -- justice kavanaugh?
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>> i want to follow up on justice kagan's question on the objection to objecting. i have thought that that would leastught under the restrictive alternative and the government might argue there is no less restrictive alternative available in that situation. you might disagree and try to identify a less restrictive alternative, but i thought that is where it would be litigated. is that correct or not? >> i think i'm a justice kavanaugh, that is where it would be litigated. we are talking about hypothetical. were it is differently on the least restrictive alternative is to point to the fact that the church exemption on the grandfathered plans exemption has worked quite well without requiring there to be any kind of formal objection registered.
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it seems to me those are essentially other ways the government has been able to comply, and the other question is if we are in the round where the government itself has the final rule, alleviated the obligation, even to have an objection, i am not sure this question we are talking about would arise. >> i understand that. that is what i expected your argument to be in that context. second question just to follow-up on justice breyer on the arbitrary, capricious tests, the exercise of discretion must be reasonable, what are the limits that you would identify to the government's discretion, if any? >> i would identify all of the limits that general francisco alluded to in one more. one thing that i think is artificial here, is the position of the other side is that they wanted to look at the a ca and
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refer -- these aca and rfra. hrsda,s an obligation on so it seems to me that an goingion for religion is to be insulated from an arbitrary and capricious challenge anyway that exempting just large employers, or implores incorporating delaware, i think all of those would be irrational and arbitrary/capricious under the apa. but here, the agency testified with rfra consistent with its authority under the aca to give it a strong case where it to not be capricious. >> thank you, counsel. mr. fisher? the exemption rolls rest on
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three sweeping assertions of agency authority. narrowthe agency delegation allows the health resources and service diminished ration to decide which services must cover the women's health amendment into a grant of authority so broad it allows a to virtually any employee or college to opt out of providing contraceptive coverage entirely. as a morphor reasons is vaguely defined moral beliefs. second, the agency's claim that rfra, a statute that limits government action, affirmatively employersm to prevent to death for women to deny , as many of the questions have reflected, the prior rules struck a balance that permitted objecting employers to opt out, but still allow their female employees to
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receive contraceptive coverage. these rules exempt such employers altogether, even if they had no objection to this prior accommodation. these rules also allow for the first time of the lead traded companies to claim the same exemptions, despite the agency's admission no companies ever requested one. and third, the agency's claim they were justified at putting out the rules at the apa requires. it is inconsistent with its purpose and would break the requirement out of the statute. in addition, the agency challenged the scope in they have advanced a novel claim that federal courts lack the authority to invalidate unlawful agency regulations in their entirety. in isolation, the agency's argument are incorrect. taken together, stretching a
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narrow delegation, finding broad rule-making authority in a statute that doesn't provided, it inre the apa requires seeking tutor tale the court's authority of action, these notments -- these cases are a long-running dispute, but rather the assertion of vast agency authority at the expense of congress and the courts. >> thank you, counsel. i have a question and it was a hypothetical that i thought was pretty good, and i have not heard an answer to yet. say you have a couple going out to dinner and they tell the babysitter, well the children have to do chores, you decide which ones. i think everybody would agree that that includes the authority to say, not only that we have to do the dishes and sweep the floors, but tommy, you do the dishes in sally, you sweep the
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floors, and not the assumption that each child would have to do each chore. and here, your argument about the aca statute is that he gives hhs the authority to specify which services had to be provided, but does not give them the authority to make determinations about who has to provide which, but instead imply every employer has to provide everyone. what is your answer to that? answerchief justice, our is that is the only reasonable reading of the text of the women's health amendment. the who must provide is answered by the beginning of 13a4. offering health insurance coverage at a minimum provide coverage for it shall not impose any cost-share requirements. the court recently acknowledged again in the cost-sharing case
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recently dealing with the aca, below that language are four separate categories of services to be covered. nobody disputes the first three are mandatory, that all covered insurers must cover the first three. the only dispute comes in the fourth one, which is respect to women, such preventative care is provided in conference of guidelines. in a hypothetical that your honor referred to is in the amicus brief with a modified the language of this requirement by taking out the such additional language. that language is key because it answers the question of, what services are insurers to provide? with respect to women, it is such preventative care and remains as provided for in conference of guidelines. it doesn't go beyond that. >> thank you, counsel.
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justice thomas? >> just a brief question that is a little different. i'm interested in your view on standing, with your arguments for standing in this case, the challenge -- the government's regulation that may impact the state's cost, seems to suggest that any time there is a rule change at the federal level that affects you, you would have standing, and that, again following this case to its remedy of a nationwide injunction, would suggest that in these sorts of cases, a nationwide injunction would be appropriate. i would like you to comment on that. it seems to be somewhat was amatic that there problem with both standing and nationwide injunctions, if they are this easy to get. >> thank you, your honor.
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to be clear, we have to satisfy standing requirements just as any other litigant has to justify standing. we did that by showing the rules would impose costs on pennsylvania and new jersey, and that is in some way the most basic type of injury and showing harm. my friend on the others had referred to massachusetts versus the apa that recognize states have a special place in our constitutional order, however, we still demonstrated that based on the government's own estimates and the number of women affected, these rules would impose direct cost on us. and with respect to the question about nationwide injunctions, i want to stress that we are here in the preliminary posture. we were granted a plural luminary injunction. the government requested the case be stayed. we could have the case wrapped up now. the analysis with respect to nationwide injunctions is
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different. where the only ultimate remedy available is that the court shall set aside a rule that is invalid. able to slice and dice rules and say, the agency can enforce with this person but it stays with everyone else, the results would not be regulatory chaos -- the results would be read literary chaos. of that final remedy that is available, granting preliminarily relief on a nationwide issue is appropriate. it was appropriate here because the court found a very well reasoned discussion that found your honor's concerns expressed about nationwide injunctions, discussed this idea that there are cross-border harms that could not be addressed. thank you.
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it would seem though that themately, -- that is argument, nationwide injunctions with any read literary change? >> i don't think that is the case, your honor. i think there are many regulations that would not impose costs on states directly or indirectly. and certainly, in a nationwide injunction context, it would still depend on the specifics of the rule being challenged, and the nature of the harm that the challengers are alleging. as i indicated, the district court took accounts of all of these concerns, talked about the need for percolation among the circuit courts in acknowledged in plain terms that bashing preliminarily is an imperfect science.
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when this was adopted, do you think there was such things as nationwide injunctions or were they handled on a case-by-case basis? >> i believe there is a history certainly of these gone beyond the parties to a case whether they were classified as nationwide injunctions is difficult to say. think that in passing the apa, congress provided a specific remedy and as your honor stated in the travel ban case, authority for nationwide injunction has to come from the constitution or statutes. this is the authority we would allege we argue the basis for this injunction comes from, it says is a final remedy set aside proper agency action and then permits agencies -- permits courts to stay agency action as
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this court did a few years ago. injunctions, to postpone the effective dates and many of those remedies suggest relief going to the rule in its entirety. justice ginsburg: i'm troubled by the complete abandonment of the congresses interest in saving women cost. it's a forced cost on women congress want to provide free coverage for. i've never seen any of our prior decisions suggest that those interests would be thrown to the wind and the women could be left
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to their own resources to cover themselves and get policies that would cover for these contraceptive services. at a premium to them. i think it's important to remember just how broad these rules are. there are two rules we are dealing with. one we haven't talked about is the moral rule that says an employer with a moral objection to provide contraception can be exempted. the district court noted this could allow an employer that objects to women in the workforce for instance to remove itself from providing contraception. with respect to the religious exemption, there are certain key features that really should show how broad this is. it illuminates the accommodations as mandatory requirements. even for instance all the various planes of plaintiff and the hobby lobby case that
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recognize they were fine with the accommodation, they are now exempt. i disagree with my friends conclusion they are unlikely to take advantage because these are at any subject to contraception -- contraceptive. we were fine with the cop -- complying with the accommodations. , the supplies. >> where does the moral exemption come from? >> they do not rely on that for a moral exemption. they claim authority under 300 gg -- 13 under the women's health amendment. argued and the court has found that statute doesn't support the conclusion they can create whatever exceptions they want. if they were correct there would be no limits what it could do.
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could remove the cost-sharing requirement. and that certain services couldn't be --, they could exempt whole classes of employers for reasons having nothing to do with the reasons here. our reading we submit is a far better one and we have to remember with targa resources, it's really unlikely congress would delegate to that organization authority to create religious and moral protections. exemptions given they have no expertise in the area. >> justice breyer. justice breyer: two related questions. says they have to provide additional preventive care as provided for in conference of guidelines
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supported by the health resources and services administration. read that and you get some ambiguity. my question is given your and given what may well be ambiguity in the statute, why didn't you make the argument it's arbitrary, capricious use of discretion. you are saying it's too broad and it will hurt women, you know it will point out it will raise health care costs and a lot of things. and the government has things to reply to that. why isn't that the proper legal box? my related question is if you were to let a district court that that issue, that district judge might try to reach an accommodation by saying having , philip or z have and daniel maguire and you point out that the prior rule did not
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pirate the plane a little sisters. if they think it did and you think it didn't, you can't -- it can't be able to monkey with it in some way since everybody reluctantly agrees that it's ok. i see of goings back and making a different kind of argument all the organs in a different legal box. so why not? , i think thesagree rules are are additionally arbitrary and capricious and we did raise that argument in the complaint. we also argued they exceeded the statutory authority cited by the agencies did not support the rules and since we won on that basis there was no need to go further and say if they had the authority to the exercise correctly. i disagree with the suggestion that the language is ambiguous. the use of the word supportive in context reflect similar
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language immediately preceding. guidelinest that the of the bright horizons guidelines. were funded by hrsa but conducted and produced by the american academy of petri at pediatrics. -- pediatrics. congress borrowed that language. such preventive care and screening. whether there could be a resolution, i would hope that there is. the government and prior ministration we do not believe that these plans are being hijacked. . to be clear we brought the suit against federal government, we have not challenged little sisters come with not challenge their colorado injunction.
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they and all the other parties are protected by injunctions and do not have to comply with a matter what happens in this case. could there be a resolution to the narrow set of cases out there, i would hope so. the fact that there is in this dispute doesn't justify jettisoning it for public traded companies. think are the most egregious examples of simple how overbroad these are. >> thank you very much. >> justice alito. >> you say the affordable care act does not allow the government to make any exceptions to the contraceptive mandate to accommodate religious objections. exemption for churches, conventions of churches which was established
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by the prior administration violet of the formal care act. to saying that was required apply the first to mimic church autonomy doctrine. your understanding of the scope for at, a woman who works church and an entirely secular capacity. under your understanding of this religious autonomy doctrine, does that mean that that employment relationship is entirely off-limits for example or any state regulation, for example prohibition and discrimination on the basis of race, age discrimination, americans disabilities act, equal pay act. >> we would not agree with that
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individuals in entirely secular positions are exempt from all of those requirements under the church autonomy doctrine. what we have argued. >> but you do say it would violate the first amendment to require the church to provide contraceptive coverage for that. is theree are arguing is a basis in the first amendment for exempting churches in some way, certainly there is a core of church autonomy that agencies implementing federal law must protect. >> in some way. as to the provision of insurance coverage for contraceptive, i took your argan to me the first amendment for him to the government from acquiring churches to provide that. >> has two ministers certainly.
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that is correct. but i would add we are not arguing necessarily the prior administration that every thing right in the details. there've been argument on both sides. >> i'm not talking about the details, talking about exempting a secular employee of the church from receiving a contraceptive coverage. that'sgument has to be by the first amendment. that the original church exemption is contrary to the formal care act. >> that is not our position. we think the original church theption was supported by first amendment. we don't agree was supported by the affordable care act. withing the prior administration was wrong in that. >> i appreciate you answer my question. first amendment requires an for provision of contraceptive coverage why would
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it not also require an exception for all the other regulations you mentioned. in the core ministerial functions it does come we don't dispute that. >> i'm not talking about the minister, i'm talking about -- >> exactly. i don't get to sincerely the case the first amendment required that the church exemption be as broad as it was. given the realities of insurance and the need for plans to be --, the prior ministration made a decision that they are going to apply to all employees of churches. we don't take issue with that even if that went broader than what the first amendment requires witches protecting individuals and ministerial functions on tommy with respect to the individuals. that's a far cry from what they did which goes well beyond the core of the protection of the first amendment requires.
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if i could ask one of the question, explained to me what the third circuit analysis of substantial burden is not inconsistent with our reasoning and hobby lobby. person that it is immoral to perform an act enabling another person to commit an immoral act. the federal courts not have the right to say that this person is wrong on the question of moral complicity. that's precisely the situation here. meaning the third circuit's discussion of substantial question, i wondered whether they had read that part of the hobby lobby decision? >> in hobby lobby the question was the degree of attenuation between providing coverage and utilizing the contraceptive care and they concluded the fact that others were involved didn't matter. where ancourt said
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objection depends on the operation of the law and here it legal requirements shifting the burden to the insurer or the third party in ministry to print but they still have a duty to inquire as to what the law actually requires. wasnature of the objection filling out this form made them complicit in providing contraception. they did not object to the idea of filling out a form, stating their objection by itself. they rejected what flowed from the form. in the third circuit -- third circuit consistent with seven others, concluded that in that situation the court can look at what's actually required and this found support where notwithstanding the fact that applying for food stamps would've triggered the the socialutilizing
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security number which was the nature of the objection, they said that does not raise a recognizable first amendment claim. >> interested in what the law required them to do or didn't understand the significance of what the law required them to do. >> not at all. we are simply arguing they -- >> they didn't understand what law required them to do. >> know we are not saying that at all. we are saying the harm they alleged is not a legally recognizable substantial burden. their understanding of moral complicity is wrong. >> we are not saying that is wrong prayed we do not challenge their view of complicity, will be due challenges whether that -- what they are saying rises to the level of a substantial burden and congress included the words substantial for a reason. every lawnize not
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that had an effect on religion necessarily should be subject to scrutiny. >> thank you, counsel. justice sotomayor. >> going back to the chief justice's example a second. clearly we understand there is in fact power to share between the two, correct. if the babysitter decides i just disagree with the mom i'm not can have either of them do anything. would that be contrary to the instructions the law gave? >> that certainly would be. >> well let's talk about this situation. exemption isrnment not merely saying to the little sisters you don't have to provide coverage, whether it's ,ou or a church or anyone else
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but we are not going to -- we are also saying that your insurance policies independent actors who have a legal obligation to pay for the contraceptives that employees use, that they don't have to do it either. you are objecting to that second part of the exception, aren't you? >> that is correct as a general matter. i want to make one specific point. your honor mentioned the little sisters. their insurance carrier stated it will not provide contraceptive. and because it's a church plant exempt from the risk, the government cannot enforce it. even if they didn't have their separate injunction, their employees would not receive contraception, we are not trying to challenge that at all. >> that is an interesting point, i did not know that. so the little sisters claim is
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actually moot here. theyat's why we argued lacked appellate standing. >> they don't have to provide it. neither does their insurance carrier, correct? >> that is correct. >> and that has nothing to do with this case as i understood it, that has to the church exemption. church plans do not have to provide under the law they are not at risk so they don't have to provide coverage in the situation. >> so where the employer utilizes the accommodation, the government lacks the means of forcing the requirements against. the church plan can decide whether or not it wants to comply if it chooses not to comply. >> which part of the government actually you are
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challenging. >> we think the government's claims of authority were incorrect. we think the most egregious parts of the rules are -- which is important to stress is half of the issue in this case. the limitation the accommodation including for companies that have no problem with it. even publicly traded companies and large universities. to claim this exemption, companies do not have to provide any specific notice to their employees, they can simply include the fact the in the notices they mail out. they don't have say we have this objection we are not providing coverage. in addition they don't have to show any sort of substantial burden. they don't have to send anything to the government saying we
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believe it's a burden for these reasons, we have these objections. so there is no way to evaluate whether a company is sincere in the nature of its objections. that's part of the room for analysis. there were supporting knowledge recently it creates a mechanism for courts to enforce it. we don't dispute they should take into account but ultimately it creates a judicial remedy in courts and agencies should be looking at -- and ensuring there is a meaningful opportunity for judicial review of their decisions. >> justice sotomayor, proceed. >> i guess the question i have is the exemption as structured permits the insurance carriers not to provide coverage?
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requiremente is no of the entities utilize the accommodation, it's completely optional. they can simply claim the exemption until their insurer don't provide can't -- contraception. thank you counsel. justice kagan. i would like to ask you a question. which is a notice and comment. i'm not really sure i understand the argument. let me start by saying what you are doing is you're hypothesizing there should be some significant difference between what happens and how it reviews what happens when an agency works off of an interim final rule as opposed when an
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agency works off a notice. i guess the question is why should there be any real difference between those two? aspectnt to stress one of argument which is that our argument hinges on whether the first rule were themselves procedurally valid. if they were valid and the 2018 rules are procedurally valid as well. >> let me make sure i understand. good cause forre issuing the interim final rule, at that point if the agency says we have good cause for doing this because we had an emergency but now we're are going to notice and comment, at that point should those be treated the same way as it would be if there were no good cause at all? >> if they have good cause to issue the rule with immediate effect, then the provisions of section 553 don't apply.
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righton't think that's because the cause can give you cause to act but it doesn't give you cause to act for 20 years without notice and comment so the agency could say we don't have cost act right now but now we understand we have to do a notice and comment because now there something in place we can take our time and do it. wishes toagency modify the rule or take further comment then yes it can go through the 553 process if the good cause that prompted the rule no longer applies. >> not only can put in many cases it has. so in that kind of case do you heightenedtandard is when the court looks at this and says did they do notice and comment correctly.
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>> in that case the standing would be the same as it would be in any other apa case. >> because i thought your reasons for providing -- why standard should be heightened was to apply even then when the interim rule was valid. as i understand your reasons for thinking the standard should be heightened, the agency has gotten psychologically used to willing and maybe less to make a departure from it. even when thees rule is valid, doesn't it? >> it doesn't i think that reflects a balance congress struck recognizing in most cases prior notice and comment is the most effective way of getting two more informed decisions. in some cases that is the meat the effective rule. the benefits of notice and comment have to give away a little bit so the agency could
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act quickly. believe there we standard wasn't satisfied, the -- it plainly requires through total. >> so i'm right in saying this does depend on whether the good cause requirement was satisfied in the first place. >> absolutely. >> as a remedy you say we should go back to the original rule. but the original rule was done in the exact same procedural manner. how would that make anybody any happier. >> there are a number of rules that have been implemented dealing with this. the numbers which were full nose -- notice and comment of proposed rulemaking in two cases since the guidelines were issued at one time before the pride ministration did go to and immediately affected rule. they argued good cause.
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in one instance they upheld the finding and in another -- we think the arguments made were much stronger in those cases and regardless to be litigating this question nine years after the fact simply doesn't make a lot of sense. what we are saying is the good cause claim made here by these agencies and these rules have to be evaluated on their own. heref what the agency said satisfies good cause than agencies can always find good cause. i think this is the most important part of our argument. say we arey could just going to issue a rule make it effective immediately, claim good cause and issue comment. even if they lose on the good cause finding, they don't have to worry for long because as soon as they taken comments and issued a new rule, that will be immediately effective and it will be as if there was no
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violation in the first place. and it's reasonable to think agencies will pick and choose and say we are going to take the risk and do that because there isn't much of a risk in the end if everything will be fine once they taken comment and issued a new final rule. >> thank you counsel. >> justice gorsuch. back where to turn justice breyer left off on the substantive challenge. on these the argument others goes something like one could understand an arbitrary and capricious argument arguable overbreadth of these exemptions. is the challenge before us the agencies exceeded its statutory authority. looking at the statute here it's about as excessive a delegation of statutory authority --
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expansive a delegation of statutory authority one might imagine. it talks about comprehensive regulations and when an agency is given that kind of leeway we normally think of comprehensive to include limitations, conditions, exceptions as a general rule. the originalat accommodation and at least some suggest that original accommodation was consented off that delegation. and then you are rough or a in the mixed and that's thought to trump and inform any existing statutory obligation. what do we do about that. for a littleurious further thought. if the delegation -- in light of the agencies like to read it than its remarkably broad.
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delegation has the fact that i think the structure makes clear items 1, 2, 3 and four are categories of services. what begins that such additional screenings. on sorry to interrupt there. times,ard that a few such a condition of preventive care and school readings and then as provided for in these conference of guidelines. how those twon interact. -- interact? >> as such, which means in the
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matter to be indicated sort of sets the stage as provided for. if u.s. the question what addition preventive care and screenings must be provided, the answer is such to be provided as provided for in the conference of guidelines. all that answering the question of what additional preventive care and screenings are to be provided. applying toafter the entire sections or going back into subsection a and modifying those requirements, you are sort of on mooring it from the weights used in paragraph four without any further explanation. in addition i think the other three categories provide some guidance. paragraphs that already existed.
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are no religious exemptions, guidelines or no , other things. lists items and it's reasonable to conclude that congress envisions that the agencies will operate or exercise their discretion in a similar manner and i think that's what was assumed here. >> is not part of that assumption i think the argument is we can't specify which preventative care and screenings will be provided or under what conditions and any provision of care is necessarily going to be conditioned and subject to all sorts of exemptions. there's no rule without exception. , back to thend accommodation for churches many
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people have argued that that was consistent with the statute, not something imposed upon it from outside by the first amendment. what do you say about that? >> we disagree with the prior administration's conclusion that the section authorized the prior church exemption. >> let suppose though that that was correct, and i understand is not your position. what would follow from that. >> if that were correct in the agencies would have some discretion to create exemptions and i think we would be in a position where we would evaluate these under arbitrary and capricious review. i think there are several problems with that. but we would not be in a world where the question of the agency's authority in the abstract was an issue. >> if i could turn to one of the
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point of the substantial burden argument justice alito raised and i understand your position. i thought there would be no stencil burden imposed by requirement they pay for contraceptive care, is that correct? >> not at all. if an employer objected to that requirement there would certainly be extension burden. >> i misunderstood that. thank you very much. >> justice kavanaugh. >> thank you and good morning mr. fisher break i want to get your reaction to this way to think about the case may be picking up on justice breyer's question and just as gorsuch is first question. as a number of my colleagues who pointed out, justices ginsburg, sotomayor, alito and others, there are very strong interest on both sides here which is what
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makes the case difficult obviously. there's religious liberty, little sister of the poor and others. there's the interest of ensuring women's access to health care and preventive services which is also a critical interest. so the question becomes who decides how to balance those interests and the answer of course is congress in the first instance and it provides it backstop and even beyond that in the aca congress is delegated to the agency. we have a delegation from congress to the agency which is common and sometimes congress delegates narrowly with narrow language and sometimes it delegates broadly. and the rule of thumb of always thought is courts should construe narrow language narrowly and broad language broadly. this seems to be broad language as justice thomas noted and when you have that kind of broad language you are going to get
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different executive branches who will exercise their discretion within that broad language and balance the interest differently. and then the question is what's the judicial role. it seems to be the judicial role is not to put women's on the agency discretion that congress is not put there. and then we are left as justice breyer said and i want to get your reaction to this with the arbitrary and capricious test at the end of the day meant making exercising its discretion in balancing those interests the agency didn't go outside of the limits of reasonable which is very deferential test, --. why isn't that the way to look at the case if we get down to the bottom line of is this reasonable, maybe not everyone's preferred choice come wise in this a reasonable way to balance that? point, thelast
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reason this is not a reasonable way of balancing is that the rules go well beyond what it would even arguably require. companies are now wholly exempt. however you enter for the women's health amendment and we strenuously believe it provides a mandatory on insurers. certainly would defeat the purpose of that amendment to say women should not receive coverage if they work for an employer that objects to contraceptives generally but he was willing to participate in the accommodation process but noted the objection so they could still receive coverage. the exemption for publicly traded companies in the absence of any evidence or -- if the requested one goes well beyond. we think it is so untethered from any reasonable standard that it is certainly arbitrary and capricious.
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and we also think that if we are in the rfra world. the way these are structured really defeat any opportunity for scrutiny as to whether an employer claiming objection has a sincere religious belief, whether it substantially burden. it would remove the courts from the process entirely. i think the point to remember is we are dealing with the interplay between two statutes as the court acknowledged, ultimately ultimate deciding how to statutes work together where the boundaries are is a question for courts that can be left up to the agencies. we submit the women's health amendment says shall at a minimum provide coverage and shall not pose any requirements theand what is clear from
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floor debate on that is congress envisioned it would require coverage for private services that family planning would be included. you also have extremely important interest in rfra and the nature of the religious objections being claimed. ultimately courts need to resolve these questions and the agencies have essentially taken these decisions out of the judiciary and decided for themselves and that simply isn't not how these and questions should be resolved. >> thank you very much. >> thank you counsel. you have a minute for rebuttal. >> thank you mr. chief justice. rfra both authorizes and requires these exemptions, at the very least they are justified under section 13 b for. under what was the basis for the
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church exemption in 2011 is also the basis for the effective exemptions that apply to self-insured church plan that them through respect between my friend and justice sotomayor in the interpretation of the accommodations also on the basis for the accommodation itself under my friends position, they seem to concede that all of these other provisions violate section 13a4. it's not limited to ministers in the church exemption applies to churches that don't even objected contraception. regardless of how you resolve the issue, the rules bring eight decade-long dispute to a durable end and should be upheld. >>
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>> thank you, gentlemen. the case is submitted. two impos this morning.


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