Case 19431 Little Sisters of the poor versus pennsylvania and the consolidated case. General francisco and 2011 required employers tons provide Insurance Coverage to have those that objected to the coverage to spark years ofki litigation and in 2017 with a commitment to religious liberty the government to promulgate new rules exempting those employers who objected to the mandate. They are lawful for two reasons, First Authorized byor section 1834 to require employers with the types of coverage with the Services Administration provides for and supports and then to authorize the agencies to require most employers to have contraceptive coverage for those have sincere conscientious objections. And that coverage for everyone or no one with a Longstanding Church exemption the effective exemption for church plans and indeed respondents under the accommodation itself to violate the statute since the Group Health Plan dont provide the mandated coverage. Also to authorize a religious exemption to prohibit a substantial burden on religious belief and then to satisfy. It doesnt require the government to do that otherwise the government would have to have the stingiest accommodation the court would uphold to guarantee in every case the aca does not require that result. That issue that requires whatever coverage provides for and supports. Before you get to that i would like to ask you a question why doesnt it sweep to broadly to address those concerns of Self Certification that the Little Sisters call the hijacking and then to reach far beyond that another wordser not everybody who seeks the protection from coverage so we wonder if that is too broad. I dont think so for a couple of different reasons. First in the operative language prohibits the government from imposing subject to a single exception. If you look at that it says the government may impose that burden to satisfy scrutiny. And to have the flexibility to lift it through a traditional exemption otherwise this courtses decision and then to modify the accommodation that doesnt make sense if they would prohibit anything it doesnt to acquire. Thank you council. Justice thomas. Justice thomas . We will come back to justice thomas. Ginsburg . So for what the government has done but that women need and should have low cost comprehensive coverage. And two other Government Programs that might cover them because those who are not covered by medicaid or other Government Programs they take contraceptive coverage only from their pocket and with religious freedom. The trend and not to give everything to one side and to have a history of accommodation and tolerance and respect and the students who do not shareth the employers the university objections. Every time we have dealt with the subject we had assumed there would be a way there would be coverage that would not involve with the individual then to assume the Self Certification and could receive coverage and with Group Health Plans. And then to say nothing in the interim to affect the ability of employees and students with a full range the fda approved contraceptive. And then to put in place of the religious exercise and with those health plans that including contraceptive coverage and just tossed entirely to the wind from what is essential that needs to i be provided and instead the employers religious beliefs and those that do not share those religious beliefs and then to those authorized then to do just what congress didnt want. Yes respectful your honor i think i would disagree with the premise of your question because as the court recognized with hobby lobby to require contraceptive coverage delegated to the agency whether or not to do in the first place and that is also the discretion that most provided not the small number with conscientious objections otherwise it would be illegal with the effective objection. H the church traditionally has enjoyed the exception from the very first case the church itself. And those that do not share. And i thought congress had delegated to hr essay for the expertiseve and what contraceptive coverage would that be . Briefly. The Church Exemption the effective extent exemption to five not just Church Churches in the auxiliary but elementary schools, high school, colleg school, college, universities, s , Healthcare Organizations and charitable organizations they are not authorized by the ministerial deduction but section 13 oh 41 1304 and rifa. You seem to suggest it has almost Unlimited Authority to create guidelines and then with those standards and as well as those exemptions. And there are three limitations i would point to because it has the discretion not to require any contraceptive coverage as was acknowledged in hobby lobby , that encompasses the discretion not the conscientious objections. Second and by the apa requirement for recent decisionmaking with those arbitrary exemptions and third preventivein services to potentially provide another limitation to encompass the things that governments traditionally take intoo account including the impact of the regulations would have on religious believers and with that where the government goes into detail the history of Conscientious Objectors in the very sensitive medical areasun. When you run into a non delegation . All of those would establish limiting principles and that the very least that would limit what the government can do in traditionally in this area. With a congress delegated to the department of defense and then to necessarily include the department of defense with the conscientious objections. Precisely because t and then to have those medical areas with that impact of the regulations of Conscientious Objectors. I had exactly the same question as the first question. And the standards that govern the agency so to have anything to add thank you very much go to the next question. The only thing i would add all of these limitations any time they exercise discretion does so in a rational way this is the very same discretion not only the Church Exemption but those for selfinsured church plans on the respondents understanding the accommodation itself sense in each one of those three instances the Employers Benefits plan is not providing the mandated coverage in two of them nobody is. If you concluded they dont have this discretion that would undermine the validity of the Church Exemption and potentially with the accommodation. Justice alito. What factors other than medical need can hr essay take into account which Preventive Services to be covered by the Insurance Plan. If it took cost into accountbe the first question but then to satisfy that standard. And then to take cost into ccaccount to decide what type of Preventative Services to require. If there is a particular type that was actually hopeful that cost prohibitive for every employer an Insurance Company to cover i think hr essay could take that into account deciding whether or not with their guidelines issues. This broad issue before the court a number of prior occasions. I hadnt seen the arguments that the aca did not allow hrsa to make any exceptions based on conscientious objection. Wended this argument first surface . To my knowledge back to the promulgation of the Church Exemption august 3rd 2011 with of the federal register notice and describing section 1384 and then to promulgate that Church Exemption the reason why that and covers all selfinsured church plans. And its lawful under 1384. And then that would violate 1384. Justice sotomayor your. First of all you say those to have coverage but i understand that is somewhere between 75,125,000. Correct . Yes, your honor the number affected by the exemption from the original churchh exemption. And with that particular litigation and then to identify anyone and with the rules. So lets go there hhs decided that contraceptives were a Preventive Service now you say it has to take care to promulgate the act and accommodate religious objections. But in your calculus, is the effect on women who now have to go out as Justice Ginsburg said and search for contraceptive coverage if they cannot personally affordrd it. I wonder if there was no substantial burden how can the government justify the exemption that deprives them of seamless coverage . Two points this is the discretion to do it with the selfinsured church plans no more or less of a burden and rifa itself explicitly permits any exemption to violate the establishment clause. There is no plausible argument under theur courts decision that upheld title vii to religious employers which after allwh authorized to fire the employee for religious reasons and permitted under section 1384 from and to undermine the validity. Justice kagan . Does this sweep to broadly understand your concern and then some leeway. And with those thousands of r accommodations in their head and then find one possible for person. Thats not the situation we are in. It was that accommodation some employers had objections the Little Sisters and others. Assuming those objections needed to be taken into account but it sweeps far more broadly even for employers that have no religious objections so by definition doesnt that mean it has gone too far. No. The accommodation is available on has not been scrapped but second including contraception part of your Insurance Plan does not cost employers anything so theres no reason the employer that doesnt object to contraception as part of their plan through accommodation or otherwise would be depriving their employees of their valuable benefit to which they do not object does not cost them anything. Do you have any evidence that the current exemption of those that have the complicity objections are now taking advantage . To say we dont have those complicity beliefs and now we it. Take that would be a rational given that they would be depriving of a valuable benefit that doesnt cost them anything it doesnt cost money to add contraceptive coverage to a plan. Why couldnt they have just the rule only those that have objections to the existing accommodation . And those that the Little Sisters have. Because theres no reason to think anybody would do what you are suggesting and the original burden stems from the contraceptive mandate. So at the very least if you dont accept the broader argument to give the government flexibility and with that statutory obligation. General just continue like to hear the rest of your answer. I was focusing on that i think gives the government flexibilitys ov when it is facig competing obligations thats the case where the court said an employer could violate title vii with a substantial grgrounds for believing it would otherwise be violating. And then to reconcile the statutes meant to violate want even at the expense of the other and at the very least have a strong basis for believing the really just freedom restoration act to adopt a traditional exemption after all the way they have accommodated religious belief that is particularly clear here since it applies to supersede the aca and even if you dont think it authorizes exemptions and that it would prohibit exemptions. Kavanaugh. Thank you chief justice. The tax structure of the ca may claim that congress delegated hr authority to oversee guidelines what they must be covered not who must cover them respond to that argument. Section 1384 says that employers have to provide whatever coverage it provides for and supports it does not support coverage by the small number of employers with Conscientious Objectors but does provide for and support coverage by everybody else so from the plaintext respectfully my friends position oner the other side is irreconcilable. Trying to put sentences into s that text that do not exist. Thank you general. If it may please the court from the very beginning the government recognized the mandate implemented deeply held bridges beliefs. And that the mandate is imperative to demand universal compliance with tens of millions of employees under grandfather plans from the very beginning the vgovernments refusal of the Little Sisters mandate posted clearing problem they finally gotgo the message to the Little Sisters that exemption was the best of our traditions and in the Third Circuit invalidated that and that the government was powerless to go third. In the regulatory mechanism and then to have the government of the least accommodating alternative. And then to that substantial burden and then that cannot be squared with the courts decision of hobby lobby. The penalties that enforce the mandate and then those basic contraceptive mandate so when the government imposes the burden on religion and then to comply with the mandate or the or else for those penalties with a substantial burden but at the same time that analysis works in favor of the Little Sisters for two basic reasons to show t the ability churches and other religious orders from the otherer beginning and in the grandfatherer plan exemption went exempt tens of millions of employees with religious objections but only out of convenience. The Little Sisters do not object to contraceptive services. And those to have those services that is essentially to have the plans hijacked of ping forced to provide services and infrastructure. , certification is not necessary. And that they do not have contraceptive coverage. And the you do not have that hijacking problem because the Insurance Coverage will not provide the services through the Little Sisters plan but to provide directly to the employees. So why is it that accommodation sufficient . Not sure i understand it nowow. And then to have an objection and then to provide those Contraception Services for us and our plans we never had the objection to that and throughout this whole process but as a permission slip to track down others to give services through the work plans it has never been the objection itself. Neither side of the debate but it doesnt went to have a mandate and the other side doesnt want it to work because they want to impose the mandate. Is there a way to resolve those differences . And with that read and order theres a lot ofas backandforth with the religious objectors in the government. That mechanism to find a fair way because i was insistent on seamless coverage through the Little Sisters plans. Thank you chief justice. Id like you to have an opportunityto to comment with that proliferation such as in this case. Justice thomas i would say at this juncture as long as epa remains good law but there are standing has to depend generalal francisco alluded to without this litigation they cannotot identify even a Single Person in such a way to increase the burdens of pennsylvania and new jersey. Because they are excused from the requirement to identify and then to increase the burdens. And then to say thats okay. And that is the outer limits to be sure. With respect to the nationwide erinjunction that issue that is to have a nationwidede injunction and the one thing we should have heard from years of litigation from the Affordable Care act is that do not have uniform decisions sometimes the majority view is rejected by the court. And then shortcircuit all of that to put pressure on the court forcing them to hear emergency postures. What it is throwing to the wind the womensen entitlement of no cost to them that is requiring those women to pay for contraceptive services and then to go search and if it turns out there is no plan that covers them then they are not covered the only way they can get those services precisely not to happen. So this idea the is Little Sisters type of organization so it just seems to me the history of accommodation and respect for those divergent views. But they didnt e mandate so congress itself recognized tens of millions of employees could be in the same position as employees of those before even though there is no religious objection whatsoever. If we are going to give those kind of exceptions to people, then you need to give them to their religious believers. I have two reactions. One of course is the religious clauses is to work out accommodations because they can be some of the most difficult to resolve and substitute a kind of hostility for harmony. So, for that point of view i would repeat anything you want to add, the chief justice question i dont understand why this cant be worked out. But if it cant from whats been to me ther it seems proper is whether this particular one was arbitrary, after all the religious groups say they have a basisis and objection and the others say these are women who have no religious objection and moreover, the Insurance Companies will be hurt because it will raise costs and the tax payers paying foror it. Whether w this is a reasonable effort to accommodate, and that i think is arbitrary, capricious abuse of discretion but its the one thing that ha isnt argued n briefs or the appeal so what do i do . You are right that isnt the nature of the objection that has been raised by the other side. They havent said it might be okay if it were limited to those that object to the combination, that they went too far. That isnt the nature of the challenge so you would reject the challenge because i dont think any of the grants that have b