Argument that this is such a compelling interest. Right. But let me try to walk through this carefully, because i do think its important. Theyve identified three. First is grandfathered plans. Weve had a lengthy discussion about that. I dont think you can argue that that exemption undermines the governments compelling interests. They claim that theres an exemption for employers who have fewer than 50 employees, but thats just wrong. In fact, theres no reason to think that virtually anybody in that category of employees of those small employers isnt getting contraceptive coverage as part of their regular health care from regular doctors. Let me explain why that is. There is no exemption from the contraceptive coverage requirement for that group. Proof of it is that several petitioners are in that group of fewer than 50 employees. And theyre asking for the and theyre asking for and theyve raised the rfra claim here, they have to meet the contraceptive coverage so the employees get the coverage from their regular doctors as part of their regular health plan. Then, also, if your employer is not providing you coverage in that group, then you go on an exchange. And you purchase a policy on the exchange. And that policy provides you with contraceptive coverage as part of your regular health plan from your regular doctor. Or if you are eligible you apply for medicaid and medicaid gives you contraceptive coverage as part of your regular health plan for your regular doctor. For the briefs who have to buy plans because they work for a small employer and the employer doesnt offer Health Insurance, does that arrangement frustrate the governments compelling interest . No, because in that circumstance, your honor, the only option that that employee has is to buy individual policy on the exchange. And that individual policy will contain the contraceptive coverage from your regular doctor as part of your regular health care. The difference is when somebody works for a grandfathered plan, for example, that category, or for a church, those people are already getting insurance. And so for them it is an obstacle because youre forcing them to purchase a second insurance policy. And that really becomes a financial penalty for them because part of their compensation is of course the Health Insurance theyre getting from their regular providers. That underscores that the church plans here, religious organization plans here are in effect subsidizing the conduct that they deem immoral. So, your honor, i think the answer to that is that theyre not subsidizing it because the way in which this plan is structured, meaning which the accommodation is structured, is that they are not the employers are not to bear any financial burden for the contraceptive coverage that has to be provided without charging the employer and funds have to be segregated and all activity has to be segregated. Its quite carefully designed to avoid the difference of any subsidy with respect to that i mean, if its so easy to provide. If its so free, why cant they just get it through another plan . Because then theyve got to sign up for a second plan and pay for a second plan, your honor. And thats precisely the kind of obstacle that congress is trying to ensure did not exist when it asked Preventive Service of this statute. The whole idea here is to ensure that the employees get the health care, get this care when their regular doctor is part of their regular Health Care Without these added obstacles and the need to go out and sign up for another plan and find the doctors who will provide coverage on that plan, all of those are precisely the kinds of obstacles that congress is trying to eliminate. So it comes down to a question of who has to do the paperwork . If its the employee that has to do it thats no good. If its the religious organization that has to do it, thats okay. I think its a lot more than that, your honor. Youve got to go out and find the separate theyre on the exchanges, right . But put yourself in the position theyre not on the exchanges. Its a falsehood. The exchanges require full service Health Insurance policies with minimum coverages that are set forth that are very comprehensive is that true with respect to every policy sold on the exchanges . Yes. Every policy sold pediatric dentist except for that one. Except for pediatric dentist. So you could have separate Health Coverage products sold on the exchanges. You in fact do it already. Ou cldt do it under current law, your honor. Well, the way constitutional objections work is you might have to change current law. But in this circumstance, i think, you dont need to get to that question of whether there is an obligation to change current law because even if you did have a second contraceptive only policy available on an exchange, that would be precisely the kind of barrier that congress is trying to eliminate. You have two policies instead of one policy, that creates the disincentives. Allow the women employees on certain will reach the conclusion ive got this coverage over here no, i guess that substantiates the point i was trying to make. That its a question of who does the paperwork. You said, yes, it is a hassle to go to the exchange although weve heard about how easy it is. Or you allow your infrastructure as petitioners have said to be used as the vehicle for providing that. Im not saying it comes out one way or another from your perspective. Im just trying to focus on exactly what is at issue. Right. Its a question whether you want the employee to sign a paper or you want the Little Sisters to sign a paper. In the one case its an administrative burden, as youve said. In the other case its a violation of a basic principle of faith. No, i think the point, your honor, is that congress and the institute of Medicine Congress made a judgment here that this does impose a very significant obstacle. That these kinds of requirements result in significantly less use of medically necessary services. And it doesnt just come down to this thats why its necessary to hijack the plans. Your honor, it is why the it is why the governments interest is advanced in the least restrictive manner, in the most effective manner. Is this right . The reason i get that you dont want to have the women to have to ask for the coverage is because vast numbers of women will. Quite a few who have religious objections wont. And then there will be that middle set of people who are i enertia bound. We cant say because if they get contraceptives that lowers the coverage of health care later on. So the government has an interest in that. And therefore there is an interest of some kind in not allowing a system and not having a system where the in bound which is not hijacking because there is a federal regulation that says the infrastructure of the insurers contraceptive related plan belongs to the insurer, not to the person who buys the insurance, am i correct . Thats all correct, your honor. And thats why when i say when i make an arrangement with blue cross or etna were not making agreement with any petitioners or the petitioners own. Executives deal with the problem with whats available on the exchanges at the present time in this way. Could executives say as a matter of our Enforcement Discretion we are not going to take any action against insurers who offer contraceptive only policies, and in fact, we are going to subsidize those insurers at 115 just as we do in the situation of the selfinsured plans. No, i dont believe why would that not be a valid exercise of your Enforcement Discretion . I dont think it would be, but even if it were it creates the same problem of creating the obstacle which creates the enertia problem, which is not just a compelling interest of the institute of medicine and hhs, but if congress itself gets the whole point of the why would it be not something that you could do in accordance with your understanding of executive power. Well, i dont think that it would address the problem, Justice Alito general, will explain the difference between the employer identifying an insurer, say etna or blue cross, that coverage contraceptive for many other people that it insures the difference between that notice and the woman who now doesnt have this coverage has to go out affirmatively and get it from some place else. Is it just a matter of filing the form for her . Or is there a real difference between an employer saying were not going to cover contraceptives . Just our insured. Andhe woman who suddenly doesnt have it as part of her package and has to go out i think thats exactly the point here, is that the woman employee and i do im sorry, you were asked what the difference is. The difference is its not just about filling out paperwork. If youre the woman employee, you go to your regular doctor, you say you have a medical condition that puts me at risk of being pregnant or i just want contraceptive coverage or i need contraception coverage, but the risk here is the doctor say i cant help you. Thats one interest on one side of the equation. Whats the other . Understand avoid complicity. In which way does rfra cut in analyzing that balance . I think rfra cuts in this decision quite decisively in favor of the government here because the interests are compelling. And the and as weve tried to explain none of the alternatives that the petitioners have proposed have come anywhere close to being equally effective at insuring that women get this coverage. And the obstacles they you get told by your regular doctor i cant help you, i cant even council you about this. Numerous petitioners have filed declarations saying that our insurance will not cover even any counselling about contraception. So youve got to go out and find another doctor. And then you have to find a way to pay for the doctor and then find a way to pay for the contraceptive coverage. Its a whole series of obstacles. Its not just about signing a form. That gets to the whole problem why do you assume the doctor whom the woman would go under the services in the plan be unwilling to provide those services under a separate plan that covers contraception . That will be a happenstance. Somebodys got to offer that separate plan and that separate plan has got to and then the doctor that she goes to as a regular doctor has to be the same has to be under the same plan. Theres no reason to think general, the reviews the hijack analogy has been mentioned. Can you explain why you dont see this as a hijacking . Right. I think what weve tried the way ive tried to explain that, your honor, is that we have tried. And i think the court recognized this in hobby lobby that the goal of this is to exempt the employer from providing the contraceptive coverage. To exempt them and provide it in a separate means through separate funds without their involvement. And therefore its not hijacking. What id like to do if i could, i want to make one point about followup on your answer before you do. The contraceptive services would be provided pursuant to what plan . Hired by one of the religious organizations, you get a brochure or package with all your Insurance Coverage and everything it is. And where would the contraceptive services be listed . It wont be in that brochure. It cant be in that brochure. Theres got to be a separate communication from the Insurance Company to the employee telling the employee youre getting this separately from us. Thats how it works. Mr. Francisco, i think, earlier said, if etna offers a separate policy giving insurance that he thought would be inadequate accommodation. And so i think that that raises all the problems identified no, i meant he says generally if aetna under some other policy offers it on the exchange to women who might want to go on the exchange skb buy that policy, thats okay. If thats what they do. Whats different from that than what happens here . Two policies instead of one. Well, it is two policies instead of one because the contraceptives are being provided by government regulation. The only seamlessness is that the woman doesnt have to apply and pay separately. I think if its a separate policy are going to have to apply and pay separately. Its a whole separate regime. I want to make one point about the notice because i know my friend on the other side raised the idea of notice that its not just about us using the plan but the notice they provide. That notice argument i think cant constitute a substantial burden because its entirely derivative of the objection to us setting up this third party arrangement. And i think mr. Clement told you that this morning because he said if government didnt take this step of providing the coverage, we would be happy to provide any information they want on a form. And so i think that tells you that the objection here is the arrangement to provide coverage before you sit down, general verrilli, i want to ask you about this particular situation of the Little Sisters. Their regular Third Party Administrator has also said it would not provide the Coverage Even if they were to comply with the form or the notice requirement. And therefore you say they probably cannot be theres probably no way under erisa to obtain contraceptive coverage for their employees unless you can find another Third Party Administrator that you could deal with there. In that situation with the Little Sisters still be subject to fines for failing to comply . No, we dont think so. If i could just in closing, what i ask this court to do is to weigh the alternatives that have been put before you here in this case. On the one side youve got a serious thoughtful effort to respect petitioners religious beliefs by creating a system that allows them to exempt themselves from the requirement in a straightforward manner and that protects the fundamental rights and liberties and dignity of their employees, many of whom may not share their religious beliefs about contraception. On the other side of the scale, what youve got is a demand that those rights those employees who may not share petitioners beliefs may be extinguished until such time as congress creates and enacts a Different Program that will require a separate oneoff jerry rigged channel for them to provide obtained contraceptive coverage that will impose precisely the burdens that Congress Said in a relevant statutory provision unacceptable for all Preventive Services. Thats one way of characterizing whats involved here, but it can also be said that, and it is true, that this is a case in which a great array of religious groups, its not just catholics and baptists, evangelicals, but orthodox, jews, muslim groups, the church of jesus christ of the latter day saints, indian tribe, said this presents an unprecedented threat to religious liberty in this country. What would you say to that . What i would say to that, your honor, is that i think essentially what eight courts of appeals have said is that rfra requires a sensible balance. And a sensible balance is essential in a Pluralistic Society like ours in which people of every faith on earth live and work side by side. And the government has got to administer rules that are fair to everyone. The accommodation achieves that balance. Petitioners position is very, very far from that balance, and therefore the courts of appeals should be affirmed. Thank you, counsel. Mr. Clement, four minutes. Thank you. I would like to start with the universities, justice kennedy. Because i dont think its the case that just because Congress Exempts churches that it has to exempt the universities. What it needs though is a rationale for drawing the line. Now, my friend on the other side says the line doesnt have to be perfect. Well, under compelling interests and least restrictive alternatives it at least has to be pretty good. And the line that theyve drawn here is absurd. And i would urge you to look at the amicus filed by the former head of the tax division, because it explains the line theyve picked using 6033 of the tax code makes no sense. Thats an informative filing requirement. But theres no substantive difference. If my clients file the form, they get the same tax exempt status as the churches. The only difference in that provision is whether you filed the form. The substantive treatment is exactly the same. To use that line to draw a distinction between churches and universities or the Little Sisters of the poor is a terrible line to draw. And if you go back that is a brief thats been mentioned several times, the Baptist Joint Committee leading proponent of rfra discusses this li line. Do you say thats wrong . No, i would say that gets me back to the point, finish this point for a second. Hire coreligionist and less likely to have employees who would use the products. My clients equally enjoy the title 7 exemption which gives them the right to hire so their original rationale applies equally to my clients. You have to draw a sensible line. Now, as to the exemptions, i mean, i will respectfully disagree with professor tell us churches youre not going to claim exemption, not every church thats religious have the same religious tenants. Is that what you would prefer . Is that the sort of incentive you want to put out there . Is that the message youre giving, which is theres lots of rules that apply differently to churches because we recognize theyre special. Let me try and answer others may be special like them, but its clear to tell what a church is. Let me answer both questions together. First of all, the exemption is not just limited to churches. It applies to religious orders. If my clients stuck to knitting and not help the elderly poor, they wouldnt professor is a great scholar but even he admitted he didnt understand the details of this particular plan. He didnt get into that. He left it at the parties. And i think he subsequently said that if there really was a requirement for these entities to contract, and there is, then even he would recognize theres a substantial burden. But the important point is not all exemptions are created equal. If you create an exemption for small employers, thats a rational exercise of Enforcement Discretion. If you create an exemption for take the ocentero case. If the exemption for peyote has been for a scheduled five substance less dangerous, maybe the government would have won. Their problem there was t