There has been so much to learn and unpacked and unpacked. We are fortunate to be joined by the leading scholars and advocates who filed briefs on both sides of the case to help us understand the arguments we just heard. Little begin with sisters of the poor, the first case that was argued, with great pleasure i introduce our two panelists. Aten is a professor of law the Antonin Scalia a law school at George Mason University where she teaches family law, religion and property law. She has written many books, including putting childrens interest first, americas family law and policy, and the conscious of the institution. She filed a brief in support of Little Sisters of the poor, where the petitioners, on behalf of women scholars. The deputymehling is legal director of the aclu and director of the center for liberty, encompassing the aclus work on womens rights, freedom of religion, belief in disability rights to a cheese been with the aclu since 1992 and has written many articles, including those about religious refusals, and public accommodation law. She filed a brief and the support of pennsylvania, on behalf of the aclu. Helen, louise, thank you for joining. Thank you. Its nice to be here. Theres so much to discuss, helen, lets begin with you, you filed a brief on behalf of the respondents, they were represented before the course by solicitor general noel francis co, what would you like to tell our listeners about the core stature tuition and the core arguments about. Helen he was arguing that the agency,ministrations health and Human Services, has the right, he would say the duty, to exempt religious, and they also exempted moral objections moral objectors to contraceptive mandates which came out of the Affordable Care act. Which people called obamacare, way back when. And the state of pennsylvania is claiming that the Trump Administration did not have the authority to grant these religious exemptions. That the language of the health a very narrow delegation to the agency. It basically said, you have got to provide Preventive HealthCare Services that are named by the Health Resources and Services Administration. Minute,o says wait a every single federal has to be carried out in coordination with religious freedom restoration act which commissions every single federal law and requires us to comport with respect for religious freedom. The government can only burden religious freedom if it has a compelling interest. He said the Agency Always issues ey to aens withan federal law requires and then he went into detailed language about the Affordable Care act provide it says they Health Resources and Services Administration can decide what forms of Preventive Services it provides and supports the Trump Administration decided it provide supports contraception but if it has to exempt religious entities. The final point on this, which was really interesting to me, is that pennsylvania comes back and francisco response to this, pennsylvania comes back and says we have to grant exemptions for churches. They said yeah but that includes people like queen churches and secretary so you dont think a its constitutionally mandated to be exempted so you dont really believe what you are saying. Can givethat hhs exemptions broader than simply what the constitution mandates. That was the main backandforth. Thank you for explaining that. So well. We heard arguments from the state of pennsylvania. Some of whatw then just said, in 2014, federal government exempts churches and other houses of worship from the contraception mandate of the Affordable Care act. A year later in the hobby lobby case, the Supreme Court set a Corporation Owned by a religiously devout family with sincere objections is allowed to update opt out of the mandate. In 2016, there is a challenge by religious nonprofits including the Little Sisters who said they been telling health and Human Services about their objections based on their religion under the restoration act and the Supreme Court sent that back to the lower courts to try to work out a solution. In this and this case is about the regulation issued by the Trump Administration, new rules that expended the exemption to include a moral objection and allows private employers to opt out of providing coverage and pennsylvania and new jersey wanted to block the rule, saying it violated the Affordable Care act and also federal laws requiring administrative agencies not to act in an unreasonable way. With that procedural background, how would you state, from the perspective of pennsylvania and new jersey, the main issues in the case and why they believe the government lacked the authority to issue these regulations . Im going to focus on a point that came up in the argument which is one which seems to be front and center which is what i will call thirdparty harm. For purposes of that, i want to step back to where we were before the Trump Administration issued these new regulations. Regulations,new nonprofit entities as well as forprofit entities that had a religious objection could say i object. They could say this to the government and the government would notify their insurers work with the insurers to make sure the insurers provided coverage. What is significant about that, what we call the accommodation, was designed with an effort to views ofhe religious those institutions that objected. While continuing to ensure coverage, contraceptive coverage, the purpose of the statute at issue here, to the women who were to be the beneficiaries. Andzubicbby lobby the court made a point of emphasizing what they were discussing meant Justice Alito said in hobby lobby, we can go from zero harm to women if we open up this opportunity for the closely held, for nonprofits and forprofits when theyand in zubic sent the matter back down, the court said cant you look at this and find a way to both address the religious objections as well as to ensure that there is still continued coverage . What was interesting about todays argument, rather than focusing on new jersey and pennsylvania, i will focus on the cheap. The chief asked more than was during the argument, isnt there some way to think about this that respect both interests . The chief and those questions was assertive about it and was talking about trying to ensure that the very purpose of this thatit would be respected, women would still get the benefit. The question here as i think about it is, under the new trump rule, can you be required to pay for your employers can the government legitimately say we are going to exempt you and have your employees pay by being denied a benefit that they are otherwise entitled to by law . It would accommodate the religious interest. You for putting the case starkly and for uniting questions both chief Justice Roberts asked repeatedly and Justice Ginsburg put even more pointedly. To review with those questions were, chief Justice Roberts said balance. Es struck a these rules exempt employers altogether if they had no objection and allow publicly traded companies to claim the exemption even if no company requested them. Justice ginsburg, several times in that very dramatic moment we know she is participating from hospital and our thoughts and prayers are with her she said the glaring feature of what the government has done in extending this exemption is to talk to seamless contraceptive coverage which leads women to hunt to other Government Programs that might cover them. They can only pay out of their own pocket which is exactly which is what congress didnt want to happen in this year of religious freedom where we have a tolerance of accommodation and respect for workers and students. She went on at some length and said we just inched tossed entirely to the wind what congress thought essential which is a service with no hassle and no cost to them. Youre putting religious beliefs onto these employers who dont share this religious belief. I dont understand the religious freedom restoration act to exercise harm to other people. The women did nothing but its something the congress didnt want. That was a long question but what is your response . The questions of chief Justice Roberts and chief Justice Ginsburg. Can we find reasonable, elation and Justice Ginsburg, why are we imposing the cost on the women . There was so much more on this in the brief than the argument so i expect it will be a continuance. The people who originally made the exemptions was congress and the Obama Administration. She wants to toss about talk about people tossing things to the winds but obama already granted exemptions for religious organizations, etc. And it was congress that exempted grandfathered plans. Already, millions and millions of people were not required to cover contraception. Congress did save the grandfathered plans admin requirements like the 26yearold liege limit but it was congress and the Obama Administration that tossed that to the wind in the first place. Merelymp administration added onto the Obama Administration, making it easier to get the accommodation. As to the question of thirdparty harm, thats an interesting new and controversial question. It was addressed partly in hobby lobby. Theas a backandforth in oral argument. If it is possible for the ok, people,o say, religious hospital, you have to perform abortions. Alright nursing homes, you have to do assisted suicide and if they refuse, we interpret that as thirdparty harm. Refuse to bow before a government mandate, they can turn around and say you are forcing people who are voluntarily employed at your organization to bow to your religion even though they dont agree which means there is no federal mandate that could stand , the nonestablishment clause. Because everyone someone would refuse to obey it, it would count as thirdparty harm. The establishment clause prohibits coercing people to practice your religion. The establishment clause does accommodations. The government has allowed a combination since the beginning of the religious clause. Hobby lobby picked up on the point which is that it would be ridiculous to say that every objection to a government mandate via religious practitioner equals a violation of the constitution where no accommodations were permitted and thats not historically or legally true. Thank you very much for that. Breyer yesterday pointed asked a pointed question. He said the point of the religion clauses it works out accommodations which are among the most difficult disputes but i dont understand why this cant be worked out. Can, isnt the question whether this particular rule is arbitrary, capricious or an abuse of discretion under the administrative procedure act . The religious group say they had a religious objection and on the others, women and taxpayers will be hurt and there were interests on both sides. The question is whether it is an arbitrary an abuse of discretion. Why shouldnt that be the right standard . Am anould not say that i apa expert but there were other arguments available. What is the authorization for this particular oral argument . Let me be clear because whats not totally clear is prior to the trump rule, it was the case that if employers said they objected, that they told the government and the insurance company, under their accommodation, then provided the benefit, you still got a seamless nocost benefit. This is not a question of expanding an exemption to cover forprofit institutions. This rule completely changes what the norm was in the sense of the norm and what it was to cover these procedures. The objection in the prior case can one of the core questions with the priorng rule . Was the prior rule in fact was the prior rule of fact a violation were you had to go to a proposition were than having on they say i want out government and the insurer to care of it that now you would say, i want out and my employees are out, too from getting the benefit. Teed up could have been as capricious but its teed up as an authorization for this particular way. Exemption andus for the first time ever, immoral exemption. Theacase authorized by and required or authorized to what was interesting is i dont think, i dont remember but there was little talk about whether they were required byriffa. That argument wasnt really advanced which is surprising to me in some ways. I think that makes it more significant when you think about the harm. Is there the authority under a rule that was meant to provide a benefit, a nondiscrimination rule, do we have the authority then to exempt out the people who are supposed to be the beneficiaries if we are not otherwise required to do that . Just to make sure i wasrstand it, the dispute does the original statue, the Affordable Care act authorized the delegation to the agency to make this rule or not . If it does, then the courts can choose to defer to the rule if the delegation is broad, said justice kavanaugh, but if the statute did not authorize the delegation which was narrow, then the court should not defer and part of the dispute was whether or not the language of the original statute authorize the delegation in the first place. Turnuch of the case will on whether the justices will the statutory language as being a broad delegation or not and what do you make of the fact that the more conservative justices who are skeptical of broad delegations seem to be arguing that the delegation was fraud and the more liberal justices are are you waiting are arguing the opposite. I was stressed by how much of the argument was whether hhs could do it versus whether the religious freedom restoration act required at. That was really interesting to me. In any event, it was the case protectiveou had justices supposedly more conservative wanting to grant andd delegation Administrative Agency and justice is considered more liberal wanting to have very narrow delegations, completely against type in the legal world. Opiniona lot of the because of how much of the argument turned on it, will go to the question of delegation by congress to the agency. I have to say that the practice of congress delegating to hhs, decisions about medical things and hhs goes and it contacts some outside Expert Institution is so very common that i would think this would be very common also. Second, the question of whether you can make religious exemptions to some broad hhs statement about what will and will not be provided medically. That also has been done in numeral old innumerable times in the past. We have the decision on abortion in particular and sterilization. Interesting the question of the actual exemptions that were already given by the Obama Administration. They already said we could never have churches or religious orders having to do this. If the Obama Administration was permitted to make a religious exemption for some but not all religious institutions, then why cant the Trump Administration . I think this is the question on which the attorney for pennsylvania was mostly caught on the edge of a pin by Justice Alito who said you have admitted its ok to make some religious exemptions, why not others . He said the First Amendment commands some of them. He says it doesnt command everything the order the Obama Administration did in your view. I found that an interesting exchange. Im so glad you noticed and picked Justice Alitos exchange. I found it interesting and i want to ask louise about it. Say thislito said you accommodation was required to comply with the First AmendmentChurch Autonomy doctrine. He said take a woman who works for a church in a secular capacity who cleans the Church Property. Under your into standing under your understanding, is that offlimits . The woman who cleaned the Church Property wouldnt be governed by laws 7 and discrimination and so forth. The solicitor general pennsylvania said we would not agree that individuals in a secular position are exempt from those regulations under the Church Autonomy doctrine. Betweenthe big question the majority and the dissent in the hobby lobby case. Justice ginsburg said the logic means that organizations will seek total exemption from antidiscrimination laws on the basis of race or Sexual Orientation even for their secular employees and that will mean the end of antidiscrimination laws. What does Justice Alitos question tell us about whether this case is likely to grant organizations broader autonomy to give their secular employees, to fire them for being gay or not to abide by general antidiscount nation laws . When we think about what i will call the abortion exemption in the regulation originally, i want to invoke nelson tevy who did a video chat and was talking about a different way to think about that. One is that i think that may have been adopted as a policy think, a way of saying we this may be a way of accommodating religious objections and do minimal harm on the theory that most often, you heard that i believe from people who work in institutions often share an affinity or understanding of what the job is. There is not a Perfect Match but that is one thing. Thats very different from saying any employer in any university well having to file anything or have any kind of inquiry under the religious aeedom act can then provide wholesale exemption for their employees, period. Very different degrees of harm. Very different understandings about how we think about institutions. I dont know what we know going to your question if we look at the cases around the country, we see the same commands are the same calls for exemptions from nondiscrimination laws. Before with the cake shop saying its against my religion to sell a cake to a gay couple like i would sell to a heterosexual couple. It comes up in fulton, the case ,ill be hearing in the fall social services saying we should be exempt from the requirements that we not discriminate in screening families for foster care because of our religious beliefs. That one is different because thats a governmentfunded Government Service they are providing. The question is coming up all over the country in on many occasions. Be one reason why the justices were focusing so much on whether the aca could authorize this. Maybe they are walking a little less into that debate. Justice alito and the hot beloved decision went out of his way to say the fact that we have said that you need to have the accommodation here about the existing rule that didnt satisfy rfa went on to say that would not mean thats our conclusion in a race discrimination case of employment or perhaps in terms of other health care context. As is often in the case, we will see, how they interpret and what this decision says on the grounds and how they speak about those grounds. Criticalne of the contests in our culture and our courts right now which is how to the conversation between principala quality and the tension that is creating , really institutions asserting a religious objection. They are not about individuals. Thank you for that. Light does this oral argument we heard cast on the different justicess approach to this crucial question you both identified, namely the balance between the interests of individuals and being subject to antidiscrimination protections in the interest of institutions and having religious autonomy . Can you map out the various justices positions . Did Justice Alito suggest the Church Autonomy doctrine would to fireparochial school a teacher for being gay or . Arrying a man decisiont could this cast on the central question . Im not sure this question of institutional Church Autonomy will be a big part of the decision. They are having an oral argument next week about two Catholic Schools in california and whether a religion teacher is included as ministers so the church has the otanis right to hire and fire them. I think that will be a big feature next week. Justice alito was asking about institutions for the purpose of pinning the attorney general of pennsylvania to a point, not because the case will advance that. I think the more interesting thing about this case i think it was Justice Alito who kept asking the question, why did the Third Circuit disagree with our description of the start of the free exercise case, whether institutional or individual, which is what is a burden . Justice alito wanted to lay down his marker and i think hes got at least five members of the court ought with him on this to say a burden is not something we will look behind. If someone looks to be sincere and if they say a particular practice or government mandate is a burden, we will go along with that. I think he was signaling that we are not changing from hobby lobby on that one. Of the free aspect exercise case. They did not talk about the states compelling state interest, not at all. There is a lot of talk about it in the brief but not the oral argument. They talked a little about the or therong underrifra competition was is the least restrictive means. Is a state using the absolute least restrictive means if it wants to provide contraception to this group of women who will not get it through their employers . I was kind of surprised that the government did not come back and remind the court that since the Trump Administrations new rule, they have allowed title x programs are federal programs in the state to provide any woman who cant get contraception from her religious employer to get it through these other services. If you look at the data, women were getting contraception as much as they wanted and it reached Maximum Capacity and the poor get it for free and middleclass women and women with more money were almost completely getting it through their employers. There wasnt a big sense of urgency for this mandate. Before obamas rule, during trumps rule or today, there was no real urgency about it. Noelsurprised that francisco and paul clement did not talk about that. Wayeve talked about one that the court could rule in favor of the Trump Administrations moral objection by saying statutory language authorizes it and as long as the rule is reasonable and not arbitrary and capricious, then the court should defer to that. What would be a way for the court to rule more narrowly against it . Suitere some way that the that the Court Justice would find an accommodation and what would that look like . I will go back to what helen was saying in terms of whether there is an urgency for the contraceptive mandate. We all know the data that says most women during their lifetime use contraception. Thats a very different proposition for whether women can continuously use it or access the contraceptions of their choice as opposed to the contraception they can afford. There was evidence about what it means to be able to pick the method that you think is best for you including ones that may turn lesspensive and on our human ways, to take a pill every day and with the consequences of that are for unintended product. Pregnancies we also know the court has spoken robustly about the importance of being able to control our Reproductive Health for purposes of equality. This measure was animated and understood as essential for health and equality as a nondiscrimination provision. I had a moment listening to the ,hief and wondering if somehow after the argument, it was probably either a surprise or not a surprise at all that the court in that decision said we want you to go back and look at this again. Chief and i think it was briar were coming back to say, isnt there some other way . I want to think that behind the chiefs question was a desire that the issue not be, that there is a complete exemption in attending toout women and the access to the contraception that the aca was designed to afford. Thank you for that. Time for abelief brief closing argument. What would a compromise decision look like . Tell our viewers while you believe the court should rule in favor of the Trump Administrations regulation allowing employers to opt out of the contraceptive mandate if they have a moral objection to providing it . Get aont think we will decision. I think this will turn more and whether hhs has the discretion it usually has to look into something medical, to issue a medical opinion and then to have religious exemptions which it does on many types of procedures. I think it would be a really twisted, nontextual reading of the Affordable Care act to say that hhs did not have this discretion. I think there will be more in the opinion than there was in the argument about the fact that poor women get contra contraception and women who cant get it through religious employers now have access to it free or at low cost through title x and other women, the vast majority, already had it in their insurance and were easily affording it. I think it will probably come down on the side of the Little Sisters on the grounds of the right to issue this regulation. Whats interesting to me is if they do not get into the necessity of this accommodation underrfra which i thought this case would be mostly about. Thank you for that. Why do you believe the court should rule against the Trump Administrations moral exemptions from the obligation to provide health care contraception . I think there is a good chance this could be an aca interpretation case and i will remain surprised at how little conversation there was that rfr a required this. I continue to take the position religious freedom gives you a right to your belief but it does not give your right to discriminate and harm others. When we think about nondiscrimination provisions, we have to think about what the harm that is coming here. Religiouse a avoidion to this, you can using this benefit as opposed to what we had before which was you can say you objected on the government and your insurer paid. Thathat you dont the government is saying we will recognize your religion in that way at the expense of your employee and wholly deny them the coverage, those employees are being required to pay for your religion. Beenis not where we have as a country or where we should be. Forhank you so much illuminating a rich discussion of the very complicated and important arguments and the Little Sisters case. Helen and next few days we could see possible work on pfizer reauthorization and talks on future Coronavirus Relief legislation. Watch the senate live on cspan2. The house continues to be in recess due to the coronavirus. Then, the chamber continues to hold brief pro forma sessions every three days as negotiations continue on possible options for remote voting. Watch the house live on cspan. Washington journal primetime, a special evening edition of washington journal on the federal response to the coronavirus pandemic. Our guests are Sylvia Burwell washington, d. C. Democratic delegate eleanor on the citys response to the disease. Join the conversation tonight at 8 00 p. M. Eastern on cspan. Thank you very much, mr. Chairman, and let me say to my friend, senator cornyn, im here doing my job. I came here because we are in the midst of what this nominee has characterized as an unimaginable crisis. I cant imagine i could go to the state of texas or illinois and ask americans who are concerned, worried, frightened by the Current Situation facing what theoronavirus, highest priority of the Senate Judiciary committee should be. We know what it is when it comes to senator mcconnell. Is this nominee. Of all the things we could be debating, things that are relevant to this crisis, we have been brought back here to debate this nominee. That is the point i wanted to make in my opening statement. I am here. At some risk, i assume, may be some danger, i am here. That is the point i wanted to make. So let me ask you this. Youve been careful and ive written down over and over again how youve referred to your responsibility when it comes to the Supreme Court decision upholding the Affordable Care act, and only once or twice have you deviated from saying it was binding on you as a District Court judge. Please, clarify, how would it be binding on you, should you become a d. C. Circuit court judge . Me inwould be binding on an absolute sense. Precedents of all the Supreme Court fully and faithfully. But you said, and i quote, i will go where the law leads, where the constitution leads. Could you square that statement with what you just said . Certainly, senator. The constitution requires absolute fidelity to Supreme Court precedents. The constitution outlines one theeme court and possibility of lower courts. In the judicial hierarchy, whatever the Supreme Court says, that is the law for a lower court judge, whether im on the Western District of kentucky or if im lucky enough to be confirmed to the d. C. Circuit judge the problem is that we expect of our judges honesty, humility, impartiality. You have not been the least bit impartial when it comes to the Affordable Care act. Your legal or constitutional contempt is obvious. Indefensible, the decision upholding the Affordable Care act. Your words. With a Supreme Court justice thating by you, you mocked moment when Justice Kennedy was told about the Affordable Care act case. Now we are in the midst of a pandemic weather question is being asked by everyone, cannot protect myself, cannot protect my family if i have to face this virus . That is a question i think people face many times each day. And you come before us asking for a lifetime appointment to the Second Highest Court in the land, having mocked the law that basically provides an attempt to extend Health Insurance to more americans. Do you understand the angst, the concern we have to put you in that position at this moment in history . Senator, if i can speak personally for just a moment, when i was two years old, my mom had Breast Cancer. She is a Breast Cancer survivor. Shes survived heart surgery, neurosurgery. I thank god every day that she was able to get the medical care she needed, and i very much hope that every american is able to get the medical care they needed. Job todge, it is not my define policy. It is my job to go where the law leads. And with regard to what you said about integrity and independence and judicial temperament, i think that question goes to why the American Bar Association said they were giving me their highest rating yesterday. Ive got a way to resolve this problem. Let me ask you if you will consider doing this to put our minds at rest when it comes to what you just said and what you would do as a judge. In light of your Public Comments about the Affordable Care act, would you commit to recuse yourself from any case involving constitutional challenges to the Affordable Care act . 455 outlines when a judge should or should not recuse from a case. And i pledge to follow that statute to the letter. I will also consult with my colleagues in the d. C. Circuit judge and the ao. There is a long tradition of judicial nominees not making a promise on whether to recuse from particular cases, because a judge has to take every case with an open mind. And the decision on whether to recuse is a decision about the case. After 162alker, television appearances, after all that youve written and all that youve said, it is painful to hear you say you have an open mind on the issue of the Affordable Care act. I gave you your opportunity to clear this issue. Youve choosing not to. That was a portion of todays Senate Judiciary committee as members held a confirmation hearing for judge justin walker, a nominee for the u. S. Court of appeals. You can see the entire hearing tonight on cspan two. Thursday, National Institutes of Health Director dr. Francis collins and others will testify before Senate Committee on new technologies to produce coronavirus tests. Watch live at 10 00 a. M. On cspan or listen live with the free cspan radio app. Q a, a lookght on at american president s through the lens of the books theyve written, with journalist and historian craig fairman. You saw it in that quote, that kennedys father was the one pulling the strings. Jack kennedy wanted that Pulitzer Prize. He told another history and, i would rather it Pulitzer Prize then be president. Because he had this strong gotre for literary fame, he himself the prize. In new york city, in washington, d. C. , people have been gossiping, did kennedy really write that book . Bu