In 2011, the government required employers to provide Insurance Coverage for all fda approved contraception, including many religious employers who objected to the coverage, sparking years of litigation. Traditions the best of this countrys commitment to religious liberty, the government sought to resolve the issue by promulgating new rules, excepting those employers who objected to the mandate. Those exemptions are lawful for two reasons. First, they are authorized by whichn 13a4 of the aca, requires employers to provide the types of coverage that the health, resources, and services of administration provide for and support. So it authorizes the agencies to require most employers to provide contraceptive coverage while exempting the small number of employers who have sincere Conscientious Objections. But it does not create an all or nothing choice. Require coverage for everyone or no one. Otherwise, the Longstanding Church exemption, the effective exemption for selfinsured church plan, and indeed respondents understanding of the accommodation itself, would also violate the statute since the Employers Group health plans dont provide the mandated coverage. Least itt the very authorizes the religious exemption. Subject to discretionary exception. It may substantially burden religious beliefs if they can satisfy strict scrutiny. It does not require the government to do that. Otherwise, the government would have to define this to just accommodation the court would uphold, guaranteeing the loss in every case. Either the aca or reference requires that result. I would like to begin with the section 13a4 issue that requires employers to provide whatever coverage they provide for and support. Before you get to that, i would like to ask a question r on yourifra point. I wonder why does not sweep too broadly. It is designed to address the concerns about Self Certification and what the Little Sisters called the hijacking of their plan. Ifra reaches beyond that. In other words, not everybody who seeks the protection from coverage has those same objections, so i wonder if the reliance is too broad . Because i dont think so for a couple of Different Reasons. First, and its operative language prohibits the government from imposing substantial burden subject to a single exception. When you look at that exception, what it says is the government may impose that burden if it thinks it can satisfy strict scrutiny. So once there is a substantial burden, the government has the flexibility to lift it in different ways, including through a traditional exemption. Otherwise, this courts decision does not make a whole lot of sense because the court order the government to consider further modifying the accommodation, even assuming the accommodation fully satisfied rfra. That does not make sense if rfra prohibits anything it does not affirmatively require. Ond, even thank you. Justice thomas . Justice thomas . We will come back to Justice Thomas. Justice ginsburg . The feature of what the government has done in expanding this exemption is to toss to the winds entirely. 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 workers, and students who do not share the employers 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 costsharing 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 contraceptives. To put in place in accommodation of employers religious exercise while at the same time ensuring women covered by Employers 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 employers religious beliefs, the cost of that, unto these employees who do not share those religious beliefs. I did not understand rfra to 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 selfinsured church plans. The church itself has enjoyed traditionally an exception, from the very first case, the mcclurg case, the church itself is different from these organizations that employ a lot of people who do not share the employers 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 selfinsured 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 dont think they are authorized by the socalled ministerial exception, rather 13a4 and rfration. 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 the apas requirement for recent decisionmaking, 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 dont 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 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 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 theyree 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 selfinsured church plans and under respondents understanding of the accommodation, even the accommodation itself. In each one of those three instances, the Employers 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 selfinsured church plans, and the accommodation more broadly. Justice alito . 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 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 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 myfords 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 wont 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. 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 lets 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. 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 selfinsured 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 doesnt violate the establishment because. Here i dont theres any plausible argument that the exemption violates the establishment clause under this courts decision in the case that upheld two religious employers which after all other is a religious employers to fire an employee for religious reasons. And since it is permitted under rfra and permitted under section 13a4, i dont 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 justices first question, which was about whether this role sweeps too broadly. I understand your concern about giving agencies some leeway so they dont 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 the existing accommodation even for employers who have no religious objection to it. And sorted by definition, doesnt 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 doesnt 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 doesnt cost them anything. But i guess i would add do you have any evidence that isrrent exemption is 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 dont have those complicity beliefs, but now that theyre 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 doesnt cost them anything. Because it does not cost any money to add contraceptive coverage to an insurance plan. It a costneutral 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 complicitybased beliefs that the Little Sisters have . Well, because, i think theres no reason to think anybody would do what youre suggesting and the original burden stems from the contraceptive mandate itself. So i guess what i would. 2, case dontichie, 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 its 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 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 who must cover them. Can you respond to that a