hear arguments st this morning in case number nineteen for thirty one little sisters of the poor versus pennsylvania and the consolidated case general francisco mr chief justice and they please the court in two thousand and eleven the government required employers to provide insurance coverage for all f d a approved contraception including many religious employers who objected to the coverage sparking years of litigation in two thousand and seventeen in the best traditions of this country's commitment to religious liberty the government thought to resolve the issue by promulgating new rule exempting those employers who objected to the mandate those exemptions are lawful for two reasons agencies to require most employers to provide contraceptive coverage well exempting the small number of employers who have sincere conscientious objections but it doesn't create an all or nothing choice require coverage for everyone or no one otherwise the long standing church exemption the effective exemption for self insured church plans and indeed respondent understanding of the accommodation itself would also violate the statute since the employer's group health plans don't provide the mandated coverage that can refer at the very least authorize the religious exemption it prohibits the government from including a substantial burden on religious believe subject to a discretionary provides for and support and earlier before you get to that i'd like to ask you a question on your wrist for a point i wonder why it doesn't sweep too broadly it is designed to address the couple of different reasons st refer it's developing its operative language prohibits the government from imposing a substantial burden subject to a single exception and when you look at that exception what it says is that the government may impose that burden if it thinks it can satisfy strict scrutiny so once there's a substantial burden the government has the flexibility to live good in different ways including three traditional exemption otherwise this court decision is due but it doesn't make a whole lot of sense because they're in the court ordered the government to consider further modifying the accommodation even assuming the accommodation fully satisfied river that doesn't make sense of government program that might cover them and for those who are left have a by medicaid or one of the other government programs they can get to a deceptive coverage only  t to give everything to one and nothing to the other side we have had a history of accommodation with tolerance here respect for the employers workers way to provide coverage coverage including contraceptive coverage you have just tossed entirely to the wind but i thought it was essential that it's that women be providing the service services coverage rather is delegated to the agencies the discretion to decide whether or not to convert in the st place and we think that that also includes the discretion to require that most employers provide it but not the small number who have general francisco yes your honor respectfully the church exemption and the effective exemption for self insured church plan much more broadly they encompasses not just churches in their integrated auxiliary but elementary schools high schools  universities charitable organizations hospitals and other health care organizations so i don't think that they are authorized by the so called ministerial exception rather they're authorized by section one thousand three hundred and eighty four and by ri on limited authority to both create guidelines and exceptions from those guidelines st if you would give us just an idea of what standards are to good guide their discretion and  in the services that are provided as well as the exemptions that are offered by the guidelines yet in your honor i think there are three limitations that i would point to st because it has the discretion not to require any contraceptive coverage at all as discord acknowledged in hobby lobby i think that that plainly encompasses the disco russian acquirer coverage by most employers but not the small number would have been fear conscientious objection and secondly it's further constrained by the a p s requirement for reasoned decision making which prohibits arbitrary which that would prove it arbitrary exemptions and rd i think that the term preventive services in the statute  f potentially provides yet another limitation that's at the very least that would encompass the type of things that governments traditionally take into account when regulating in this area including the impact that their regulations would have honored religious believers and i'd point you to the federal register eighty three federal register and five thousand eight hundred and ninety eight where the government goes through in detail the history of according conscientious objectors protections one regulating in these very sensitive medical area at what point do you write it and delegation problem your honor i don't think we have a non delegation problem at all here for the reasons we just that i think all of those limiting principles including the phrase preventive services which at the very least would limit what the government can do to the type of things that traditionally it has done when regulating and hysteria if i could just give you a quick hypothetical type of thing that governments traditionally consider in that area likewise here in regulating in sense of medical areas governments traditionally take into account the impact that their regulations have on conscientious objector general justice prior morning general i had exactly the same question as justice thomas st question so about 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 and if not thank you very much and you can go on to the next question your honor the only thing i would add is that i think all of these limitations would effective exemption for self insured church plans and under respondents understanding of the accommodation even the accommodation it felt and each one of those three and been does the employer's benefits plan it is not providing the mandated coverage and two of them nobody is providing the mandated coverage and so if you concluded that the agencies didn't have this discretion that would undermine the validity of the church exemption the effective exemption for self insured church plans and potentially be the degree to which preventive services would have to be covered by insurance plan for example could it take cost into account what your honor if it took the costs into account i don't think that the question the st question would be whether the manner in which it took on into account satisfied be arbitrary and capricious standard and i certainly do think that they could take cost into account in deciding what types of preventative services to require if for example there was a particular type of preventative services that was a new technology that was actually helpful but it was cost prohibitive for just about every employer or any insurance company to cover i certainly think that major r s a could take that into account in deciding whether or not to require it pursuant to the guidelines issued under section thirteen a for this broader issue has been before this court on a number of prior occasions and on this case i haven't seen the argument that the affordable care act did not allow h r essay to make any exceptions based on conscientious objection when did this argument st surface to my knowledge your honor at st service in this litigation but if you look back to the promulgated of the original church exemption back on in this particular litigation the respondents haven't yet identified anyone who would actually lose access to contraception as a result of these rules i've been presumably because contraception access to contraception is widely available in this country through many other means besides your list but let's go there ha just decided that contraceptive this were a preventive service required under the act now you say it has to take care comedy act and accommodate religious objections but in your calculus what you haven't got a sitter or totally about is the effect on women  on women who can't cook who now have to go out as justice ginsburg said and search for contraceptive coverage if they can personally afford it and i putting that to the side to restore itself and section two thousand b b dashboard explicitly permits any exemption that doesn't violate the establishment clause and here i don't think there's any plausible argument that the exemptions violate the establishment clause under this court's decision in the mist which upheld the title seven exemption to religious some lawyers which after all authorize a religious employers to fire an employee for religious reasons and since it's permitted under rigorous than i and it's the chief justice's st question which was about whether this rule sweeps too broadly and then i understand your concern about giving agencies some leeway so that 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's not really the situation where in with respect to this there was an existing accommodation in place and some employers had objections to that combination the little sisters and some others and even assuming that those objections needed to be taken into account the rule sweeps far more broadly than that and essentially scratch the accommodation is available with pomp and scrapped but it stuck and we including concord contraception at the theme was part of your insurance plan doesn't actually cost employers anything so there's no reason why an employer who 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 sure we'll take it your honor i would respectfully think that 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 doesn't cost any money to add dation another word for those who have these complicity based beliefs that the little sisters have well because your honor i think here there's no reason to think anybody would do what you're suggesting and the original burden stems from the contraceptive mandate it self and so i guess what i would point to is cases like ricky again that's the fano which at the very least if you don't accept my broader argument give the government flexibility in the face of potentially competing flexibility when it's baiting potentially competing obligations that's the case where the court said that an employer couldn't violate title seven the disparate treatment provision if it had it's the stansell the stansell grounds for believing it would otherwise be violating title seven disparate impact provision it's the way that korg reconcile statutes that put parties in the in the place them having to decide whether to violate one at the expense of the other and here i think we at 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 that employers have to provide whatever coverage per se it's spelled provides for and support here person 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 plaintext thirteen a ford delve where is respectfully i think my friends position on the other side is and made it clear to court from the very beginning the government recognizes that its contraceptive mandate implicated deeply held religious beliefs and so to him to churches and some religious orders and congress recognized that the mandate was not some sort of demanded universal compliance and so it exempted tens of millions of employees under grandfather plans from the very beginning the government's refusal to accept the little sisters from the mandate and its massive penalties has posed a glaring greater  problem the federal government finally got the message and except for the little sisters that exception ready for reform violation and followed the best of our traditions nonetheless the rd circuit invalidated it by concluding that the regulatory  accommodating alternative that are sort of treason was plainly mistaken as to the substantial burden analysis and its reasoning really cannot reach way or with this court's decision in hobby lobby after all the penalties and force the mandates here are the exact same penalties that underlie these basic contraceptive mandate in the hobby lobby decision itself and so when the government imposes an burden on religion by telling the little sisters that they have to comply with the mandate for that accommodation in or out when the or else is mad to penalties that is when the provides a 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 st the government has shown its abilities to exempt churches and other religious orders from the very beginning and then secondly in the grandfathered plants exemption the government has shown its ability to exempt tens of millions of employees who do not even have religious objections but only  st had any objection if their employees receive services from some other means there are objections essentially is to have their plan hijacked and being forced to provide those services through their own plan and plan infrastructure so if you had a situation where the certification was not necessary in other words the government government finds out that the employees do not have contraceptive coverage through some other means and you 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 then why isn't that sort of accommodation sufficient i i didn't understand the problem at the time of zoom because i'm not sure i understand now well i don't think we would have that objection to simply objecting to the government and then if the government had some way never been an objection to objecting it's out well the problem is that neither side in this debate wants the accommodation to work the one side doesn't want to work because they want to stay the mandate is required and the other side doesn't want it to coleman the the i'd like you to have an opportunity to comment on the questionable standing of the states in this case as well as the proliferation of national nationwide injunctions such as the one in this case certainly justice thomas i guess i would say one thing about each of those issues at this juncture as long as massachusetts akin to e p a remains good law we don't really have an objection to the states standing but i think their standing i have to depend on that track today because as general francisco alluded to there out of this litigation they have not been able to identify even a single person who would lose coverage in such a way that it would increase the burdens for the state and pennsylvania new jersey so the only way that they could have seen it in this case is if the certainly the absolute outer standing by outer limits of standing to be sure with respect to the nationwide injunction that the issue where i say that 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 it's contraceptive mandate in particular is that the courts do not come to uniform decisions in this area and sometimes the majority view in the circuit court is rejected by this court and so under those circumstances in particular for a single district court judge to think that he or she has a monopoly on the reasoning here and should impose a remedy that affect people across the nation seems to me to be very imprudent and not something that's consistent with what his practice or really just sort of good practice and the way that our judicial system works and it really depends on the head of the circus potentially look at these issues independently when they divide this court case review and these nationwide injunctions sort of short circuit all about and put the same question as the government at the end of the day the government is going to win the women's entitlement to seamless no cost to them it is requiring those women to pay for contraceptive services if they can st they would have to go search for government plan and if it turns out as it will so many of them as there is no government other plan that covers them then the so this idea that the battle untested be all for a little sister type organization and not at all for the women it just seems to me to rebel against what is i think history of accommodation of tolerance of respect for divergent well justice ginsburg i would i would say two things in response st i would echo what the solicitor general said in pointing out that congress itself did not even specify that hunter sessions would be included in the preventative health mandate and congress went further and said with respect to grandfather plans there are other mandates in the affordable care act like coverage for people of age twenty six and preexisting conditions that they were going to impose on grandfathered plans but they didn't impose the preventative mandate so congress itself recognized that tens of millions of employees could be in the same position as employees of the little sisters of the poor even though there's no religious objection there whatsoever and i think the clear teaching of regret is that when you're going to give those kind of exceptions to the people for secular recent then you need to give those kind of exceptions to religious  accommodations because they can be some of the most difficult to resolve disputes and they can substitute a kind of hostility for harmony so from that point do i really repeat there's anything you want to add the chief justice  question i don't understand why this can't be worked out but if you can't for much been said so far it seems to me the proper legal box to work it out in is whether this particular rule is arbitrary capricious or an abuse of discretion after all the religious groups say they have a real basis in objection and the other say look these are women who will be hurt who have no religious objection and moreover the insurance companies will be hurt because it will raise costs nor will the taxpayers who pay for it will be hurt no you have interests on both sides the question is was this is a reasonable effort to accommodate and that i think is arbitrary capricious abuse of discretion but that is the one thing that isn't argued before us in these briefs or in this appeal so what do i do justice pryor i think you're absolutely right that that is not the nature of the objection that's been raised by the other side they had said for example yet it's take saying might be ok if it were limited to the little sisters and others company and with respect to that for profit company there that getting their services and they think that because the a p a because the the rule here is too broad that would be a separate a p a challenge that i don't think rejecting the challenge here would for d so i think that the path forward thank you counsel justice alito mr coleman i certainly agree with my colleagues that our best tradition in this area is to accommodate diverse religious you so i want to ask you about interests that are involved here on the one hand what would the little sisters feel compelled to do yes they lose this case and they are told you must provide this coverage through your plan and on the other side i want to ask you since this is now been going on get them through their employer's plan or through the insurance plan of a family member or a government program and can easily afford to purchase them on their own  questions st 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 operation one of the anomalies here is that the government from the beginning has exempted religious orders but they refuse to say just that if they stick to their knitting and do only religious services but if on the other operations but there's just nothing that they can do that will allow them to come into compliance with the plan and so with the government's mandate and i think that what congress had in mind was river because they understood that when people are faced with a government obligation that is their religion it absolutely forbids them to comply with that other thing that the government should try to avoid at all cost to and in the nd part of your question just quickly the little sisters have never complied with the mandate throughout this entire litigation and so what does that mean just two things one no one will lose their coverage they had now or if the little sisters were given the succession and to throughout that process we have not heard of even a single employee who views this as a problem presumably because many of these employees even if they're not catholic because a little sister tires on a nondiscriminatory basis but they do come to work for the little sister fund or standing the mission of the little sisters and i don't think they would really want to put the little sisters in the position that you alluded to of maybe having to stop serving the elderly  coleman assume that the government tomorrow passes a law that says every insurance company must reimburse every policyholder they have or cope with that actually they say nothing about whether it's in your policy or not if someone has a religious objection they say they can be exempted from it but you insurance carrier must pay for anyone who submit to has a policy with you or anyone who should bitch for a covert nineteen vaccine can the employer object to pay to that policy all now i think an employer could any sure that had a sincere religious objection to providing the coverage say like the christian brothers they might be able to object i don't see actually had an objection to be clear but they led to a sort of chain reaction where my the employees were eventually going to get coverage but what would you say about that so just to kagan i think it would depend on additional factors like whether the government objection with the same massive penalties we had here or indeed they did then i think the way to think about that particular sort of objection would be that least restrictive alternative stashed in most cases i think the government would be able to submit or sustain its requirement of a lease having an objection that irony this might be the one context where they can because they will never  thing that you would think that the employer would prevail i think the amount would have a major role in the same arguments right you know they need a women can get contraceptive coverage elsewhere and there are other exemptions to this sc reasons that the government had a good cause for example to have made immediately effective moderations in light of this court order in the week in college case and we think that likewise the my friends on the other side say there was good cause for the original exemptions and the like in the mandate because they needed to make changes quickly for additional for the coming players and we think all those same things apply here and then of course another way to rule against the rd circuit on that issue is to recognize that there are specific statutory authority here to promulgated by harsher benefit plans which probably recognizes the fact that these benefit plans will often have to be changed in ways that will affect your future players and so changes made need to be made very quickly but the rd way to court is to reject the reasoning of the rd circuit if it's to say even if there was some sort of original folded the government for responding to the thousands and thousands and thousands of thomas a guy in a county in show fish away so the government i think on this record has complied with all of the is question about the objection to objecting i had thought that would be litigated fought out under the least restrictive alternative prong of the from the government might be able to argue that there is no less a less restrictive alternative available in that situation you might disagree and try to identify a less restrictive alternative but i'd have thought that where it would be litigated is correct or  point to the fact that the church faces issues and the grandfathered plants exemption had hours worked quite well without requiring there to be any kind of formal objection registered and so it does seem to me that those are essentially other ways that the government has been able to comply and then i got a question of course is it more in the realm of where the government is show had through something like the final rule alleviated the obligation mr fisher through chief justice and may please the court the more the logistics emption rules rests on three sweeping assertions of agency authority st the agency's twisted narrow delegation that allows the health resources and services administration to decide which preventive services insurers must cover in the women's health amendment into a grant of authority so broad it allows them to print virtually any employer or college to opt out of providing contraceptive coverage entirely including for reasons as amorphous as vaguely defined moral believes nd the agency's claim that riff or a statute that limits government action affirmative authorizes them to permit employers to deny women the right to contraceptive coverage even in the absence of a riff or a violation the st place 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 receive contraceptive coverage these roles however exempt such employers altogether even if they had no objection to this prior accommodation and these rules also allow for the st time publicly traded companies to claim the same exemption despite the agency's a mission that no such companies ever requested one and rd the agencies claim they were justified issuing the sweeping new rules without st putting out a proposal and seeking or relief entered below and in so doing they have as the novel claim that federal courts simply lack the authority to invalidate unlawful agency regulations in their entirety in isolation the agencies arguments are incorrect but taken together stretching a narrow delegation well beyond its slim fighting brought affirmative rulemaking authority to statute that doesn't provide it bypass bypassing prior notice and comment where the a p a requires it and she has asked to curtail the court's authority to invalidate unlawful agency action taken to get a decent argument to make apparent that what this case about is not the resolution of a long running dispute or rather the assertion of vast agency authority at the expense of congress in the courts thank you counsel i have  a question it was a hypothetical in one of the amicus briefs that i thought was pretty good and i haven't heard an answer to yet and that say you have a couple going out to dinner and they tell the babysitter well the children have to do chores you know you decide which ones i think everybody would agree the batting kluge the authority to say not only that we have to do the dishes and sweep the floors but tommy you sweet you do the dishes and sally you sweep the floors and not the assumption that each child would have to do each tour and hear your argument about the aca statute is that it gives h h s the authority to specify which services have to be provided but does not give them the authority to make determinations about who has to provide which but instead imply that every employer has to provide everyone so what do you guess your out of it what's your answer to that mr chief justice our answer is that that is the only reasonable reading of the text of the women's health  provide is answered by the beginning of thirteen a it says a group health plan a health insurance issuer offering up individual health insurance coverage shall at a minimum provide coverage for and shall not impose any cost sharing requirements for now shall is mandatory as this court recently acknowledged again in the the call sharon case recently dealing with a ca below that language there are four separate categories of services to be covered nobody disputes that the st three are mandatory that all covered insurers must cover the st three the only dispute comes in the th one which is with respect to women such additional preventive care as provided for in conference and guidelines and  hypothetical that your honor referred to which i believe is in the the texas amec is briefed they 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 well with respect to women and it is such additional preventive care and screenings as provided for in conference have guidelines to ask provided for clearly modify such additional care and screenings for standing in this case that challenged a regulation the government's regulation of my the impact your cost the states costs seems to suggest that any time there is a rule change at the federal level that affects you you would have standing and then 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'd like to have to comment on that it seems to be somewhat problematic and to suggest that there's a problem with both standing and nationwide injunctions if they are this easy to  to get thank you your honor and to be clear we have to satisfy standing requirements just as any other litigant has to show standing and we did in this case by showing that the rules would impose costs on pennsylvania new jersey and that is in some ways sort of the most basic type of injury that all parties not just states allege and showing harm now my friend of the other side refer to massachusetts versus e p a which certainly recognizes that states have a special place in our constitutional order however we still demonstrated that based on the government's own estimates of the number of women affected these rules would impose direct cost on granted that we could have the case wrapped up now the analysis with respect to nationwide injunctions is different we submit in the context of an a p a challenge where the ultimate remedy available is that the court shall set aside very thorough very well reasoned discussion that acknowledge your authors concerns expressed about nationwide injunctions discuss this idea that that there are significant cross border harms here that simply couldn't be addressed in a more narrow that's the case your honor i would think that there are many regulations that are not going to impose costs on the states directly or indirectly and certainly in a nationwide injunction context i think it would still depends on izzy specifics of the rule being challenged and the nature of the harm that the challengers are alleging and is again indicated that the just the court really took out of all these concerns talked about the n the circuit courts and and acknowledge frankly in plain terms that fashioning a preliminary relief is an imperfect science that just records try their best and they're reviewed for the abuse of discretion standard that is what you wan want to get and one question about when the a p a was adopted do you think there were such things as nationwide injunctions or were they handling the case by case basis your own i believe there is a history certainly of relief going to beyond beyond the parties to a case whether they were classified in nationwide injunctions is difficult to say and i think this is dealt with very well by the various am against briefs but i also think that in here is the authority that we would allege we argue that the the basis for this injunction comes from it says as a final remedy for shall set aside and proper agency action and that it permits agencies or p courts to stay in agency action as this court did a few years ago in the clean power plant case it permits a ban or injunctions that permits them to postpone the effective date and many of those remedies suggest that is absolutely correct and i think it's important to remember just how broad these rules are for so there are two rules that we're dealing with one that we haven't talked about as much as the moral rule that simply says an employer with a moral objection to providing contraception can be completely exempted that just a court noted this could in theory allow an employer that objects to women in the workforce for instance to remove itself from providing contraception and with respect to the religious exemption you know there are certain key features that really show how broad this is st of all it eliminates the accommodation as a mandatory requirement so even for for instance all the various plaintiffs in the hobby lobby cases that this court recognize we're perfectly fine with the accommodation they are now exempt and i disagree with my friends conclusion that there are unlikely to take advantage of the exemption because these are added he said object to contraception they made that clear they were simply fine with it's not ok do not rely on a reference for the moral exemption they claim authority under three hundred dollars g g dash thirteen under the a c a's women's health a matter for the moral exemption and as we have argued and as as the no cost sharing requirement it could decide that you know certain services really don't need to be covered at all even if they're in you know even if they're widely recognized as her end of services it could exempt whole classes of employers for reasons having nothing to do with the reasons here so our reading we submit is a far better one and frankly it's we have to remember we're talking about the health resources and services administration it's really unlikely that congress would have delegated to that organization authority to create broad religious and moral objections exemptions given that they have no expertise in that area just prior to related questions thank you one is as you know the statute says that they have to provide additional preventive care as provided for any comprehensive and supported by the health resources and services administration well read that you get a nice unambiguity so my question is really given your argument and given you point out that in re health care costs and a whole lot of things and the government has things to reply to that but why isn't that the proper legal box that's my st my related question is if you were to let a district co prior rule didn't pirate did not pirate the health plan of the little sisters and they think it did and you think it didn't but my goodness i'm trying to be able to monkey with it in some way s your honor i don't disagree with any of that i do think the rules are additionally arbitrary and capricious and we did raise that argument in our complaint we also argued i think correctly that they exceed that the statutory authority cited by the agency did not support the rules and says we won on that basis there was no need to go any further and say well if they had the authority did they exercise it correctly i disagreed also with your honor suggestion that the language is big u s i think as we explain the use of the word supported in context reflects similar language in paragraph three immediately preceding and all that refers to is the fact that the guidelines and paragraph three which with a bright horizons guidelines were funded by her but actually conducted or produced by the american academy of peter at pediatrics so her supports those guidelines by contracting by funding and i think congress borrowed that language and the as provided for is as i indicated refers back to such additional care preventive care and screenings so we don't think there's an argument as to ambiguity now as to whether there could be a resolution i certainly would hope that there is as the board's mcguire briefs explains the government the prior administration and we do not believe that these plans are being hijacked and to be clear we brought the suit against the federal government we have not challenge  little sisters we have not challenge their colorado injunction they and all of the other parties to do pick are protected by injunctions and do not have to comply with the contraceptive mandate no matter what happens in this case but could there be a resolution to the narrow set of cases out there i would hope so but the fact that there was this ongoing dispute doesn't justify jettisoning the accommodation for everyone else free and publicly traded companies really doesn't justify the moral rule and those i think are the most egregious examples of simply how overbroad these two regulations are thank you thank fisher you say that the affordable care act does not allow the government to make any exceptions to the contraceptive mandate to accommodate them which is objection now fast true the original exemption for and what i'd like you to explain is your understanding of the scope of that doctrine and let's take as an example a woman who works for a church in an entirely secular capacity was a woman who cleans church property under your understanding of this religious autonomy doctrine does that mean that that employment relationship is entirely off limits autonomy doctrine what we have argued is that up to you but you do say that it would violate the st amendment to require the church to provide contraceptive coverage for that one honor what we are arguing is that there is a basis in the st amendment for exempting churches and some way that certainly there is a core of church all tatami that bad agencies in implementing federal law must protect in some way as the provision of insurance coverage for contraceptives took your argument to me in the st amendment would prohibit the government from acquiring a church to provide that  sides that perhaps originally was talking about the detail i'm talking about exact thing a secular employee of a church receiving the contraceptive coverage an exemption for provision of contraceptive coverage why would it not also require an exemption for all of the other regulations mentioned certainly in a whore in the co ministerial functions it does we don't dispute that i think the question is whether a minister i'm talking about a woman who claims the church exactly and our position there is i don't think it's necessarily the case that the st th the st amendment requires that the church exemption be as broad as it was however given the realities of insurance and the need for rissa plans to be consistent the prior administration made a decision that they were going to apply to all employees of churches we don't take issue with that even if that went a little bit broader than what the st amendment requires which is protecting individuals and ministerial functions and the churches autonomy with respect to those individuals that's a far cry from what they did in these rules which goes well beyond the core of the protection that the st member requires or that reform requires between her writing coverage and utilizing the contraceptive care and that the court rightly concluded that the fact that others were involved didn't really matter here the court said essentially that where an objection depends on the operation of the law and here it is it is the legal requirements that are shifting the burden to the insurer or the rd party administrator courts still have a duty to inquire as to what the law actually requires of the objector and the nature of the objection was that filling out this form made them complicit in providing contraception they did not object to the idea filling out a form stating their objection by itself they objected to what flowed from the bowen v roy case where notwithstanding the fact that applying for food stamps would have triggered the government utilizing the daughter's social security number which was the nature of the objection a justices still said that substantial burden the courts you're not wrong in their understanding of moral complicity is wrong no we're not saying that at all we do not challenge their view of moral complicity what we do challenge is whether that what they are saying arises to the level of a substantial burden which is ultimately a legal test and congress included the word substantial for a reason because it recognised that not every law that had an effect on religion necessarily should be subject to a strict scrutiny thank you counsel ok justice sotomayor counsel going back to the chief justices example and saying and clearly we understand that there said parent exemption is not merely saying to the little sisters you don't have to provide coverage whether it's you or sure anyone else we're not going to also 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 you're objecting to that nd part of the exemption so that is correct as a general matter i just want to make one specific point which is that your honor mention the little sisters is their insurance carrier stated that it will not provide contraception no matter what are they or their health plan and because it's a church plan exempt from arista the government cannot enforce it so even if they didn't have their separate injunction they are employees would not receive contraception we're not trying to challenge that at all we're not trying to require a little right that that's that's an interesting point i didn't know that the little sisters claim is actually owed here well that is why thing that has nothing to do with this case as i understood it well you know that has to do with the church exemption surety planners do not have to provide under the law they're not a risk of plan so they don't have to provide coverage in the situation where where the employer utilizes the accommodation the government lacks a means of forcing the higher minutes against church plans because they are exempt from recess so if an employer utilizes the commendation and the church plan can decide whether or not it wants to comply and there's no penalty if the government promises not look i'm happy which part of the government's exemption you are challenging so we think the government's claims of authority for the exemptions were incorrect but we think that the most egregious parts of the rules are st of all the moral rule which i think is important to stress that that's half of what's at issue in this case the elimination of the accommodation as a mandatory requirement including for companies that had no problem with that inclusion of publicly traded companies and large universities and the two other points one to clean this exemption companies do not have to write any specific notice to their employer employees they can simply you know include the fact that contraception isn't covered and all the other arista notices that they mail out they don't have to say specifically we have this objection we are not providing coverage and addition they don't have to show any sort of substantial burden they don't have to said anything to the government saying we believe your burden for these reasons we have these objections so there's really no way to evaluate for instance whether a company is sincere and the nature of its objections that is part of the referrer analysis and you know as the court acknowledged recently and i was centro referring creates a mechanism for courts to enforce that we don't dispute that it is he should take refer into account but ultimately refer creates a judicial remedy and courts and agencies yes there is no over acquirement that objecting entities utilize the accommodation completely optional so they can simply claim exemption and tell their insurer don't provide contraception and can about what many people think of the most boring part of your argument which is a b a notice and comment because i'm not quite sure i understand the argument so let me just start by saying  you what you're doing is you're hypothesizing that there should be some significant difference between what happens and how a court reviews what happens when an agency works off of an interim calling a role as opposed to when an agency  works off the notice of proposed rule making and i guess the question is why should there be any real difference between those two so your honor i want to stress one aspect of our argument which is about our argument hinges an interim final rule at that point the agency that says what that nicely had good cause for doing this because we had an emergency but now we're going to notice and comment at that point to the notice  but i don't think that's right because a good cause can give you cause to act right now but it doesn't give you cause to act for twenty years without notice and comment so an agency could say we have a good cause to act right now but now we understand that we have to do a notice and comment proceeding because now you know there's something in place and we can take our time and do it that isn't true you're on apologize if the agency wishes to modify the even when there was in the interim rule was a bad idea because as i understand your reasons for thinking that the standard should be heightened that the agency has kind of gotten psychologically used to the rule and recognizing that in most cases prior notice and comment is the most effective means of getting to a more informed decision in some cases or that interest is trumped by the need for an immediately effective rule so the benefits of notice a comment have to sort of give way a little bit so that the agency could act quickly and but here where we believe the it's a good cause standard wasn't satisfied the a p a plainly requires the agency comment on a proposal  saying that this really does depend on whether the good climate was satisfied in the st place yes absolutely ok and then as a remedy you say we should just go back to the original rule but the original rule was done in the in fact same procedural matter so how would that make anybody any happier so there are a number of rules that have been implemented dealing with this a number of them went through full notice the comet in one case there was an advance  rule making of proposal making an n p r m in two cases since the women's health guidelines were issued and one time before the prior administration did immediately go to an immediate effect of rule they argued good cause and one instance the d c circuit upheld that finding and another instance it was never as far as we know ruling by any court we think the arguments made were much stronger in those cases and regardless to be  question nine years after the fact simply doesn't make a lot of sense what we're saying is that the good cause claims made here by these agencies and these rules have to be evaluated on their own and if if what the agencies say here satisfies good cause then agencies could always find a good cause and the result would be and i think this is the most important part of our argument if what the agencies did here is ok every agency could say we're just going to issue a rule make it effect immediately claim good cause and then take comment and even if they lose on the good cause finding they don't have to worry for long because as soon as stave taken comments it issued a new rule then the rule be immediately effective and it will be as if there was no violation the st place and it's reasonable to think that agencies will will take their cues and will say ok well we're going to take the risk that we're going to do that because frankly there really isn't much of a risk in the end if everything will be fine once they've taken and i suppose the argument on the other side goes something like one could understand it arbitrary and capricious argument about the over breath arguable over these exemptions but the challenge limitations conditions exceptions as well as a general rule because there is no rule that doesn't have an exception and then we look at the original accommodation and at least some suggest that that original accommodation to churches was consistent with that statutory delegation and then you throw refresh in the mix and that's normally thought to trump any and for many other existing statutory obligation so what do we do about that i think that's what justice breyer is trying to get out and i guess i'm curious for a little further thought on e e s your honor i think if the delegation is read the way the agencies would like to read it that it is remarkably broad and i think would frankly raise non delegation problems i think the delegation is cabined by the fact that two things the st of all i think the structure of the section makes clear and thirty four are all simply categories of services even though identifying those services are st a comprehensive guidelines what begins that paragraph four is with respect to him and such additional preventive but then as provided for in these coverage of lives can you explain how those two interact i guess yes so such which which typically means you know in the matter to be indicated refers for the sort of sets the stage for has provided for so if you ask the question well what additional preventive care and screenings must be provided the answer is such so in the matter to be provided as provided for in the conference of guidelines so all of that is answering the question of what additional preventive care and screenings are to be provided if you read as provided for sort of applying to the entire sections sort of going back into subsection a and modifying those requirements and then you're sort of on mourning it from the way it's used in four and leaving such additional preventive care in screenings without any further explanation and in addition i think the other three categories provide some guidance and i think reasonably happened the age of thirty the other three paragraphs all refer to guidelines that already existed so hearst had the ability to look to those and those are all you know there are no religious exemptions in those guidelines or no broad exemptions they're simply lists of services lists of vaccinations that are required other things so where congress list several items i think it's reasonable to conclude that congress envisions that the agencies will operate there will exercise their discretion sort of in a similar manner in each instance and i think that's what was assumed here but it is not part of that assumption i think the argument is a we can't specify which preventive care and screenings will be provided or under what conditions and that any any provision of care is necessarily going to be conditioned and subject old sorts of exceptions that's just the way the world works there's no rule without an exception and toward that and again destroying your attention back to the combination for churches many people have argued and certainly the prior administration did that that was consistent with the statute not not something imposed upon it from outside but a st a where we would have value a d s rules under arbitrary and capricious review and i think there are several problems with them but we would not be in a world where the question of the agency's authority in the abstract was  they pay for contraceptive care is that correct no your honor not at all i mean that you know if an employer objected to that requirement there would certainly be a substantial burden ok or i misunderstood up on justice briar's question and justice course which is st question as a number of my colleagues have pointed out justices ginsburg sort of maior alito briar and others  very strong interests on both sides here which is what makes the case difficult obviously there's religious liberty for the little sisters of the poor and others there's the interest in ensuring women's access to health care and preventive services which is also a critical interest so the question becomes who decides who decides how to balance those interests and the answer of course is congress in the st century interest instance and read for of provides a backstop on th reference in the a f c a congress is delegated to the agency so you'd have a delegation from congress the agency and which is common and sometimes congress delegates narrowly with narrow language and sometimes a delegate broadly and the rule of thumb i've always thought is courts should construe narrow language narrowly and broad mind which broadly and it seems to be broad language has justice thomas noted when you have that kind of broad language you're going to get different executive branches we're going to exercise their discretion within that broad language and balance the interests differently and then the question is what's the judicial role and seems to me the judicial role is not to put limits on the agency discretion the congress is not put there and then we're left i think is just as prior said with and you want to get your reaction that's what the arbitrary capricious test at the end of the day and just to making sure that in exercising its discretion and balancing those interests the agency didn't go outside the limits of reasonableness which is a very deferential test it's not abdication but it's deferential why isn't that the way to look at the caves and if we get it down to the bottom line of what is reasonable not maybe everyone preferred choice but at least within the bounds of reasonable why isn't this a reasonable way to balance it so just get your reaction to all that thank you your honor so on that last point the reason this is not a reasonable way of balancing is that the rules go well beyond what ref g arguably would require as we mentioned for instance companies that have no objection to commendation are now wholly exempt and however you interpret the women's health amendment and we we strenuously believe that it imposed a a mandatory duty on  coverage but certainly it would defeat the purpose of that amendment to say that women should not receive coverage if they work for an employer that objects to contraception generally but was willing to participate in the accommodation process or to know  its objections so that they could still receive coverage we also that there's that the exemption for publicly traded companies in the absence of any evidence that any publicly traded companies requested one goes well beyond we think the moral rule is so any reasonable standard that that it's certainly arbitrary and capricious and we also think that that if for in the refer world that the way this exemption the way these exemptions are structured would really deceit any opportunity for scrutiny as to whether an employer cave claiming an objection has a sincere religious belief whether it is substantially burden and would essentially remove the courts from the process entirely boundaries are is a question for call it's that can be left just to the agencies and we submit the women's health amendment oppose a mandatory obligation to shout a minimum provide coverage for it shall not impose any cost sharing or higher rents for and nevertheless what is clear from the the floor debate on that is that congress in vision that it would require coverage for print of services that family planning would be included now you also have extremely important interests in refer and in the nature of the religious objections that are being claimed ultimately courts need to resolve these questions and the agencies have essentially taken these decisions out of the  realm of the judiciary and decide for themselves and that that simply isn't how reference works and under epic it's not how these questions should be resolved thank you very much after all was the very basis for the church exemption back in two thousand and eleven it's also the basis for the effective exemption that applies to the self insured church plan as illustrated with respect to the colloquy between my friend and just and if you accept respondents interpretation of the accommodation it's also the basis for the accommodation itself under my friend because it and they seem to concede that all of these other provisions violate section thirteen gave for after all the church exemption is not limited to ministers and the church exemption applies to churches that don't even object to contraception but regardless of how you resolve the issue the rules here bring a decade long dispute to a durable and and they should be upheld thank you generally the cases submit