one and may it please the court my name is tim bell's i represent paul wieland and teresa wieland who are married they have three daughters one of them is a minor thirteen years old and the other two are nineteen and twenty years old respectively two months ago after the briefs in this case were submitted the united states supreme court held that a person who objects on religious grounds cannot be required to provide contraceptive coverage to others in that case to corporations and boy an employer that is correct in but an employer is a person wieland object to providing such coverage to their daughters so the parallel is that hobby lobby and conestoga would stand in the same shoes as paul and teresa whelan and the employees stand in the same shoes as the daughters the employees are to hobby lobby what the daughters are to pollen theresa wheeling well that's just so i mean it's not a it's not a controlling precedent this case reprise protected a person in that case it was a corporation a profit making corporation a couple of commercial corporations said that it did not have to provide  contraceptive coverage to its employees now if that is true then another person under referee namely mr and mrs wieland should not have to provide contraceptive coverage to their college aged daughters who are away in a university town many miles away it is says though the federal government had passed an edict that said that parents must provide a stocked and stocked unlocked liquor cabinet in their house whenever they're away for their  minor and children and adult daughters to use and and mormons came in and object to that it is exactly the same situation it's exactly the same situation as if the federal government's mandated that when you send your kids off to college you have to provide them with cable with a cable subscription and that the cable subscription would have a pornographic channel in it that would be available to your daughter's oh and if you live just people you know each person that is insured well i have several answers for that you know one is this is we have a history here prior to the affordable care act missouri had a very progressive system in place by statute missouri said if if you work for an employer who has contraceptive coverage in the in the policy for its employees you can opt out that is what the whelan's did the missouri statute also said if you work for an employer like it would be hobby lobby today who does not have such coverage you can opt in  and simply pay the additional rider so everybody's conscience the employers and the employees everybody's conscience was taken care of now as to the practica bility of this the supreme court in the lobby right near the end of justice alito those opinion he addressed the whole question of can you have a viable insurance system that works we know it from the missouri experience that that you can you can have an opt out it's very simple the computers at the insurance company just block payment for certain things we all know how that works  o in hobby lobby the judge justice alito made it very clear that there was no practical problem there and i would point out that under hobby lobby you can have very small employers a very very small employers with very small plans we have law offices that have two people in the plan well there are five people in the wheel and family plan so just it's a leader takes care of the the practicability problem and the supreme court in those  that bureaucrats from the beginning of time as long as there been bureaucrats they have said i think we can't make any exceptions for you because if we make exceptions for you we've got to make exceptions for exists to provide a case by case out for people who have religious objections but it what is the substantial burden the substantial burden is the same as it was for hobby lobby and that is it's not that the employees will use the product it's not that the daughters will use the product it's that there is as a matter of conscience are are not being taken advantage of well we all have high hopes for our kids that is true we all expect and want them to obey a sleeve to brief they don't know i should be brief this is a combination of religious and parental rights i'm i'm accepting that melvyn saying that seems to me that makes it a much lesser heard me than for an employer well even if it were a lesser burden and i don't believe it is because the interest here in one's daughter's just much greater than the interest in employees and so my but the go about the daughters without insurance in the county if you will and buy the product over the counter or maybe over the counter but they can get exactly and if they do that the parents do not have a referral claim the problem here is not that the government is supplying contraceptives to the daughters if the government were supplying contraceptives to the daughters in another way the parents would not have a  problem is the government isn't doing that the prop and frankly if the kids sneak out and do it on their own the parents don't have a river claim then either the problem here is that that the government has dragged goun and the parents into it scheme of providing these things and that is what violates the parents conscience the same as in hobby lobby it was not the question was not whether the employees were going to use the product the question is whether as a matter of conscience hobby lobby could could provide the coverage it was just that simple and the the other thing about hobby lobby it it reiterated a a long standing doctrine that none of us none of us in this room today and certainly not the federal government can decide what a person's conscience should allow and what it shouldn't club that the only judge of that  is the person who is protected under referee now i guess i'm among the three groups i thought this deal was solely about standing so far all i've heard about it well on i'm happy to talk about standing up that's all i mean if you if you know when that were done that's correct we are here but standing and the first mistake that the judge made in the district court was in finding that the affordable care act is implemented by the regulations was not the cause of the injury to mr or mrs we don't now clearly it was the  we not only allege that it was but we have stablished that it was through minutes of the meetings of the of the missouri consolidated health care plan m c h c p industry against the insurance commissioner for the state of missouri and they attacked not the statute that we are twenty one ninety one point seven two four they attacked another statute directly that i'm sorry that more directly applied it applied more directly in the sense that it empowered the insurance commissioner to enforce it against the insurance industry and so that was all the insurance industry cared about in fact judge twice a week in her opinion noted in footnote number one that one that section one ninety one point seven two four was  affected by her ruling she said it was not directly to issue in that case so she knew that one ninety one point seven two four was still in effect and did nothing about it and neither did the plaintiffs because all the plaintiffs in that case cared about was getting the insurance commissioner off their back now one ninety one point seven two for the statute that still remains in missouri provides for private counsel for one of them john sauer was conked counsel for another one of them to attempts to intervene in that case they were rebuffed by judge slicing and rather than seek an intervention on appeal we looked at one ninety one point seven two four and said that gives us all the protection that we need should we get in the exemption so you like the question about standing like what your actual injury horrible here where the injury hit is this the government is holding a gun to our head and saying this either you give up your conscience or you give us your money that's the injury if if the if mr and mrs wieland violate their conscience and continue to have coverage they will they give up they give up their conscience rights if they give up coverage they will have to pay a fine and the fine is substantial it escalates its several hundred dollars this year it will be several thousand dollars in years to come and if they pay that they've been injured so either way n that is correct and if you look at the last few paragraphs of justice alito those opinion in the hobby lobby he addresses that very issue and says that it is not comparable that as the as the court found in united states versus levy the social security case where amish employers objected  you can't you can't disrupt the tax system this is not anything like that we're not trying to tell the federal government how our money that we're giving to it can be spent what we're trying to do where you get out of a fire where you not meet their burden to establish standing and a different type of claim that was waived was not presented to the district court so i'm actually going to start with the second one because important not to blur the stale what counsel referred to as you know the fine for not having insurance so this is a reference to the minimum coverage provision that the supreme court upheld in n f i b we also call it section five thousand and that provision the people w standing to challenge that provision like in and if i be said i'm uninsured i want to remain uninsured but i don't want to pay the tax penalty and that's they submitted sworn declarations that's how they established standing to challenge five thousand this case is very different it's not just that the complaint doesn't challenge five thousand it doesn't say enjoying the government imposing a tax if we had the windsor uninsured it says we are in short we have minimum coverage under the missouri consolidated healthcare plan they had it the day the complaint was filed may have had it ever since so there is no risk that they will o tax if this might have been different if they had come in with a sworn declaration and said i'm going to drop my coverage the only thing standing in the way is the potential tax penalty to be more for it if they had said it in a complaint yes this is in the complaint paragraph fifty six appendix thirty one it's just in the description and it says beginning in two thousand and fourteen individuals who do not have health insurance will have to pay a penalty as any alleged injury so this is not a case and in fact the complaint repeatedly says we want our daughters to have comprehensive coverage it does not say we don't want them to have coverage and even before the minimum coverage provision took effect in january tw fourteen they remained in the missouri consolidated group health care plan even though that plan covers contraceptives so they just the court did not commit legal error in failing to address a claim that was never presented to  burden that the m c h c p would actually give you the plan you watch and they could have done they could have tried to meet their burden in two ways they could have said the m c h c p agrees with us see we have a declaration from that they did not do why we don't think there are reading missouri law correctly or more importantly why the m c h c p disagrees with the plaintiffs reading of missouri law but it's not this court doesn't need to resolve  law means in order to affirm the district court's judgment which said you didn't prove that if i issue an injunction that says the m c a doesn't have to include contraceptives that you'll out because of the huff decision and said there is no longer a state law basis on which to allow the opt out roll so again it was their burden to prove that if they got an injunction that permitted th particular third party to give it the plan it wants that the third party would in fact do so and they did not submit a declaration from the m c a and like the submissions they did rely on actually say the opposite they say no we must put all of our role is in the same plan briefly this relates to the merits as well and why this case is different from hobby lobby and all the other employer cases there hobby lobby of course was the employer and it was the regulated entity if it's group health plan did circumstances the government needs to make the preexisting accommodation that had made available for certain other employers nonprofit religious organizations that's a less restrictive alternative that ensures that all the employees get contraceptive coverage and that should you know is available to for profit employers as well there is no case like this one or n o c that federal statute no regulation that would allow an individual plan participant as one of one hundred thousand participants in the missouri group health plan to say you need to tailor the plan so that my premium doesn't cover services that offend my religious beliefs or you justice roberts said in where there was just one person saying i don't want to pay these employee benefits because of my religion and the supreme court said no the system as a whole isn't workable if we let people opt out they didn't look at mr lee and isolation oh centro reaffirms lee and recognizes that there are many contexts in which uniformity will be independently compelling just said that wasn't the case for the controlled substances act that was not like heroin it wasn't like all other schedule one drugs that there were only one hundred thirty members of the religious sect who sought to use wasta that there were special protections in place for the members of the sacked and little risk of diversion and also said you know if any promoting in the affordable care act is that you have a uniform set of benefits for the covered group of insured it's not a tailored you know to you and you and you and you based on religious beliefs or anything else so this is much more like congress one of the opt outs in group no we're making this is a strict scrutiny argument under referendum congress did not want exceptions no matter what congress said only you know except where there's a compelling interest and this is the least restrictive means of advancing that interest of the points i'm making are in the rubric of strict scrutiny so there and that's how lee was decided so there are yes of course reference contemplates exemptions that's exactly what the statute is about but not always and not particular claim and is there a principle basis for limiting it to that claimant or is some small group of claimants i'm looking at the compelling interest of the government and here it is having a workable system of group health coverage and you cannot have tailored participant by participant here we have one hundred thousand beneficiaries in the misery group health care plan and there is no precedent for requiring an employer to say ok i need to design the planet you know potentially one hundred thousand different ways obviously not everyone will have a list beliefs but at least in theory one hundred thousand different ways that to be group health coverage and again so the say we challenge five thousand and i just said that that would be like hinder and they wouldn't have established injury in fact if they had played it to say we've dropped our health insurance because it now covers contraceptives that was august twenty said we don't want hell i've obviously ever they want health insurance but faced with a choice between having a plan that covers contraceptives and nothing we opted to go with nothing and in six months will  fine and we want an exemption from the fine they would have standing obviously we would not say they but the complaint i'm picturing you know if we can't have it through the missouri plan we really want to be  they neither said if we can't get it from the m c h c p we want to be able to try from another insurer you know with the benefit of an injunction rather with this tells me that th there were dozens and dozens of employer suits this is the only employee suit there's this one district we're proceeding in which the employer and a couple employees are both present but there are this is the on the case and the reason that they don't want to give up their employer coverage is that it would be much more expensive even if they could get the plan they want to then go to the individual market because they would not be eligible for subsidies they want subsidized coverage from the missouri group health plan they just want missouri to give nonparty and the problem was they didn't prove that they if they just got an injunction that would allow the missouri to give them the plan they want that missouri would do so they big didn't the simple way would have been to put in a first of all i would like to put one thing to rest the second prong of our redress argument was vigorously argued before the district court  argued two things for redress one and it's in the flow chart my friend did not continue reading on the flow chart which was provided to the supreme to the district court the the flow chart under injunction says the first choice is paul and terri wieland obtain contraceptive coverage from misery consolidated health that's the first option if that happens p teresa we are very happy and that will happen under one ninety one point seven two four which forbids it for four bids discrimination against people making claims like the wheeling but then the flow chart goes on and this summarizes arguments that we had made all of which are referenced in footnote number six on page eight of our reply brief and also in our letter twenty eight j response letter filed last friday on september five we put we put in there all of the places in every single brief and of course as counsel noted in the complaint this question of if we can't get if we can't get what we want from m c a cheapie then what happens and we argued all of that through the court now the next put thing in the flowchart is even if for sake of argument insurers refused to provide the whelan's with a contraceptive free plan the whelan's may choose then not to provide their daughters with coverage at all but if they do that they'll lose they'll be fine so the government has given the whelan's two choices and we spell this up in the flow chart in either hand what you just said is that what the government what was the the relief is that if we were forced into a position where the only way that we could be in and consistent with our conscience if we were forced in the position of just dropping coverage altogether then the relief that we're asking for which is that the that this mandate can't be enforced against us the contraceptive mandate can't be enforced against us so that five thousand well it's it's really the contraceptive mandate as up lied to us through the individual mandate in other words it's like it's like this it's it's like all of the imperial real terms what's what's what is it true that the nature of difference between your language and what council says is five thousand or five thousand a is the individual mandate five thousand a says to use an example the mandate cannot be enforced against us the same as it was in an economic and that that to me is i mean and this is that this is a case with thousands of pages and years now of history i don't understand what you're saying well you policy that is available to the wayland's has contraceptive coverage and i have used they are looking for a way out with the injunction say the injunction rules next five guys i want to know that i want to know th it would enjoin the government from requiring that the whelan's obtain for themselves and to provide dependents with health coverage that includes coverage for contraception that's one two it would enjoin the government from requiring that health coverage provided to the whelan's or through them to their dependents would include contraceptive coverage and three and we took this right out of the language of an ex and their dependents includes contraceptive coverage so it doesn't require the reading i'm reading from the conclusion of our brief and we put that in the conclusion of the reply brief also so those are the three things and frankly that language was picked up directly from the annex medical preliminary injunction that was that was your poetry what is this what i protection for the insurance company too we simply asked we simply asked the district court to enjoin the government from requiring that we lens to obtain for themselves and provide dependents with health care coverage that includes coverage for contraception that covers