may please the court hobby lobby confirms that notre dame's religious belief controls and it believes that the acts and dated by the accommodation connected in a way that is sufficient to make it a more all that is left is the strict scrutiny analysis and this court and well the decision of her before you go of further i have difficulty understanding what exactly you want the preliminary enjoying the government from enforcing the mandate the statute and its regulations against notre dame that is exactly what the exemption does is it well wait i'm lost you  fully with the statute by doing that and as a result at no does not say you know reimburse for contraception for notre dame staff or students so what do you want done about that you do what you're exemption noticed return to you self certification that notre dame signed was not an exemption your honor it was we were not exempted from the statute and hobby lobby  don't understand the the notices and assertion of your right and then you send it to at nine and aetna says yeah that means we don't supply any contraception or reimbursement contraception to students or staff that notice removed notre dame from paying for the contraception rotterdam's religious exercise no not ok different now it so you don't want it back i take it you don't want to rescind your notification to two two at well with respect to the third party administrators we do because that self certification was the instrument by which that third party administrator then was obligated to provide the services without the notification as justice so why or no why did you send the notification if you didn't want if you didn't want  the compulsion was the requires money was not no the compulsion under the under the mandate and the accommodation is either if you for insured organizations if you don't send the certification then you're paying for the country right to contraception in addition to maintaining a contractual relationship with so sending it removed the paying but it did not remove the complicity it did not remove the contractual relationship with the insurer or the third party administ far as the bill or an injunction is concerned it's not really addressed to the to the notification you sent but to what you call the objectionable contractual relationship well the it would be both right the accommodation and sending the notice is an alternative mechanism of complying with the contraception mandate if we were exempted we would not have to send a notice because we would not have to comply with the  voluntarily no under compulsion of the law no well we wish to claim that you're not required by law to do that so you could refuse we could have refused to send  court recognizes that wait a minute would cut it so on the second part of it the objectionable contractual relationship what do you want the preliminary injunction to say about that it would not have to speak to that at all if we were exempted from the mandate we would be free to enter into any contractual relationship we we wish to well once that new have a contract with that don't you we do it can you are you saying you want us to to do to issue an order which would allow you to break that contract well with respect to the fully insured plan if we are subject to the mandate we we  have to contract with an insurance company right that the mandate requires either you contract with an insurer or you don't offer insurance and then you're fined and hobby lobby already determined that imposing those fines is a  are you suggesting that the preliminary injunction would authorize you to break your contract with that you know if we were free from the mandate we would be free to contract with that not to provide services in accordance with our religious beliefs we could maintain a relationship with that not in which those services would not be provided pursuant to that contract just like churches so when you say objectionable contractual relationship you're not considering breaking with that but just but just what that new isn't contract would not involve the provision of objectionable services to our students or employees ok so you you want to revise the contract so that aetna does not provide contraception reimbursement students right no the contract would not need to be revised i don't understand aetna is providing this reimbursement to your students now you want  for contraception it is it is because of the contractual relationship and yes so don't you want to modify your contractual relationship  has a contract to provide this stuff doesn't this reimbursement it's not contractual it's there if there is not a contract between aetna and notre dame in which at in a says to notre dame in that contract we are going to provide objectionable services to your students that's not in the contract the contract is a contract for an insurance and with respect to the students it's a relationship between the students and students and the insure that is for with respect to the student plans notre dame makes available the insurance to the students with respect to the employees notre dame offers the insurance so notre dame has a contract with merit administer insurance that it offers with respect to the student plan it is simply making available to the students and insurance relationship between the student and the insurer scarce how is the relief you we don't need an injunction against merit again the accommodation under which merit tain operates is an alternative mechanism for applying with the mandate if notre dame was exempt from the mandates it wouldn't need to comply with it it spring claims that notre dame self insures so there would be no need to unjoin merit saying to tell merit tain what to do because the entire relationship with the third party administrators is essentially parasitic of the mandate itself obligation on notre dame that notre dame was removed from that it would be in compliance how how is the i guess i'm is there any practical difference between an injunction that would block the chain from providing that coverage and what you're asking for well again i'm not sure i understand the question your honor if notre dame was exempt that that there would be no basis for which merit tain could provide the objectionable services there was there is would be no injunction necessary to i had understood you to be arguing  curious that in essence you want to be look put in the same position that we can colleges in right now it's a right that's not right ok there perhaps i misunderstood your brief right well in some respects the wheaton college order wheaton did not advance this issue of maintaining a contractual relationship the wheaton decision made wheaton college exempt so we would like to be in a similar position as wheaton was at that time that supreme court order was issued which is the effect was we can set a notice to the government to which it would not to which it did not have a religious objection and as a result we can came became exempt  here we also wish to be exact but we but for us to send the same notice that the government has made as part of its revised a combination would not involve the same situation as what happened in  granting an injunction here therefore would leave notre dame in the same position as the nonprofit plaintiffs who received injunctive relief from the supreme court in wheaton college in little sisters of the poor versus believes that was your rule fifty four statement exactly because again at the time that the week an injunction was issued the notice that it sent to h h s made it exact the revised accommodation that the government suggests is like the wheaton order would not do that so and i don't understand the difference i thought was that wheaton college is telling this court in a separate case that is very unhappy with the status quo because it is sent notice to the government and as i understand it it what's happening with wheaton now but at the time that injunction was issued essentially the supreme court called the government's bluff in saying ok if we can sense that sense that notice will you have the authority to go reach out to the third party administrator and tourists in compel them to offer the services and you know we certainly believe that the government should not under this new revised accommodation the government's taking the position that it can do that and it may very well have done that with wheat the wheat in order so nothing in this order precludes the government from allying on this notice to the extent it considers it necessary to facilitate the provision of full contraceptive coverage under the act that's what's happened as i understand it and so i guess i'm i'm a little used about your position well we've always taken the position that nothing prevents the government from offering the full range of contraceptive services to notre dame students and employees didn't start it which has been this has bee it's intermediary you know the government doesn't usually reimburse people directly for their medical expenses it works through through health companies so could they hire at and say you'll be our intermediary to provide we don't have a problem with the government using third parties to carry out inclusion in it if it if it shows at not to provide it across the country to everybody i don't know what you mean by across the country  does it make any sense of government would say is been dealing with for many years with notre dame and for you know a year or so it's been providing this contraceptive coverage to  students who want it and so the most efficient way to provide government reimbursement is via and not at northwestern i mean at notre dame those is that ok with that the proper the way i understand your honour's hypothetical i think the answer is no because notre dame as a religious objection yes in maintaining it can you just say ted that the government can supply contraceptives two years students and staff the government can do that but the government as you admit that operates through intermediaries now at no would be the natural intermediary for notre dame because of its previous experience so why would it be improper for the government to hire and to be the intermediary making clear to everybody that this was government money this was not notre dame it was not notre dame pains insurance premiums for this again the answer is because notre dame would have a continuing relationship with  intermediary between the government and notre dame if notre dame was free to instead then engage in a contractual relationship with someone else that might solve the problem  understand the problem the government gets to choose its intermediaries certainly you know why wouldn't the choose the intermediary that had the most familiarity with notre dame if it may want to choose that but if it creates a religious for why does your creative religious burden if instead of it at it's it's it's you know any other health insurance company i think judge roven or put this best in the hypothetical she posed to me if you were a jewish school that believed in offering lunch to your students and and entered into a contract with a kosher vendor and then the government passed a law that said kosher vendors must offer port and judaism or anything of that sort it's simply they are insurance company which happens to have a lot of familiarity with notre dame and it just seems you  admit the government can use intermediaries to supply contraceptive services to the students at notre dame i don't understand why you walk at the use of it at that for that purpose rather than some other health insurance i'm not suggesting at nih has a religious belief one way or the other but if the government requires aetna to offer objectionable services and then requires notre dame to contract with aetna that i'm going to hire notre dame ticket to contract with that if notre dame does not offer insurance by contracting misunderstanding your own your own announcements of what notre dame tells its students sumit staff says university of notre dame honors the moral teachings of the catholic church therefore for example university health services may prescribe contraceptive medications to treat approved medical conditions but not to prevent pregnancy to comply with federal law student health provides coverage for additional women's health products or procedures that the university of checks to based on its religious belief this coverage is separate from notre dame students enrolled in aetna student health may call s aetna customer service at eight seven seven three seven eight nine four nine three more information students not covered by  or check with their own insurance plans regarding federally mandated women's health coverage in other words this ad or whatever it is or announcement to the students this is  d notre dame from the provision of contraceptive services they go from aetna to the students and if this and the students call up athan and say you know i want to reimbursement or something like that notre dame's completely out of it so i don't understand if the government now came in and said ok at you continue to provide this stuff and we reimburse you what what's the problem i don't know what this has to do with religion and that's exactly what the plaintiffs and hobby lobby said is that the acts are ultimately in the hands of third parties and hobby lobby you are washed from the notre dame advised its students that they were compelled under the law to have these services provided and and and they stated what the law said and they stated it along with a statement that said we believe this causes us to violate our religious beliefs and these services may cease if we prevail in our litigation notre dame has made its decision but what's the violation if the government goes if the money goes from government to aetna which as you say has no religion government goes to money goes from government at nothing from aetna to students it doesn't pass through anything to do with notre dame notre dame is in a contractual relationship with  you don't have to have notre dame party then thing you absolutely do your honor no and you certainly do with one spec tires that notre dame to have a contract with any insurance company well with respect to itself funded plan it absolutely has to have it and that in this in that regulation itself requires notre dame to have a third party administrator the combination doesn't work without a third party administrator and it has to be part of that contractual relationship and the government will tell you that if there is no notification sent to students right i'm speaking with respect to the employee plan you know that's what artist let it do what about the students well students are keeping you busy with respect to you i was wondering if you'd want to comment on the d c circuit it's a point that's also been addressed some of the by the supreme court about the extent of the government's interest in what i think has been called seamless access that is based on empirical work indicating that access to contraceptives related services drops off if women need to make separate different arrangements for that coverage right now interestingly this whole notion of seamlessness as a compelling interest never existed in this litigation  until that decision from the d c circuit the government never advanced that but to the extent it does now and it certainly is now there's there's nothing that is cited to for that proposition what your honor referred to is a page in the institute of medicine report which is not even in the record in this case that talked about cost as a barrier with respect to mammograms not contraceptives one page in the i o m report the word seamless appears nowhere in the iowa report and there is nothing and i think the important point to me is there is nothing less seamless about notre dame's employees getting a separate contraceptive card from the government than it is from getting it from the third party administ and that actually brings up the second thing that i wanted to raise with you the proceedings in the district court here almost a year and a half ago right and  obviously both factually and legally what we're dealing with here has been something of a moving target and one of the things that i'm wondering about would be  value of returning this case to the district court for development of a fresh evidentiary record to deal with those changes in government policies  d with the understanding of the law that is evolved over the last year and a half what would be your thoughts about that well when we came to you before we we did suggest at that time that we thought it would be appropriate to develop additional facts in the record with respect to the district court but the regulations have changed the religious exercise that notre dame has articulated not wanting to be in a contract with someone who provides for not wanting to file the forms that hasn't changed at all so i agree there may be additional facts and perhaps the government would would attempt to try to introduce evidence on seamlessness although i think the court decision precludes that but i i don't not advanced a compelling interest and that there were clearly less restrictive means available whether through the exchanges or you know ten or other and that that's that's the area where i think we've we've gotten  we've had additional information i don't know how definitive it is from the supreme court about how one might evaluate alternatives under the the river standard that leads me to think that perhaps that might be the most prudent approach at this point and but but i would add that to the extent we went back to the district court to to build additional evidence on this we've asked for is a preliminary injunction while all of that is determined in that preliminary injunction is based on the record as it exists the government hasn't offered anything on compelling interest or at least restrictive means or strict scrutiny at all and so i think on the record that we have before us we're at least entitle to a preliminary injunction and then we can go back to the district court and try to work things out on the  scares notre dame is as you say been required to give no so as we say here sit here and stand here today i think compelled to do any more notice well every day they have to be in a contractual relationship that violates our religious sacrament a man on the on a notifying the government that of their position and no there is not a l a monthly notice or there's not a new notice coming around that that well and following up on judge hamilton's inquiry but let's assume for a second that there was a recognition of substantial burden here on less restrictive that's kind of a fact well it's a it's a fact intensive inquiry for the government to prove yeah but it's not fact intensive to say that at you know as that as as the court a court recognized or as the supreme court recognized when viewing the accommodation for the hobby lobby plaintiff who didn't object to the got two to two that if you don't need much evidence to say we've got title nine or sorry we have title ten we have exchanges students can pull up their i phone and plug in healthcare dot gov  that's not that there is no compelling interest to that would trump the highest constitutional test we have those are least restrictive means i think that well you do that by observation yeah you think this court can determine leas i think that this court can determine that there are alternatives that are less restrictive let's assume that in a global sense that's true but and in a fact finding sense since that phrase least restrictive speaks to i guess eventually one or two options and i'm sitting at asking do you think that's in the province of the public court as opposed to a trial while the hobby lobby court only had to identify one right it said clearly imposing this obligation on for profit organizations is not the least restrictive means because we can identify one other one and that was the accommodation in that case which was fine for those plans so i don't think you have to run the gamut the government does they have to disprove each and every one of them but this court only has to find one in that it doesn't matter that we have really two systems that work here the self insured situation with the university and the relationship with it no no not at all you know is the is the hobby lobby court noted in footnote thirty three the whole fact that there was a church exemption proved that there must be a burden right if if if if that accommodation is an exemption and we get to opt out then why why do we have the exemption that the churches have clearly and that's what that's what the court pointed to it said the government's hard pressed to say that what is is going on here is not a burden because you have to have said exemption and so why give it to time but i don't want to give it to i'm summing knowledge in that that burden or have a fact finding inquiry no because it's the government's burden not the burden so should the so has the government that's what it is has the government proved that there is no less restrictive me it's if they have not then they failed the strict scrutiny test it's the government's burton who has put in no evidence there is no record there is no administrative record there is no institute of medicine report there is nothing that says the word seems your position is that in a blender it should be in place until such you are this notion of complicity in mortal sin it's catholic doctrine yes and where does that come from well if you want citation of the catechism for me to prove to your honor that what notre dame is doing is incentive and i just don't think that's that's not what the well well it's catholic doctrine your honor is it catholic doctrine is the concept of a number of catholic universities and colleges like georgetown and depaul on boston college source of your conception of catholic doctrine well this is that the source of notre dame's articulation of its religious belief is its  and the individual religious organizations do not get as i understand it to adopt their own doctrine so when i when you referred to catholic doctrine i assume you meant the vatican doctrine that rather compromise our conscience by going along with the accommodation i don't see this as a scandal which is a technical catholic term for complicity and sin because we are not giving out contraceptives now that's her that's her religious view it is contrary to what you argue it is not your own it is not at all well you use the term scandal which is a technical catholic term he's saying not a scandal yes in that same blog that your honor is referencing that apparently is a report of father jenkins statements at a meeting to discuss civil disobedience and flo the power of this court and the law father jenkins also said we're complying under protest we feel this is an infringement on religious freedom but we have a variety of factors to consider like legitimate government authority and the does speak to compulsion and how circumstances can change under directs and the concepts of scandal but i think the fact that the government was successful in coercing notre dame to violate its religious beliefs doesn't make the fact that they are honoring the law in society as evidence that they never believed it in the first place so georgetown and these other schools what it what is their status under catholic i don't represent georgetown i know that every catholic is ultimately cause called to make his or her own decision as to what constitutes a violation of their beliefs or not and notre dame has come to that decision as have obviously multiple bishops diocese schools congregations of nuns health care systems and publishers who have made the exact same moral decision what georgetown does for doesn't do i can't speak to now in your student go your open enrollment decision for two thousand and fourteen it mentions america tains contraception coverage and there's no suggest there's no under protest language it just looks like an ad litem now now that now you students have another option now you have marriage tains contraception coverage why and why is there any suggestion that that this is not a desirable service well that language that your honour's speaking to is taken directly from the code of federal regulations as a notice that is supposed to go to employees and students and notre dame obviously feels an obligation to answer questions to do what it students because they couldn't have made it clear and also said the guide the guide says that marriage ten would provide contraceptive services as long as you are and rolled in the university's medical plan now wouldn't it be a breach of contract if you were to terminate those services for students who are still enroll no it would not begin your honor because that note that language as long as you're in rolled in the plan comes from twenty six c f r fifty four nine eight one five dash twenty seven thirteen eighty nine so does that mean you are bound to provide if you continue provide that employee and printed it in the observed her and issued it to w n d you and all of the news services that says we are litigating this issue it violates our beliefs and if we win it will stop so there is no if your honor is trying to bring up kind of a detrimental reliance contract issue the issue of this litigation and notre dame's belief that it wanted to stop this and that it would stop this if the courts recognized its religious beliefs that that would  and sort of our what we have to add to what we've said before is pretty brief sort of just with respect in particular to the issues that the court raised this i'm i'm sorry your honor was not better the court previously held that there was no substantial burden hobby lobby gives we think no through all the reasons why we think that's so the court asked questions about what a preliminary injunction would do at this stage and mr commerce answered correctly that there is no further notice that notre dame is required to provide it so that at this stage while i understand that notre dame is complaining about an ongoing association with its in in terms of the notice that it is providing the notice has already been provided and even in the supreme court's injunction in the wheaton case which plaintiffs place some reliance on the supreme court made clear that the government in that case could use the information in order to effectuate the accommodation and so adam minimum that would continue in place even if there were an injunction and we don't see any basis for issuing one obviously with respect to the question of whether the compelling interest slash least restrictive means it's in courts kruschen whether to aston district court to address that in the first instance we disagree i think that that is a that it was a less restrictive means and the government's look at ministry of record is very much like the whole history of how this accommodation developed you know there have been many iterations of but taken do is to achieve the balance of getting seamless coverage for women with trying to the greatest extent possible to respect the religious convictions of nonprofit organisations and that is what the entire record really is all about it's not the case that this is a foreign concept that suddenly been injected we couldn't argue the point the last time we were here because of the court cases into lardy it's the d c circuit recognized that it could consider the least restrictive means compelling interest question and we think that this court can do the same and i think mean fully less restrictive than the accommodation in the amended accommodation i think they were pretty clear rid of the title ten and directly new direct federally funded program providers whe sort of established a single payer system system across the country for contraceptive coverage i think in some form whatever wherever whatever law that was attached to but i think that's what mr  saying it in response to the court's questions is if there were that kind of single payer system so that there was no sort of opt out of any kind it just was going to apply to everybody equally i think that is the only alternative that plaintiffs would find except the ball and we don't think that the government is required to do that on their at least restrictive means compelling interest in crete and what the government used to mean is it is already arranging for separate payment it is doing it is coming in and it is making the payments it's a it's like notre dame has no involvement in this and the whole point is that i think is this court recognize that it's prior decision this is sort of a question of look at this you know having to just all has to do is to raise  i don't want to provide it everything else is done we think that that's the not only a less restrictive we think in every meaningful sense that's got to be the least restrictive than anything else is going to impinge on the rights of the students the employees and their dependents in the supreme court reiterated on both majority and justice kennedy in hobby lobby that the court has to also take into account the impact on third parties so we don't think that to the extent that the court is going to consider the question of compelling interest least restrictive means obviously could remember we don't think that it needs to are is it that we should revisit substantial burden should is it the least restrictive perhaps not compelling interest and i'm not sure because of examine that we did not if that's the case when when they say in light of in theory someone shining the right for an inferior court to reflect on so it just seems to me we we need to answer the high court in some fashion maybe with the same answer that was given by the majority before but but there is is is substantial interest not to be  excuse me i think that the g b are believes that for this court certainly this court needs to look at all aspects of its opinion in the crotch private opinion was fake it and the i think hobby and sort of made on the fact that there there was no opt out meaning and the court doesn't make one hundred percent because obviously it wasn't deciding this case and was making it very clear it wasn't deciding the next round of cases in which it was fully aware but i do think that the court's reasoning was you either provide this coverage or you face the financial penalties and we think that the the the that that doesn't suggest that if you raise and go i didn't i'm opting out so with daughter dame having the opt out or check the box option that the existence of the accommodation as as the structure on which it built its decision by saying well you've demonstrated that there is is a risk reso and so what about  the pardons should we think should we focus on a christian own corporation in a lie there then a leading catholic institution of higher education or should that be should they be the same i mean we i'm not sure that i understand the question i mean we're not well i'm just i'm just i'm trying to draw the parallels and in kind and tease out the teachings of hobby lobby i think that hobby lobby made clear that certain arguments were not available to the government that we must be so even though we think that it's teachings sort of strengthen our position here certain arguments were taken off the table and so to the extent that the court may have thought the courts of appeals look pretty hobby lobby we're relying on any of that kind of reasoning that's that's pills right i'm not sure i don't see why there isn't a hobby lobby that actually relates to our case i do think that it's an analysis of the purposes that are being served and the fact that this is certainly a less restrictive means even though the course that didn't pass on whether it was the least restrictive means are relevant and the court again repeats and you know  respect to the notion of seamless coverage you know as we've noted in our state and we tried to point out a number of the times that the supreme court says that and seems to take seriously the idea that the effect on the provision of con coverage to women will be in the courts where it's precisely zero and on the other hand in terms of burden that the institute that the institutions eligible institutions are quote effectively exempt and we think that tho r but we also think that it that sort of sending it back to go look we've issued a relevant decision is not something extraordinary and doesn't necessarily reflect a view court has to grant cert and the other district of the circuit court cases do you think it's fair to read into it that they want to more developed record it in our case i'm the question restrictive compelling interest question because we do think that if for any reason the supreme court were to disagree with us once the substantial burden we certainly would hope that it would go on on to the rest said before is look very much like an option like with the t v aren't that the court doesn't like expect that the court is going to change its position in light of that and i've really  good afternoon and may it please the court i want to follow up on something mr kerry said which is that priest for a life was the first introduction of the notion of the importance of seamless access to contraception and i want to read from the federal register which accompanied the enactment of the first accommodation and it says this and this is just one of three places that i on a very quick review over there was able to find mention of this and i'm quoting from volume seventy eight page three nine eight eight eight and it says the affordable care act contemplates providing coverage of recommended preventive services through the existing employer based system of health coverage so that women face minimal logistical and administrative obstacles imposing additional barriers to women receiving the intended coverage by requiring them to take steps to learn about and to sign up for a new health benefit would make that coverage accessible to fewer women the same concern undermines the effectiveness of other commenters suggestion that the government require the multistate plans on the exchanges to offer a standalone contraceptive only benefit to all women without charge and that  as mr stern mentioned does arise throughout the federal registrar and so i think that that the importance of seamless access to coverage really can't be overstated and the underlying compelling interest to can't be overstated you know i listened to this conversation and frankly it's a little bit academic i mean what getting lost here are is that there are six point six million pregnancies unintended annually in this country forty percent of them lead to abortion and the others who carry those  over two million births unintended pregnancies that lead to live births create a host of risks both for women and for babies and that compelling interest i think the magnitude of that truly can't be overstated and the government has bent over backwards to allow accommodations now a second accommodation since the time we last were here so that entities like notre dame can step aside from providing that coverage themselves now we are you've already discussion mechanics of the accommodation and so i'm i'm not going to belabor the point other than to say that i want to freeze the moment in time when a nonprofit registers its objection through either of the accommodations that the government has provided at that moment in time the u s could have decided that's it and game no contraception is going to be available what it did instead by enacting a separate regulation is to require someone else to pick up the ball and that stands in sharp contrast to what was the case in the hobby lobby which is the entities themselves who are required to provide the coverage and as your honor pointed out today even notre dame has acknowledged on its website that that coverage is provided separately from the university and i agree with mr starr in that hobby lobby sheds a great deal of light on how one might look at the compelling interest and the least restrictive requirement alternatives of the religious freedom restoration act but i want to take a little time to just talk about how even if there is a substantial burden on notre dame even if there is no compelling interest or the least restrictive alternative was not employed there are other factors that one needs to look at in deciding whether a preliminary injunction ought to issue and the most important of those are balancing the irreparable harm is here both to the university and to the women and to the public and here what we have is a situation where notre dame has already complied with this accommodation you can't unring a bell the united states has the information it needs to provide this contraception and in that sense as an aside this is really like bowen bowen the royal which was a circumstance where a native american objected to both the provision and the use of a social security number and each of the nine justices on the supreme court said the government already has it so at this point the government just has to run with it and that's the circumstance we have here so notre dame is really in a very different me in contrast we have women here or who have access in this coverage employees and students and what's the irreparable harm to them it's not just the lack of contraception in an academic sense it's the fact that some of these women are going to get pregnant and they're going to have unintended pregnancies and they're gonna have to face what comes from that and in my opinion it's not even comparable in terms of the magnitude on one side and the other and that's what i  what the plumber junction would be are you saying any poor marion junction would foreclose access to all these services well the preliminary injunction that notre dame is asking for is one that would disallow at now from providing the coverage or one that would allow them to terminate their contract with aetna in so far as it persists and offering the coverage so in the end well not the only way to accommodate their religious objection with regard to a plumber junction let it not a possibility that junction can be killer to honor what they consider their facilitation being a conduit and  still recognise that on the ground the reality is that which you speak of are not affected you your honor would have to ask mr charisse that my understanding is the answer is no there is no injunction short notre dame to contract with an entity that would not offer the contraceptive benefits to its students and employees outside the context of the government and acting a whole new program that somehow doesn't use their insurance company but instead creates a whole new scheme by which women who are either their students or employees gain access to contrail now the junction which honor their involvement minimal though you think it is from the processes my understanding is they want to remove themselves from having to remove themselves the exact yes and that is as this call this court said earlier sort of paradoxical i mean how is the government supposed to operate a system like this one or like the draft system for example without asking those who want to step aside to inform the government of the wish to step aside and it so you would say they'd have to revisit the legislation the way they did in their decision to exempt religious organizations that would be the answer to for notre dame or no to the way they should lobby of the legislature the national legislature to to place them under the umbrella along perhaps other si situated so they would be the equivalent of the archdiocese of the york or chicago that's right what they are asking for and i think there are quite explicit about that in their brief is to be treated no differently than churches which route results well i think they i think they federal registers the portion but not the particular portion but that you know those sets of pages do talk about this and they talk about how it's a reasonable assumption that churches employ like minded coreligionis and that of course is in sharp contrast to notre dame which has thousands of students and does not require any of them to have to be catholic and likewise with their employees that that is not a clear understand oh thank you just a few points you know the real problem people keep saying but notre dame by sending that self certification opted out that it's just not the case it couldn't be further from the case and that's what made her name as articulated and importantly although the certification has already gone in the mail the regulation itself requires two things and i'll read from it it says if it if a third party administrator receives a copy of the self certification that already happened and enters into and remains in a contractual relationship then it provides the services at no cost so though the self certification is provide those services and less in that contractual relationship with us right which violates our right so you want to break here contract with america no we've we were given the exemption then then the services that the third party administrator would not be providing the services all they do is administer our existing but i would be modifying your contrary we would not be modifying our contract we have a contract with them to administer our plan and it is the plan that is subject to the mandate if notre dame was exempted the plan would not be subject to the mandate and the third party administrator would not be providing the services so that is the that is the objectionable relationship judge flarm you a that the relationship with that it's the same thing with aetna with aetna if we are not in a contractual relationship we are fine right we can drop the student plan and not incur fines but it is part of our religious exercise and makes us at a competitive advantage to offer that plan which was recognised in hobby lobby as valid if we did not do that we would be coerced into violating our religious beliefs so what what relationship would would remain between you and between notre dame and that we would we would what if we began if we were subject to the exemption at not would not have to provide services under the mandate we would be exact it wouldn't change the contract but it would change the moral implications of the country the ground let's say you you you were exempted hypothetically what will happen to students now and then day with regard to the well my hope it you know at least according to the government and the students is the same as was noted in wheaton that to the extent that notre dame was exempted of the mandate nothing would stop the government from redressing all of those harms  accomplishing all of those interests that it says it has by offering whatever it wishes to offer to the students without notre dame's involvement every single harm that's identified here can be redressed by the government no i'm sure it may not be in the  the big provider of this nationwide is it not that these students i mean you aren't unique university here in dealing with it i don't know what insurance companies are used at other universities but obviously you don't know anything about it  with respect to other universities or so so your suggestion is that the government then if you were exempted out  through services to the very students that we speak of at any minute as a hobby lobby court noted and as the court take court noted the government has a number of alternatives available to it it could it could modify i've got this is a substantial burden on my religious school use to require me to pay taxes to cover the program right hobby lobby talked about that example explicitly and said that our courts have already determined that under strict scrutiny that doesn't gel and so the religious and why you believe why is not of why is that a principled line that anybody of true religious faith should accept as to sincerity no as to whether it's a bird because hobby lobby lays out the test because the supreme court said so the supreme court said and i think that answers the question of why are we here is this court's decision didn't go to strict scrutiny at all so it can't be about developing a different record on strict strict scrutiny because the g v our standard is that there is he there is at least likelihood that the court would reconsider its decision and based on a premise in the original decision and the only premise in this court's original decision it is that there was no substantial burden because the accommodation washed notre dame's hands of participating in permitted to it to opt out and hobby lobby says the only test is simply asking the believer does your act cause you to violate your religious beliefs and the substantial part is is there substantial pressure in hobby lobby there were fines in there the exact same fines here so what makes hobby lobby so important it was only about one thing it was about substantial burden because that's what this court's decision was about didn't talk about seamlessness it didn't talk about any of these things it only said not with respect to the student plan with respect to the employee oh yeah let's talk about the student that the plan is between this the at night and the students notre dame is not a party so what is the problem for your for notre dame's religious believes that there is this plan to which it is not a party because notre dame offer a shot at insurance it makes that i don't understand how it can be offering the insurance if the plan is between aetna and the students because now we know that notre dame by its opt out doesn't have to pay for any of this contraception so what does notre dame says business with this plan i guess you can you can view it in terms of brokering your honor notre dame makes the plan available to its students students who are on that notre dame plan funneled through the notre dame held center notre dame tends to them on campus as part of their infrastructure directs them where to go but to then it gives them a phone number know then when a student on the notre dame student plan gets a cold they don't go out into south bend and go find a cold doctor and then submit an insurance form it is through the notre dame relationship and through the notre dame health center they are they are told where to go they are counsel me they order contraceptives through the notre dame l services no no no i'm saying that no as far as contraceptives is concerned notre dame is not involved notre dame believes that it is it is not involved it is not part of the transaction the students don't go to a health counselor at notre dame and say i want a contraceptive could you put me in touch with go to notre dame and ask the question and they do on a day to day basis no they call the phone number that's what you told them to that's what the and roman god tells them to do and paul said right and the problem with how this mandate operates in reality is that you have a bunch of students on notre dame campus that turn to that school and its administrator and their da this isn't in the record of course no it is not but i'm suggesting it is nice to have a record but i don't feel i don't necessarily believe you are right if you don't know you're guessing so wouldn't it be good to have a record in the district court about the actual relationship between notre dame and provision of contraception to its students it wouldn't change the fact that it would change the fact if in fact nobody employed by notre dame has anything can and has any contact with students who are seeking contraceptive coverage wouldn't that affect the case it wouldn't affect their moral determination that their relationship with that when they didn't have a relationship maybe maybe not for you your honor but for their concept of scandalous suppose a student at notre dame  his website so she calls up calls up at night and says i'd like this insurance now with the fact that she was a student at notre dame make notre dame the out of it let's have another health insurer they could write metropolitan life or something so this student calls up metropolitan life instead of that that also is that also make notre dame complicit in sin if i if i understand your hypothetical correctly it is that a student reaches out to an insurer not affiliated or in a relationship with notre dame and enters into a contract pursuant to which it obtains contraceptive coverage without notre dame's and rightly that is a religious determination my sense i think it's ultimately up to notre dame to answer that question my sense is that would not be a problem that removes the contractual relationship problem and if notre dame is not a part of it and it is not an entity with which notre dame does business or has a relationship and that student enters it into its own separate just have a campus policy i may be way off base on that but let's assume that for a second california i'm trying to is there any reason you could not under reform is there a reason that notre dame could not articulate that religious exercise if it believed and you could choose that policy sure if it if it had a sincere religious belief in that which it does not but if somebody else had a sincere religious belief and that they certainly could articulate that and then you would go to the strict scrutiny analysis and so i just want i want to just be clear on this substantial burden is recognized and and the exemption is appropriate would it be the university's position that it would only maintain a broker relationship or whatever the appropriate description should be for the health care plan for the students with provider that does not in any event offer those services to whom june stupes right notre dame has an articulated that it has a religious objection to entering into a contract with a company that provides the objectionable services to its students right which you did which you have now right correct your if you're in that's where we all should so you would be about the universe to be about finding a provider that does not do that as well right that if notre dame was given the benefit of the exemption the mandate would apply and at no would not be providing those those services to its students pursuant to those contracts and i knew more  that the the the provision of the services by at night is not really part of the contract that aetna decides you know what what to what to provide yes notre dame negotiates with that night and for years has negotiated offering an insurance plan that did not include contraceptives that is not correct but then of course they were forced to change right now the contract  likes this new deal with life's providing this contraceptive coverage maybe it's a lucrative floor of insurance then if you don't want to have to do that anymore aren't you asking to modify that well see that's what i don't understand they have a contractual obligation to provide this contraceptive stuff right they have an obligation under the mandate to provide it as long as they are in a contractual relationship with no today i know but that doesn't imply unilateral authority to rescind the contract i mean obviously your contractual duties are co terminous of the contract but that doesn't mean that the other party can say oh contract is over i don't need you anymore if it has a term that has provisions about cancellation and maybe compensation but but but that contractual relationship both with marriage tain as an administrator and he and any relationship with that night as an insurer has been always been one that does not  include those services including now but while in that contractual relationship the government adds on to that relationship the objectionable service is changing the moral consequences of the contract sure and when the moral consequences change notre dame would lie and tells my problem is to terminate a contract with someone who is not a party to the case in which know providing these contraceptives and maybe that's a lucrative business for a loves wouldn't you have to deal with that if you wanted to suddenly take away part of their business know the contract has not changed as a result of the mandate only i don't want to claim it is of course that a contract can be changed by an experiential floors if the government says your contractual obligation now includes contraceptive coverage which is in effect what it did that is now an obligation of that that's not what the mandate says the mandate says your obligation under the mandate under this regulation is to provide the services the government didn't go in and add writers to existing contracts all around the country the contracts are the set it is the mandate that requires these parties to provide services that can only be provided because of and for the duration of and when in a contractual relationship with notre dame that is change the moral consequences so if the exemption was offered the services wouldn't provide the contract though would say the same thing tomorrow as it said a month ago as it did in december when we first came before the district court contracts haven't changed so your contract with it and it does not mention contraceptive contraceptive coverage no it will it doesn't include it doesn't mention it no and nor with maritime there is no there is no you're going to process contraceptive because i mean there are there are circumstances where contraceptives are offered for i know reasons thinking you know in those are covered so to the extent contraceptives are mentioned you know yes but those contracts have always excluded that coverage and the government pursuant to the mandate didn't mail out riders to beasts stapled to the end of every contract then they do that in effect by the man well they changed the moral consequences by the mandate of that contractual relationship and again all of that would disappear if notre dame were granted the exemption that churches are exempted exempted and hobby lobby noted that where the government offers this exemption and says we're doing it to respect our religious liberty they must recognize that not offering that is some type of burden or they just would have said to the churches hey we've got this great accommodation it's an opt out b lobby  yes hobby lobby did not well i don't think that's really established in the record but in in the opinion and hobby lobby the court said that hobby lobby had not articulated in objection to the accommodation notre dame does and it's entitle to under hobby lobby that's the whole point is it's up to the believer to state his religious exercise and it was the same argument that the government was making hobby lobby you've been washed from contraception to use because it's third parties that are doing this and that's what the government says today in order to end you've been washed from this because we're going to make third parties do that in the hobby lobby said that that's the wrong question and that's the wrong analysis all that analysis all that matters and substantial burden analysis  degree of coercion and here it is the fines and it's up and it's up to you know we can we can say hypotheticals would you object here and would you object here that the problem with the more analysis is when court or anyone start saying well if you accept this then you must be able to accept the accommodation because i see a logical connection in there the same but but that's not what faith is about it and you know you know that the kosher diet jewish the ans state affirmatively that there is no logical basis to the rules of the kosher diet and so if you say well it's ok to eat a fish with scales and here's a young swordfish that has gayle's you must be able to eat is no they can't because an older swordfish might lose it scales we can't go into saying well if you can eat that you must be able to eat this it's up to the jew to say i'm telling you what the rules are this is my religious belief and there's nobody that can second need notre dame to weaken your case because then it becomes a question of balancing the governmental interest and providing contraception free of charge and  dame's religious interests well that's right but and that may be part of the strict scrutiny analysis but with respect to burden the government by being here has to concede that notre dame has to take to make this scheme work well that's like paying taxes right yes and the religious people do have to pay taxes they do well this is a kind of t to a governmental program of facilitating contraceptive coverage for which the government as articulated substantial reasons wouldn't it is goes back to judge fl question wouldn't it be valuable to have a trial at which these different interests were evaluated if if court a didn't already decide the strict scrutiny question in this circuit and the reference was made to the d c circuit based on july r t g lardy was vacated by hobby lobby corteen was not cortinas still good law you don't need that evidence on a substantial burden issue because there's no facts in dispute the hobby interest having do with women's health and wanted none wanted children all sorts of other and of course abortion the less contraception you have the more abortion so there there are these considerations which argue for the provision of this free contraception so does not have to be balanced against the complicity and send belief of notre dame which doesn't seem to be a general catholic doctrine the only balancing in reference is the strict scrutiny analysis with respect of substantial burden there is not a balancing test i don't understand  the refer statute i mean if we talk about taxes you say religious people have to pay taxes so isn't that a matter of balancing religious against governmental enters a right that's the way it was didn't it why is this this is less clear cut obviously the why is why isn't this the same type of analysis you balance the government interest against the religious but tonally interest hobby lobby spoke to that balancing test specifically and said that that balancing test is part of the strict scrutiny analysis footnote thirty seven to what is the strict scrutiny analysis the strict scrutiny analysis is if there is a substantial burden and i think hobby lobby demonstrates that in this case there is you then identify whether there's a compelling interest which the government has been talking about but here it's a compelling interest as to this specific plaintiff not a compelling interest in contraceptive and women's health in general but only the compelling interest articulated with respect to employees at notre dame and students at notre dame that's fine and then you identify that interest determine whether it's compelling and the hobby lobby court certainly cast that it is soon compelling interest for the purposes of the opinion but didn't decide it and it and it noted when making that assumption that all of the millions ninety million americans that don't get seamless coverage because they're not subject to the mandate whether they're employees of churches or whether they're small employers or whether they've been grandfathered undercuts compelling interest but if the court if the government can prove that there's a compelling interest not in free contraception because that the government can give free contraception however it wants but free concert in such a way that is seamless with notre dame's health care offerings for notre dame's employees if they can demonstrate that then they go to whether the way that they have chosen to do it is the least restrictive means that is there is no other way to accomplish providing free contraceptives to and notre dame's employees and students and the way that a college or those interests what they're going to say i the efficient way to do it is use the existing insurers as the vehicle for the provision of the government the government doesn't get to doesn't get to prove and again districts retest is the most demanding test in constitutional law it doesn't get to prove that by saying this is what makes it most convenient that would fail miserably what it needs to say is this is there is no other way of doing i don't agree with you because the balance on the interest you is syria is weak because it's not this is not catholic doctrine this is some notre dame well that's a pretty dangerous determination to make from the court as to whether sincerity of notre dame's religious not a matter of sincerity it's a matter of how important it is relative to the government and all but nothing could be clearer in constitutional law that the courts are never to amend it's any exercise any religious exercise not only ones that are central to the faith not only ones that are important whether it's a jew not flipping the switch on a saturday the court is never in a position to determine i think the flips that switching really isn't all that important or is weak it's only for the believer to say they're religious exercise and they all must be respected and if the courts start to terminate which religious beliefs are weak or which religious beliefs are strong then that takes away the whole point of referral which was read to respect don't you believe that or is it your position that if there are hearings and i understand about the flip the switch analogy and all that that a hearing on the balancing of of the depths of this particular aspect of catholic faith as against the government's interest and let's assume a compelling interest for the sake of us wouldn't that be sharp come into sharper focus if it wasn't just an exchange between counsel and judges i'm not questioning in any way the law as you might suspect the depth of the faith i'm just saying that these are bumping up against each other you know where we're struggling to respect in that and at the same time understand governmental interest when you think of me in sharper focus if it is that that played out in the in the in hearing i think it would with respect to the strict scrutiny analysis yes but with respect to whether there is a you know a religious exercise here and whether well let's let's assume there is a religious exercise that it would be involved very well involve a substantial burden and then we have to move on to recognizing that let's say in an honoring  to to do that without some understanding of how they're going to execute this compelling interest assuming your honour's question as i understand it is that there would not be any use for additional facts or anything other than colloquy of counsel on the substantial burden pop part i would think not i wouldn't preclude it i mean if if those who would question apart from sincerity that the central of the of this particular debate as to what central and what's not that's my point is with respect to some trial of the religious burden part of the riff or analysis i think i think that you do need to preclude evidence about that the only evidence that's relevant is notre dame articulation of its religious exercise and that the acts violate its religious belief you can have development of a record on sincerity that's open for the court as to whether you really believe that on lots and certainly the  brought that into question it was never contested by the government but the rest of it's not open to facts square strict scrutiny absolutely is your right development of a record on compelling interest and least respect restrictive means in the abstract would benefit from a record the problem is it's the government's bird and the government has offered nothing on it and so with respect to this preliminary injunction it particularly in light of court is that still good law that issues over and so i thought so the injunction needs to be issued but you're and i'm going to let the jury decide which she is and we said no you can't do this is a religious issue and since this is a catholic controversy we will said she is not a religious system and we said that is that no court can re examine this determination my did be useful in a case like this to see what the congregation for the doctrine the faith believes about the complicity with morals and we have disagreement among you know distinguished catholic religious organizations that would that be appropriate or would you consider that not a proper thing for a court to do but we cited mccarthy to your honor in in our in our briefs in this case and i know your honor turned to the to the vatican for an answer on whether or not she was a nun which strikes me as kind of a factual issue not a religious issue it's a hierarchical issue she she not to maybe the vatican and i think in fact the vatican has something to say about that she here we are talking about notre dame's articulation of its religious beliefs i suppose if you wanted to get into cut catholic hierarchy each bishop priests and there is one unified issue rather priests and bishops and theologians and and cardinals throughout the world are constantly trying to develop answers to moral questions occasionally and extraordinarily rarely the pope will issue a statement under infallibility in which he speaks on behalf of the entire catholic but that's not how catholic faith operates all of this i think is beside the point because unlike in mccarthy which dealt truly with hierarchy this deals with religious beliefs and all of the jurisprudence in united states on these issues has always said that it's up to the  particular plaintiffs in that case to articulate what his religious beliefs were in every time someone articulated a religious belief that the courts instead would say i'd like to talk to your pastor i like to talk to your rabbi and you know what i don't believe a rabbi i want to talk to the guy who is his boss and we we need one grand master of each religion to speak on issues of religious faith that's just not how it works and i think the courts are precluded from doing that rather what we've got is a believer's intitled to articulate what his belief