good morning mckerrow somebody half of the tennessee and michigan catholic entities i would like to reserve three minutes for rebuttal these cattle again an easy exercise their religion by contracting with insurers administrators who provide services to their employees only in accord with catholic faith the mandate renders that religious exercise impossible and instead appellants are pressured to violate their beliefs by continuing a contractual relationship with insurers who provide these services and who do so pursuant to a relationship that appellant's have created by contract the government does not contest that the appellants have made a religious determination that the role they play that the acts they take violate their beliefs and for the government to continue to assert that the accommodation that it has created sufficiently insulates the appellant's is to simply disagree with their religious judgment the standard in this circuit under the living water case and the standard that the seventh and the third circuit's have set in in equal cases is that in a r analysis it is a two part inquiry one in quoting luke living water which was a really poor case identify the religious exercise and then to assess whether the government has pla on the appellant's to take the action rather than refuse and living water the court asked the question does the government action play substantial pressure on a religious institution to violate its beliefs here or it has to be clear and convincing or whatever the first congress can they prevent the subsequent congress from doing whatever it wants under an easier standard sure congress can and act any set standard congress can can say all laws have to apply have to respect his religious beliefs unless somebody says we're not going to apply by it the government has not even suggested here that refer doesn't apply so you're saying there's like a canon of construction that says that it earlier congress can bind a later congress i thought it was the opposite way that the canon of statutory construction was that in earlier congress cannot bind a later congress well in essence congress can can't can craft a constitution and say all laws have to abide by the constitution and the riff or everybody says that everything has to abide by the constitution so the question is in what what is the constitution but i just was interested in your response and whether they see a as the later statute would govern any question about how to interpret the constitution no i think it's i think it's clear that without specifically rejecting it that river applies and i don't think any any party  regulation that you're challenging and if i'm looking at the right one part b talks about self insured group health plans and part c talks about insured group health plans right right is your argument with respect it is your argument do you have any arguments that would win in one but not the other no it applies equally to all of them to your argument apply without drawing  distinction between b or c absolutely all of the tennessee and ities are fully insured and the michigan entities are self insured the argument applies the same and specifically that both that all of these parties are required to continue this relationship with either insurers or administrative or providing the services there is an additional argument with respect to the self insured and that is that the self insured michigan entities actually have to amend their plan documents and appoint the third party administrator as the plan administrator and so doing all of those things is additional x but it's but in some ways it's just the icing on the cake would that when the same thing applied to the insured group health plan if they didn't want to provide the contraceptives it would apply to the to the self insured but the self insured the don't appoint the insurer as the administrator it's just a different it's different by operation of a reason does it get to be the administrator then well the the tennessee entity simply hire an insurance company in the government has the ability to regulate insurers so the government says insurers you must provide these services they can't do that the government can't order third party administrators i'm sorry pretty similar them yes is there any way that  were insurance experts who questioned the whole nature of cost of no cost sharing that record is not in this case yet in this case we are simply making the argument that catholic doctrine states that  the the cooperation with the scheme the facilitation the continued contractual relationship with the provider who ultimately provides these services pursuant to the relationship that was created by contract is nothing catholic doctrine to say that comes too close to the line of cooperation that it violates catholic faith whether or not they have to pay for the services but what exactly is the facilitation in the case the group of the  insurance companies situation not the insured well it it's the same as with the i'm sorry and your question is with with respect to the none self insured what exactly is the military that you're complaining about well they have to contract and maintain a relationship with an insurance company who is going to provide services to which they object that to the catholics is enough facilities they are not permitted by their faith to maintain a contractual relationship with an insurer who is going to provide services to their employees that are not in accord with catholic faith so it is the initial making of that contract it is the maintaining of the contract and then it is the continuing through all of the administrative functions that happen between employer and employee and insurance company of providing information in employee throughout and if the catholics were to fire the insurance company and say my faith prohibits me from having a contractual relationship with you were they to do that then they would be subject to onerous farms well then you're saying they have to deliver the certificate to the only difference then if they became self insured as they would be just like the michigan entities that have a administrator and the government requires the administrator to provide the services is really is no difference they're still in a contractual religion ministry can somebody be truly self insured without an admin and without a third party no unless they're in the business of insurance they simply don't have the logistical and administrative capacity to administer their own their own claims they cannot do that and and and we're the government to say look the only way that you can i'm sorry walk in an a charitable organization administer its own client i suppose it's because they're not in the insurance business and all of those but suppose they acquire the knowledge to be well these plaintiffs just simply don't have the logistical capacity to do that but if we were to place that requirement on them that in order to not to avoid violating your faith you have to engage in  this business would still be a substantial pressure on them to violate their beliefs because any corporate organization who does not self administer and that is basically all corporations they would be forcing them to do something they do would not want to do that would be no you cannot in the supreme court was very clear in levy that you cannot and that is the second part of the riff or analysis that is you can have a religious belief just like these catholics do and you can say i don't want to do this but you may still lose and the reason you lose is for that is for the reason you're articulated in lee which is there is a compelling interest in the tax code and there is no least restrict stripped of means of accomplishing the tax codes goals set up an escrow account and all of lead the supreme court said there has to be a uniform inconsistent system of the tax code that cannot be one offed by various individuals based upon their religious beliefs so in that instance where you can could past the script strict scrutiny analysis you can trump religious beliefs here there is not a single court in the country that is engaged in the strict scrutiny analysis of the contraception mandate and determined that it could pass trick scrutiny for i mean simply on the that at least in the real looper context that that test is done the substantial modifies the pressure you identify the religious exercise and then you determine whether there is substantial pressure to violate that belief if that w attenuation between the participation in the ultimate use of contraceptives by the employees but again that is a religious determination that is looking at the facts and saying i think this really isn't so bad you're sufficiently removed catholics have been clear that the acts that required of them are not sufficiently or removed in thomas and the supreme court said there's only one entity that can make that can draw that line and that is the believe or not the court so if the court were to engage in what is substantial and what is not in each instance for for judith to flip a light switch on a saturday is that substantial or not to their faith that that is not the province of the courts that it's only the province of the believer thank you i would like to ask a couple of technical questions if you have moment just dealing with the administrative procedure act one a sort of a comment i'm puzzled the the the statutory claim under what is it the weldon act is referred to it as an administrative procedure act claim whereas with the case that really is an administrative procedure act claim is this notice and comment claim because that relies on the procedural requirements of the administration to interact but the regulation that you're challenging was subjected to notice and comment isn't that correct while not not not the one that i was reading from i thought that's what you were attacking effective august first twenty nine  r twenty five ninety point seven one five that was not subject to the notice in common or was there there was notice and comment about the accommodation itself but the preventative services act that that imposes the obligation itself was not subject to notice  the act wasn't subject is that what you're saying were not that that you don't have to be subject to notice and come no the preventative services mandate itself the preventative services mandate itself was issued by the department of health and human services not subject to that that's proceeding this right no we're challenging the application of the preventative services mandate to the catholic organizations the accommodation the procedures of the accommodation are equally objectionable and were subject to notice and comment but the point is it's almost as if it's a defense the point is that the accommodation doesn't fix the religious burden so it is the it is the mandate itself that imposes the religious burden whereas the mandate come from comes from statute the mandate comes from the department of health and human services who identified preventative services and required so that's what you would like us to change is what's in the list of preventive services no the requirement the requirement that from the original definition that these entities have to abide and are not exempt from that preventive stores and that's in the statute i guess i'm lost no on no that's that is in the that is issued by the department of health and human services that define who is subject to the statute and who is not that could have been changed in the notice and comment to these regulations that you're trying to overturn it could have yes fact there are thousands of comments correct so in the ordinary sent an e mail lots of times government will do something and they don't go through notice and comment and someone challenges it and so then they go through notice and comment and then it's ok right so why doesn't the fact that this went through notic comment were all of these arguments you could make doubtless were made to cure any notice and i'm not talking about all these other issues understand there's different issues i just having trouble seeing this know some common argument you're right your honor with respect to the last part of the but morning your honour's out of jet for the government may please the court the plaintiffs do not have a religious objection to stating that they oppose providing contraceptive coverage or to instructing their insurance companies or third party administrators not to do so in fact that is exactly what they want to do and that is exactly what they've done in the past their only objection is to the fact that if they do so and now under what is called the accommodation that after they tell their insurance company we are allowed to opt out we're choosing not to do this that then the government will require the insurance company to provide contraceptive coverage and sensually what the plaintiffs are trying to do is they're trying to block that mechanism by which the government requires an insurance company to provide health benefits thousands of employees and that's i mean you know extremely novel conception of what would count as a substantial burden under the religious freedom restoration act as this court said in auto cam what counts when you book out a claim under the religious freedom restoration act you look at the kinds of claims that had been brought priest's meth know the way that this man that had been brought before employment division b smith your honor and the kind of mechanism at issue here is essentially how all opt out if you look at conscientious objection to the draft under title seven employee you can say to his employer i can't work on a saturday in all of those things when you say you can't do something would ordinarily happens then is somebody else steps in and does it and really that's what it is that the plaintiffs seem to be objecting to hear a difference between the insured situation and the group insurance those kind of legal technicalities are slightly different as between the two i think i understood my friend during his argument to say that actually that distinction doesn't matter to the argument that he's presented before the court but let me actually address the sort of a reserve specific argument that he's made because and i think maybe there are a couple of things that have gotten lost in my friend's presentation there are three specific things to say about that the first is just to be clear the only self insured plaintiffs in this case are self insured through church plans and those church plans are exempt from  arrest so to the extent that out there in the ether there may be an argument about the kind of workings of a recess as it relates to self insured plans and third party administrators that is a different case that is not the case that's before the sorted out your church plans are exempt from your wrists are they exempt from all relevant regulations i guess regulations they are not your honor so as of course runners where both the regulatory and statutory mechanisms are complicated but essentially the way that this sort of overall affordable care act set of requirements are implemented involve statutory authority from the internal revenue code and from and from various h h s or h h s h mandate so if the plaintiffs did not opt out then the answer is yes if they do opt out then you know as you're aware in our view that that's it they've opted out now the mechanism by which the government requires the parties to step in for self insur plans is that the government requires third party administrators to step in now a third of those ministers i'm sorry are out of the government and forth that's so so ordinarily the only authority to regulate a third party administrator is a re ss so even though the treasury statute may have applicability to a church plan once the plaintiffs opt out with respect to their church plan that's it that disappears and the treasury statute no longer sort of exercises authority what ordinarily would be left in is the arista authority to regulate a third party administrator but with respect to church plans or is it doesn't apply and so therefore the government can offer to pay a third party administrator can say look if you will voluntarily step in and provide this contraceptive coverage after these guys choose not to we'll cover your costs and you know we'll pay a little bit more above that but the government can't require the third party administrators to do so and so to the extent that the plaintiffs have this kind of technical argument i'll just as technicalities in a moment but i just want to say to the extent that they have this technical argument about treating the form as a designation under that's a different case that's not this case but let me actually just address those arista technicalities because i think my friend was actually quite inaccurate when he was up here to scribing it he at least as i understood it he made it sound like in addition to sending in the form that a plaintiff needs to do all sorts of other things go hire someone separately designate i don't know sort of exactly what he was saying here but the way that he constructed the argument in his brief is actually just  truncate a sentence from the regulations in the truncated version he says that the form is a designation if you actually read the whole sentence it says that the form is treated as a designation and essentially what's going on your honor is this under  section three sixteen the department of labor has the authority to say that somebody has a fiduciary duty and then to require here the third party administrator to provide contraceptive coverage it's they don't do that all the time they only do that if an employer chooses not to provide contraceptive coverage so it's because the employer summits that form an ops out that then the government says ok we're now going to put the this responsibility on you the third party administrator and so when the regulations say that it's treated as  with the self insured context obviously self insured plaintiffs could just choose to operate with an insurance company as many employers do and in fact as many employers that are before this court do if i could just briefly address the colloquy between my friend in judge nixon judge nixon you asked my friend the hypothetical question about trying to set aside tax dollars that were paid to the government there's actually two similar sets of cases have come up we cite them in our brief one is the supreme court's tilton decision and the other is the supreme court's allen decision and in both of those cases people objected to having to make payments to the u s treasury to sort of send in their tax dollars given that those payments might eventually be used to pay for i'm not sure if it's actually the u s treasury state treasury but that those payments were then eventually be used to pay for books that were provided to religious schools and although my friend is probably correct that in the military context it would easily survive strict scrutiny and do we think that the programs here survive strict scrutiny to the courts into an alan do not have to resort to any kind of strict scrutiny analysis they just said that doesn't count as our burden under the free exercise clause and just to be clear the plaintiffs in those cases were very careful they did not say all that were objecting to is the fact that the government will provide these books rather they actually said we don't want to have to sign this check that the law compels us to take an action and that we don't want to have to take in fact i think we from one of the briefs in that case where they actually compared it to being compelled to attend church and in those two pre refer cases the supreme court said that that doesn't count as a burden under the free exercise clause after it our understanding is that it is i mean you know certainly we take this court at its word in auto cam when it's said that needs to be understood in light of the free exercise cases that were brought for the smith and again i mean just to emphasize in opt out is in some sense quite different from a number of other actions that happen out there in society i mean in some sense the argument for the religious objectors was human stronger in something like to one where they were writing the check because they're the money might sort of eventually actually go to the provision of the  traceable in some sense whereas here the regulation i'm sorry are that's correct i mean i don't think the plaintiffs have alleged that it's traceable but certainly the regulations explicitly require that the money be entirely segregated  such allegation would just fail as a matter of law so i mean it would seem in some sense the sort of analogy from the plaintiff's objection to cases like tilton and alan would actually be that if they wrote the check and could make sure that none of the money went to the books that they could still object because if none of their money goes to religious books and someone else's money will go to religious books and these kinds of opt out mechanisms i mean have been on the books in any number of contacts for hundreds of years and no one has ever suggested that each and every program every time i say i can't participate in x and as a consequence the government will say ok we're going to have someone else participate instead that each program has to be subjected to compelling interest analysis you would say the judge was analytical his analysis notwithstanding that he didn't get into a compelling interest in else i mean i'm not sure that i want to embrace you know each and every sentence in his opinion but i think overall you would not say that  exercise law and from the legislative history of or for itself when river requires a substantial burden referred to as not just mean kind of polo queally what someone might think of as a substantial burden on their exercise or religion in fact if you look for example  a pretty refer case where federal the consequence of a federal program is essentially that the plaintiffs there would not be able to pray in the way that their religion requires what i'm sure kind of colloquially we would all say is a really big burden on your exercise of religion nonetheless the supreme court said no that doesn't count what is a substantial burden on the exercise of religion includes a decision about the kind of bird and an argument is that this behind a burden that you're just opting out and that somebody else will step in just can't constitute a substantial burden as the seventh circuit held in notre dame and we think it does although the cases aren't entirely on point follow somewhat logically from some of the other free exercise cases i mean when you get from cases like boeing and from cases like ling is that an individual can't challenge under then the free exercise clause now it would be referred to just something that the government is doing and essentially what the plaintiffs are trying to do here is they're trying to collapse their decision not to do something with the fact that the government will do it only if they're not doing it similarly you have cases like cutter versus walk in sand in your church where the court says you need to be very concerned about burdens that are imposed on third parties here the thousands of employees that if plaintiffs are able to block the government from stepping in after they step out would not be able to obtain health coverage and again i mean their sole argument is their sole religious objection is that the government will step in and require third parties to provide that health coverage could you address the administrators of procedure act notice and argument that he made today absolutely you know i'll tell you it sounded like well first it sounded like my friend made actually conceded his own a p a argument but it sounded like maybe he had a slightly different argument here today than the one that i saw in the brief so i'd be happy to address maybe just kind of potential a p a arguments that my friend may have been raising took at it was an argument the really what they're challenging is not this regulation of the but something else so at times it sounds like he's saying they're challenging either the religious opt out that is primarily at issue here or the kind of complete exemption for turchin is all of that has been subject to notice and comment though argument that i understood him to be making his brief is a little bit different which is that a subsect subset of h h created essentially just kind of a list of preventative services that are necessary for good health that he's correct that list was not subject to notice and comment we don't think that that would require it because that's just referred to by  by the statute that's that's not true yes that the regulation that he's challenging well it's actually also referred to by the statutes of congress itself in the statute lists certain preventative services and among others says for preventative services for women as exist in it too and the line that they've drawn is if the substantive obligation comes from the thing that the agency creates so you know the sort of canonical example is if congress says you know create regulations to sort of achieve x goal in the regulation imposes an obligation then that is actually a rule and needs to be subject to notice and comment but if it's simply that congress imposes an obligation with respect to just kind of a list of kind of a factual list that under the a p i and i understand that there are certain other organic the statute says you need a license to for the following for a list of things that the agency shall determine and then the agency later says what those things are that's that's not subject to notice and comment rule well although i think that in your honour's hypothetical that would not be a rule this case is even i would have conceivably not the rule because again there the substantive obligation is coming from the statute in here actually the case that they cite in the reply brief the only case that they said in a reply brief they don't even try to address or treatment of their other cases is a case that wasn't even deciding whether something was a rule or not which is whether it was a legislative or on an entire or an interpretive role and there the very first thing that the d c circuit says is the obligation doesn't come from statute and comes from this regulation you're not willing to rely on the fact the procedures that there are talking about and challenging in this case have been subject to notice and comment regardless of whether those were required i mean i'm certainly happy to rely on that as well i just i you know i mean i don't want to misrepresent anything to the court the notice and comment with respect to the regulations that are primarily at issue here was not specifically about the list much as congress has said that lists created by certain private parties are imported by statute much as if h h s had just in the past with no particular legal significance just had a list saying these are the kinds of preventive services that we think lead to good health congress can point to that west and say ok we're imposing a legal obligation with respect to this list and every time a little change in the list gets made it doesn't need to be subject to notice and comment because the legal obligations specifically comes from the statute and not from the lest there may be some examples kind of out there in the world and maybe this is what your honour's does was their comment regarding the live there was not notice and comment with respect to that question now there may be some examples out there in the world where just kind of you know lists of things are subject to notice in common even if it was just a list of of of services that they deemed to be required by the statues what is new this is a list of services that were deemed to be necessary to women's health the requirement comes from congress congress says we are going  sell your honor this is a i mean you can argue that's not a rule i mean it's kind of an uphill battle here but shirt but my question is they're not really challenging what's on the list here correct or they are challenging what's on this you know i understand my friend who had basically abandoned his challenge to what's on the list at the podium i read his brief in some sense to be challenging what's on the list what i what i do just want to make clear is this is a very fine grained distinction in the e p a and that's why i think maybe we may just be speaking past each other a little bet which is kind of give you the hypothetical which is that if congress says that in h h s agency is required to publish regulations for the purposes of you know promoting health and then those say you are required to provide certain services the substantive obligation comes from the regulations and those would be subject to notice and common indeed any of the regulations here that are kind of like that were subject to notice and comment if instead congress says we are going to require that employers provide preventative services so the obligation the requiring preventative services comes from the statute and they just say the preventative services that are necessary for health they could then get that are necessary from health from a private tells people to do is what matters to whether it counts as a rule and you know i appreciate that we may just be speaking past each other but i would encourage the court to review what would you tell us to look at i would encourage the court to look at the footnote i believe it's on the last page of our brief which addresses i think all or if not most of plaintiff's cases plaintiffs in their reply brief then point to essentially sort of a man in all those cases then point the court to a d c circuit case called an r d c versus  i should as noted i should say that actually that case isn't even about whether something is or rule it was assumed that it was a rule in the only question is whether it was an interpretive rule or a legislative rule but they are right up top the supreme as you know the d c circuit made clear that the obligation did not come from the statu if i could ask you to start with that question did you raise this a p a argument in one of the cases or both of the cases which won the a p a argument was raised in the michigan cases but not in the tennessee cases and to be clear i did not mean to not make clear that it is the list of preventative services that gives rise to the a p a issue the the government passed a statute that said you have to have preventative services  and then later issued by press release what those present preventative services were without notice and comment the government can prevail on its claim that the statutory language is which is what i heard here incorporated by reference the then non existent guidelines and list of preventative services they were done after the fact by press release without notice and comment included within those preventative services or services to that catholic faith has an objection to so that's the essence of the a p a claim in the case your subsequent notice and comment of rules that implement the obligation to opt out of that if you don't like it well because there was no subsequent notice and comment on what the makeup of the preventative services would be that subsequent notice and comment was notice and comment about the about how the accommodation would work or how we would define religious ottawa out of it why does it matter well i think that's the most important point i want to make in rebuttal is that we do not opt out of it counsel kept referring to this as an opt out there is one opt out in the statute it's the religious employer exemption and if it wasn't a burden upon all of those who don't have the religious employer objection there wouldn't be a religious employer objection everybody would just get this accommodation if it fixes the problem but but the government specifically said we're going to have these people religious employers who are entitled to opt out that's not us we're going to have these people who get the accommodation is the accommodation fixed everything that's all there would be there must be some burden here and the difference between the conscientious objector who truly does opt out is once they state their country and objection they're done here these entities are not done but if they have to nonetheless the religious objection to being put in a position where if they opt out someone else will come in well in that circumstance they don't have any continuing right right but in that circumstance they don't have any continuing relationship with the person who then comes in later here we have a continuing relationship we have a contract with an insurance on their religion says it doesn't matter whether you have a continuing relationship we just have to listen to the religion right in it and there the test is clear you have to determine whether that actually is a sincere belief and we haven't heard anybody that ever articulate that and then you have to determine if somebody comes in and says here's what my religion says if i opt out and you put someone else in that violates my religion certainly that's not what the plaintiffs are saying if somebody came in and articulated that then you would go to strict scrutiny and you would trump that by saying there is no other mechanism the main point here is there are extraordinary mechanisms for the government to provide these services these appellants are not trying to prevent anybody from getting anything that could not be more clear we just don't want to be involved the government could do it through tax breaks they could do it they already do it through title ten and that's the strict scrutiny analysis and when there is a reference to harm on these employees that's built into because you don't get an accommodation if you can advance a compelling interest and say there's no other way to do it that is the weighing that's building to refer it and was it in was in was set forth in qatar where we say properly applying really like room for a you will look you will look at these burdens because if the government can say look we have a compelling interest for these particular points for employees not all employees not just let's talk about women's health care but for these particular ones and i don't know how they can say that with respect to the michigan plaintiffs because counsel just came up here and said well we can't force this anyway in michigan right so how can they have a compelling interest that catholic employees in michigan be subject to this mandate when they say well they don't really have to follow it