make those decisions. cases," begins this monday night. >>, the supreme court oral argument regarding the contraception mandate and the health care law. and a discussion of the rise of in the united states. and, the syrian refugee crisis. >> on wednesday, the supreme court heard oral argument whether the health care laws mandate violates the religious freedom restoration act. among those challenging, are the little sisters of the poor, a group of nuns who operate nursing homes in colorado. this is about 90 minutes to read >> we will hear argument this 1414, zubik v.

burwell. the little sisters of the poor and their co-petitioners faced a dilemma that the religious freedom restoration act is not allowed. they can in here to their religious beliefs and pay millions of dollars in taketies, or, they can steps that they believed to be are morally and religiously objectionable, that the government believes it is necessary for them to provide contraception coverage through their health care plans. thegovernment concedes sincerity of these religious beliefs, but attempts to recast them as an objection to the very act of opting out. with all due respect, that is simply and demonstrably not true. >> can you explain to me, the -- many of them felt that general believe they were pacifists, that if they

pacifists, that would mean other people would serve for them. they were going to jail and many of them were going to jail. jail lessng to important to some? or less important than paying a financial penalty? i don't think it is, but let me sick to the conscientious objector example. i think the way to analyze a conscientious objector is to say because they face jail time, there is a substantial burden. and if you get to the second analysis, you focus on the mac -- actually objecting. justice sotomayor: let's stop there. to the extent that a , if ientious objector

register someone will serve in lieu, what burden is it on the government? howgovernment sends out many notices to people to come 1000, 1200 -- two you really think it makes a whetherce if it knows or not one person is going to show up? if we are going down that road, with what is the difference, why would that law survive? think it would because it would be very difficult to administer the kind of assistance if you could not even know about the objection or take any steps. isn't thatomayor: the same he -- thing here?

if you don't know who can pay or , how doesgible to pay the system work? mr. clement: two things your honor. this is a unique program or the government can provide an exemption without requiring someone to opt out, because that is exactly what they do for churches, the exhilarated -- justice sotomayor: the churches don't have to tell the government -- somebody has to tell the government who is eligible and who was not eligible. all yournt: first of honor, that is just not true with respect to the churches, they are augmented of hillary's, and the religious orders that stick to their knitting and only engage in religious activities. actually, there is that the station. the most important thing, your honor, i would distinguish between a situation where someone has a objection to opting out, because someone will find their spot. and, a conscientious objector who objects to objecting on a

form, where the only way they can object, is that they released the name of someone else who is eligible will then be obligated to serve in their stead. >> you began by saying the government mischaracterizes your position. i am just not quite sure where that argument is going. we can get more into the specifics of it now. can you began again there? i would be: delighted to, justice kennedy. -- myents do not object, clients have not been shy about objecting. they told government they were making a mistake when they made it only to religious orders that step two early religious things. my clients did not qualify because they serve the elderly poor on a nondenominational basis.

when a file this lawsuit, they reaffirm their objection when they filed the notice necessary to comply. that might beyor: so, but what if somebody does object? >> in order -- if summary does object, it will make it easier for the government to fill my spot. that is a perfectly understandable thing to say. part of my sincere religious belief, and you say, the sincere religious belief is what controls. there are two it would seem you have to say that is a substantial burden. even if it is just objecting to objecting. first, it would only be a substantial burden if they were faced with penalties. that is a relatively rare situation. we have the same

penalties as are here. and they're just objecting to object, and that is part of the religious belief, because that will make it more likely that the government will be able to efforts slot and take to provide contraceptives. i understand, that brings me to the next part of my question. the right way to understand that hypothetical, just a hypothetical -- it is directly impacted by your theory of the case. your theory says that everything depends upon a person coming in and saying this is against my religion, and that is the end-all and be-all. mr. clement: that is not our position. the sincerity of their religious believes, the government can question, a legal analysis about the substantial burden. but the substantial burden analysis in this case is very clear because of these millions of dollars in penalties.

the exact penalties issued in hobby lobby. justice kagan: you're not answering the question. mr. clement: i am trying to come up with all due respect. that brings me to the second part of the analysis. if our objection is contrary to fact, if we absolutely object to objecting, if you come in and the government, based on our objection, provides this service through the exchanges, through title x, through an aetna uber policy, we in fact, objecting none of these things. but if we did, i think we would lose under the second half of the analysis. justice kagan: if a person had a sincere religious believe, and it was a form of complicity come of the would control, and you would have to go to the second art of the analysis very which is to say, is there a compelling interest?

has the government response been narrowly tailored? essentially, the difference between objecting to objecting, and your clients position, is not a difference at all, with respect to the burden analysis. mr. clement: i do think my clients objection is distinguishable from the hypothetical. it is not objecting to objecting. one way to understand this, if there were in fact to forms, one was an opt out form and another an authorization form, my clients would have no objection to signing the opt out form. but they would have a problem with the authorization form. saying,kagan: what i'm i understand the factual distinction you're making, but that does not matter, given your own legal analysis. think itnt: i don't does, based on this court's precedents either, but even if i am wrong, it is certainly cite an opinion that there are three legs to a stool in this case. there is the fact that the government demands more than an

objection, they enforce it with massive penalties, and, the happens,that if that they are going to hijack our health plans and provide the coverage against our will. what i don't: understand -- justice sotomayor: what i don't understand, when will any government lot that they claim burden, ever be insubstantial? believer that has ever come before, including the people in the military, are saying that my soul will be dammed in some way. i am not naysaying that that is a very substantial, perceived, personal burden by them. if that is only going to be substantial, how will we ever have a government that functions? anythingwe ever have that the government can demand people to do?

two things, the first, i do think what you are saying about the government not being able to function under the substantial garden and least restrictive alternative analysis, is exactly what justice scalia said. o'connor had a different view. and they had a debate. if we are notyor: asking you to do something isides identify yourself, it going to do the action, either the government, or a third party. balance that we have struck, it is not a substantial burden, it is someone else. someone else's going to do the act that your objecting to. mr. clement: if the only action involved as a third-party

action, you are right, that is not a substantial burden. but when the government says, and i want to be as clear as i 80 -- a they admit in pages nine through 87 of their brief, that we can raise our hand and opt out. they need additional information about our insurer. so they require more. >> who is the insurer? they have an independent contract. tpa, they arer not dealing with the employer at all. they have an independent obligations that they can impose on it, and not the company. that is true if and only if we provide the form. it is not just the information on the form.

the government treats that form as an authorization. in the case of self-insured plans -- the law, theurg: regulation requires it. it does not matter whether you say yes or no. you could say i thought the form, i do not authorize or permit. it would not make any difference. mr. clement: it makes all the difference. if we do not provide the form, then the coverage does not flow. we have not provided the form in these cases. as a result, the coverage has not slowed. i think it is most obvious, but true of all of them, the government thinks it needs something from us so that it can take that something and make it a plan. the governmentg: has another interest at stake. one thing you said that i want to clear up, that it was not involved at all. no one doubts for a moment the

sincerity of the belief of your client and all the others. since the sincerity of their belief is accepted, it is off the table. in none of these cases, is that an issue. that is accepted. asking, thent is itginal plan did not -- thought compelling interest, marginally ignored up until then. as in all things, it cannot be all my way -- there has to be an accommodation. that is what government tries to do. i agree, but just because they call it an accommodation, does not mean it is immune from analysis. if what they gave my client is what they gave the three to

45,000 churches, their integrated abilities, and purely religious activities of religious orders, if they take that accommodation to my client, we will fill out any form they want to. but the problem is, we have to fill out a form. and the consequence of us filling out the form is, we will be treated very differently from those other religious employers. >> we started to talk about the self insured plans. form,the case of that the or the notice to hhs in that instance becomes a planned instrument? mr. clement: in both cases, it becomes a planned instrument. if the government thinks are instant mentation is the functional equivalent of the other form -- the reason they require the form, is because the way they were originally

designed, you did not raise her hand and tell the government i object. you sent a form directly to the tpa,er, or directly to the which they then treated as a permission slip to provide coverage. it is not out. but then youurg: defied the government. but thanks to the core, we can now file an objection that the government treats exactly the same way. the only thing that is different, it is a mailing role. they take our objection, and they provide that objection to the third party administrator. that becomes every bit as much a formed document as the 700. with all due respect, it is rich for the government to say, this is not your plan, don't worry about it. their whole interest is in seamless coverage. if it is seamless to the user, but i don't think the little

sisters's perception that it is seamless to them, is an irrational belief by any stretch. justice kennedy: the essence of your argument, your objection, is that contraception is being done through the health insurance you contracted with? mr. clement: that is a fair description of a justice kennedy. the only problem the government is having understanding our position, is about plan is somewhat intangible. if you put it in more tangible terms. the consequence of us filing the term, is that they would come into one of the little sisters room,and set up shop in a they could operate a clinic out of our homes, i think everyone would understand that of course we are complicit in the coverage that is provided on our premises. just because of this is more intangible, i don't think the principle is any different.

certainly from the perspective -- do we acceptdy: your client's view on complicity? can we see out for the causation goes? do we just accept your view on complicity and see whether or not the accommodation is possible? mr. clement: i think that is the role your courts have. they don't want to get in the role of having the truth detector test. lobbys not just the hobby decision. that was back to the thomas decision. you had a religious adherent who had an objection to cylindrical tanks. there was another jehovah's witness that said we don't need to object to that. said, wet specifically are not going to get into the business of refereeing those disputes, or the business of second-guessing whether mr. thomas is correctly understanding his faith.

here you have a ton of amicus briefs, that are at issue here for the little sisters and my other clients, are not at all or wrong as a matter of faith. but that is not an area you should get into. >> are you finished? you must have thought about this question, i suspect. i am going to assume for purposes of the question, that this is not just a matter of signing a form. involved andare the health care plan in major ways. they probably sign papers every friday or every day, and they choose insurers. it is the icing on the cake that pushes it over the adage, which is that you have to fill out the soms they might object to.

the question is, putting that altogether, are they protected by referendum? i think the reason the court went from sherbet and burn them over to smith was that they could not figure out how to apply it. this is at least one difficulty. i even read saint benedict here it not for religious purposes, i'm trying to find out something .bout being a member of society sometimes when a religious person who is not a permit is a he does haveiety, to accept all kinds of things that are just terrible for them. think of the quakers. the quakers objected to vietnam. think of the people who object to laws protecting blasphemy. snow in front of the walk that will lead to the

abortion clinic. think of the christian scientists who know when they report the accident the child will go to the hospital and receive medical care that is against their religion. things, iloads of have just given you for, think of the taxes. there is no question i does not violate the religious clause, but plenty of other things do. so what is the line? why do the quakers have to pay taxes for vietnam? but, you don't find a religious jew or muslim getting in a next her day off during the week when the law says nobody can work on saturday, because of their sabbath? i have been reading and reading to find a clear, simple statement of what that line is and how it works. ofrepeat, the difficulty

and vernn werner, -- er-- would say you are exactly right. smith was more administrable, here is how you work it and draw the line. you first ask, is there a substantial burden. claim, a taxng to on wine -- justice breyer: the quaker. i think there will be work to be done on the second half. there are some fairly obvious differences between a regime aware essentially, the government has showed that people cannot opt out, it is too important, to universal. then you get a case like this. andthing that makes sherbet

easy case, as of the government of south carolina had already taken care of the sunday objectors. at that point, the whole system would collapse. it was not a persuasive argument. here, they have taken care of the churches. if only the little sisters would not go out and care for the elderly poor -- they have demonstrated this is an easy case. thank you for your time. >> mr. chief justice, and may have pleased the court. the government here has the same interest they have with respect to every other employee in the country who does not get contraceptive coverage from an employee based plan. but the government tells us it furthers our interest in other ways. the government therefore needs to prove that those other ways are somehow insufficient when it comes to the titian employees. -- petition employees.

but it is limited to one column of the federal register. that is insufficient before the government can demand that organizations like tax lists charities and little sisters of the poor engage in conduct that all agree. they regard as sinful. instead, what we have is in it -- a religious employers as opposed to organizations like the petitioners here, they gives a full-blown exemption to organizations even if they don't object to providing contraceptive coverage, that treats other organizations differently. justice ginsburg: are you suggesting that once you have this category, the church, any religiously oriented organization has to come within that same category as the church itself?

the government cannot treat the church as special and give it an exemption, but it does not give to religious oriented organizations. no, your honor. i am not necessarily suggesting that. when you look in this case that what the government has done, and what congress has done, that is the line that congress has drawn, both in the title vii exemption for churches like the houses of worship, our clients get treated the same. regime,ax-exempt and the entire line is drawn from the tax rolls, where the line with a defined those who have to file informational paperwork -- can theginsburg: government say we are going to and also church itself protected? religious-oriented organizations are protected, but not at the same level. >> no, i don't think they can do that they are not any less the

core of a church or house of worship. >> the same with the university? >> yes, your honor. when you see how they have drawn ,he line aunt -- your answering in the firm it to justice ginsburg's question. >> not quite, your honor. the problem is, the government has to draw a definition that is coherent and rational to read the problem is, we have drawn a definition from the tax regime that does not apply when you carry over to this regime. in the tax world, when the churches and universities, and little sisters of the poor file that informational tax return -- >> you have made it difficult for this court to write an opinion. -- i find itve to

very difficult to write. >> we are not suggesting that. when the government has the same interest here that it has for all of the other employees in the country they don't get coverage from an employee based plan, not just the religious employers or grandfathered thes, and addition you have self-employed, unemployed, and employees of small businesses. government has the same -- there is a very strong tradition in this country, that churches are special. long line of cases which says that there is something very special about churches themselves. if you're saying every time congress gives an exemption to churches and synagogues and mosques that they have to open people,to all religious and the effect of that is that congress just decides not to

give an exemption at all. are extremelyere strong supporters were deserted this clause right here because of the mortal danger it poses to churches. just to be clear, i am not suggesting that whenever you give an exemption to churches, it has to apply to all other religious organizations. i am suggesting that when the government has the same interest with respect to both religious and secular employees, the churches and religious employers, the employees of small businesses and grandfathered plans, they further those plans with respect to employees in other ways. whether it is the affordable medicare, medicaid. at a minimum, they need to explain why these are sufficient for all those other employees. many statutesrg: have grandfathered tradition.

many treat small enterprises differently. are you saying that once the exempts from the law a small business, once it has a number like title 15 employees, that is it? a has to open what is exception to a small business for everyone? mr. clement: -- francisco: you can't discriminate on the basis of -- i think that would undermine the purpose of title vii. that is precisely the exemption that you have in the contraceptive mandate. justice alito: if they surveyed

the employees of churches and other nonprofits, and categories of religious nonprofits, the little sisters caught the university, and determine the percentage of employees in each of those groups who are members of the religion, and draw a distinction among those groups based on that survey. could congress do that? they can do that, and many other things as well. >> but we just assume that if they are part of it, that they are not going to buy contraceptives? that is their religious tenet. while we worried about this case at all? why, because there are some to thato don't did here , andcular religious tenet the government has determined, they have a real need for contraceptives. to theco: that goes

larger problem, the utter absence of evidence. there isotomayor: plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls. as does the number of abortions. that health risk to women who want contraceptives that cannot get it, is proven. scientifically, and otherwise. withisco: but that problem seamlessness or burdensome this, that is a problem that exists not just with respect to employers, but every other employee -- justice sotomayor: we exempt certain employers from title vii. it is not because we don't believe that racial

discrimination is a bad thing. it is not that we are not committed to eradicating that problem, but because at a certain point, we have assumed that as a society or government, you cannot do everything. you can't take care of the health needs of 100% of women, but you can a significant number. why is that? -- why is that a judgment that is not entitled to some respect? francisco: because it means one of two things. either the government can tolerate all the problems that affect employees with respect to grandfathered plans, with respect to the employees of small businesses, and those of religious employers. either they are willing to tolerate the problems with all of those people, and it does question whether they have a compelling interest in enforcing

these petitioners to comply. on the flip side, if they are not willing to tolerate the canlem, but think they further their interest in other ways, the question becomes, why are all of those other way sufficient for other people suddenly insufficient when it comes to petitioners employees? that is a fundamental breakdown on the government side of the case. more generally, an absence of evidence on the critical issues. let's assume for the sake of argument we knew what the size of the problem was. -- many people actually have lack access to contraceptive coverage? if we knew how much of that problem would be reduced by forcing programs like petitioners to comply -- we don't know that. don't know if the government could achieve a comparable reduction through different means. are sufficient to further

their interest with regard to the other employees, don't get contraceptive coverage -- i have to admit to not understanding this argument. the laws often have exceptions in them. there are often small business transition rules, like the grandfathering provision here. if every time that existed, somebody could come in and say, the government must not really believe in the slot because there is an exception to it, then we might as well pack it all in. there is not a law in town that does not have exceptions like that. francisco: i don't think that is right, your honor. justice kagan: it is lower and lower every single year.

if you make any change in your health plan, you're out from under the grandfather. and it is inevitable that over the course of years, any employer is going to make changes to the health plan. it is a transitional. -- it is a transitional period. francisco: except that they allow employees to raise the co-pay, and continue adding employees without losing grandfathered status. has leveleds why it off at about 25% over the last couple years. putting that aside, once you have drawn a massive exemption for both secular and religious reasons, it tends to do one of two things. either it shows your interest is not that compelling because you're willing to tolerate a whole bunch of bad stuff for other people.

or, what it means here, the government is telling us it has the same interest with regards to grandfathering -- justice kagan: you would be saying to congress, next time you put in a law, don't put it in the exemptions to churches. don't write transition rules that will help people adjust to a new legal regime. you're going to have real trouble doing that. don't write exemptions for small though thereven are very particular concerns that small businesses face. those are terrible incentives to give to legislature, are they not? what it means, when the government claims an interest, the overwhelming interest of force organizations like petitioners to violate their beliefs, yes, when it says we will exempt some organizations for purely secular reasons, some for political, and others for religious reasons, it does.

astice breyer: let's imagine widespread government program with exemptions, and some need exemptions for religious reasons. we look at other exemptions, some think they are good reasons, or terrible reason. we should exempt the religious, too, right? i have just described to you the united states tax code, where we know you do not have an exemption. exempting taxes because of war. we are looking at the same question, and i am not asking to i am looking for what the distinction actually is. it for the reason i just said, i do not think the distinguished -- distinction can be that you exempt and some people say you

have to exempt religious people too, because that would run throughout the government of the united states. distinction. is a francisco: these are finely grained factual issues. when you're looking at a regime like this one, that has both religious exemptions, large exemptions for totally nonreligious reasons, and the exact same problem of the government claims petitioners present, with respect to all the other employers the country who just like employees -- justice breyer: that is not the thrust of my question. i have not found it yet. i want to find what real distinction is. i don't care what you call it. i'm trying to find the basis for the distinction between those peoplethat we do require

to do despite their religious objections, and those things that we don't. if you want to think there is no the difference, just read brief list it all into pages. some go all one way and some the other. he says that other people involved, what is your answer? francisco: i agree, it is a tough one. justice breyer: what is the right one? i think the law works, do they have to do this particular thing to violate their believes? you look at how the government is treating similar situations. government is it with respect to all of these other people who don't get coverage from their employers, were willing to tolerated or address the issue in other ways to read , you have to see if it is sufficient for other

employees or uniquely insufficient. >> may i ask a question? anything the government offer in fact result in women employees of your clients or students of your clients getting health care as part of an employer-based plan? is there any accommodation that would be acceptable? thecisco: your honor, accommodations we listed in our brief would all be acceptable. justice kagan: no, in other words, you object to this notification. is there any type of notification that would be acceptable? francisco: your honor, by submitting this, we got -- if we got the same treatment as religious employers -- justice kagan: the religious employers do not get contraceptive coverage through their plan.

i'm asking whether there is any accommodation that would result in the women employees getting contraceptive coverage seamlessly through an employer-based plan that you would find acceptable? francisco: possibly so, possibly not. we have not been offered that type of cut -- alternative to consider. -- have provisions what might be acceptable? what is enough distance? a notice ofe file objection, and the government provides interest in the same way it does to other employees who don't get coverage on them ploy-based plan. basicallytomayor: you're saying, if it is an opt out, i raise my hand and say i am a religious objector, and

they know who your third-party administrator is, they have a law, insurance companies who tell them that their clients are. is, your insurer is involved in any way you object. francisco: not necessarily. if there was an uber policy, something the government picks for providing contraception coverage for all women, i think we would also be fine. >> paid for by the government? francisco: yes, sir. justice ginsburg: college students want to get the same coverage that is available for all other people. as far as i understand, you are saying no, it has to be a covenant -- different plan the government provides. religious -- it

is ensuring the religious organization, these students will have to get something else. they can get what all the other students get for all other health protection. i am tried to be careful because we have many clients of many different views. what i think is a general matter, i concerned with you the case, that if they are seizing control of our plan, the plans are required to provide under threat of penalty, and using those plans as a vehicle to delivering objective -- objectionable coverage to our could certainly see why many clients in view that as a substantial burden on her religious police. that is not the end of the analysis. we then turn to less restrictive alternatives. i will conclude here, the government have alternatives. it is the same alternatives it uses for everybody else.

if all of these alternatives are fine with them, they at least need evidence why they are not fine for us as well. >> thank you, counsel. >> mr. chief justice, and may it please the court. they challenge strikes precisely the sensible balance between religious liberty and compelling governmental interest, but congress saw when it enacted rfra. as a saw in hobby lobby, they -- exempting them from the contraceptive requirement and to respect the interest of petitioners employees. justice kennedy: and i infer from your remarks that there is a substantial burden here? what is permissible accommodation?

do you concede there is a substantial burden? is a do not concede there substantial burden. we can see that the religious belief is sincere. we are not questioning the sincerity of the believe, we don't think that in a case in -- when a question is this, a religious objection is made to the independent arrangements a government makes with third parties, to fill a regulatory gap created by creating an exemption from a generally applicable rule, that that qualifies. do you believe: they are complicit in a moral wrong? mr. verrilli: no, they are not. justice kennedy: that seems to me a substantial burden. the next question is there an accommodation, and is it least restrictive? to verrilli: i am happy discuss that further, but i want to talk about a critical point

on the question of how scrutiny applies. it is this. mr. francisco spent a lot of time talking about the various the government might use instead of accommodations. i think it is a real problem with every single one of them, when every single one of them defeats the very purpose for which congress imposed the preventative services requirement, not just with respect to contraceptive, but services. point here, and i think you can see this if you look at the provision you can find on page 4 a, preventative services provision. the point of this provision, is that a group health plan, i.e., the health plan that covers people through their employer, or individual health insurance coverage, i.e., the kind of coverage sold on the exchanges, shall include cost free,

definitive services. the whole point of this thatsion, was to ensure people who got health insurance would get preventative health insurances as part of the regular doctor. your compelling interest is not that women obtain contraceptive services? women obtain contraceptive services through the insurance plan, or the third party administrator hired by the petitioners? hired by the little sisters? words, you can't say what you're trying to do is make sure everybody has his coverage. you want to make sure they have it through the program set up by the little sisters, and that is what they objective. mr. verrilli: yes, i understand. for the moment, assuming we are in scrutiny, the point i am making here, none of these

options the petitioners have identified going out on the exchange, contraceptive purchase only, medicare, medicaid with respect to every one of them, we have to change the lot to make them even eligible here -- even if you could change the law, every single one of them creates a very problem that congress has been trying to solve in this provision or it because it would require setting up a one off, jerryrigged separate channel for contraceptive coverage. justice roberts: it is the form in which the services are provided that you object to, not the fact that they be provided or not, because that is not the question. in other words, the petitioners use the phrase hijacking, and it seems to me that is in accurate description of what the government wants to do. they want to use the mechanism that little sisters and other petitioners have set up to provide services, because they want coverage to be seamless. now maybe that is a sufficiently compelling government interest,

the form where the services are provided. but it is not whether or not women receive contraceptive services. the petitioners do not object to the fact that the people who work for them will have these services provided. they object to having them provided through the mechanism that they have set up, because they think whether you are i think it, that complicity is simple. i understand that, mr. chief justice. i understand your position. let me an gate on you whether that presents a substantial burden. we believe it does not constitute a substantial burden because of way that this accommodation is structured, although you are quite right, from the perspective of the employee to make sure they get protection congress designed, that fund mental perspective of the employer that this is provided through a separate program. you wereoberts:

saying, don't worry, you are not complicit. no, we're saying the judgment is up to you. but there is an objective limit on the scope of burden. rfra, andrue before it was involved in other cases where there was no doubt -- then the enddy: analysis has to be whether there are other less restrictive services. if rfrailli: as i said, scrutiny applies, it is the least restrictive alternative. >> supposedly possible for a woman who does not get contraceptive coverage under a grandfathered plan. or under a plan offered by a church, or a to obtain anprofit

contraception only policy, free of charge, on one of the exchanges. why would that not be a least restrictive alternative? mr. verrilli: it has precisely the problem, congress is trying to overcome. what type of a restriction does that impose? that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges? two insurance plans and set of one, one from the employer, and one from this plan. just like one people have wondered insurance card for medical insurance and another for prescriptions. employee has the to go out and get separate policies, even if it doesn't

exist now, because those policies cannot be sold on exchanges now. justice alito: we can talk about that any minute. mr. verrilli: that is not equally effective to achieve in the government's interests. the whole point is that you get from your regular doctor is part of your regular health care, without any barriers, including co-pay barriers. consider this please for the perspective of the woman employee. she has a health plan from her employee. she goes to her doctor, her regular doctor. she may have a medical condition makes pregnancy a danger for her. 15%may be one of the women, that need contraception to treat a medical condition, or maybe she just wants the one that is appropriate for. what happens under this petitioners regime, is the doctor has to say to her, sorry, i cannot help you.

it is not just that you don't ,et the prescription paid for not just that he cannot write the prescription, he cannot counsel or educate. why would that be? he would be paid under the contraceptive plan. it would not be a regular doctor. she would have to go out by a separate plan, find a doctored that would take it. >> you think they would sensitize them in the case of those who provide services? point islli: the whole that the barriers, a five dollar or $10 co-pay, they said even small barriers as part of your regular coverage, even small barriers work as sufficient disincentive that much fewer people use contraception than otherwise. that kind of barrier any system

your honor is positing provides a greater barrier. what about the women in grandfathered plans? mr. verrilli: grandfathered plans offer no contraception coverage. --tice alito: mr. verrilli: this is a transitional device. a number of people in grandfathered plans has dropped by 50%. there is no reason to think it will continue to drop, and if it does continue to drop, we will see zero very soon. in the long run, we are all dead. [laughter] but what happens in the interim? a congress not require contraception coverage right away under the grandfathered plans? they required coverage right away under grandfathered plans for 25-year-old son, so they

could get coverage under their parents health insurance plan. greatwould've been no administrative difficulty for the grandfathered plans to put in contraception coverage, preventative care coverage right away, right is a good for the 25-year-old. the reallyid for important things, like a 25-year-old graduate students, yes, you have to do that right away. before these other things, you can continue not to provide that coverage for women as long as you maintain your grandfathered status. >> when they pass the americans with disabilities act, it did not provide an immediate requirement that every building be retrofitted so that access to the disabled as possible. what is said in that contest, shallle that buildings retrofit, and new buildings will have these access requirements. no one would say that the government lacks a compelling therest in enforcing

americans with disabilities act, because congress decided on a transitional system. this was a good program, there were alliance interest. that this number would drop genetically over time. a good place to know why it would drop, look at the page 86 of the joint appendix where they say we are sticking with our grandfathered land now because we don't want to trigger the contraceptive plan costing us a fortune. with respect to contraception ,tself, the grandfathered plan said that contraceptive coverage is standard practice now. said 86%a study that of all plans of contraceptive coverage. most of these women will have contraceptive coverage, but not cost free.

come back to the point you're making about the americans with disabilities act. that is a good point, it can be very expensive to retrofit facilities to accommodate people with disabilities. but are you saying that the burden of simply instituting coverage for preventative care, for 25-year-olds, is comparable to make architectural changes? mr. verrilli: no, but what i am saying, unlike the exemption for , which exempts 17 million people from these fundamental protections against racial and religious dissemination, this is a where overl device time virtually nobody is in a situation, being in a grandfathered plan, and most are

getting contraceptive coverage anyway. justice sotomayor: can we go back to the substantial burden question? breyer has been talking about it. when does that have to act accommodate and when does it not? that ate suggested least to me, helps give some clarity to our cases. if what your religious believe is asking the government to do is to change its behavior with respect to regulatory behavior, others, then it can't be a substantial burden, because we live in a society where government has to function. hence, you are a military

objective, you can't tell the you cannotknow, draft somebody else. you can't spend your money on war. todon't have to use you promote the war, but if you want to use others to promote the war, you're entitled to do that as well. does this make any sense to you? groups, ious understand what they are asking. is the government not to use its regulatory power with third parties that don't have religious objection? and forcing a burden on the to helpo are trying third parties that don't have the same religious objections, burdening them to do other things. that isilli: i think the essence of our position on substantial burden, your honor. i will try to answer justice breyer's question about where it comes from.

they both recognize there is an objective limit. the court said that it does not doubt based on the petitioner's objection. the objection is that the government is hijacking their process, their insurance company, the third party administrator. that they have hired an set up to provide these services. i understand the distinction between -- yes, you can do it you want, but you can't compel other people to take action that are consistent with your religious beliefs. that is not what is going on here. it is the relationship between the insurer, the little sisters that they have hired or other administrators, that is being used by the government to provide these services. it is not just a third-party

that is being compelled. it is not just that they want third-party to take certain actions. i agree with you to some extent, but that is the context that this action occurs. there is this relationship between the sisters and their employees and the occasion for government acting. there are two point that are critical as to why we should not consider this a burden. the first is that what we are doing, when we act here, is trying to make an alternative arrangement about as close as we can to ensuring that the employees who may not share the same boys at the petitioners, get what they are t entitled to while at the same time ensuring that the employer does not have any legal obligations to pay for the coverage, provide the coverage in any way. the practical features of this critical. the employer cannot be charged

for the coverage. company orce third-party administrator, has to separate segregated funds and separate notices and provide a separate insurance card to the employees for this part of the coverage. in that respect, it is an independent arrangement with third parties. >> they are not third parties, they are the insurance companies that petitioners have hired. it used to be that the balance was pretty clear. you want coverage for contraceptive services to be provided. you wanted to be in the one insurance package. that is the compelling government interest. on the other side, the question is whether or not, people who have sincere religious objection to be complicit in that, to the

third-party in the straighter -- administration, whether the government's compelling interest outweighs those sincere s.ligious interest mr. verrilli: let me put it this way, we would be content if the that with to conclude respect to substantial burden. you could assume a substantial burden. the government has satisfied its burden under rfra to show compelling interest and that this is believed constrictive ian -- means. is discussion this morning that it is a hard question. it is important to us and that is why we are fighting. exactly what i found difficult. i read the brief. your brief said that.

look to see that it is not the kind of burden that counts for the purposes of rfra with the first amendment, where it is a burden is that it is a certain kind. say, a kind where it arises out of the fact that we have a program that affects third parties in a big way. ok. church of the escapees in los angeles. there's hope for they have to meet in the basement of the house and the parking regulations stop their congregations from coming even if they want to meet on sunday. think about that one. we can put that into the context of third parties being hurt. they can practice their religion. i can think of a lot of examples.

a couple of the tax cases. rulesread administrative the government has leeway where third-party, widespread , i'm trying to get the thinking of the people who have thought about this which are you and the others here on what is the best way to treat that burden. it is not hard to find a religious writing, people assume some burdens. mr. verrilli: we are not urging you to state a comprehensive standard here. >> then what do i do? mr. verrilli: we are urging a more incremental approach that recognizes the principles articulated apply in a situation where the government is acting, making arrangements with third parties in order to fill the regulatory gap that has been created by the government

granting an exemption to a religious entity. could you address the hypothetical about where the anernment would come in unoccupied room and little sisters civility not been used for anything, they even pay rent, they come in their and establish a title x clinic and artistry reading contraceptives -- contributing -- distributing contraceptives. > situation,i: in that they are actually harming the premises. , etna is aation different energy. -- entity. the government makes its etna or bluewith cross to provide contraceptive

coverage to other third parties. >> you say in your brief that you admit that, at least in the case of the self-insured plan, the notice or the form becomes part of the plan. this is their health insurance plan, established and you are putting a new objectionable element in the plan. is that correct? mr. verrilli: i do not think that is quite right, mr. alito. the two separate notices operate here. the first is the notice that the employer provide to the government. that is in the document. the legal effect of that document is to exempt the employer from any obligation to provide contraceptive coverage. there is a second document, a different document that the government consent to the third-party administrator. effectcument has a legal

that creates the obligation on the part of the third-party administrator to provide the coverage. it is not the case that the document that comes to us is an authorizing document. it is an exempting document. >> it is their plan and you'd make that you are putting something into their plant that they objected on religious grounds. mr. verrilli: the difference between that and the hypothetical is that one involves something tangible, physical property. the other involves something intangible. mr. verrilli: it is not just that it is intentional, the plan is a set of rules. the third-party adventure becomes the purpose of administrating this. the so plan administrator of this plan. even if one thought that this could create a legal exhibition burden, it is not true about the situation with insurance companies.

it is not true about church plans. the question is whether switching from having a self-insured third-party administrator to and insurance company, what that would be substantial. -- whether that would be substantial. >> the way which the employer provides the benefits. mr. verrilli: the government makes entering with the insurance company that is parallel with that plan. it is not through that plan, is parallel. there is a significant difference. >> what you think the government's interest is in requiring compliance by catholic charities. this gets to the question of the church exemption. mr. verrilli: let me try to ask point. it is helpful to understand how it came about. initially, it decided that it would create an exception for

churches. then, there was some back-and-forth, there were proceedings. they created the exemption for churches. then, the religious nonprofits came in and said, exemption ought to be extended to us. the government made a judgment that as a categorical matter, it was not willing to extend the exemption to all religious nonprofits, but would instead use this accommodation which we thought would be the best way that we could both protect their religious liberties -- the accommodation is the way in which the organizations comply with the mandate. with respect to catholic charities, they do not have to comply with the accommodation. they are exempt. reading through the lines. mr. verrilli: no line is perfect.

i'm sure that this line is not perfect. there will be some overlap. line is a valid line. it is largely valid for the reasons that kennedy has it that fight earlier. some entities -- identified earlier. some entities appear close to entities that have exemptions, but there also be entities who have connections. >> could you apply the same requirements to the little sisters as to the church entity itself? mr. verrilli: i think we could, your honor. it would be inappropriate accommodation. if we had the same compelling interest, and made the same argument, we have constrained ourselves. we have tried to be especially careful of houses of worship. that is normal for governments. >> you understand the argument.

we have said this in other cases. if you have a lot of exemptions, it undermines your argument that this is such a compelling interest. mr. verrilli: right. let me try to walk through this. i do think it is important. we identified three. we had a lanky -- lengthy discussion about that. they claim that there is an exception for employers who have 2050 employees, that is wrong. there's no reason to think that virtually anybody in that category is even getting contraceptive coverage as part of their regular health care and regular doctors. let me swing wide. -- explain why. exemption for that group. for the rfra.g

the claim here. ist is because one employer providing coverage that has to meet the contraceptive providing coverage. employees get their coverage from the regular doctors and regular health plan. then, if your employer is not providing coverage, then you go on an exchange. then you purchase a policy on the exchange. provides you with contraceptive coverage as part of your regular health plan. or, if you are eligible, you apply for medicaid which gives as contraceptive coverage part of your regular health plan for your regular doctor. employerrk for a small , does that arrangement frustrate the government compelling interest? mr. verrilli: no because the only option that that employee has is to buy on the exchange. that individual policy will

contain the contraceptive coverage from your regular doctor and rail or health care. the difference is when you work for a grandfather plan, for example. that category or a church. those people are already getting insurance. obstaclehem, it is an because you are forcing them to second- purchase a insurance policy. that is a financial healthy for them. -- penalty for them. >> the underscores that the plans are in fact subsidizing. mr. verrilli: i think the answer to that is that they are not subsidizing it. the way in which this plan is structured, the way in which it ,s structured, they are not employers are not to bear any financial burden for the contraceptive coverage that has

to be provided without charge in the employer and funds have to be segregated. activity has to be segregated. it carefully designed to avoid these said those -- these subsidies. >> is so easy and free, why can't they get another plan. ? mr. verrilli: then you have to sign up and pay for a second plan. that is precisely the kind of obstacle that congress is trying to ensure it does not exist. the whole idea here is to ensure that these employees get the health care, get this coverage, from the regular doctor as part of a regular health care without these added obstacles. they need to go out and sign up for a plan, finding doctors who provide coverage under the plan, all those things are processing the obstacles they are trying to a limited. >> it comes at a question of who has to do the paperwork.

the employee or the religious organization. mr. verrilli: it is a lot more than that. you have to go out and find -- >> there on the exchanges. put yourself in the position. >> they are not on the exchange is. the exchanges require full-service health insurance policies with minimum coverages that are set forth at a very comprehensive. >> is that true with rebecca every policy? mr. verrilli: yes. >> what about pediatric dentistry? >mr. verrilli: no. >> except for that one. the way constitutional objections work is yet to bypass current law. in thisilli: circumstance, you do not need to get to that question of whether it is an obligation to change

current law. because, even if you did have a second contraceptive on the exchange, that would be precisely the kind of barrier congress is trying to limit. two policies instead of one policy. a lot of women employees will reach the conclusion that, well i have this coverage -- >> i guess that substantiate the point i was trying to make. it demonstrates the question of who does the paperwork. mr. verrilli: who has the hassle of going to the exchange. or you allow your infrastructures to be used as the vehicle. i'm not saying it comes out one way or another from your perspective, i'm just trying to focus on what is at issue. the question of whether you want the employee to sign a paper or if you want your little sister's design the paper. in the one case, it is an administrative word and and --

burden and the other case is it is a violation of the principle of faith. mr. verrilli: your point, your ofor, congress and institute medicine, congress made a judgment that this does impose a significant obstacle. these kinds of requirements result in significant way less use of medically necessary services. it does not just come down to this. >> it is unnecessary to hijack the plan. theverrilli: it is why government's interest is advanced in the least restrictive matter. most restrictive matter -- effective matter. >> you do not want to have women to have to ask for coverage is because that -- numbers of women will. quite if you have religious

objections who will not. then there will be the middle are unsure. inertia bound.-- we cannot say so what. that lowers the cost of health coverage later on. the government has an interest in that. therefore, there is an interest in some kind and not allowing -- in not allowing a system where the inertia bound have to take initiative. ?o i have the right d this is not hijacking because of the federal graduation that says of therastructure insurers contraceptive plan belongs to the insurer, not to the person who buys the insurance. in my correct?

mr. verrilli: that is all correct. that is why when i say that when we make arrangements with etna or blue cross, we are not making arrangements with petitioners. >> the problem of what is available on the exchanges at the present time, policies are available that provide comprehensive coverage. , as athe executives say matter of our enforcement discretion, we are not going to take any action against insurers to offer contraceptive only policies. in fact, we're going to 115%dize those insurers at just as we do in the situation of the self-insured plan. mr. verrilli: i don't believe. >> why would that not be a ballot exercise -- valid exercise of your discretion? mr. verrilli: i do not take it

would be. even if it would, it creates a problem that undermines the compelling interest of the institute of medicine, but it covers itself. whole point of the statutory provision is that -- somethingld it be not that you could do. with your understanding of executive power -- mr. verrilli: i don't think it would address the problem justice alito. >> you explain the difference identifyingoyer and an insurer, that covers contraceptives for many others. and the woman who now does not have this coverage have to go out affirmatively get it somewhere else. matter for her or

is there real difference between the employer same we will not cover contraceptives. and the woman who suddenly does not have it as part of her package, have to go around -- mr. verrilli: that is the point. is that is not just feeling -- about filling out paperwork. you go to a regular doctor, say you have a medical condition. it puts me at risk of being pregnant or i just want contraceptive coverage or need contraception's to treat a medical decision. -- condition. the way worse is that the doctor has to say, i cannot help you. doctororks is that the has to say that i cannot help you.

complicity. which way does rfra cut in analyzing this balance? i think it cuts in the situation, quite decisively in favor of the government because the interests are compelling and, as we have tried to explain, that of the alternatives that petitioners have proposed come anywhere close to being equally effective in ensuring that women get this coverage. obstacles -- you get told by your doctor that they can help you. numerous petitions have found declaration saying that our insurance will not cover even any counseling about contraceptive. yet to go out and find another doctor. yet to find a way to pay for that dr. and then find a way to pay for the contraceptive coverage. a whole host of very serious not just about signing

a form. mr. verrilli: why do you assume that the woman would go and that other services under the plan be unwilling to provide the services under a separate plan. >> that would be a happenstance. someone has to offer a separate plan and the doctor she goes to have to be a regular doctor who is under the same plan. the hijack of mentioned,t has been can you point why you do not see this as hijacking? mr. verrilli: the way of treasures when it is that we have tried, and i think the court recognizes this with hobby lobby, the employer with coverage. to exempt them and provide them separate means through separate funds without their involvement. therefore, it is not hijacking. i want to make one point and

maybe a follow-up. >> the contraceptive services would be provided pursuant to what plan? mr. verrilli: if you are hired by religious organization, you get a brochure with all your insurance coverage. where would the contraceptives be listed? >> it cannot be in that pressure, it has to be a separate indication from the employee. that is how it works. mr. franciscoyor: said earlier that it offers a separate policy to the insurance and he thought that would be an inadequate accommodation. mr. verrilli: i think that raises all the problems identified earlier. justice sotomayor: he says that if etna under some other policy offers it on the exchange for women who might want to go on

the exchanges by the policy, that is ok. if that is what they do. what is different from that from what happens here? it is basically the same thing. mr. verrilli: two policies instead of one. justice sotomayor: the contraceptives are being provided by government regulation. the only seamlessness is that the women does not have to apply separately. mr. verrilli: it is a separate policy, he will have to file separately. , itpoint about the notice is not just about us using the argument can'tce constitute extensional burden because it is derivative of the objection to us setting up this third-party arrangement. i think he told you that this morning when he said that if the

government did not take the step to providing coverage, we would be happy to provide any information they want on a form. i think that tells you that the thection here is arrangement to provide separate coverage. not the notice. before you sit down, could ask you this informational question about a particular situation of the little sisters. their regular third-party ministries are also -- administrator also said it will not provide the coverage even if they were to comply with the form of the notice requirement and therefore, you say they no way underot! no wa - -- orissa to obtain coverage. situation,i: in that

with a still be subject to fines? we do not think so. asked the court to weigh the alternatives we have put before you in this case. on the one side, you have a serious effort to respect the petitioner's religious police are treating a system that allows him to exempt himself from the requirement in a straightforward manner that protects fundamental rights and liberties of their employees, many of whom may not share their religious beliefs about contraception. on the other side, what you have, demand, those rights for those employees who may not sure if petitioners beliefs be extinguished. congressh time as creates an index a different --

and ask -- ennacts a different program that provides a way to pay for contraceptive coverage that will impose precisely the burdens that congress said in the relative statutory that is relevant for all services. said that thisbe is a case in which a great array of religious groups, not just catholics and baptists or evangelicals, but orthodox jews, muslims groups, the church of jesus christ and latter-day saints, indian tribes, that this presents an unprecedented threat to religious liberty in this country. what would you say to that? mr. verrilli: what i would say, your honor, is that essentially what the court of appeals has

requiresh is that rfra sensible balance. sensible balance is essential in a pluralistic society like ours. where there are people of every faith live and work side by side. the government has to administer rules that are fair to everyone. d accommodation achieve that balance. the petition is far from that balance. therefore, the course of appeal should be confirmed. >> mr. clement, four minutes. >> thank you mr. chief justice. i like to start with the university's justice kennedy. i don't think it's the case that just because congress exempts churches, that has to exempt universities. would it needs is a rationale for trying the lines. my friend says the line doesn't have to be purpose. -- to be perfect. it at least has to be pretty

good. the line that they have drawn is absurd. i would urge you to look at the amicus filed by the former head of the tax division. it explains the line they picke d, it makes no sense. that is an informative styling requirement. there is no substantive difference. is my clients file form, they get the same tax exempt status as a church. the only difference is whether you filed the form. the substantive treatment is the same. to use that line to draw a distinction between churches and universities, or the little sisters of the port, is a terrible line to draw. justice ginsburg: by reading proponent of rfra discusses this line. next, that gets me to the

point. their original justification for the line they drew, was that the exempted organizations would be more like her to hire coreligionists and less likely to have employees that would use the products. my client equally enjoy the title vii exemption, which gives them the right to hire coreligionists. there original rationale applies equally to my clients. as to the exemptions, i will respectfully disagree with professor laycock. us youches have to tell will claim an exemption. not every church has the same religious tenants. is that what you have preferred? is that the incentive you want to put out? is that the message you are giving? which is, there are lots of rules that apply to to churches because we recognize they are special.

tell what aar to church is. mr. clement: the exception is not just limited to churches. it applies to religious orders. if my clients stuck to their knitting and did not help the elderly poor, they could qualify. but not all exemptions are created equal. professor laycock is a great scholar. even he admitted he did not understand the details of this particular plan. he left it at the party. he subsequently said if there was a requirement for these entities to contract, then even he would recognize a substantial burden. not all exceptions are created equal. if you create an exception for small employers, that's a rational exercise of enforcement discretion. if you create an exemption -- if the exception for peyote had been for a schedule 5 substance, maybe the government would have won. their problem was that the government had already exempted

the sacramental use of peyote, a schedule one.substance of course they had a hard time arguing why they couldn't provide an exemption for a different schedule one substance. all these exemptions have to be treated the same. no otherno excuse, way than to do the hard work of looking at the exemptions and seeing whether they make sense. one case that congress wanted to embrace in rfra -- it was a hard case because they're basically were no exceptions. if wisconsin had only provided an exemption for the mennonites and for the students of state where the schools are further apart, it would have been an easy case. you can't make an exemption for all these grandfathered plans. it's not a sunset provision. if you look at joint appendix page 956, they link it to the idea that if you like her plan, you can keep it. in closing, my clients would love to be a conscientious objector. for the government insists that

they be a conscientious collaborator. there is no such thing. >> thank you council. case is submitted. >> following the argument, some of those involved in the case spoke with the media. we heard from religious leaders and sister lorraine mcguire from the little sisters of the poor. representatives of the aclu and the national women's law center. [applause] enk, am reverend rob sch president of the national clergy council. thousands of catholic evangelical, orthodox church leaders signed on to a petition supporting this. two questions are at stake here. religious freedom and the right of conscience are at stake.

the father will make comments about what we observed in the courtroom. >> i am national director of priests for life. we were the first ones to issue a legal challenge to the hhs mandate. part of our case is dr. l peter king, the niece of martin luther king jr.. she is a petitioner. this is not about us imposing any kind of restrictions on our employees. this is not about us denying them anything. this is about insisting that the government not impose its pressure on us to violate our faith. a believer should not be forced by the government to choose between following his faith and the law. i was encouraged by what i heard inside. the chief justice pressed hard. acknowledging that what we are saying is that the government is

hijacking our insurance plans. it will be the very same plan we are offering our employees now that would become the vehicle for the contraceptive and abortive patient coverage. that's the point. it's our plan, not a different plan. the chief justice pressed that point hard. even justice kennedy referred to the word hijacking. he said, is this not hijacking? the plan of those who object to these services. it's important to understand, it's not the government that is the judge of whether a religious beliefs are accurate or valid. this court has said that many time. a believer is the judge of that. i ask that our listeners and people enter into a period of prayer. we have launched a prayer campaign. we are going to follow up on this. bottom line, we will not obey this mandate no matter how this

court rules. we believe based on what we heard, it's going to be a split 4-4 decision. thank you very much. >> thank you very much for joining us. i'm with the second sons for religious liberty. we represent the little sisters of the poor. we will have mother lorraine mcguire give a statement. mcguire.ine thank you. hello, my name is sister lorraine. the lord has given me a beautiful calling, being a little sister of the poor. we are a group of women who make religious vows to god. and we dedicate ourselves to serve the elderly poor, caring for them regardless of race or religion, offering them a home

where they are welcome to christ. they are cared for as our own family. we accompany them until god calls them home. we've done this work for over 175 years. now we find ourselves in a situation where the government is requiring us to make changes in her religious health care plan to include services that really violate our deepest religious beliefs and little sisters. it's hard to understand why the government is doing this. 1/3rd of americans in the country are not covered by this mandate. theere are large corporations pepsi, visa and exxon, that are fully exempt from the mandate. yet we are threatened with fines

year.70 million a it's such a privilege. it's a privilege for us to care for the most vulnerable members of our society, serving them, just being a loving and healing presence. being there little sister every day is our joy. that is all we want to continue to do. that is our motive. it's to continue to work as we have always done it. after hearing today's hearing, we are hopeful for a positive outcome. our mother foundress taught us that work is god's. he will help us. we put our trust in him. he will be there for us, as he has always been for 175 years. thank you very much. god bless you.

brief on behalf of 68 organizations. women deserve insurance coverage upper control no matter where they work. this birth-control benefit has been a game changer for women. it is advanced women's health, women's equality, and it saved women over $1 billion i one year alone. these employers want to take that benefit away from their employees. the alternative they proposed in court today are unworkable and frankly insulting. prevail, they will return their employees to the bad old days of sextus, nation and health care. if the supreme court follows its own logic in this hobby lobby decision, the outcome is clear. no bosses religious belief will jump a woma -- will trump a woman's access to essential health care. >> before you leave, a question?

one of the arguments they give is that you can get this insurance through the state exchanges. do either of you want to address that? why isn't that a less offensive alternative? >> two things, one there isn't an insurance claim expressly for contraception. second, that's treating women differently from anybody else that has the service. that is in essence saying, other health insurance is is through this one plan. but if you want contraception, you have to buy a separate plan. that's like saying women have to go through the backdoor in order to get the care we want. it's offering an alternative that is fostering dissemination in response to something -- fostering discrimination in something that is meant to address discrimination. >> i am from the aclu. on the w legal director. -- i am the deputy legal director. we filed a brief in support of the government. we defend religious exercise. but the arguments in this case are arguments we can't abide.

i want to focus on one thing that justice breyer said in the case. he was asking over and over, how do we think about the line between religion and its intersection with secular society? he says they have to pay taxes, even though they are opposed to war. he talked about people having to clear a sidewalk outside abortion clinics, even if they are imposed to abortion. he said, what is the line we should draw here? we should look to hobby lobby and other sources to say, the line is that religious liberty doesn't mean the right to impose your views on others or the right to discriminate. , this court takes away will have a result that fosters discrimination. thank you. >> c-span's "washington journal"

live every day with news and policy issues that impact you. saturday morning, the professor for peace at the university of maryland to examiner american views of -- to examine american views of muslims and terrorism after the events in brussels. statements made by candidates donald trump and ted cruz. former homeland security official nathan sales from boston to discuss the effectiveness of the u.s. visa waiver program. be sure to watch c-span "washington journal" live at 7:00 a.m. eastern saturday. join the discussion. >> duke university physiology professor chris is the author of the book called "terrified: how anti-muslim fringe organizations became mainstream." he spoke to students at duke university about anti-muslim sentiment in the u.s. this is under one hour.

[applause] >> hi, thank you for joining us. i am the director of the islamic studies center. it is a privilege for us to have the professor joining us on a topic of interest to so many of us. the professor is an assistant professor of sociology at duke university. he studies have nonprofit organizations and other political actors create cultural change by analyzing large groups of text from newspapers, television, public opinion surveys, and social media sites such as facebook and twitter. his research has been published by princeton university press, including this wonderful book.

>> his work has awards from the american sociological association-- the society for the synthetic study of religion and the society for study of social problems. he's been supported by the national science foundation and the robert wood johnson foundation. his research has also been covered by major media outlets, such as nbc news, national public radio, and washington post. as of today, c-span. [laughter] professor bail has a phd from harvard in 2011. in his first monograph, which i put on the screen, is "terrifie d," a study of how anti-muslim fringe organizations became mainstream. it was published by princeton in 2014. please join me in warmly bail.ing professor

[applause] mr. bail: thank you for that very generous introduction. thank you for hosting me. i like to begin my talk by looking at recent media headlines. probably most of you have heard donald trump's comments last month in which he claimed to have observed muslims in new jersey celebrating after the september 11 attack. this beliefspread of this statement, he doubled down and later called for a ban on all muslims. his competitors were not too far off the field. ted cruz, several days later made pointed comments that implied that most or even all

muslims passively condone terrorism. marco rubio tried to out trump trump. he claimed that we should not only be shutting down certain houses of worship, but any place where muslims congregate. trump, nabbedfore one of the biggest fundraising holes in a single hour for the republican party for his disparaging comments about islam. i don't think we will see an end to this anytime soon. question is simply -- how did this anti-muslim sentiment becomes a mainstream? how can a leading candidate for disparage one of the country's largest religious groups, given that her country

has foundational principles surrounding religious liberty and freedom? and you may think there are a few easy answers to this question. muslims or people who call themselves muslims are implicated in some very terrifying recent events most recently the san bernadino attacks. when we look at the numbers as my colleague charlie kerzman has done we see quite clearly we , should be much more afraid of a variety of other threats to our well being than terrorism. with the threat terrorism there is no clear cut evidence it is increasing on an exponential scale. maybe it's isis, this terrifying new organization that has proven that it can take over large slots of territory, has committed horrific acts of terror against u.s. citizens, and european citizens, that's proven its capacity to do

massive harm in places like paris, and yet i'm going to show you today that this story really begins years before isis was even around. maybe this is just 911 you might ask. maybe a story about a kind of butterfly effect. most americans pre 9/11 could barely knew any muslims. the survey data suggests less than one in three americans had ever met a muslim which is somewhat shocking and i think probably more reasonable to say they didn't knowingly meet a muslim because muslims have been in the united states since the beginning of our history as many of you probably know. but nevertheless, an event of the scale of 9/11 surely would provoke some type of back lash. interestingly what we see is actually an uptick in positive sentiment toward muslims and specifically muslim americans after the 9/11 attacks. we don't see a steady growth,

kind of wave like growth of antimuslim sentiment from 9/11 on. in fact, if we go back to the immediate aftermath of 9/11, prominent republicans such as george w. bush were, in fact, outwardly going out of their way to say islam is a religion of peace, were criticizing various evangelical leaders who had said a variety of disparaging things about muslims. this image here is bush meeting with numerous leaders of muslim american organizations among them the current leader on the council of american islamic relations, an organization which now faces pervasive allegations that it tacitly condones terrorism. i'll say more about that in a little bit. so if it is not fear of terrorism, not isis, if it's not 9/11, what is it?

i'm going to argue today that a small network of antimuslim organizations in the wake of the september 11 attacks captivated the media and, specifically, through emotional appeals. and though these organizations were once peripheral actors within the broader family of organizations trying to shape public discourse about islam, they've now raised more than $242 million to mount one of the most significant campaigns to shift american public opinion against islam. i'll show you how they've exerted considerable influence upon our counterterrorism policy, the recent wave of so-called antisharia laws, and, you know, perhaps most disturbingly how they've even been hired to train our counterterrorism officials. all of this occurs in the broader context of the so-called battle for hearts and minds we currently find ourselves in against groups like isis and,

surely as i'll show you at the end of my talk these fringe ideas about the antimuslim ideas are avid travelers. they get picked up by international media where i think they may do their most significant harm by tarnishing the reputation of the united states which was once a paragon for religious freedom and making it seem as though the u.s. is in fact antimuslim, thereby validating the claim of groups like isis that the u.s. is fundamentally at war with islam. now, historically social scientists, i'm a cultural sociologist, we looked at small cases of organizations that exerted profound change on public discourse. so we track down an organization that, you know, shapes the way

we talk about say nuclear energy or any kind of big, social problem we all deal with. and there are a variety of problems with that approach. we wind up studying groups and wouldn't learn about groups that failed and we'd wind up with a distorted picture that uses circular reasoning to try to understand how groups exert influence on public discourse. but when i was trained, i was learning alongside other social scientists about the new wave of computational social science methods or so-called big data. these are the increasingly large amounts of data that are available due to the rise of social media, the internet, the mass digitization of archival and historical records and so on and so forth. so in my book i leveraged these new computational methods to try to ask, to answer this question. who gets to speak on behalf of islam before the american public and why?

and to do this, i collected a massive sample of press releases produced by any organizations trying to shape public discourse about islam. so these include not only antimuslim fringe organizations but also groups like the council on american islamic relations, or various other muslim public affairs council and so on, other kind of advocacy groups, religious organizations, think tanks, and so on and so forth, all nonstate and nonprofit groups trying to shape public discourse about islam. i then collected all mentions of these organizations in a large number of, large group of media documents including newspapers to measure the kind of political spectrum of the media from left to right, as well as tv -- fox news, cnn, and cbs news. and the innovation of my work is to use a plagiarism detection

device to check the extent to which each press release influences this larger public discourse about islam. what is neat about the new algorithms is we can identify not only verbatim quotes, here we have a press release that says bias and hate is unamerican, this also identifies near matches or paraphrased quotes of the press releases. and they enable kind of quantitative measure of the amount of the influence of each organization upon public discourse about islam. i also conducted in depth interviews with the leaders of each, all of these organizations or, sorry, sub sample of these organizations. both those that succeeded in influencing public discourse about islam as well as those who had little or no influence on shaping public discourse about islam.

and so let me tell you the story -- my book actually begins with a history of muslim american organizations in the united states and the broader struggle to shape the public opinion about islam before the 9/11 attacks. but today i'm going to focus mostly on the post 9/11 period because i think it has the most implications for the current type of main streaming of fringe ideas about islam that we're seeing among conservative leaders. it's difficult to forget this image. it is seared into many of our heads, our subconscious. yet what most of us may forget is that there was an outpouring of sympathy for muslims after the 9/11 attacks. so there have been yearly surveys of american public opinion of islam which i'll soon show you which show as i mentioned earlier an increase in positive sentiment toward muslims after the 9/11 attacks.

this on top of dozens and dozens and dozens of statements from all manner of civil society groups arguing that muslims are in fact a peaceful people who are being victimized by a minority among them who are hijacking the religion for political ends. and this is an example of how the plagiarism detection analysis can show us this. i need to take a few minutes to walk you through this graph. first of all, each of these circles describes an organization -- think tank or religious group, advocacy group, and so on. and the size of each circle describes how much media influence they had. how many times newspapers or television channels regurgitated their message and their press releases. you can see some organizations like the council on american islamic relations have a lot of influence. but most organizations have no influence. these tiny little dots here.

now, the position of these circles describes the similarity of their messages. so with a group of research assistants i coded the type of language that each organization uses to describe muslims. these could be things like, you know, muslims as victims narrative, or islam is an inherently dangerous and violent religion narrative. what we see is that most groups were using a main stream narrative that was simply that main stream muslims organizations or muslim americans are a peaceful group who are being victimized by a group of political radicals who have hijacked their religion for political ends. and yet as we look at who got the most media attention, it's groups like the middle east forum or the center for security policy.

two relatively obscure organizations at the time in the wake of 9/11 who are receiving the lion's share of media coverage. now, these groups were advancing a so-called stealth jihad narrative which will be another theme i'll talk about, and their narrative was essentially that muslims and muslim americans in particular are a column secretly plotting to undermine the u.s. constitution, implement sharia law, and they hide between a thin veil of political correctness in so doing. this is an example of the type of work that -- the type of messages that came out. on the left is daniel pipes from the middle east forum. famously launched a campus watch campaign. his idea was that u.s. universities had been infiltrated by terrorist sympathizers for radical islam and that a concerted campaign