are very particular concerns that small businesses face. those are terrible incentives to give to legislature, are they not? francisco: 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. justice breyer: let's imagine a 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. not exempting taxes because of war. we are looking at the same question, and i am not asking to refute you, 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. we know there is a distinction. 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 things that we do require people to do despite their religious objections, and those things that we don't. if you want to think there is no such difference, just read the 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? francisco: 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. here, the 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 under rfra, you have to see if it is sufficient for other employees or uniquely insufficient. >> may i ask a question? could 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? francisco: your honor, the 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.

you have provisions -- justice kagan: what might be acceptable? what is enough distance? francisco: we file a notice of 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. justice sotomayor: basically you're saying, if it is an opt out, i raise my hand and say i am a religious objector, and they somehow, they know who your third-party administrator is, they have a law, insurance companies who tell them that their clients are. that 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. as long as the 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. francisco: 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 employees, i 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. the petition 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 seek -- 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? >> we do not concede there is a 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 which -- 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. justice kennedy: 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? mr. verrilli: i am happy to 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 alternatives 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, notust 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 4a, 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 provision, was to ensure that people who got health insurance would get preventative health insurances as part of the regular doctor. justice kennedy: 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? in other 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. mr. verrilli: 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. justice roberts: you were saying, don't worry, you are not complicit. mr. verrilli: no, we're saying the judgment is up to you. but there is an objective limit on the scope of burden. that was true before rfra, and it was involved in other cases where there was no doubt -- justice kennedy: then the end analysis has to be whether there are other less restrictive services. mr. verrilli: as i said, if rfra scrutiny applies, it is the least restrictive alternative. >> supposedly possible for a woman who does not get contraceptive coverage under a grandfathered plan. justice alito: or under a plan offered by a church, or a religious nonprofit to obtain a 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. justice alito: 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? social have 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. mr. verrilli: the employee has 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 this care 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. she may be one of the women, 15% 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 get 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? mr. verrilli: the whole point is 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. justice alito: what about the women in grandfathered plans? mr. verrilli: grandfathered plans offer no contraception coverage. 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. justice alito: in the long run, we are all dead. [laughter] but what happens in the interim? what was the reason congress did 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. there would've been no great administrative difficulty for the grandfathered plans to put in contraception coverage, preventative care coverage right away, just as they did for the 25-year-old. congress said for the really 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 passed the americans with disabilities act, it did not provide an immediate requirement that every building be retrofitted so that access to the disabled was possible. what is said in that contest, feasible that buildings shall retrofit, and new buildings will have these access requirements. no one would say that the government lacks a compelling interest in enforcing the americans with disabilities act, because congress decided on a transitional system. this was a good program, there were alliance interest. they understood that this number would drop genetically over time. a good place to know why it would drop, look at the declaration on 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 itself, the grandfathered plan, said that contraceptive coverage is standard practice now. we cited a study that said 86% of all plans of contraceptive coverage. most of these women will have contraceptive coverage, but not cost free. justice alito: 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, as it was done for 25-year-olds, is comparable to make architectural changes? mr. verrilli: no, but what i am saying, unlike the exemption for small employees, which exempts 17 million people from these

fundamental protections against racial and religious dissemination, this is a transitional device where over 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? i think justice breyer has been talking about it. when does that have to act accommodate and when does it not? some have suggested that at 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, with respect to 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 objector, you can't tell the government know, you cannot draft somebody else. you can't spend your money on war. we don't have to use you to 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? the religious groups, i

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 women who are trying to help third parties that don't have the same religious objections, burdening them to do other things. mr. verrilli: i think that is 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 that the government actions will have a devastating impact on religious exercise.

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. mr. verrilli: 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 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. the insurance company or 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 administrator, whether the government's compelling interest outweighs those sincere religious interests. mr. verrilli: let me put it this

way, we would be content if the court were to conclude that with 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 means. the discussion this morning is that it is a hard question. it is important to us and that is why we are fighting. >> that is 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. you would say, a kind where it arises out of the fact that we have a program that affects third parties in a big way. ok. the vietnamese church of the

escapees in los angeles. they are so poor 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 -- cannot practice their religion. i can think of a lot of examples. a couple of the tax cases. widespread administrative rules the government has leeway where third-party, widespread administrative, i')m trying to 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 government would come in an 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

mr. verrilli: yes. we think that would trigger scrutiny. the difference is in that situation they are on their premises. trying to getion, back what i was discussing with you mr. chief justice, etna is a different petitioner. blue cross is a different innate best entity. etnake arrangements with and blue cross and other insurance companies to provide contraceptive coverage to other third parties and employees. >> you admit in your brief that at least in the case of the self-insured plan the notice, the form or the notice becomes part of the plan. this is their health insurance plan established under orissa and you are putting a new objectionable element into the plan isn't that correct? mr. verrilli: i don't think that's quite right.

i think her has been some confusion about that on the petitioners side. there are two separate notices. the first is the notice that the employer provides to the government -- that is an orissa plan document. the legal effect is to exempt the employer for many obligation to provide contraceptive coverage. there is a second document, a different document that the government then sends to the third-party administrator. that document is the document that has legal effect victories the obligation of the third-party administrator to provide coverage. it is not the case that the document comes to us is authorizing document. that is in exempting document. >> is their plan, and you admit you are putting something into their plan that they object to on religious grounds? involvesrence is one something tangible, physical property. the other involves something

that is not. mr. verrilli: is not just that it's intangible property. the plan is a set of rules. for third-party of ministry becomes, for the purpose of administering this, becomes a plan administrator for this portion of the plan. even if one thought this did create a legally sufficient reason to fight substantial burden for third-party administrators, is not true but the situation with insurance companies. it is not true about church plans. it seems to me the question is whether switching from having a self-insured third-party administrative situation to an insurance companies situation, whether that would be substantial. >> is of the insurance policy part of the plan? the way in which the employer provides the benefits that are available? mr. verrilli: yes come up the government makes an arrangement with the insurance company that is parallel to that plan.

but it isn't through that plan. is in parallel to that plan. is a significant difference. >> what is the government interest in requiring compliance by catholic charities of pittsburgh, totally something catholic charities? mr. verrilli: this gives to the question of the church exception. i will try to explain that. i think it is helpful to understand how it came about. initially decided it would create an exemption for churches. back-and-forth, proceedings, petitioners creating tension for churches. than the religious nonprofits came and said the intention ought to be extended to us. the government made a judgment that as a categorical matter it was not willing to exchange the exempted to all religious nonprofits as requested.

it instead with easy accommodation, which we thought was the best way that we could both protect their religious liberties -- >> it's properly phrased in the briefing is the accommodation is the way in which your organization implied with the mandate. with respect to catholic charities, they don't have to comply for the accommodation or any other. they are exempt. mr. verrilli: the reason we drew the line is because -- and i think it's quite instructive on this point, no line is perfect. there is going to be some overlap between entities that may be think of tesla closer being on one side of the line than the other. the line is the valid line mostly for the reasons justice kennedy identified earlier. and that quarter gory -- category, maybe some identified close entities.that have an exempt and it will be lots of other entities which -- with connection. >> you have to draw the line.

could you apply the same requirements you apply to the little sisters to the church entity itself? mr. verrilli: i think we could, your honor. i think it would be an appropriate accommodation. if we have the same compelling interests, we would make the same argument. we have constrained ourselves. we try to be careful with houses of worship and is a normal thing governments do. >> you understand the argument. -- ifd this in cases like you have a lot of exemptions, it undermines your argument because this is such a compelling interest. mr. verrilli: let me try to walk through this carefully, because i do think it is important. i have identified three. we've had a lengthy discussion about that. i don't think you can argue that exemption. -- undermines government. they claimed is an exemption for employers that have fewer than

50 employees. that is just wrong. there is no reason to think that virtually anybody in that category of employees of the small employers is in getting contraceptive coverage as part of their regular health care from regular doctors. let me explain why that is. there is no exemption of the contraceptive coverage requirement of that group. several petitioners are in that group of fewer than 50 employees -- theyr asking for the have embraced the claim. that is because when employers provide coverage they have to meet the contraceptive requirement so the employees get the coverage from the regular doctor as part of the regular health plan. if your employer is not providing coverage in the group, he go on an exchange. you purchase a policy on the exchange. that policy provides you with contraceptive coverage as part of your regular health plan.

eligible you apply for medicaid and medicaid getting contraceptive coverage. >> for the employees at the five lands on the exchange because they were crazed mall employer and they don't offer health insurance, does that arrangement frustrate the government's compelling interest? mr. verrilli: know, and that circumstance the only option the employee has is to buy individual policies on the exchange. that individual policy will contain the contraceptive coverage from your regular doctor is part of the regular health care. the difference is 170 works for a grandfathered plan. in that category for church. most people are already getting insurance. it is an obstacle because you are forcing them to purchase a second insurance policy. that really becomes a financial penalty for them.

part of their compensation is the health insurance they are getting from their employers. >> that underscores the church plan here. the religious organization plans here are subsidizing the conduct leading the moral. mr. verrilli: your honor, i think the answer is they are not subsidizing. the way in which this plan is employers arethat not to bear any financial burden for the contraceptive coverage that has to be provided. they are not charging the employer. funds have to segregated and all activity has to be segregated. it's quite carefully designed to avoid any subsidy. provide,is so easy to why can't they give it to another plan? mr. verrilli: then they have to sign up for a second plan and pay for a second plan. that is precisely the kind of obstacle congress is trying to

ensure did not exist when they passed the preventative service provision. the whole idea is to ensure that care employees get this from the regular doctor as part of their regular health care without these added obstacles. they need to go out and sign up for another plane and find doctors that will provide coverage on the plan. all those are precisely the kind of obstacles congress was trying to eliminate. >> it comes down to a question who is to do the paperwork? if it's the employee that has to do it? if is the religious organization that has to do it? mr. verrilli: i think it is a lot more than that. you have to go out and find -- put yourself in the position -- >> they are not on the exchanges. that is a falsehood. they require full-service health insurance policies with minimum coverages that were set forth that are very comprehensive. mr. verrilli: that is true with

respect to every policy sold on the exchanges. yes. except for that one. >> exfo pediatric. -- except for pediatrics. you do it already. mr. verrilli: you cannot do it under current law. >> the way constitutional objections work as you might to change current law. [laughter] in thisilli: circumstance i think you don't need to get to that question of whether there is an obligation to change current law because even if you did have a second contraceptive only policy thatable on an exchange, would be precisely the kind of barrier that comes the best congress is trying to eliminate. that creates the disincentive. a lot of women employees will recent conclusion that i have got this coverage -- >> that substantiate the point i was trying to make. 'it's a question of who does the

paperwork. yes, it is a hassle to go to the exchange. i've heard about how easy it is. for you allow your infrastructure to be used as the vehicle for it. i'm not saying it comes out one way or another. i'm just kind of focus on exactly what is at issue. is a question of whether you want employees to sign a paper or you want your little sister -- the little sisters. to find a paper the administrative burden, and the other case is a violation of the basic principle of faith. mr. verrilli: i think the point is congress and the institute of medicine, congress made a judgment here that it doesn't pose a very significant obstacle. these kinds of requirements resulted in significantly less use of medically necessary services.

it doesn't just come down -- >> it's necessary to hijack the plans. why theilli: it is government's interest is advanced in the least restrictive manner and the most effective manner. >> isn't that the reason that you don't want to have women to have to ask for the coverage is because vast numbers of women -- quite a few who have religious objections will not. the newly be that destined will , ande middle set of people since they are inertia-bound we cannot say so what. that don't object religiously they get the contraceptives, that lowers the cost of health coverage later on. the government has an interest in that. and therefore there is an interest of some kind in not

allowing the system and not having a system where the and-bound have to take initiatives. have a got that right? do i have the other part right? is it is not hijacking because there is a federal regulation this is the infrastructure of the insurers' contraceptive-related plan along to the insurer, not to the person who buys the insurance. am i correct? mr. verrilli: that is all correct, your honor. when we make an arrangement with etna or blue cross we are not making it with petitioners. policies are available to provide conference of coverage. the executive say as metaphor

enforcement discretion we are not going to take any action offert insurers to contraceptive only policies. and in fact we are going to insurers atose 150%, just as we do in the situation of the self-insured plans. mr. verrilli: no, i don't believe he would. >> why would that not be a valid exercise in enforcement discretion? mr. verrilli: i don't think it would be, but even if it were it would present the same problem of creating the obstacle which precede inertia problem which undermines a compelling interest which is not just a compelling interest of the institute of medicine and hhs, but if congress itself. the whole point of the statutory provision -- >> why would it be not something you could do in accordance with your understanding of executive power? mr. verrilli: i don't think you would address the problem.

explainede generally the difference between the employer identifying and insurer, say blue cross, that covers contraceptives for many other people. the difference between that and the women who know doesn't have this cover testicle affirmatively and get it from somewhere else. -- is there matter a real difference between an employer saying we are not going to cover contraceptives? and the woman who suddenly does not have it as part of her package has to go out? mr. verrilli: i think that is exactly the point. the woman employee -- >> i'm sorry, you asked what the difference is. mr. verrilli: it's not just

about filling out paperwork. you go to your regular doctor and you said you have a medical condition that puts the risk of being pregnant, or just want contraceptive coverage or need contraceptive to treat a radical condition. the way this works now, is the exception is granted -- if the exception is granted, a doctor has to say i cannot help. >> that's just one side of the equation. was the interest on the other side? i understand the interest of avoiding complicity in what they consider a sin. we take that seriously. which would is a cut in analyzing the balance? mr. verrilli: in this situation quite decisively in favor of the government. the interests are compelling. none ofied to explain the alternatives the petitioners have proposed a come anywhere close to being equally effective

in ensuring that women get this coverage. -- you get told by your regular doctor i cannot help you are counsel you on this. numerous other petitioners have filed declarations saying our insurance will not cover you in any counseling about contraceptive. you have to find another doctor and away from pay for that dr.. then you have to find a way to pay for contraceptive coverage. is a whole host of very citrus obstacles. -- serious obstacles. >> why do you assume the doctor to whom the woman we go for other services would be unwilling to provide services under a planned -- a separate plan that covers contraceptive? mr. verrilli: that would be a happenstance. somebody has to offer that separate plan and it's got to -- and in the doctor has to be the same -- under the same plan. >> we have used the high-tech

analogy -- hijack analogy. can you explain what you don't see this as a hijacking? mr. verrilli: the way i have tried to explain it is we have tried in the court recognized that the goal of this is to exempt of employer for providing the contraceptive coverage, to exempt them and provide a separate means through separate funds without their involvement. therefore it is not hijacking. i want to make one point. >> a follow-up before you do. the contraceptive services would be provided pursuant to what plan? you get a brochure about your insurance coverage. where with the contraceptive services be listed? mr. verrilli: it will be in that brochure, a can't be. there has to be a separate communication insurance companies

saying you are getting this separately from us. if etnarancisco said offers a separate policy, he thought that would be an adequate accommodation. mr. verrilli: i think that raises all the problems identified earlier. >> i meant he says generally if etna under some other policy offers it on the exchange to women who might want to go in the exchange and by that policy, that's ok. if that's what they do. that frdifferent from what happens here? is basically the same thing. mr. verrilli: two policies instead of one. >> it is two instead of one. the contraceptives are being provided by government regulation. the only seamlessness is -- women don't have to apply and

pay separately. mr. verrilli: i think they will have to apply and pay separately. i would to make one point about the notice. i know my friend raised the idea of notice that is not just about used -- us using the notice. that argument cannot constitute substantial burden. it entirely derivative of the objection to us setting up this third-party arrangement. i think he told you that this morning because he said if the government did not take the step of providing the coverage, they would be happy to provide any information they want on the form. i think with that tells you is the objection here is arrangement to provide a separate coverage and not the notice per se on its own terms. >> can i ask you this informational question about a particular situation of the little sisters? their regular third-party

administrator also will not provide the coverage, even if they were to comply with the form or the notice requirement. you say they probably cannot be -- there is probably no way under orissa to obtain contraceptive coverage for their employees unless you can find another third-party administrator you can deal with. in that situation with a little sisters, are they still subject to fines for failing to comply? mr. verrilli: no, we don't think so. what i would ask this court to do is to weigh the alternatives but before you in this case. on the one side you have a effort to respect religious beliefs by creating a system that allows them to exempt themselves of the apartment in a straightforward manner --

requirement in a straightforward manner that protects rights and liberty and dignity of their employees, many of whom may not share their religious beliefs about contraceptive. on the other side of the scale when you have got is a demand that those rights, those employees who may not share believes be extinguished. congressh time as creates and enacts a different program that will require a separate, one off jury rigged channel for them to provide contraceptive coverage that will impose precisely the burdens that congress said are unacceptable for all services. >> that is when we are characterizing what is involved here. it can also be said, and it is

true, this is a case in which a great array of religious groups, not just catholics and baptists and evangelicals, but orthodox views, muslim groups, church of jesus christ of latter-day saints, indian tribes, they have said this presents an unprecedented threat to religious liberty in this country. what would you say to that? mr. verrilli: what i would say to that is i essentially what a courts of appeals of said. -- eight courts of appeals have said. it requires a sensible balance. is essential in a pluralistic society like ours in which people from every faith on earth live and work side-by-side. the government has got to administer rules that are fair to everyone. the accommodation achieve that balance. petitioner's positions are very far from that balance.

therefore the courts of appeals should be affirmed. thank you. >> thank you council. >> 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 the universities. what it needs is a rationale for trying the lines. my friend says the line doesn't half to be perfect. -- have 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 brief filed by the dominican sisters and the former head of the tax division. it explains the line they codeusing 1633 of the tax makes no sense. that is an informative styling requirement. there is no substantive difference. if my clients file form, they get the same tax exempt status at the churches. 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 poor, is a terrible line to draw. >> in every citizen mentioned several times. by leading proponents of rfra discusses this line. did you just say that is wrong? >> no, that gets me to the next point. if i can just finish this 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. their original rationale applies equally to my clients.

you have to draw sensible line. as to the exemptions, i will respectfully disagree with professor laycock. >> churches have to tell us you will claim an exemption. not every church is religious has the same religious tenants. , is that what you have preferred? is that the sort of 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. others may be special like them but it's clear to tell what a , 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.

i think he subsequently said if there was a requirement for these entities to contract, then even he would recognize a substantial burden. the important point is 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. there is no excuse, no other 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 was yoder. 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. please 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. that is not going away. just in closing, my clients would love to be a conscientious objector. but the government insists that they be a conscientious collaborator. there is no such thing. thank you. >> thank you council. case is submitted. >> next, later calls and comments on washington journal. then delicious and presidential candidates speeches. beginning with democratic candidate hillary clinton and followed by republican candidate donald trump, senator ted cruz, and governor john kasich.

>> for this year's student can contest, they produced documentaries telling us the issues they want the candidates to discuss during the 2016 presidential campaign. they told us the economy, equality, education, and immigration were all top issues. thanks to all the students and teachers to compete in this year and congratulations to all of our winners. starting on the first, one of the first -- top entries will air on c-span. all the winning entries are available for viewing online at studentcam.org. morning, university of maryland professor shelby te lhami discusses practicing islam. nathan sales looks at whether they should be changes in the visa waiver program which allows

travelers from almost 40 select countries to enter the u.s. without a visa. and we will take your calls so you can join the conversation on facebook and twitter. washington journal is next. ♪ host: good morning. it is march 26. , andrats in alaska, hawaii washington state are selecting their candidate. caucuses will be held and watched -- alaska in washington. hawaii uses a presidential preference poll. this week both the wives of ted cruz and donald trump became a large part of campaign 2016. in donald trump's his displeasure about a picture of his wife som -- wife. whitetores looked at families are fair game in a campaign. we would like to look at that this morning, askingou