Washington church continues fight to protect pro-life beliefs

An attorney for a Seattle-area church was in a San Francisco federal appeals courtroom Thursday to defend the church’s right not to offer employee group health insurance plans that cover abortion.

The dispute between Cedar Park Assembly of God of Kirkland and the state of Washington has gone on for over five years since the state enacted a law that mandates that employee health plans offered by most businesses include abortion coverage. Since 2018, the law requires houses of worship like Cedar Park to provide coverage for abortion in any employee health plan if the church also offers maternity care coverage.

After the law’s enactment, Cedar Park sought employee health coverage that excluded abortion, but it was unable to find a plan—which the church argued was due to the state’s abortion mandate.

At Thursday’s hearing, attorneys argued over whether the church had standing—that is, whether it had been injured by the state’s passage of the abortion mandate.

The appeal was supported by 18 state attorneys general and a number of pro-life organizations who filed friend-of-the-court briefs on behalf of Cedar Park. It is the second time the church has appealed a lower court’s ruling against it.

On Thursday, Deputy Solicitor General Tera Heintz argued that implementing regulations under the state law, read in conjunction with the state’s conscience protection law, left the church the option of choosing a plan without abortion coverage. Plans that exclude coverage for abortion are available, Heintz contended.

But Rory Gray, an Alliance Defending Freedom attorney who represented the church, pushed back. One plan Heintz said was available to the church was limited to organizations with fewer than 50 employees, which would exclude the church, and the other carrier could not assure the church that its plan would exclude abortion, said Gray. “So the argument that Cedar Park is eligible for an abortion-excluding plan that currently exists is false,” Gray told the court.

The availability of abortion excluding plans was not all that was on the judge’s radar.

Circuit Judge Susan Graber, a Bill Clinton appointee, was uncertain whether the church had been injured by the state’s actions. “When you pay your employees wages, they can buy whatever they want with that, so whether you have a health plan or not, one of your employees could obtain an abortion,” she told Gray. “In that event, I’m struggling to understand how your interest is sufficient to describe an injury.”

Gray countered that Cedar Park could not control how employees spend their wages but could avoid facilitating abortions by providing plans that include coverage.

Heintz, the deputy solicitor general, continued to contend that the state had done nothing to harm the church. “What Cedar Park says is that we don’t want the insurance carriers to provide coverage,” Heintz told the three judges. “Cedar Park has to do nothing. SB 6219 and the conscience law does not require Cedar Park to pay for it, it does not require it to provide it, it doesn’t require it to provide any notice of it.”

She argued that the insurance companies—who are not party to the litigation—were to blame for Cedar Park’s inability to obtain abortion-excluding insurance. “If these insurance carriers are not offering these policies, they’re doing it for their own reasons,” said Heintz. “They are not before this court, and they would not be impacted by an injunction [against the state].”

Kevin Theriot, senior counsel at ADF, was in the courtroom for oral argument. He told WORLD that the state is being misleading in arguing that abortion-excluding coverage is available to the church.

“That’s the dance that the state of Washington has been doing since day one,” he said. “They know that no one thinks that the government should be able to force a church to provide abortion as part of its employee benefit plan, so they’ve been pretending that they’re really not doing that when, in fact, they are.”

Theriot said it was undisputed that the church had an insurance policy that didn’t cover abortion before SB 6219 went into effect. After it went into effect, they lost coverage and haven’t been able to find a group coverage plan, he added. “So there’s no question that SB 6219 caused the problem,” he said.

For the church, the stakes are high even if the debate is over a technical issue like standing. “If you say that religious entities have no standing in this situation, apparently you slam the court doors shut,” Circuit Judge Consuelo Callahan, a George W. Bush appointee, told Heintz. “They can’t even talk about their religious objections.”