Church gets another chance to challenge WA abortion coverage law

For more than six years, the Cedar Park Assembly of God in Kirkland has been fighting Washington state in court over a law that requires employer-sponsored health insurance to cover access to abortion.

The church lost another round in its case in March, with a federal appeals panel issuing a 2-1 ruling that upheld a lower court decision siding with the state.

But on Tuesday, there was a new twist when the 9th U.S. Circuit Court of Appeals took the unusual step of rescinding that ruling.

The withdrawal comes after the Cedar Park Assembly of God asked the full appellate court to reconsider the March decision, in what is called a rehearing en banc. Eighteen Republican-led states supported the church in court filings.

In a short, written order, the three-judge appeals court panel provided no explanation for taking back the March decision. The judges wrote that oral arguments would be rescheduled and they would issue another opinion "in due course."

The judges were appointed by Presidents Bill Clinton, George W. Bush and Joe Biden.

One of the church's attorneys said in a statement that "when an appellate panel vacates a decision and orders re-argument in response to a petition for rehearing en banc, that's presumably because two or more of the panel members now believe that the original decision contained errors."

"The State of Washington can't force Cedar Park to violate its faith to provide quality healthcare to its staff members," said John Bursch, senior counsel at the Alliance Defending Freedom. "We look forward to re-arguing that Washington State cannot compel churches to violate their deeply held beliefs by forcing them to purchase health plans that cover abortion."

The case concerns a 2018 state law mandating employer insurance plans provide contraceptive and abortion coverage, if they cover maternity care. Democratic lawmakers passed the legislation, known as the Reproductive Parity Act, over concerns from religious groups that it would violate their constitutional rights.

Cedar Park Assembly of God sued over the statute in early 2019, noting a 1995 state law exempts religion-sponsored health carriers from participating "in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion."

The case has been moving through the courts ever since.

The state clarified that, under the new law, employees could get coverage for abortion services through their employer's insurance carrier, but their plan didn't have to include it. In line with that regulation, Washington's insurance commissioner approved some group health plans that didn't cover abortion, with the understanding that the insurers did offer that coverage.

The now-withdrawn majority opinion from the appeals court said, "Insurers could offer no-abortion health plans to employers both before and after passage of the Parity Act."

"Invalidation of the Parity Act — the relief that Plaintiff seeks — thus could not and would not force any insurer to offer a no-abortion plan to Plaintiff," it added.

At the time, an attorney for the church called the majority ruling "shocking," and suggested he would take the case to the U.S. Supreme Court.

A spokesperson for the state attorney general's office said Wednesday "there is no way to tell for certain beyond what is stated in the order," why the appeals judges withdrew their opinion, but agreed it could be in response to the church's request for a new hearing.

"Sometimes when that happens, the panel of the Ninth Circuit that decided the case will withdraw the original opinion to address something raised in the petition for rehearing," spokesperson Mike Faulk said. "That may be what is happening here."

"We remain confident the plaintiff lacks standing to bring this case and that Washington's health insurance laws comply with the Constitution," Faulk added.

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