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Cedar Park Assembly of God of Kirkland v. Kreidler

United States District Court, W.D. Washington, Tacoma

August 2, 2019

MYRON KREIDLER, Insurance Commissioner for the State of Washington, and JAY INSLEE, Governor of the State of Washington, Defendants.


          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on Defendants Myron Kreidler, Insurance Commissioner for the State of Washington, and Jay Inslee's, Governor of the State of Washington, (“State”) motion to dismiss, Dkt. 25, Plaintiff Cedar Park Assembly of God of Kirkland, Washington's (“Cedar Park”) motion for preliminary injunction, Dkt. 29, and Cedar Park's motion for leave to amend, Dkt. 42. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants the State's motion to dismiss, denies Cedar Park's motion for preliminary injunction, and grants Cedar Park's motion for leave to amend for the reasons stated herein.


         Since at least 1995, Washington law has provided conscience exemptions for participants in the health care and health insurance markets. The dispute in this case involves the differences between the conscience exemptions for different market participants, a caveat to the conscience exemptions that health carriers, facilities, and providers do not have to provide services for free, and a new law which requires that health insurance cover comprehensive reproductive health services including abortion and all Food and Drug Administration-approved (“FDA”) contraceptive drugs, devices, and products.[1]

         A. Legal and Regulatory Background

         For health insurance purchasers, Washington law provides that “[n]o individual or organization with a religious or moral tenet opposed to a specific service may be required to purchase coverage for that service or services if they object to doing so for reasons of conscience or religion.” RCW 48.43.065(3)(a). While individuals and organizations do not have to purchase that coverage, enrollees must still be able to access it:

The provisions of this section shall not result in an enrollee being denied coverage of, and timely access to, any service or services excluded from their benefits package as a result of their employer's or another individual's exercise of the conscience clause in (a) of this subsection.

RCW 48.43.065(3)(b). Implementing regulations require each relevant insurance carrier to file “a full description of the process it will use to recognize an organization or individual's exercise of conscience based on a religious belief or conscientious objection to the purchase of coverage for a specific service.” WAC 284-43-5020(1).

         Regarding health insurance carriers and providers, RCW 48.43.065(2)(a) provides in part that “[n]o individual health care provider, religiously sponsored health carrier, or health care facility may be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to doing so for reasons of conscience or religion.” Religiously sponsored carriers which for reasons of religious belief offer plans which exclude certain services covered in the model insurance plan “shall file for such plan a description of the process by which enrollees will have timely access to all services in the model plan.” WAC 284-43-5020(2).

         Finally, RCW 48.43.065(4) provides that “[n]othing in this section requires a health carrier, health care facility, or health care provider to provide any health care services without appropriate payment of premium or fee.”

         In 2002, the Washington Office of the Attorney General (“AGO”) issued an advisory opinion interpreting RCW 48.43.065 in response to an inquiry from the Washington Office of the Insurance Commissioner (“OIC”), setting forth its opinion in relevant part that “[t]he insurance commissioner has authority to require health care insurance carriers to include the cost of prescription contraceptives as a component in the rate[-]setting actuarial analysis, where an employer raises a conscientious objection to paying these costs directly as a part of that employer's employee health care benefit package.” AGO 2002 No. 5. The opinion explained in part that “conceptually, OIC could require a carrier include the cost of contraceptive coverage as an expense component in its rate setting actuarial analysis; a more definite answer would have to be tailored to a more specific proposal.” Id. In 2006, the AGO issued another opinion analyzing the extent of an employer's option to provide employee health insurance without including coverage of prescription contraceptives in response to an inquiry from two Washington State legislators. AGO 2006 No. 10. The 2006 opinion explained that the AGO had reviewed the 2002 opinion, stating in part that:

The upshot of our 2002 analysis is that, while employers may exercise their ‘conscience clause' rights under RCW 48.43.065(3), they may not do so by contracting with a state-regulated health carrier for a benefits package that excludes contraceptives while including coverage of other prescription drugs, or a package requiring employees to pay for their own contraceptive coverage. There may be other, lawful ways in which employers may exercise their ‘conscience clause' option . . . Perhaps they might also offer a health care benefits plan that does not involve purchasing a health plan from a state-regulated carrier. An Attorney General's Opinion is not an appropriate vehicle to examine how that might be done as a matter of employment and insurance practices, or whether there would be legal pitfalls in any particular approach. We simply note that the statutes and WAC do not foreclose the exercise of ‘conscience clause' rights by employers.


         In 2018, the State enacted SB 6219. 2018 Wash. Sess. Laws 1. Relevant here, SB 6219 was codified as RCW 48.43.072 and RCW 48.43.073. Dkt. 20, ¶ 4. RCW 48.43.072 requires all health plans issued or renewed on or after January 1, 2019 to cover all FDA-approved prescription and over-the-counter contraceptive drugs, devices, and products. RCW 48.43.073 requires all health plans issued or renewed on or after January 1, 2019 which provide coverage for maternity care or services to provide the covered person “with substantially equivalent coverage to permit the abortion of a pregnancy.”

         On September 20, 2018, OIC published a stakeholder draft of proposed rules (“OIC Rulemaking Draft”) implementing SB 6219 for public comment. OIC, “Health plan coverage of reproductive healthcare and contraception (R 2018-10) (R 2019-07), ” The draft was available for comment through October 23, 2018. OIC, “Health Plan Coverage of Reproductive Healthcare & Contraception Rulemaking, ” September 20, 2018, The “Coverage required” section of the OIC Rulemaking Draft pertaining to coverage for reproductive health services required by SB 6219 provides in subsection four that “[t]his subchapter does not diminish or affect any rights or responsibilities provided under RCW 48.43.065.” Id.

         B. The Instant Dispute

         Cedar Park is a Christian church in Kirkland, Washington. Dkt. 20, ¶ 5. In furtherance of its “deeply held religious belief that abortion is the ending of a human life, and is a grave sin, ” Cedar Park alleges that it “does not provide coverage for abortion or abortifacient contraceptives in its employee health insurance plan.” Id. Cedar Park also alleges that it “offers health insurance coverage to its employees in a way that does not also cause it to pay for abortions or abortifacient contraceptives, including, inter alia, emergency contraception and intrauterine devices” and that its “current group health plan excludes coverage for abortions or abortifacient contraceptives.” Id. ¶¶ 46-47. Approximately 185 of Cedar Park's employees are eligible for its health insurance coverage. Id. ¶ 20. Employees are required to sign a statement agreeing to follow Cedar Park's standards of conduct which include its teachings on the sanctity of life both at work and outside of work. Id. ¶¶ 31-32. Cedar Park's current employee health insurance plan renews on August 1, 2019. Id. ¶ 8.[2]

         Cedar Park filed suit in this Court on March 8, 2019, alleging that SB 6219 violates the Free Exercise and Establishment Clauses of the First Amendment, violates Cedar Park's right to religious autonomy guaranteed by those clauses, and also violates the Equal Protection Clause of the Fourteenth Amendment. Dkt. 1. Cedar Park seeks declaratory and injunctive relief against SB 6219. Id.

         On April 17, 2019, the State moved to dismiss. Dkt. 25. On May 13, 2019, Cedar Park responded. Dkt. 28. Also on May 13, 2019, Cedar Park moved for a preliminary injunction. Dkt. 29. On May 24, 2019, the State replied to Cedar Park's response to its motion to dismiss. Dkt. 32. On June 10, 2019, the State responded to Cedar Park's motion for preliminary injunction. Dkt. 35. On June 21, 2019, Cedar Park replied to the State's response to its motion for preliminary injunction. Dkt. 38.

         On July 3, 2019, Cedar Park filed a motion for leave to amend. Dkt. 42. On July 15, 2019, the State responded. Dkt. 43. On July 19, 2019, Cedar Park replied. Dkt. 44.

         II. ...

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