[00:00:00] Speaker 01: Yes, Your Honor. [00:00:00] Speaker 01: Good morning, Your Honors. [00:00:01] Speaker 01: My name is Rory Gray, and I represent Cedar Park Assembly of God, the plaintiff appellant in this matter. [00:00:07] Speaker 01: And with the court's permission, I'd like to reserve five minutes for rebuttal. [00:00:11] Speaker 04: Okay, we'll try. [00:00:12] Speaker 04: It's aspirational. [00:00:14] Speaker 01: May it please the court. [00:00:16] Speaker 01: Usually abortion coverage requirements come with church exemptions, but SB 6219 didn't. [00:00:23] Speaker 01: The result has been that the church has had abortion coverage directly included in its health plan for the last five years. [00:00:32] Speaker 01: Washington likes to cite to an old conscience law, but the insurance commissioner has never implemented that law under section 3c as in a way that would help a church in any way. [00:00:43] Speaker 03: But the insurance commissioner has approved two different health insurance plans that do not have abortion coverage, right? [00:00:52] Speaker 03: One Primera and Providence, one secular, one religious. [00:00:55] Speaker 01: Well, Your Honor, it's not clear how the Premier Plan was approved, on what basis it excludes abortion coverage, or if it actually excludes it, or if it's like Cigna, where the carrier still provides it. [00:01:08] Speaker 01: It's just not, you know, technically included in the contract. [00:01:13] Speaker 01: We do know for Providence that there's a separate, there's a conscience law that provides real protection for religious carriers. [00:01:19] Speaker 01: and the state has allowed Providence to not have abortion coverage in its plans, and the state provides that coverage separately. [00:01:27] Speaker 01: But that sort of protection isn't available to Cedar Park because it's not eligible for a Providence plan. [00:01:32] Speaker 01: And so the state saying that somebody else's religious liberty is protected doesn't mean that Cedar Park is in some way. [00:01:40] Speaker 03: Why is Cedar Park not eligible for joining Providence's plan? [00:01:44] Speaker 01: Your Honor, the record is absolutely clear that Providence's plan is only available in certain counties, and it's not available in the counties in which Cedar Park operates for a large employer, which Cedar Park is. [00:01:55] Speaker 01: So back to the point there, which is really that the state doesn't get to play religious favorites. [00:02:01] Speaker 01: It can't say that, yes, your concerns about facilitating abortion providence are valid, but your concerns about facilitating abortion aren't. [00:02:12] Speaker 01: The free exercise clause doesn't allow the state to play religious favorites like that. [00:02:16] Speaker 01: If we get to a substantial burden, which I think is very clear here under Apache Stronghold, we have coercion, which has been very clear from the beginning that Cedar Park has been required to include abortion coverage in its plan that severely violates its beliefs. [00:02:33] Speaker 01: So, why articulate your theory of standing? [00:02:37] Speaker 01: Of course, your honor. [00:02:38] Speaker 01: Yes, Skyline and Cedar Park make standing absolutely clear here. [00:02:42] Speaker 01: So before SB 6219 took effect, Kaiser and other carriers provided abortion free plans to Cedar Park and to others. [00:02:52] Speaker 01: After SB 6219, Kaiser stopped. [00:02:55] Speaker 01: And the reason is clear. [00:02:56] Speaker 01: It's because the law has very severe penalties, including up to 364 days in jail fines and carriers potentially losing their authorization to sell insurance in the state, but [00:03:10] Speaker 01: Kaiser has told Cedar Park that if there's some sort of an exemption for churches, it's willing to provide an abortion free plan again, and that is very clear injury in fact causation and redress ability, but that's really not an issue here. [00:03:25] Speaker 02: this court already decided that Cedar Park had standing, and the evidence below was pretty much exactly the same, except for we... Well, counsel, it isn't exactly the same, because I may be misunderstanding the facts here, but I thought that in addition to the Providence Plan, that there was another non-abortion covering health plan that is available. [00:03:50] Speaker 01: If your owner's talking about the premier plan, Cedar Park isn't eligible for that. [00:03:54] Speaker 01: That's a small employer plan. [00:03:56] Speaker 01: And there's no explanation in the record as to what kind of, why there's an abortion exclusion there. [00:04:01] Speaker 01: So I can't really speak to that. [00:04:04] Speaker 01: It's not in the record. [00:04:05] Speaker 01: What is clear is that Cedar Park is not eligible for an abortion excluding plan. [00:04:10] Speaker 01: It's been looking for one for almost five years and has been unable to find one. [00:04:16] Speaker 01: And so if anybody has standing, it's most certainly a church that's been directly paying for abortion coverage in its plan for a period of five years. [00:04:25] Speaker 04: So how are you paying? [00:04:27] Speaker 04: Tell us the mechanics of how you're paying for it. [00:04:30] Speaker 01: Well, right now, Your Honor, it's a direct payment for the abortion coverage, just like for every other aspect of the plan. [00:04:36] Speaker 04: Washington likes to talk- Okay, so under the ACA, you have to provide maternity care, right? [00:04:44] Speaker 04: Yes, Your Honor, and- Which means then if you provide maternity, you have to provide, I'm not gonna probably say this right, but it's abortion and- Abortifacient contraceptives? [00:04:59] Speaker 04: Say that? [00:05:01] Speaker 01: Abortifacient contraceptives. [00:05:02] Speaker 04: Yes, abortifacient contraceptives. [00:05:05] Speaker 04: So how are you paying for that now? [00:05:08] Speaker 04: And with what's proposed, how would you still be ... How can you show that you're being injured by the present situation that you're in? [00:05:19] Speaker 01: Well, the present situation is very clear. [00:05:22] Speaker 01: Kaiser looked at SB 6219 and saw the very severe penalties and said, we will not accommodate any abortion exclusions of any kind for anyone. [00:05:32] Speaker 01: That is absolutely clear from the record, and I can give you the sites. [00:05:36] Speaker 01: That's what they told Cedar Park when its insurance broker and agent asked them. [00:05:40] Speaker 01: That's at 5ER772. [00:05:44] Speaker 01: And that's what they told the insurance commissioner in response to a complaint. [00:05:48] Speaker 03: That's August 14th of 2019. [00:05:50] Speaker 03: You'd never bother to get any further information from Kaiser after the state adopted an implementing regulation saying this statute does not affect our conscious objection law and after the insurance commissioner adopted the [00:06:07] Speaker 03: or approve these plans that do not provide abortion coverage. [00:06:11] Speaker 03: Correct? [00:06:12] Speaker 03: So why did you not get further information from Kaiser as to what is its policy now five years later? [00:06:20] Speaker 03: And is it making any decisions based on the law, SB 6219, or based on its own business reasons? [00:06:28] Speaker 01: Yes, if you let me finish, it's told the commissioner, in response to a complaint by Seattle's Jesuit, which is a private Christian school, that also wanted an abortion-free plan from Kaiser and was not able to get one, that it would not do so because of SB 6-1-9, and that's at 4ER... What's the date of that, please? [00:06:48] Speaker 01: 6-8-6-8-7. [00:06:48] Speaker 01: No, no, no. [00:06:50] Speaker 03: What's the date of that communication? [00:06:52] Speaker 01: Um, it was, I do not have the communication. [00:06:55] Speaker 01: It was a testimony from the insurance commissioners representative that that took place and I don't believe it. [00:07:01] Speaker 03: Was it in the same timeframe before the implementing regulation was adopted and before the insurance commissioner approved these non-abortion covering health insurance plans? [00:07:11] Speaker 01: I mean, I believe it was later than when Cedar Park spoke to them, but I don't think the timeline is exactly clear. [00:07:17] Speaker 01: I mean, the point is really that it doesn't matter. [00:07:21] Speaker 02: Why doesn't it matter? [00:07:23] Speaker 02: Because if in fact you are entitled to and able to find a non-abortion health plan, the problem that you've just described goes away. [00:07:41] Speaker 01: Well, Your Honor, the district court dealt with this case for years, and it agreed with Cedar Park that it could not find an abortion-free health plan. [00:07:48] Speaker 01: So I'm not sure where the idea that, you know, we're just not doing something easy comes from. [00:07:53] Speaker 01: The church has been looking for years for an abortion-free health plan. [00:07:57] Speaker 01: The testimony is absolutely clear on that fact. [00:08:00] Speaker 01: Its insurance broker asked eight different carriers. [00:08:04] Speaker 01: to provide, you know, basically to bid. [00:08:07] Speaker 02: I have a separate question about standing. [00:08:11] Speaker 02: The coverage is accepting your argument for the moment that the coverage for abortion is in the plan and you can't find a different one that doesn't have it. [00:08:28] Speaker 02: I understand the record. [00:08:31] Speaker 02: No employee has ever sought to access this coverage. [00:08:38] Speaker 02: So what then is the injury? [00:08:44] Speaker 01: The injury, Your Honor, is that Cedar Park's religious belief is that it is immoral and sinful to facilitate abortion in any way, including by just having the coverage in its plan, regardless if anyone ever uses it. [00:08:57] Speaker 01: And that's a very common religious objection. [00:09:00] Speaker 01: It's one that we saw in cases like Hobby Lobby and Zubik. [00:09:03] Speaker 01: These cases have been around for at least 10 years, probably more. [00:09:08] Speaker 01: Many religious people object to having anything to do with abortion. [00:09:13] Speaker 02: No, I understand that, but if none of your, it's sort of like if you have gallbladder coverage, but no employees ever sought it, it's hard to know what the connection is. [00:09:24] Speaker 02: I mean, there are many things that are covered that may never be used, and I'm not really sure if it's never used as it has not been, what the injury is. [00:09:40] Speaker 01: Well, Your Honor, I don't believe the record reflects whether it's actually ever been used or not. [00:09:45] Speaker 01: It hasn't been to my knowledge, but that doesn't make any difference. [00:09:48] Speaker 01: The Supreme Court in Hobby Lobby didn't say, oh, well, you know, nobody's actually used the contraceptive coverage that you object to. [00:09:55] Speaker 01: This is the church's plan. [00:09:57] Speaker 01: It has a personal stake in its own plan. [00:09:59] Speaker 01: In fact, it is the only bridge between the carrier and the employees. [00:10:05] Speaker 04: Okay, so if SB 6219 does not force the church to have a plan that explicitly covers abortion care, that significantly narrows the claims, correct? [00:10:19] Speaker 01: SB 6219 does require the church to have direct abortion care. [00:10:26] Speaker 01: What Washington's saying is that the conscience law somehow allows that to be indirect. [00:10:30] Speaker 04: The conscience law- Well, I think that conscience clause sort of breaks that, I guess. [00:10:35] Speaker 04: Let's assume that there's some truth to that. [00:10:40] Speaker 04: The church still might have standing because its employees can still access abortion indirectly through its plan. [00:10:49] Speaker 04: Wouldn't the free exercise and religious autonomy claims, wouldn't they shrink considerably if that were the case? [00:10:58] Speaker 01: No, Your Honor. [00:10:59] Speaker 01: The church's religious beliefs about what is immoral in terms of facilitating abortion are something that the church gets to decide. [00:11:08] Speaker 01: The state doesn't get to come in and say, no, you're not actually responsible for that. [00:11:12] Speaker 01: That's what Hobby Lobby said. [00:11:14] Speaker 01: And it said that you can't use something like a third-party entitlement to get around the free exercise clause. [00:11:21] Speaker 02: Counsel, let me ask you a variant of what Judge Callahan was just talking about. [00:11:28] Speaker 02: And I want you to assume for the purpose of this question that a no abortion policy is available so that you would not be paying for it, it would not appear in the written policy that you have. [00:11:43] Speaker 02: When you pay your employees wages, they can buy whatever they want with that. [00:11:49] Speaker 02: So whether you have a health plan or not, [00:11:52] Speaker 02: one of your employees could obtain an abortion. [00:11:58] Speaker 02: And so in that event, I'm struggling to understand how [00:12:05] Speaker 02: Your interest is sufficient to describe an injury. [00:12:14] Speaker 02: The only difference between someone who has no health plan and goes and gets an abortion and someone who has no abortion plan and goes and gets one is the price. [00:12:28] Speaker 02: So it seems to me that your interest really is in just making sure the price is high, but I'm not sure how that tracks your argument for standing. [00:12:40] Speaker 01: No, Your Honor. [00:12:41] Speaker 01: I mean, that situation would be very different. [00:12:44] Speaker 01: I concede that. [00:12:45] Speaker 01: I don't think any church has claimed that it has a sincere religious belief that it's responsible for the use of every dollar it pays out, and I think it would be hard for it to show that. [00:12:55] Speaker 01: But in a case like what Your Honor is talking about, we'd have a very clear [00:12:59] Speaker 01: Three exercise and religious autonomy problem that would be a case just like Seattle specific University or Union Gospel Mission of Yakima both of which this court recently ruled in in favor of the religious employer religious employers like churches, especially under the church autonomy doctrine. [00:13:17] Speaker 01: have a right to employ people who share their beliefs and values. [00:13:21] Speaker 02: And in fact, in this case, Cedar... Oh, of course they do, but you can't, but you don't have a right to enforce it. [00:13:27] Speaker 02: If someone, if one of your employees violates that principle, you might be able to fire them, but you can't prevent them from getting the abortion. [00:13:35] Speaker 02: So I guess that's, that was, and I'm not talking about your right to [00:13:42] Speaker 02: discipline or terminate the employee. [00:13:45] Speaker 02: I guess I'm just looking at the difference between an employee with or without a health plan who obtains that service. [00:13:58] Speaker 04: Well, Your Honor, I mean, no one is... Well, it does seem though it would be different if someone just goes out and gets an abortion and they pay for that. [00:14:08] Speaker 04: That would be a different situation. [00:14:10] Speaker 04: than what we're talking about here. [00:14:12] Speaker 04: And what Judge Graber's saying, I don't know what your moral codes are with your employees or whatever, but that would be separate and apart. [00:14:20] Speaker 04: But I think we're trying to figure out how the situation you're presently faced with puts you in a situation where you're facilitating [00:14:32] Speaker 04: I don't think you're saying you would be paying for their abortions, but somehow your religious value would be facilitating? [00:14:43] Speaker 01: The church objects to facilitating abortions through its health plan in any way. [00:14:49] Speaker 01: So obviously, paying for the coverage as Cedar Park is forced to do right now makes the violation worse. [00:14:55] Speaker 01: But assuming somebody else paid for it wouldn't fix the problem. [00:14:58] Speaker 01: I mean, Hobby Lobby already- Why wouldn't it? [00:15:00] Speaker 02: If it's not part of the plan, how are you even connected to it? [00:15:04] Speaker 01: If it were not part of the plan, if, for example, there was an exemption like there is for religious carriers where Washington offers a separate plan that it pays for, for abortion, then that's different. [00:15:17] Speaker 01: Can I ask a question? [00:15:18] Speaker 02: I don't understand that. [00:15:19] Speaker 02: If you buy a plan that has no abortion coverage, period, what stake do you have in whether one of your employees can seek an abortion [00:15:35] Speaker 02: I mean, I'm not asking about the moral or employment context. [00:15:39] Speaker 02: I'm saying what stake do you have in that decision if your coverage doesn't exist for that? [00:15:49] Speaker 01: Well, Your Honor, the point is that there is only one way of bridging the carrier and the abortion coverage [00:15:58] Speaker 01: And that is Cedar Park's plan. [00:16:00] Speaker 01: Cedar Park has to make a contract. [00:16:03] Speaker 01: It has to make a relationship between the carrier and the employees. [00:16:06] Speaker 01: And that is the only reason. [00:16:07] Speaker 02: I understand that. [00:16:08] Speaker 02: But if that contract, the hypothetical is, if the contract excludes abortion coverage, you're paying for dental, vision, all the other things that one hopes are covered, the doctor visits, but no abortion. [00:16:28] Speaker 02: then it seems to me you have no connection to an employee's decision to go obtain an abortion, which they'll pay for by definition if it's not covered by the plan. [00:16:46] Speaker 01: Well, Your Honor, really what we're talking about under the conscience law is a shell game. [00:16:50] Speaker 01: It's saying we won't put it in, you know, the plan documents, but it's still provided as part of the benefits package that only results when you contract for the plan. [00:16:59] Speaker 02: Now, basically you're saying we want it to be expensive for our employees because the only difference between the [00:17:07] Speaker 02: employer with a health plan and an employer without a health plan, when that employee seeks abortion services, that means that one of them pays more than the other. [00:17:20] Speaker 02: But that doesn't seem to me to be a sufficient nexus to your interests. [00:17:27] Speaker 01: Your honor, this has nothing to do with how much it costs. [00:17:30] Speaker 01: Cedar Park has an interest in not facilitating abortion. [00:17:34] Speaker 01: Hobby Lobby recognizes that interest. [00:17:36] Speaker 01: The government doesn't get to come in and say, no, actually, you're not facilitating abortion. [00:17:41] Speaker 01: That's a religious matter that Hobby Lobby says is up to the church. [00:17:44] Speaker 03: I think that the distinction here is you conceded that an employee using their Cedar Park wages to pay for an abortion [00:17:52] Speaker 03: does not cause Cedar Park to facilitate that abortion, right? [00:17:56] Speaker 03: You just conceded that a couple minutes ago. [00:17:58] Speaker 03: So how does using the health insurance card, which doesn't provide for abortion, but the employee pays their own money for an abortion, how do we distinguish using the card versus using Cedar Park's salary? [00:18:14] Speaker 03: The difference between one facilitating and the other not facilitating, it doesn't really seem to be a real distinction, right? [00:18:23] Speaker 03: How are you facilitating one instance and not the other? [00:18:25] Speaker 01: Well, I think it's a very clear distinction. [00:18:27] Speaker 01: I mean, one is using the same insurance card that Cedar Park has contracted and paid for to get abortion services and non-objectionable services. [00:18:35] Speaker 01: I mean, that is something that lots of religious groups object to. [00:18:39] Speaker 01: That's why we had the case like Zubik. [00:18:40] Speaker 01: This is not an unusual scenario. [00:18:43] Speaker 01: In terms of people using their salary to do things that Cedar Park doesn't agree with, that's a matter of standing. [00:18:49] Speaker 01: I mean, what kind of injury is there in Cedar Park? [00:18:54] Speaker 03: But in this instance, the employees are paying for an abortion out of pocket, which you can see in the record there's no evidence that any of your employees have. [00:19:04] Speaker 03: And you make them sign a statement saying they will not do anything that violates Cedar Park's religious beliefs. [00:19:09] Speaker 03: So it's unlikely that they will. [00:19:11] Speaker 03: But if they were to, Cedar Park wouldn't be paying any money for the abortion. [00:19:15] Speaker 03: And so it's just not any different whether they use a card or use the money that Cedar Park gave them to pay for the abortion. [00:19:23] Speaker 01: I mean, Your Honor, I think it's very unlikely that Cedar Park would not be paying for the abortion coverage in some way. [00:19:30] Speaker 01: I mean, the Conscience Law makes very clear that the carriers can charge Cedar Park back for that cost. [00:19:36] Speaker 01: In fact, that's what Washington has started to do, even for religious carriers like Providence, with an inequity fee, that now they have to pay in a separate pot of money that then Washington uses that money to pay for the abortion coverage. [00:19:48] Speaker 04: So we've asked you a lot of questions, but just summarize your theory. [00:19:53] Speaker 04: on standing. [00:19:55] Speaker 04: Why that violates your religious views? [00:20:00] Speaker 01: Standing here is controlled by Hobby Lobby, Skyline, and Cedar Park. [00:20:05] Speaker 01: Before SB 6219, the church could get an abortion free health plan that comported with its religious beliefs. [00:20:12] Speaker 01: After SB 6219, it couldn't. [00:20:15] Speaker 01: Kaiser and others stopped providing abortion-free plans. [00:20:18] Speaker 01: If the church obtains an exemption from the requirement, then Kaiser will give them an abortion-free plan again. [00:20:24] Speaker 01: That is clearly injury in fact causation and redressability. [00:20:28] Speaker 01: May I reserve a little time I have left? [00:20:30] Speaker 01: Just finish. [00:20:32] Speaker 01: Well, Your Honor, we would ask that Your Honors reverse every man with instructions to enter a permanent injunction saying that Cedar Park can't be required to include abortion coverage or its health plan or its carrier can't be required to do that either. [00:20:47] Speaker 01: Thank you. [00:20:49] Speaker 04: Okay. [00:20:49] Speaker 04: After we finish, I'll give you at least a couple of minutes on rebuttal. [00:20:53] Speaker 04: We asked you a lot of questions. [00:20:55] Speaker 01: Thank you, Your Honor. [00:21:02] Speaker 00: Good morning. [00:21:03] Speaker 00: Good morning, Your Honors. [00:21:04] Speaker 00: May it please the court, Tara Hines on behalf of the state defendants. [00:21:08] Speaker 00: Under Washington law, Cedar Park is not required to pay for or provide coverage for abortions or contraceptives to which it objects. [00:21:17] Speaker 00: So there is nothing preventing Kaiser or any other insurance company from offering such a policy to Cedar Park. [00:21:25] Speaker 00: On these grounds alone, Cedar Park cannot establish Article III standing or a cognizable free exercise claim, and this court should affirm summary judgment. [00:21:34] Speaker 00: Now turning to the first to the issue of Article 3 standing, the U.S. [00:21:39] Speaker 00: Supreme Court's recent decisions in Murthy and FDA v. Alliance are controlling. [00:21:44] Speaker 00: Here, as in Murthy, Cedar Park's alleged injury is based on the acts of a non-partier, Kaiser Permanente, not by any action by the state. [00:21:54] Speaker 00: And there is not one piece of evidence, much less a clear showing that is required under Murthy, demonstrating that if this court were to take the drastic step of enjoining SB 6219, that Kaiser will offer a policy to Cedar Park excluding abortion coverage. [00:22:12] Speaker 00: Now, the evidence here, 5ER768, which is an August 2019 email, is the piece of evidence that Cedar Park has been relying on. [00:22:22] Speaker 00: But what that email says is, I understand that final implementation rules for SB 6219 have not yet been released. [00:22:32] Speaker 00: If an exception is made to allow exclusion for abortion coverage, will Cedar Park be able to exclude that coverage immediately? [00:22:42] Speaker 00: And Kaiser responds in sort of vague terms that we can't support a retroactive change, but we can support a mid-year change. [00:22:50] Speaker 00: That was back in August 2019. [00:22:52] Speaker 00: In December 2019, the insurance commissioner issued those implementing regulations. [00:22:58] Speaker 00: It made absolutely clear that SB 6219 does not impair or diminish any of the protections or rights available. [00:23:06] Speaker 04: The Deputy Insurance Commissioner testified that her office did not have a set process for approving exemptions for carriers. [00:23:14] Speaker 04: when SB 6219 would conflict with federal funding restrictions like the Weldon Amendment and said that such requests would be referred to an attorney and assessed on a case-by-case basis. [00:23:27] Speaker 04: Why isn't that enough to make SB 6219 not generally applicable under FCCA versus San Jose Unified? [00:23:38] Speaker 00: Well, Your Honor, that's before we get to the issue of standing. [00:23:41] Speaker 00: But if you turn to the Employment Division V Smith case, the actual exception under the law says that the SB 6219 does not apply when it would conflict with conditions of federal funding and only to the minimum extent necessary to comply with those conditions. [00:23:58] Speaker 00: Now, whether or not something conflicts with the Weldon Amendment is an attorney expert decision, but it is not an individualized determination made, an examination made by the state. [00:24:09] Speaker 00: It's simply a determination of whether there's a conflict. [00:24:12] Speaker 00: What the Weldon Amendment says is that states cannot discriminate against NTDs that refuse to provide abortion coverage. [00:24:20] Speaker 04: So the church has said that in its [00:24:23] Speaker 04: that it views enabling employee access to abortion, even indirectly, as facilitating abortion in violation of its face. [00:24:34] Speaker 04: Doesn't Burwell versus Hobby Lobby require us to accept that as a substantial burden on its religion? [00:24:45] Speaker 04: And it's not for the courts to say that a religious entity's belief that it is facilitating an immoral act is mistaken or insubstantial. [00:24:55] Speaker 00: So no, Your Honor. [00:24:56] Speaker 00: First, Hobby Lobby is not a free exercise case. [00:24:59] Speaker 00: It's a RFRA case. [00:25:00] Speaker 00: And it has a different standard. [00:25:02] Speaker 00: What this court held in the recent en banc decision in Apache Stronghold is to determine whether there's a free exercise claim, you need to look at the word prohibit. [00:25:13] Speaker 00: What the free exercise clause does is say, you know, governments cannot prohibit the free exercise of religion. [00:25:21] Speaker 00: And governments only do that when they do one of four things. [00:25:24] Speaker 00: Either they take action that has a tendency to coerce the individual, they penalize the individual, they discriminate against the individual, or they deprive that individual of some generally available benefit. [00:25:38] Speaker 00: There is nothing like this in this case. [00:25:40] Speaker 04: The state has said ... Well, the case that you cite, the FDA case, I don't think that's exactly the same thing as ... I think Hobby Lobby is not the exact same thing, but I don't think the FDA is either. [00:25:52] Speaker 04: And so if you say that religious entities have no standing in this situation, apparently you slam the court doors shut that they can't even talk about how something ... their religious objections [00:26:05] Speaker 00: So what your honor, FDA v. Alliance says is if there's some coercive action taken against the religious entity. [00:26:12] Speaker 04: But wasn't that doctors objecting to that the APA wasn't followed? [00:26:16] Speaker 04: I mean, it was quite different than this case. [00:26:18] Speaker 00: It's not different in that what Cedar Park is objecting to is some third party providing coverage. [00:26:25] Speaker 00: to its employees for abortion. [00:26:28] Speaker 00: So what Cedar Park says is that we do not want the insurance carriers to provide this coverage. [00:26:34] Speaker 00: Cedar Park has to do nothing. [00:26:36] Speaker 00: The SSB 6219 and the Conscience Subjection Law does not require it to pay for it. [00:26:41] Speaker 00: It doesn't require it to provide it. [00:26:43] Speaker 00: It doesn't require it to provide any notice of it. [00:26:46] Speaker 00: And the notice that actually is provided is in the record. [00:26:49] Speaker 00: And it's at 2ER 254. [00:26:52] Speaker 00: And it specifically says, your employer has chosen not to provide this benefit. [00:26:57] Speaker 00: That's what the insurance carrier tells the enrollee. [00:27:00] Speaker 00: Your employer is not providing this benefit. [00:27:03] Speaker 00: There is no connection to Cedar Park. [00:27:05] Speaker 00: There is no coercion on Cedar Park. [00:27:07] Speaker 00: And what FDA, the Alliance says is, Cedar Park cannot come to federal court and object to actions that third parties might be taking. [00:27:16] Speaker 02: So I have a factual question that's relevant, I think, to some of this discussion. [00:27:21] Speaker 02: Your friend on the other side said that there are no available plans that lack abortion coverage. [00:27:32] Speaker 02: And I understood the record differently than that, and I'd like to have your comment. [00:27:38] Speaker 02: I had thought that the church received bids for health plans that did not have abortion coverage. [00:27:47] Speaker 02: Yes, you're right. [00:27:51] Speaker 02: One or two of them would have even been cheaper than the coverage they were getting from Kaiser. [00:27:57] Speaker 02: Am I mistaken about that? [00:27:59] Speaker 00: No, you're absolutely correct, Your Honor, and that's at 3R 397 to 398, 404 to 405, 487 and 420 to 22. [00:28:09] Speaker 00: Cigna offered a plan that excluded abortion coverage, and the plan was actually cheaper than the one that was offered by Kaiser. [00:28:17] Speaker 00: What Cedar Park was worried about is that Cigna had a reputation of offering a plan that was cheap in the first year, but that would increase in prices the following year. [00:28:26] Speaker 00: But what this actually shows you is that there is nothing in state law that prevents insurance companies from offering this coverage to Cedar Park. [00:28:34] Speaker 00: Primera is also another policy or company that offers these plans to other companies, and it's a mischaracterization of the evidence to suggest that this cannot be offered to Cedar Park. [00:28:48] Speaker 00: Cedar Park never asked. [00:28:50] Speaker 00: Cedar Park never went back to Kaiser. [00:28:51] Speaker 04: I think they said something when they were talking in their opening argument that they weren't eligible for what they were offered. [00:29:00] Speaker 04: Do you want to respond to that? [00:29:02] Speaker 00: Yes, Your Honor. [00:29:02] Speaker 00: And if you look at that deposition testimony, what it was is a question of an OIC representative in a deposition. [00:29:09] Speaker 00: Do you know off the top of your head which counties this is available in? [00:29:14] Speaker 00: And the deponent said, I don't know. [00:29:15] Speaker 00: Not off the top of my head. [00:29:16] Speaker 00: I need to look at the plan documents. [00:29:18] Speaker 00: If you go back and look at the actual evidence, Cedar Park never asked Primera. [00:29:23] Speaker 00: There's no record evidence that they asked Primera. [00:29:25] Speaker 00: There is no record evidence that after the implementing regulations were passed, [00:29:30] Speaker 00: Even though they had an email from Kaiser saying, once those implementing regulations are passed, can you make a change? [00:29:37] Speaker 00: They never went back and asked. [00:29:39] Speaker 00: There's not one shred of evidence that there was any question of Kaiser. [00:29:42] Speaker 00: Can you now offer this policy? [00:29:45] Speaker 00: And without that evidence, Murthy requires a clear showing of not only a future likelihood of harm, [00:29:51] Speaker 00: but that injury is fairly traceable to this state and would be redressed by this litigation. [00:29:58] Speaker 00: They cannot show that it's fairly traceable. [00:30:00] Speaker 03: Now, counsel alluded to the fact that Primera may not actually exclude abortion coverage. [00:30:07] Speaker 03: What's in the record about what Primera actually does exclude? [00:30:11] Speaker 00: Primera excludes abortion coverage. [00:30:13] Speaker 00: It's in the record at [00:30:15] Speaker 00: to ER 172 to 174. [00:30:19] Speaker 00: It's offered to a Christian school and it absolutely excludes abortion coverage. [00:30:25] Speaker 00: What they're arguing about is that the Premier then, as a consequence of the Conscience Objection Statute, then sends out this notice to its enrollees and say, your employer objects to providing this service. [00:30:39] Speaker 00: However, here is another means in which you can get this coverage. [00:30:43] Speaker 00: But the religious entities are not required to pay for that. [00:30:46] Speaker 00: They're not required to provide it. [00:30:48] Speaker 00: They're not required to send notice of it. [00:30:50] Speaker 00: And the other thing is with the providence plan. [00:30:53] Speaker 00: That's the same thing. [00:30:54] Speaker 00: And they said providence somehow gets a broader exception. [00:30:57] Speaker 00: But Providence, as an insurance carrier, is subject also to the Conscience Objection Statute, and they also send out this notice to the enrollees. [00:31:06] Speaker 00: They simply have not made any objection to doing so, but they send out the notice to the enrollees. [00:31:12] Speaker 00: We do not provide this coverage in your insurance plan, but here's another way for you to get this coverage. [00:31:17] Speaker 03: You started your argument referring to the August 2019 Kaiser email. [00:31:22] Speaker 03: In your briefs, you objected and said that was inadmissible hearsay and on other grounds. [00:31:27] Speaker 03: Are you withdrawing that objection now? [00:31:29] Speaker 00: Your Honor, I don't think, whether the court considers it or not, it's still not meeting the, you know, and we can withdraw the objection. [00:31:36] Speaker 00: If you look at that email, it's very clearly talking about [00:31:40] Speaker 00: implementation rules that did come in December 2019. [00:31:45] Speaker 00: And those couldn't be clearer. [00:31:47] Speaker 00: I mean, we're talking about a law that's been on the books for 40 years. [00:31:50] Speaker 04: Conscience... So I think they were arguing somewhat law of the case because this case has been around for a while. [00:31:57] Speaker 04: It's actually been to the Ninth Circuit previously. [00:32:01] Speaker 04: Everyone that's looked at it before said they had standing, right? [00:32:06] Speaker 00: Yes, Your Honor, in terms of the allegations at the time of the complaint were sufficient. [00:32:11] Speaker 00: But Murthy is very clear that when they're seeking preliminary or injunctive relief, prospective injunctive relief, which is the only thing available to them against the state given 11th Amendment protections, that they need to make a clear showing of future injury. [00:32:26] Speaker 00: And that future injury is fairly traceable to the state. [00:32:30] Speaker 00: Now the conscience objection statute and those implementing regulations break any chain of causation. [00:32:36] Speaker 00: It makes very clear Cedar Park, you do not have to pay for or provide coverage for abortions or any contraceptives to which you object. [00:32:44] Speaker 00: And Kaiser, there is no evidence that Kaiser's misunderstanding these regulations or statutes. [00:32:49] Speaker 00: But even if they did, that would not be a reasonable interpretation. [00:32:53] Speaker 00: Given this conscience protection statute has been on the books for 40 years, they're implementing regulations making very clear how insurance companies can comply with those. [00:33:03] Speaker 00: other insurance carriers are offering this policy, they've been approved by the commissioner. [00:33:09] Speaker 00: So there is no impediment under state law in order for Cedar Park to get this policy. [00:33:15] Speaker 00: But second, on the redressability issue, there is not one shred of evidence that if this court were to take the drastic step of striking down a state law as unconstitutional, [00:33:25] Speaker 00: that that would make any change to the facts on the ground. [00:33:29] Speaker 00: They just didn't go back to Kaiser and say, can you offer this policy? [00:33:32] Speaker 00: And if not, why not? [00:33:34] Speaker 00: Because it's not because of SB 6219. [00:33:35] Speaker 00: There are now implementing regulations making very clear, go ahead and offer these policies. [00:33:42] Speaker 00: If these insurance carriers are not offering the policy, they're doing it for their own reasons. [00:33:47] Speaker 00: They're not before this court and they would not be impacted by any injunction that is made by this court. [00:33:53] Speaker 00: And so under Murthy, it's very clear that in that circumstance, there's simply no redressability. [00:34:00] Speaker 03: Your briefs treat Cedar Park's indirect injury argument as only arguing that they're trying to make abortion less available for others. [00:34:09] Speaker 03: But they actually have a specific health insurance card argument, which counsel made. [00:34:14] Speaker 03: Do you want to address that? [00:34:15] Speaker 00: Yes, Your Honor. [00:34:16] Speaker 00: And I think that goes past the issue of standing and goes into whether or not they have a cognizable free exercise claim. [00:34:22] Speaker 00: Because that insurance card is not required to be provided by Cedar Park. [00:34:26] Speaker 00: Why is that not standing, whether they have an injury or not? [00:34:28] Speaker 00: Well, it could go to standing, but I think it's very clear under Apache stronghold that there is no coercion on Cedar Park. [00:34:37] Speaker 00: So that insurance card is provided by carriers. [00:34:43] Speaker 00: The notice is provided by carriers. [00:34:45] Speaker 00: The alternative mechanisms for getting abortion coverage is provided by carriers. [00:34:50] Speaker 00: There is not one thing that SB 6219 actually requires of Cedar Park. [00:34:55] Speaker 04: But if you have the insurance card, what does that entitle you to? [00:34:58] Speaker 00: It doesn't entitle you to anything. [00:35:00] Speaker 00: It's just a way for if you go to a place to get an abortion that they know what sort of how the coverage is obtained. [00:35:08] Speaker 00: It is not provided by Cedar Park and it's absolutely clear. [00:35:11] Speaker 00: It's not part of their contract and the notice very specifically says that your employer does not want to provide this coverage. [00:35:18] Speaker 00: They object to it. [00:35:19] Speaker 02: I want to clarify the card. [00:35:20] Speaker 02: The card is not required by statute. [00:35:23] Speaker 02: It is not required by regulation. [00:35:25] Speaker 02: That's right. [00:35:26] Speaker 02: That's right. [00:35:27] Speaker 02: It's a private insurance carrier's decision that this is administratively convenient to give you a card. [00:35:33] Speaker 00: Absolutely, Your Honor. [00:35:34] Speaker 00: It's simply a matter of administrative convenience, but it's not required by the statute. [00:35:39] Speaker 03: But still, even to... But it's only a result of Cedar Park's negotiation and entering into a contract with the insurance carrier, correct? [00:35:47] Speaker 00: I mean, it's a downstream consequence of that, but it is not required by Cedar Park. [00:35:53] Speaker 00: And I think that's what's really important under Apache Stronghold, is that the determination of whether there's been a prohibition of a free exercise of religion is not determined solely by reference to the religious belief. [00:36:08] Speaker 00: Because in that context, certainly the tribe at issue in Apache Stronghold felt that they were being coerced by the sale of sacred lands. [00:36:17] Speaker 00: The court said the religious belief itself does not define whether there's a prohibition. [00:36:23] Speaker 00: You have to actually go beyond that and look at the actual state law. [00:36:27] Speaker 00: Does the state law coerce Cedar Park? [00:36:29] Speaker 00: It does not, not in one way. [00:36:31] Speaker 00: They have not shown one way in which it's required any action of Cedar Park. [00:36:36] Speaker 00: All the actions that they claim of, complain about, are actions by the insurance companies. [00:36:43] Speaker 00: And FDA v. Alliance is very clear that Cedar Park cannot come into federal court and complain about the actions of third parties. [00:36:51] Speaker 00: that that is the dividing line for purposes of separation of powers as to whether there's Article III injury. [00:36:58] Speaker 00: Now, if the state were to coerce Cedar Park to do something, which was the issue in Hobby Lobby, which again is a RFRA case, not a free exercise case, but in Hobby Lobby, there was an actual [00:37:10] Speaker 00: law that applied to Hobby Lobby, and if Hobby Lobby did not comply, they would be fined to the tunes of $400 million per year. [00:37:18] Speaker 00: There's nothing like that here. [00:37:20] Speaker 00: The state is staying in its insurance regulations, in its briefing, in its approval of other plans. [00:37:27] Speaker 00: Cedar Park, you do not have to provide this coverage if you have an objection on religious or conscience grounds. [00:37:34] Speaker 00: So there is no cognizable claim. [00:37:36] Speaker 00: And these two issues are dispositive, even before you get to the issue. [00:37:40] Speaker 00: So what's your cross-appeal on this? [00:37:42] Speaker 00: So the cross-appeal was the motion to dismiss for standing. [00:37:45] Speaker 00: We didn't actually assert the cross-appeal because we think the better way to look at standing is on the summary judgment standard and the preliminary injunction standard, which applies under Murthy and FDA Alliance. [00:38:02] Speaker 00: So if there are no other questions on Employment Division V. Smith, all of the factors there are met under FCA, Fellowship of Christian Athletes. [00:38:13] Speaker 00: There's no more favorable treatment of comparable secular activity. [00:38:17] Speaker 00: Again, it's because the Conscience Objection Statute says you don't have to provide coverage for abortions if there's an objection. [00:38:26] Speaker 00: And so there's really no argument that there could be favorable treatment. [00:38:31] Speaker 00: Primera does not have to offer these, or you know, the secular insurance companies offering plans to religious entities don't have to provide abortion coverage and Primera is offering that policy. [00:38:46] Speaker 00: There's also no system of individualized exemptions and there is no, and there's no showing that the district [00:38:53] Speaker 00: court clearly erred in finding no hostility. [00:38:57] Speaker 00: And in fact, this plan, the SB 6219, in conjunction with the Conscience Objection Statute, actually comports with the Supreme Court's determination in Fellowship of Little Sisters that there was a [00:39:15] Speaker 00: compromise that was taken, as long as the insurance carrier is providing the coverage and they're providing the notice, then in that context, there would be no infringement of the religious beliefs. [00:39:26] Speaker 00: Cedar Park has taken that step further and says, even when the insurance carrier provides that coverage, it violates our religious beliefs. [00:39:34] Speaker 00: But FDA v. Alliance is very clear that Cedar Park cannot come into federal court and complain of injury by actions of others that don't impact Cedar Park. [00:39:43] Speaker 00: that don't actually cause some injury to Cedar Park. [00:39:47] Speaker 00: If there are no further questions, Your Honor. [00:39:50] Speaker 04: There do not appear to be. [00:39:52] Speaker 04: We'll submit. [00:39:52] Speaker 04: Thank you. [00:39:53] Speaker 04: Thank you. [00:39:58] Speaker 04: Okay, I'll give you two minutes for rebuttal. [00:40:01] Speaker 01: Thank you, your honor. [00:40:02] Speaker 01: I want to first address the Primera plan, which I'm looking at right here to ER 174. [00:40:09] Speaker 01: It is limited to 50 or fewer employees. [00:40:13] Speaker 01: Cedar Park has, I think, like over 100 people who have health insurance through its plan. [00:40:18] Speaker 01: It's not eligible for that. [00:40:20] Speaker 01: If you look at 2ER66, Cigna could not in fact completely exclude abortion and abortifacients in their group and level funded plans. [00:40:28] Speaker 01: They would still be part of Cedar Park's health insurance plan because of SB619's requirements. [00:40:34] Speaker 01: So the argument that Cedar Park is eligible for an abortion excluding plan that currently exists is false. [00:40:40] Speaker 01: In terms of the card, the card is proof that the abortion coverage operates through Cedar Park's plan. [00:40:47] Speaker 01: Carriers have to provide that coverage through Cedar Park's plan, and Cedar Park is personally responsible for its plan. [00:40:54] Speaker 01: FDA has nothing to do with that. [00:40:57] Speaker 01: That case involved the church amendments, which completely excluded religious objectors from having to do anything [00:41:04] Speaker 01: remotely involved with abortion, even the after effects. [00:41:08] Speaker 01: Washington's conscience law does nothing like that. [00:41:12] Speaker 01: All the conscience law says is that carriers are doing it, not you, so your facilitation objection doesn't count. [00:41:19] Speaker 01: But Hobby Lobby says that the government doesn't get to decide whose facilitation argument is right. [00:41:25] Speaker 01: If the religious carriers get an exemption, if they have a real facilitation objection, so does Cedar Park. [00:41:32] Speaker 01: The government doesn't get to play favorites. [00:41:35] Speaker 01: You can see cases like Fowler and Carson and Grummit. [00:41:40] Speaker 01: In terms of SGMA, the district court was very clear that the only type of plan where abortion exclusion is actually possible for Cedar Park is self-insurance. [00:41:52] Speaker 01: And Cedar Park can't do self insurance because it has gravely ill child and someone who needs an organ transplant and it was getting for one person charges for over a million dollars a year. [00:42:03] Speaker 01: And its insurance broker testified that that was not workable and I see I'm past my time. [00:42:08] Speaker 01: Thank you, your honors. [00:42:10] Speaker 04: Does anyone have any additional questions? [00:42:12] Speaker 04: No, thank you. [00:42:13] Speaker 04: All right, then thank you both for your argument in this matter. [00:42:16] Speaker 04: This matter will stand submitted. [00:42:18] Speaker 04: The court will be in recess until 1030 when we resume on an additional case. [00:42:28] Speaker 00: All rise.