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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CEDAR PARK ASSEMBLY OF GOD CASE NO. C19-5181 BHS 8 OF KIRKLAND, WASHINGTON, ORDER GRANTING PLAINTIFF’S 9 Plaintiff, MOTION FOR LEAVE TO v. SUPPLEMENT, GRANTING 10 DEFENDANTS’ MOTION TO MYRON KREIDLER, Insurance DISMISS, AND DENYING 11 Commissioner for the State of PLAINTIFF’S MOTION FOR Washington, and JAY INSLEE, PRELIMINARY INJUNCTION 12 Governor of the State of Washington, 13 Defendants. 14
This matter comes before the Court on Plaintiff Cedar Park Assembly of God of 15 Kirkland, Washington’s (“Cedar Park”) second motion for preliminary injunction, Dkt. 16 49, and Defendants Myron Kreidler, Insurance Commissioner for the State of 17 Washington, and Jay Inslee, Governor of the State of Washington’s (“State”) motion to 18 dismiss, Dkt. 53, and Cedar Park’s motion for leave to supplement, Dkt. 51. The Court 19 has considered the pleadings filed in support of and in opposition to the motions and the 20 remainder of the file and hereby grants Cedar Park’s motion for leave to supplement, 21 22 1 grants the State’s motion to dismiss, and denies Cedar Park’s motion for preliminary 2 injunction for the reasons stated herein.
3 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND 4 Since at least 1995, Washington law has provided conscience exemptions for 5 participants in the health care and health insurance markets. The dispute in this case 6 involves the differences between the conscience exemptions for different market 7 participants, a provision in the conscience exemptions stating health carriers, facilities, 8 and providers do not have to provide services for free, and a new law which requires that
9 health insurance cover comprehensive reproductive health services including abortion 10 and all Food and Drug Administration-approved (“FDA”) contraceptive drugs, devices, 11 and products.1 12 A. Legal and Regulatory Background 13 For health insurance purchasers, Washington law provides that “[n]o individual or
14 organization with a religious or moral tenet opposed to a specific service may be required 15 to purchase coverage for that service or services if they object to doing so for reasons of 16 conscience or religion.” RCW 48.43.065(3)(a). While individuals and organizations do 17 not have to purchase that coverage, enrollees must still be able to access it: 18 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 19 their benefits package as a result of their employer’s or another individual’s exercise of the conscience clause in (a) of this subsection. 20
21 1 The Court will use the term “reproductive health services” in this opinion to refer to FDA-approved contraceptive drugs, devices, and products as well as abortion and abortion- 22 related drugs, procedures, and services. 1 RCW 48.43.065(3)(b). Implementing regulations require each relevant insurance carrier 2 to file “a full description of the process it will use to recognize an organization or
3 individual’s exercise of conscience based on a religious belief or conscientious objection 4 to the purchase of coverage for a specific service.” WAC 284-43-5020(1). 5 Regarding health insurance carriers and providers, RCW 48.43.065(2)(a) provides 6 in part that “[n]o individual health care provider, religiously sponsored health carrier, or 7 health care facility may be required by law or contract in any circumstances to participate 8 in the provision of or payment for a specific service if they object to doing so for reasons
9 of conscience or religion.” Religiously sponsored carriers which for reasons of religious 10 belief offer plans which exclude certain services covered in the model insurance plan 11 “shall file for such plan a description of the process by which enrollees will have timely 12 access to all services in the model plan.” WAC 284-43-5020(2). 13 Finally, RCW 48.43.065(4) provides that “[n]othing in this section requires a
14 health carrier, health care facility, or health care provider to provide any health care 15 services without appropriate payment of premium or fee.” 16 In 2002, the Washington Office of the Attorney General (“AGO”) issued an 17 advisory opinion interpreting RCW 48.43.065 in response to an inquiry from the 18 Washington Office of the Insurance Commissioner (“OIC”), setting forth its opinion in
19 relevant part that “[t]he insurance commissioner has authority to require health care 20 insurance carriers to include the cost of prescription contraceptives as a component in the 21 rate[-]setting actuarial analysis, where an employer raises a conscientious objection to 22 paying these costs directly as a part of that employer’s employee health care benefit 1 package.” AGO 2002 No. 5. The opinion explained in part that “conceptually, OIC could 2 require a carrier include the cost of contraceptive coverage as an expense component in
3 its rate setting actuarial analysis; a more definite answer would have to be tailored to a 4 more specific proposal.” Id. In 2006, the AGO issued another opinion analyzing the 5 extent of an employer’s option to provide employee health insurance without including 6 coverage of prescription contraceptives in response to an inquiry from two Washington 7 State legislators. AGO 2006 No. 10. The 2006 opinion explained that the AGO had 8 reviewed the 2002 opinion, stating in part that:
9 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 10 contracting with a state-regulated health carrier for a benefits package that excludes contraceptives while including coverage of other prescription 11 drugs, or a package requiring employees to pay for their own contraceptive coverage. There may be other, lawful ways in which employers may 12 exercise their ‘conscience clause’ option . . . Perhaps they might also offer a health care benefits plan that does not involve purchasing a health plan 13 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 14 employment and insurance practices, or whether there would be legal pitfalls in any particular approach. We simply note that the statutes and 15 WAC do not foreclose the exercise of ‘conscience clause’ rights by employers. 16 Id. 17 In 2018, the State enacted SB 6219. 2018 Wash. Sess. Laws 1. Relevant here, SB 18 6219 was codified as RCW 48.43.072 and RCW 48.43.073. Dkt. 20, ⁋ 4. RCW 48.43.072 19 requires all health plans issued or renewed on or after January 1, 2019 to cover all FDA- 20 approved prescription and over-the-counter contraceptive drugs, devices, and products. 21 RCW 48.43.073 requires all health plans issued or renewed on or after January 1, 2019 22 1 which provide coverage for maternity care or services to provide the covered person 2 “with substantially equivalent coverage to permit the abortion of a pregnancy.”
3 On September 20, 2018, OIC published a stakeholder draft of proposed rules 4 (“OIC Rulemaking Draft”) implementing SB 6219 for public comment. OIC, “Health 5 plan coverage of reproductive healthcare and contraception (R 2018-10) (R 2019-07),” 6 https://www.insurance.wa.gov/health-plan-coverage-reproductive-healthcare-and- 7 contraception-r-2018-10-r-2019-07. The draft was available for comment through 8 October 23, 2018. OIC, “Health Plan Coverage of Reproductive Healthcare &
9 Contraception Rulemaking,” September 20, 2018, 10 https://www.insurance.wa.gov/sites/default/files/2018-09/2018-10-stakeholder-draft.pdf. 11 The “Coverage required” section of the OIC Rulemaking Draft pertaining to coverage for 12 reproductive health services required by SB 6219 provides in subsection four that “[t]his 13 subchapter does not diminish or affect any rights or responsibilities provided under RCW
14 48.43.065.” Id. 15 B. The Instant Dispute 16 On March 8, 2019, Cedar Park filed a complaint alleging that SB 6219 violates the 17 Free Exercise and Establishment Clauses of the First Amendment, violates Cedar Park’s 18 right to religious autonomy guaranteed by those clauses, and violates the Equal
19 Protection Clause of the Fourteenth Amendment. Dkt. 1. 20 On April 17, 2019, the State moved to dismiss. Dkt. 25. On May 13, 2019, Cedar 21 Park moved for a preliminary injunction. Dkt. 29. On July 3, 2019, Cedar Park moved for 22 leave to file an amended complaint. Dkt. 42. On August 2, 2019, the Court granted the 1 motion to dismiss concluding that Cedar Park lacked standing and asserted claims that 2 were unripe. Dkt. 45. The Court also denied Cedar Park’s motion for preliminary
3 injunction and granted Cedar Park leave to file an amended complaint. Id. 4 On August 15, 2019, Cedar Park filed a second amended complaint (“SAC”). 5 Dkt. 46. Cedar Park is a Christian church in Kirkland, Washington. Id. ⁋ 5. In 6 furtherance of its “deeply held religious belief that abortion is the ending of a human life, 7 and is a grave sin,” Cedar Park alleges that it “does not provide coverage for abortion or 8 abortifacient contraceptives in its employee health insurance plan.” Id. Cedar Park also
9 alleges that it “offers health insurance coverage to its employees in a way that does not 10 also cause it to pay for abortions or abortifacient contraceptives, including, inter alia, 11 emergency contraception and intrauterine devices” and that its “current group health plan 12 excludes coverage for abortions or abortifacient contraceptives.” Id. ⁋⁋ 46–47.2 13 Approximately 185 of Cedar Park’s employees are eligible for its health insurance
14 coverage. Id. ⁋ 20. 15 On September 13, 2019, Cedar Park filed a second motion for preliminary 16 injunction. Dkt. 49. In support of that motion, Cedar Park filed the declaration of Jason 17 “Jay” Smith (“Smith”), who is the Senior Pastor of Cedar Park. Dkt. 50, ¶ 2. Smith 18 attached an email exchange between Cedar Park and its current health insurance provider,
19 Kaiser Permanente. Id., Exh. A. After Cedar Park inquired about health insurance that 20 complied with its religious beliefs, Kaiser Permanente responded that it would not 21 2 Cedar Park admits that its current plan includes coverage for “abortifacient 22 contraceptives.” Dkt. 46, ¶ 48. 1 provide such a product. Id. ¶ 4. Based on that refusal, Smith contends that “Kaiser 2 therefore will not permit Cedar Park to invoke the limited religious exemption in RCW
3 §48.43.065, which allows Cedar Park to refuse to directly provide coverage for abortion 4 or abortifacient contraceptives.” Id. Smith also contends that “Kaiser Permanente has 5 informed Cedar Park that, if an exception to SB 6219 were made for churches or houses 6 or worship for Cedar Park, such as by court order, it would remove abortion coverage 7 from Cedar Park’s health care plan.” Id. ¶ 7 (citing Exh. A at 1). The email exchange 8 does not support Smith’s contention. Instead, Kaiser Permanente responded as follows:
9 “Due to how [Kaiser Permanente] has to file with the [Washington] OIC for fully insured 10 groups we cannot retro exclude covered back to 9/1/2019 (ex. If a member received 11 services, they would be denied with the retro change and the member would pay in full 12 for the cost) HOWEVER, we can support a mid-year change.” Id., Exh. A at 1. 13 On October 3, 2019, Cedar Park filed a motion for leave to supplement its
14 complaint to add these new facts regarding the renewal of its health care plan and 15 communications with Kaiser Permanente. Dkt. 51. 16 On October 4, 2019, the State responded to Cedar Park’s motion for preliminary 17 injunction and filed a motion to dismiss. Dkt. 53. In support of its response and motion, 18 the State provided a declaration and news release stating that “Providence Health Plan
19 (Providence) of Portland, OR” will offer a new health care plan that will “limit coverage 20 of abortion services to its enrollees.” Dkt. 54-1 at 2. The State contends that Providence’s 21 plan conforms to Cedar Park’s requirements. 22 1 On October 14, 2019, the State responded to the motion for leave. Dkt. 56. On 2 October 18, 2019, Cedar Park replied. Dkt. 57.
3 On October 25, 2019, Cedar Park replied to the State’s response on preliminary 4 injunction and responded to the State’s motion to dismiss. Dkt. 58. On November 8, 5 2019, the State replied. Dkt. 59. 6 II. DISCUSSION 7 A. Motion to Dismiss 8 Although the State moves to dismiss for multiple theories, Cedar Park’s lack of
9 standing is apparent and dispositive. Moreover, standing is a jurisdictional issue and, 10 without jurisdiction, there is no need to offer advisory opinions on any other issue in this 11 matter. See, e.g., PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (D.C. 12 Cir. 2004) (The “cardinal principle of judicial restraint” is that “if it is not necessary to 13 decide more, it is necessary not to decide more.”) (Roberts, J., concurring in part and
14 concurring in judgment). 15 First, however, the Court must address Cedar Park’s procedural errors and 16 misunderstandings. Cedar Park explicitly bases its motion for preliminary injunction on 17 “recently discovered facts.” Dkt. 58 at 11. These new facts and allegations are not in the 18 operative complaint, and Cedar Park’s position is that these new facts establish actual
19 injury for the majority of its claims. Id. at 11–13. Thus, Cedar Park implicitly concedes 20 that actual injury is not alleged in the complaint, which could be dispositive of the motion 21 to dismiss and the motion for preliminary injunction. To correct this obvious error, Cedar 22 Park filed a motion to supplement its complaint three weeks after it filed its motion for a 1 preliminary injunction and one day before the State’s response was due. Dkt. 51. The 2 State opposes the motion for leave to supplement arguing that the new facts/allegations
3 are futile. Dkt. 56. The Court agrees with the State but will grant the motion because the 4 State is not prejudiced by consideration of the new facts/allegations and because it does 5 not alter the ultimate determination of the issues. Therefore, the Court grants Cedar 6 Park’s motion for leave to supplement and will consider the proposed supplemental 7 complaint as the operative complaint for the purposes of the motion to dismiss and 8 motion for preliminary injunction.
9 Cedar Park’s procedural misunderstanding is its position that “[i]n ruling on a 10 motion to dismiss, the Court cannot consider evidence outside of the pleadings.” Dkt. 58 11 at 13 (citing Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 12 1555 & n. 19 (9th Cir. 1989)). A party mounting a Rule 12(b)(1) challenge to the court’s 13 jurisdiction may do so either on the face of the pleadings or by presenting extrinsic
14 evidence for the court’s consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 15 2000) (“Rule 12(b)(1) jurisdictional attacks can be either facial or factual”). Although 16 Cedar Park requests that the Court accept its new evidence in opposition to the motion to 17 dismiss, it objects to the State’s evidence establishing that Providence offers a plan that 18 conforms with Cedar Park’s desired needs. Regardless of these inconsistent positions, the
19 Court will accept the additional evidence from both parties because neither party attacks 20 the truthfulness of the offered facts. “A factual attack requires a factual dispute, and there 21 is none here.” Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 22 1 2014). Therefore, in the absence of a factual dispute, the Court will consider the 2 evidence in the record when analyzing the issue of standing.
3 1. Standard 4 In order to have standing in federal court, a plaintiff must show that she has 5 suffered an injury-in-fact that is fairly traceable to the actions of the defendant and that 6 her injury is likely to be redressed by a favorable decision. See, e.g., Ass’n of Public 7 Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 950 (9th Cir. 2013). The 8 injury must be concrete and particularized, as well as actual or imminent, not conjectural
9 or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal 10 quotations and citations omitted). The party invoking federal jurisdiction has the burden 11 to establish standing. Id. Standing is “claim-and relief-specific, such that a plaintiff must 12 establish Article III standing for each of her claims and for each form of relief sought.” In 13 re Adobe Systems, Inc. Privacy Litig., 66 F.Supp.3d 1197, 1218, 2014 WL 4379916, at
14 *10 (N.D. Cal. Sept. 4, 2014); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 15 352 (2006) (“[O]ur standing cases confirm that a plaintiff must demonstrate standing for 16 each claim he seeks to press.”). 17 2. Analysis 18 For purposes of standing, Cedar Park separates its Equal Protection claim from its
19 other claims. Dkt. 49 at 15–16; Dkt. 58 at 11–13. Regarding the latter, Cedar Park argues 20 that it is “suffering injury because it is being forced to provide insurance coverage for 21 abortion.” Dkt. 58 at 11. The fallacy of this argument is apparent and even the alleged 22 injury is not fairly traceable to the State or SB 6219. Cedar Park is a consumer in the 1 marketplace. Kaiser Permanente and Providence are relevant businesses in the 2 marketplace. Kaiser Permanente does not offer a product that meets Cedar Park’s
3 requirements, while Providence does offer such a product. Cedar Park chose to purchase 4 Kaiser Permanente’s product “under protest.” In other words, Cedar Park has chosen to 5 maintain a business relationship with a company that fails to provide a service meeting 6 Cedar Park’s preference despite the potential availability of suitable alternatives. 7 Cedar Park then argues without citation that it was impossible to do business with 8 Providence as of September 19, 2019 and, even if it did, there is no evidence that
9 Providence’s plan is comparable as to all other aspects of Cedar Park’s current plan. Dkt. 10 58 at 13. Despite being unsupported by any fact or plausible allegation, this argument 11 fails to recognize that Cedar Park has the burden to establish jurisdiction. 12 DaimlerChrysler, 547 U.S. at 352. Thus, it is Cedar Park’s burden to establish some 13 unrecoverable injury in leaving the current plan it bought “under protest” and obtaining a
14 comparable plan from Providence. The record is silent as to any penalty that Cedar Park 15 faces if it chose to switch providers. Moreover, Kaiser Permanente represented that it 16 could support an appropriate mid-year change if approved by the OIC. Dkt. 50-1 at 2. If 17 Kaiser Permanente seeks to maintain its business relationship with Cedar Park, it would 18 seem that Kaiser Permanente would be seeking approval of an appropriate plan to
19 accommodate Cedar Park. There are no facts in the record to establish that Kaiser 20 Permanente is proceeding on this basis as Providence has done.3 Therefore, these facts 21
3 It is unclear whether the OIC would allow Kaiser Permanente the opportunity to refer a 22 client’s employees seeking reproductive health services to the Washington Department of Health 1 establish an absence of products in the marketplace as opposed to government directed or 2 sanctioned religious discrimination.
3 Finally, on these claims, Cedar Park has failed to establish that any injury is fairly 4 traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on 5 September 1, 2019, there was no product in the marketplace that complied with Cedar 6 Park’s preferred requirements. Cedar Park has failed to establish that this absence of a 7 product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to 8 its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan.
9 Now, Providence offers what appears to be an acceptable product despite the continued 10 applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury 11 that is fairly traceable to SB 6219. 12 Regarding Cedar Park’s Equal Protection claim, Cedar Park argues that “unequal 13 treatment is sufficient injury to confer standing.” Dkt. 58 at 12. The problem with this
14 argument is that Cedar Park has failed to establish that it is similarly situated to health 15 care providers. “The groups need not be similar in all respects, but they must be similar in 16 those respects relevant to the Defendants’ policy.” Ariz. Dream Act Coalition v. Brewer, 17 757 F.3d 1053, 1063 (9th Cir. 2014). The only thing that Cedar Park has in common with 18 the providers or insurance carriers is the same religious beliefs regarding reproductive
19 health services, and the statute does not discriminate based on a specific belief. Instead, 20
21 Family Planning Program as it did Providence based on Providence’s religious beliefs or whether Kaiser Permanente could absorb these costs through inclusion in its general overhead and 22 approved through its actuarial rate setting process. Dkt. 54-1 at 2. 1 the statute allows nonparticipation for a health care provider, religiously sponsored health 2 carrier, or health care facility based on conscience or religion because these entities are in
3 the business of providing health care instead of purchasing health care. Dkt. 53 at 12–15. 4 These entities could seemingly refuse to provide immunizations based on conscience or 5 religion, which is not similar to Cedar Park in any relevant manner. Thus, Cedar Park has 6 failed to establish that the State’s policy separates entities based on the religious belief at 7 issue. Having failed to establish such “unequal treatment” results in failure to establish an 8 injury based on a violation of the Equal Protection Clause.
9 In sum, Cedar Park has failed to meet its burden in establishing an injury in fact on 10 any of its claims, and the Court grants the State’s motion to dismiss for lack of 11 jurisdiction. 12 B. Motion for Preliminary Injunction 13 “A plaintiff seeking a preliminary injunction must establish that he is likely to
14 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 15 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 16 the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 17 Without standing, the Court is unable to conclude that Cedar Park is likely to succeed on 18 the merits. Moreover, as the Court has found that on the facts before it Cedar Park has not
19 demonstrated injury required for standing, the Court is unable to conclude that Cedar 20 Park has shown “irreparable injury is likely in the absence of an injunction.” Id. at 22. 21 Therefore, the Court denies Cedar Park’s motion for preliminary injunction. 22 1 III. ORDER 2 Therefore, it is hereby ORDERED that Cedar Park’s motion for leave to file a
3 supplemental complaint, Dkt. 51, is GRANTED; the State’s motion to dismiss, Dkt. 53, 4 is GRANTED; and Cedar Park’s motion for preliminary injunction, Dkt. 49, is 5 DENIED. 6 The Clerk shall enter a JUDGMENT and close this case. 7 Dated this 6th day of May, 2020. A 8 9 BENJAMIN H. SETTLE 10 United States District Judge
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