In a ruling that has “shocked” legal experts, the Ninth Circuit Court of Appeals ruled last week that a church in Washington state does not have standing to sue the state over a law that requires the church’s employee health care plan to include coverage of abortion.

The six-year legal battle began in 2019, when Cedar Park Assembly of God, a Pentecostal church in Kirkland, Washington, was informed by its health care provider Kaiser Permanente that it would not be able to exclude abortion from its health plan “due to the enactment of” the Parity Act of 2018, which required health care providers to cover contraception as well as abortion if maternity care was covered. Because of its Christian beliefs that abortion and some forms of contraception are sinful, Cedar Park filed suit against the state in federal court, arguing that the church’s First Amendment right to religious freedom was being violated by the Parity Act.

After a U.S. district judge initially dismissed the suit due to a purported lack of standing because other health insurers offered plans that did not include abortion, a Ninth Circuit panel overturned the decision, saying that other plans “were not necessarily comparable.” Nevertheless, on March 6, the Ninth Circuit panel “struck down the federal court’s ruling in favor [of] the defendant’s motion for summary judgement, but also struck down the court’s rejection of a motion to dismiss for lack of standing.” In effect, the appellate court reversed its own decision from 2021, which had previously found that the church did have standing.

“The majority’s ruling is shocking,” stated Rory Gray, senior counsel with Alliance Defending Freedom, who represented Cedar Park. “It bars the courthouse doors to a church who has actually been required to include abortion coverage in its employee health plan for five years in violation of everything it believes. That conclusion is unprecedented and contradicts what the Supreme Court, other circuits, and the Ninth Circuit itself already said.”

On Friday, Kevin Theriot, senior counsel with Alliance Defending Freedom, joined “Washington Watch” to discuss the case.

“[M]ost people would agree that no one should have to force or be forced to pay for abortions, much less a church. But that’s exactly what [the Parity Act] does,” he explained. “If they have a group health insurance plan like they had before the law went into effect that excluded abortion, they can no longer have that plan under this new law.”

“So how in the world does the court say that the Cedar Park church lacked standing in this case?” asked guest host and former Congressman Jody Hice.

“Well, that’s a great question,” Theriot responded. “It’s difficult to understand, but they went through some backbends, basically in order to avoid some Ninth Circuit law that is governing [the case]. We represented some churches, Skyline Church being one of them in California, that challenged a similar law there. And the court not only said that it violated the church’s rights, but clearly that they had standing to challenge the law. And so, in this Ninth Circuit case … the court ignored some binding precedent in the Ninth Circuit and at the Supreme Court to come to this conclusion.”

Theriot went on to describe the Ninth Circuit’s reasoning for dismissing Cedar Park’s case.

“What they said was that this is no different than an employee getting their paycheck and going out and buying something with their paycheck from the church that would violate the church’s convictions — like if the church teaches against alcohol, if they went out and bought alcohol,” he described. “But of course, that’s ridiculous. The law is actually requiring the church to participate in the process by buying the plan that facilitates their abortion. So that would be more like the state requiring the church to give them a bottle of whiskey. That’s really what’s going on. [T]he court just got the facts wrong and construed the law in a way that is contrary to what the Supreme Court and what the Ninth Circuit has said, and that is that churches can’t be forced to fund abortion.”

Theriot further emphasized that the Ninth Circuit’s decision will not be the end of Cedar Park’s legal fight. “Hopefully long term we’ll be able to get this overturned. But we plan on asking the full panel of the Ninth Circuit to rehear the case and abide by the original rulings that the Ninth Circuit had in this case and in similar cases. But I think long term, the Supreme Court’s going to have to take this up if the Ninth Circuit doesn’t fix it.”

Theriot concluded by underscoring that the Ninth Circuit’s ruling could have far-reaching negative consequences. “[If this] stands, then not only churches, but any organization that doesn’t want to facilitate and help its employees get something that violates their convictions [could be threatened]. [F]or instance, an animal rights group couldn’t be forced under the First Amendment to buy hunting licenses for their employees. But that right and that freedom is under threat if this case stands.”