(CN) - An Oregon anti-abortion group reignited its constitutional challenge to a state law requiring businesses to offer abortion coverage in their employee health insurance plans on Tuesday, arguing that it is, in fact, a religious organization subject to an exemption.
"There are numerous assertions in the record by Oregon Right to Life that their belief in the sanctity of individual human life and opposition to abortion is based upon religious tenets," James Bopp, attorney representing the anti-abortion group, said.
Oregon Right to Life sued Andrew Stolfi, Oregon's insurance commissioner, in 2023, accusing the state of violating its First Amendment right to religious liberty by enforcing the state's Reproductive Health Equity Act, enacted in 2017.
Under the Reproductive Health Equity Act, employers are required to provide abortion and contraceptive coverage. The act allows religious employers to choose health benefit plans that do not include coverage for abortion procedures and has a federal funding exception, which allows an exemption if enforcement would jeopardize federal funds.
Relying on Oregon Right to Life's lack of religious requirements for its members or staff, U.S. District Judge Ann Aiken, a Bill Clinton appointee, declined to grant the group injunctive relief and dismissed its case in September.
On appeal, Oregon Right to Life argued that its use of religious terminology and the references to Judeo-Christian ethics within its bylaws show that it is inherently a religious organization and that those beliefs are sincerely held.
But whether the lower court erred in finding otherwise is only one factor at issue; the second is how the Supreme Court's recent decision in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission - in which the court ruled that a Catholic nonprofit qualifies for tax-exempt status - impacts the case.
"The question is: Can we distinguish between various types of religious organizations?" Bopps asked.
Turning to Catholic Charities Bureau, Bopps cited the Supreme Court's finding that the Wisconsin Supreme Court erred when it interpreted state law in a way that "facially differentiates between religions based upon theological choices."
"It seems pretty conclusively established, in our opinion, that limiting the religious employer exception to only basically churches renders that exception to be not neutral, not generally applicable, and therefore renders the entire mandate unconstitutional," Bopps said.
However, the state rejected that characterization and instead turned the focus on whether the Reproductive Health Equity Act is neutral and generally applicable.
"Oregon Right to Life argues for an extraordinarily broad construction of the free exercise clause," said Carson Whitehead, attorney with the Oregon Department of Justice. "One that effectively requires a religious exemption for anyone who objects to a state policy whenever the law includes exemptions, including exemptions that accommodate religious belief."
U.S. Circuit Judge Lawrence Van Dyke, a Donald Trump appointee, needled the state on whether, assuming that the group was indeed religious, it was discriminating between religions by not including Oregon Right to Life in the law's carveout.
"Where is the line?" Van Dyke asked. "What is the line that you're proposing where you can accommodate some but not others, and it doesn't cross over into the type of discrimination that the Supreme Court and the Catholic Charities case was concerned about?"
Whitehead argued that the decision in Catholic Charities doesn't impact this appeal because it was decided under the Establishment Clause, which has not been raised in Oregon Right to Life's challenge.
"In this case, it's an as-applied free exercise challenge for a group that meets none of the requirements for the religious employer exception," Whitehead argued.
Oregon Right to Life is a membership organization that doesn't require specific religious adherence from its members, nor is it affiliated with a specific denomination, Whitehead noted.
But Bopps pushed back, arguing that there are plenty of instances in which one could prove religious discrimination without the underlying party being an organized church. He also argued
"How, in any world, is that neutral or generally applicable when there are people with religious beliefs that are not protected because they don't pass some theological tests that the state of Oregon is imposing upon them in order to benefit the exception?" Bopps posited.
The panel - which also included U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, and U.S. Circuit Judge John Owens, a Barack Obama appointee - did not indicate when it would rule.
Source: Courthouse News Service
