Foothill Appeal

Case: 19-15658, 08/14/2019, ID: 11397520, DktEntry: 13, Page 1 of 72
No. 19-15658
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
________________________________________________________________
FOOTHILL CHURCH, a California non-profit corporation, CALVARY

CHAPEL, a California non-profit corporation, CHINO HILLS, SHEPHERD OF
THE HILLS CHURCH, a California non-profit corporation,
Plaintiffs–Appellants
v.
MICHELLE ROUILLARD, in her official capacity as Director of the
California Department of Managed Health Care,
Defendant-Appellee.
________________________________________________________________
On Appeal from the United States District Court

for the Eastern District of California, Sacramento
No. 2:15-cv-02165-KJM-EFB
________________________________________________________________
APPELLANTS’ OPENING BRIEF

________________________________________________________________
John J. Bursch Kristen K. Waggoner

David A. Cortman Kevin Theriot
ALLIANCE DEFENDING FREEDOM Jeremiah J. Galus
440 First Street, NW, Suite 600 ALLIANCE DEFENDING FREEDOM
Washington, D.C. 20001 15100 N. 90th St.
(202) 393-8690 Scottsdale, AZ 85260
(480) 444-0020
Alexander M. Medina [email protected]
MEDINA MCKELVEY LLP
983 Reserve Drive
Roseville, CA 95678
(916) 960-2211
[email protected]
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-
Appellants Foothill Church, Calvary Chapel Chino Hills, and Shepherd
of the Hills Church state that they are non-profit corporations and that
no parent corporation or publicly held corporation owns 10% or more of
their stock.
ii
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ........................................... ii
TABLE OF CONTENTS ..........................................................................iii
TABLE OF AUTHORITIES ...................................................................... v
INTRODUCTION ...................................................................................... 1
STATEMENT OF JURISDICTION .......................................................... 3
STATEMENT OF ISSUES........................................................................ 3
STATUTES AND REGULATIONS .......................................................... 4
STATEMENT OF THE CASE .................................................................. 4
A. The Churches’ religious beliefs about abortion and

the sanctity of human life................................................... 4
B. The DMHC and the Knox-Keene Act ................................. 6
C. Abortion advocates lobby the DMHC to eliminate

religious accommodations for abortion coverage. .............. 8
D. Director Rouillard issues the August 2014 letter,

rescinds existing religious accommodations, and
mandates immediate coverage of elective abortion. ........ 12
E. The DMHC selectively enforces the abortion-

coverage requirement. ...................................................... 13
F. District Court proceedings ............................................... 15
SUMMARY OF ARGUMENT ................................................................. 19
STANDARD OF REVIEW....................................................................... 21
ARGUMENT ........................................................................................... 21
iii
I. The abortion-coverage requirement violates the Free

Exercise Clause. ......................................................................... 21
A. The abortion-coverage requirement impermissibly

interferes with church autonomy. .................................... 22
B. The abortion-coverage requirement triggers, and

fails, strict scrutiny even under a Smith analysis. .......... 29
1. Strict scrutiny applies because the abortion-

coverage requirement involves a system of
“individualized governmental assessments.”.......... 29
2. Strict scrutiny also applies because the

abortion-coverage requirement is not generally
applicable. ................................................................ 32
3. Strict scrutiny applies because rescinding

existing religious exemptions and forcing the
Churches’ plans to cover abortion is hardly
neutral. .................................................................... 35
4. The abortion-coverage requirement, as applied

to the Churches, cannot satisfy strict scrutiny. ...... 39
II. The abortion-coverage requirement violates the Equal

Protection Clause. ...................................................................... 41
III. The abortion-coverage requirement has been selectively

enforced in violation of the Establishment Clause. .................. 42
CONCLUSION ........................................................................................ 43
STATEMENT OF RELATED CASES .................................................... 45
CERTIFICATE OF COMPLIANCE ........................................................ 46
CERTIFICATE OF SERVICE................................................................. 47
ADDENDUM ......................................................................................... A-1
iv
TABLE OF AUTHORITIES
Cases
Blackhawk v. Pennsylvania,
381 F.3d 202 (3d Cir. 2004) ............................................................ 34
Bollard v. California Province of the Society of Jesus,

96 F.3d 940 (9th Cir. 1999) ...................................................... 23, 26
Bryce v. Episcopal Church in the Diocese of Colorado,

289 F.3d 648 (10th Cir. 2002) ........................................................ 24
Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................ 41
Catholic Bishop of Chicago v. N.L.R.B.,

559 F.2d 1112 (7th Cir. 1977) ........................................................ 25
Central Rabbinical Congress of U.S. & Canada v. New York

City Department of Health & Mental Hygiene,
763 F.3d 183 (2d Cir. 2014) ...................................................... 37, 38
Church of the Lukumi Babalu Aye Inc. v. City of Hialeah,

508 U.S. 520 (1993) ................................................................ passim
City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) ........................................................................ 41
City of New Orleans v. Dukes,

427 U.S. 297 (1976) ................................................................... 41-42
Curay-Cramer v. Ursuline Academy of Wilmington,

344 F. Supp. 2d 923 (D. Del. 2004), aff’d,
450 F.3d 130 (3d Cir. 2006) ....................................................... 24-25
E.E.O.C. v. Catholic University of America,

83 F.3d 455 (D.C. Cir. 1996) .......................................................... 24
v
E.E.O.C. v. Townley Engineering & Manufacturing Co.,

859 F.2d 610 (9th Cir. 1988) .......................................................... 28
Employment Division v. Smith,

494 U.S. 872 (1990) ................................................................ passim
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

170 F.3d 359 (3d Cir. 1999) ............................................................ 34
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ........................................................................ 39
Grossbaum v. Indianapolis-Marion County Building Authority,

100 F.3d 1287 (7th Cir. 1996) ........................................................ 36
Hosanna-Tabor Evangelical Lutheran Church & School

v. E.E.O.C.,
565 U.S. 171 (2012) ................................................................ passim
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church

in North America,
344 U.S. 94 (1952) ...................................................................... 1, 22
Kennedy v. Bremerton School District,

139 S. Ct. 634 (2019) ...................................................................... 28
Larson v. Valente,
456 U.S. 228 (1982) ........................................................................ 42
Lyng v. Northwest Indian Cemetery Protective Association,

485 U.S. 439 (1988) ........................................................................ 26
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

138 S. Ct. 1719 (2018) .................................................................... 35
McDaniel v. Paty,
435 U.S. 618 (1978) ........................................................................ 39
Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) ...................................................... 34
vi
Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard,

No. C083232 (Cal. Ct. App., 3d Dist.) ............................................ 14
Pennsylvania v. President United States,

No. 17-3752, 2019 WL 3057657 (3d Cir. July 12, 2019) ........... 27-28
Personnel Administrator v. Feeney,

442 U.S. 256 (1979) ........................................................................ 39
Real Alternatives, Inc. v. Secretary Department of Health and

Human Services,
867 F.3d 338 (3d Cir. 2017) ............................................................ 25
School District of Abington Township v. Schempp,

374 U.S. 203 (1963) ........................................................................ 43
Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ........................................................................ 24
Sherbert v. Verner,
374 U.S. 398 (1963) ........................................................................ 30
Shrum v. City of Coweta,

449 F.3d 1132 (10th Cir. 2006) ...................................................... 38
Skyline Wesleyan Church v. California Department of

Managed Health Care,
No. 18-55451 (9th Cir.)................................................................... 14
Stormans, Inc. v. Wiesman,

794 F.3d 1064 (9th Cir. 2015) ........................................................ 32
Thomas v. Review Board of the Indiana Employment

Security Division,
450 U.S. 707 (1981) ........................................................................ 26
Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) .................................................................... 22
vii
Ward v. Polite,
667 F.3d 727 (6th Cir. 2012) .......................................................... 34
Washington v. Davis,
426 U.S. 229 (1976) ........................................................................ 38
Werft v. Desert Southwest Annual Conference of United

Methodist Church,
377 F.3d 1099 (9th Cir. 2004) ............................................ 21, 23, 26
Wisconsin v. Yoder,
406 U.S. 205 (1972 ......................................................................... 39
Statutes and Regulations
28 U.S.C. § 1291 ........................................................................................ 3
California Health & Safety Code
§ 1341(a) ........................................................................................... 6
§ 1343(b) ..................................................................................... 7, 31
§ 1343(e)...................................................................................... 7, 33
§ 1344(a) ................................................................................ 7, 30-31
§ 1345(b) ........................................................................................... 6
§ 1367(i) .................................................................................. 6, 7, 30
§ 1367.25(c) ............................................................................... 15, 25
California Code of Regulations
Title 28 § 1300.43 ....................................................................... 7, 33
Title 28 § 1300.43–43.15 ................................................................ 33
Title 28 § 1300.67 ............................................................................. 6
viii
Other Authorities
National Health Law Program, Reproductive Health,

http://www.healthlaw.org/issues/reproductive-health .................... 8
ix
INTRODUCTION
This case is about whether churches may operate according to
their religious beliefs about the sanctity of human life—“free from state
interference.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox
Church in N. Am., 344 U.S. 94, 116 (1952).
Foothill Church, Calvary Chapel Chino Hills, and Shepherd of the
Hills Church are three California churches that used to be free to
operate consistently with their religious beliefs about abortion; the
Churches could obtain a healthcare plan that provided necessary
medical coverage to their employees and their families while at the
same time excluding elective abortion consistent with their beliefs.
All that changed on August 22, 2014, when the California
Department of Managed Health Care, or DMHC, mandated that
religious organizations cover elective abortions in their employee
healthcare plans. Although this abortion-coverage requirement
undeniably violates the Churches’ sincerely held religious beliefs, the
DMHC refuses to change its policy or to accommodate the Churches’
beliefs.
1
Concluding that the DMHC and its director, Michelle Rouillard,
did not engage in any intentional religious discrimination when they
forced religious organizations to cover elective abortions in their
healthcare plans, the District Court held that the Churches could not
state a claim for relief under the Free Exercise, Equal Protection, or
Establishment Clauses. Although the allegations of the operative
complaint plausibly show that they imposed the abortion-coverage
requirement for discriminatory reasons, the Churches need not
establish intentional religious discrimination to prevail.
The Churches sufficiently alleged a free-exercise violation because
the abortion-coverage requirement (1) impermissibly interferes with the
Churches’ religious autonomy and internal affairs and (2) triggers (and
fails) strict scrutiny because it involves a system of “individualized
assessments” and is neither neutral nor generally applicable. The
Churches also adequately stated claims for relief under the Equal
Protection and Establishment Clauses because the DMHC has
subsequently enforced the abortion-coverage requirement in a way that
prefers some religious beliefs to others. This Court should reverse and
hold that the Churches are free to operate according to their faith.
2
STATEMENT OF JURISDICTION
On March 7, 2019, the District Court granted Director Rouillard’s
motion to dismiss the second amended complaint for failure to state a
claim. ER 2–13. The court entered judgment the same day and
dismissed the action with prejudice. ER 1. This Court has jurisdiction
under 28 U.S.C. § 1291.
STATEMENT OF ISSUES
In August 2014, Director Rouillard mandated that religious
organizations’ healthcare plans provide coverage for all legal abortions.
The Churches filed suit, alleging that their religious beliefs forbid them
from covering elective abortion in their employee healthcare plans. The
Churches further alleged that (1) Director Rouillard imposed the
coverage requirement in response to religious institutions limiting or
excluding abortion coverage in their employee healthcare plans, (2) the
only plans truly affected were provided exclusively to religious
organizations, and (3) there are numerous secular exemptions from the
coverage requirement. The issue on appeal is whether those allegations,
taken as true, state a claim for relief under the Free Exercise, Equal
Protection, or Establishment Clauses of the U.S. Constitution.
3
STATUTES AND REGULATIONS
Pertinent constitutional provisions, statutes, regulations, and
rules are attached as an addendum to this brief.
STATEMENT OF THE CASE
A. The Churches’ religious beliefs about abortion and

the sanctity of human life
Foothill Church, Calvary Chapel Chino Hills, and Shepherd of the
Hills Church believe the Bible is the inspired Word of God and the
authoritative guide for all Christian life, practice, and doctrine. ER 54.
Because the Bible teaches that human life is formed by and bears the
image of God, the Churches believe and teach that each human life is
sacred from the moment of conception to natural death and that elective
abortion is a sin. ER 54–55.
This belief about the sanctity of human life motivates much of the
Churches’ ministries and outreach. Indeed, Foothill Church supports
and partners with organizations dedicated to protecting and promoting
the sanctity of all human life, including those serving victims of sex-
trafficking, at-risk children and families, and women facing unplanned
pregnancies. ER 55–56. Similarly, Calvary Chapel Chino Hills
ministers to the homeless, incarcerated, and children with special
4
needs, and it supports local medical centers and clinics that provide free
counseling and medical services to women facing unexpected
pregnancies. ER 56. Shepherd of the Hills Church likewise provides a
support and recovery program for individuals and families affected by
addiction; ministers to those in prison; offers a support class for hurting
moms and dads who have lost a baby through miscarriage; and hosts a
confidential ministry designed to assist women who have had abortions.
ER 56–57.
The Churches’ religious beliefs about the sanctity of human life
also compel them to provide health insurance to their employees and
families. ER 57. But because the Churches believe elective abortion is a
sin, they cannot pay for or facilitate coverage for elective abortion in
their employee healthcare plans. ER 55, 57. Although the Churches
used to be able to obtain coverage consistent with their religious beliefs,
ER 59–60, Director Rouillard summarily announced in August 2014
that it was illegal for private insurers to exclude or limit abortion
coverage in their healthcare plans, ER 57–58. The Churches’ plans
must now cover elective abortion in violation of the Churches’ beliefs.
ER 60.
5
B. The DMHC and the Knox-Keene Act
The DMHC is the regulatory body responsible for enforcing
California’s Knox-Keene Health Care Service Plan Act of 1975 (the
“Knox-Keene Act”) and its related regulations. ER 54; see also Cal.
Health & Safety Code § 1341(a). Michelle Rouillard has been DMHC’s
director since December 2013. ER 54.
Under the Knox-Keene Act, “health care service plans” must
provide coverage for “all of the basic health care services included in
subdivision (b) of Section 1345.” Cal. Health & Safety Code § 1367(i)
(the “basic healthcare services provision”). As defined, “basic health care
services” means: (1) physician services; (2) hospital inpatient services
and ambulatory care services; (3) diagnostic laboratory and diagnostic
and therapeutic radiologic services; (4) home health services; (5)
preventive health services; (6) emergency healthcare services; and (7)
hospice care. Id. § 1345(b). Pursuant to its regulatory authority, the
DMHC has defined the scope of these “basic health care services” to
include services only “where medically necessary.” Cal. Code Regs. tit.
28, § 1300.67.
6
Although the Knox-Keene Act generally requires healthcare plans
to cover medically necessary basic healthcare services, that rule is
flexible. Under the Act, Director Rouillard may exempt “a plan contract
or any class of plan contracts” from the basic healthcare services
provision “for good cause.” Cal. Health & Safety Code § 1367(i). And she
may “unconditionally” exempt “any class of persons or plan contracts”
from all the Act’s requirements—including the basic healthcare services
provision—if she deems such exemption to be “in the public interest.”
Id. § 1343(b); see also id. § 1344(a) (allowing the director to “waive any
requirement of any rule or form” if “in the public interest”). There are
no rules, policies, or procedures governing this discretionary exemption
authority. ER 71–72.
In addition, the California Legislature and the DMHC have
exempted entire categories of healthcare plans from the Knox-Keene
Act’s basic healthcare services provision—either by statute or
regulation. E.g., Cal. Health & Safety Code § 1343(e) (exempting
healthcare plans operated by “[t]he California Small Group Reinsurance
Fund” and plans “directly operated by a bona fide public or private
institution of higher learning”); Cal. Code Regs. tit. 28, § 1300.43
7
(exempting “small plans” administered solely by an employer that “does
not have more than five subscribers”).
C. Abortion advocates lobby the DMHC to eliminate

religious accommodations for abortion coverage.
Before August 2014, the DMHC allowed religious organizations to
exclude or limit abortion coverage in their healthcare plans. ER 59. It
approved a variety of abortion exclusions and limitations for religious
organizations, including provisions that excluded coverage for “elective
abortions,” excluded coverage for “voluntary termination of pregnancy,”
and limited coverage to “medically necessary abortion[s],” defined as an
abortion performed to save the life of the mother. ER 59–60.
But in November 2013, Director Rouillard met with Planned
Parenthood, the ACLU, and the National Health Law Program, an
organization that promotes the expansion of abortion access and seeks
to eliminate “religious refusals.” 1 ER 62. Those organizations requested
a meeting after learning that two Catholic universities—Loyola
Marymount University (“LMU”) and Santa Clara University (“SCU”)—
1National Health Law Program, Reproductive Health,

http://www.healthlaw.org/issues/reproductive-health.
8
were able to purchase an employee healthcare plan that excluded
elective abortion coverage. Id.2 Director Rouillard met with
representatives of the pro-abortion groups to discuss the Catholic
universities’ ability to limit or exclude abortion coverage in accordance
with their faith. Id. Following that meeting, the DMHC set out to
gather more information about its prior approvals of abortion exclusions
and limitations for religious organizations, and it requested information
from California health insurers about the scope of abortion coverage
offered in their healthcare plans. ER 62–63. During this time, the pro-
abortion groups advocated for an interpretation of the Knox-Keene Act
that would prohibit religious organizations from excluding or limiting
abortion coverage in their healthcare plans. ER 63.
For 40 years, California had never interpreted the Knox-Keene Act
to require coverage for elective abortion. Then, in February 2014,
Planned Parenthood sent the DMHC a “legal analysis” asserting that
the Act mandates elective abortion coverage. ER 63; see also ER 100.
2At that time, Ms. Rouillard had just been nominated as director of the
DMHC. She officially assumed that role shortly thereafter in December
2013. ER 54.
9
The very next month, Planned Parenthood arranged a meeting with
California Health and Human Services (CHHS), the DMHC’s parent
agency, to “address the issue that DMHC has approved, and Catholic
Universities have been purchasing,” healthcare plans that “exclude
certain types of abortions.” ER 100. The purpose was to “explore
whether there is a regulatory/administrative fix.” Id.
A few days after the meeting, Planned Parenthood warned CHHS
that it was considering legislation to eliminate religious exemptions for
abortion coverage, but said it would forgo a legislative effort in
exchange for an administrative solution. ER 64, 103–04. Specifically,
Planned Parenthood promised not to pursue legislation if the DMHC
agreed to: (1) stop “approv[ing]” plans “that exclude coverage for
abortion”; (2) “clarif[y] that there is no such thing as an elective or
voluntary abortion exclusion”; and (3) “rescind approval” of “plans that
include an abortion exclusion” and “find a solution to fix the already
approved plans being offered to employees of LMU for 2014 and SCU
for 2015.” Id. 3
3Not surprisingly, the August 22, 2014 letter accomplishes all three
demands.
10
In April 2014, Planned Parenthood followed up “to check in on
[CHHS] and DMHC progress” in developing an administrative
“solution.” ER 64, 108. CHHS said it was “still working with DMHC on
the legal and practical issues relating to the ‘updated’ interpretation.”
ER 65, 107. Then, in May 2014, CHHS asked Planned Parenthood to
“get[ ] in touch” with DMHC’s Deputy Director of Plan and Provider
Relations because the “DMHC would like to request Planned
Parenthood’s assistance on some additional information.” ER 65, 106.
Shortly thereafter, the DMHC asked California health insurers to
identify (1) the number of employer groups that had purchased coverage
limiting or excluding coverage for abortion; and (2) the number of those
groups that qualified as a “religious employer.” ER 65.
In response, the insurers reiterated that only religious organiza-
tions had purchased healthcare plans limiting or excluding elective
abortion coverage. ER 66–67. The DMHC had not approved—and
insurers had not offered—plan language allowing any secular,
nonreligious employers to limit or exclude abortion coverage. ER 52, 67.
11
D. Director Rouillard issues the August 2014 letter,

rescinds existing religious accommodations, and
mandates immediate coverage of elective abortion.
On August 22, 2014, Director Rouillard sent a letter to California
health insurers “remind[ing]” them (for the very first time) that the
Knox-Keene Act’s basic healthcare services provision requires coverage
for all legal abortions, including elective abortions. ER 83–96. 4 The
letter asserted that the DMHC had reviewed plan documents and
“discovered” abortion exclusions and limitations in products covering a
“very small fraction” of plan enrollees. Id. Claiming that the DMHC had
“erroneously approved or did not object” to these exclusions and
limitations, the letter mandated immediate coverage of all legal
abortions. Id.
The letter went on: “effective as of [August 22, 2014]” and
“[r]egardless of existing [plan] language,” healthcare plans “must
comply with California law with respect to the coverage of legal
abortions.” Id. (emphasis added). The letter ordered insurers to:
4Director Rouillard sent the letter to seven insurers that were offering
products to religious organizations limiting or excluding coverage for
abortion. ER 83–96.
12
• “[R]eview all current health plan documents to ensure

that they are compliant with the Knox-Keene Act with
regard to legal abortion,” including “plan documents
previously approved or not objected to by the DMHC”;
• “[A]mend current health plan documents to remove

discriminatory coverage exclusions and limitations,”
including but not limited to “any exclusion of coverage for
‘voluntary’ or ‘elective’ abortions and/or any limitation of
coverage to only ‘therapeutic’ or ‘medically necessary’
abortions”; and
• “[F]ile any revised relevant health plan documents” with

the DMHC within 90 days from August 22, 2014 “[t]o
demonstrate compliance” with the law.
Id. Finally, the letter advised insurers that their plan documents need
not reference abortion coverage at all (thus hiding the coverage from
insureds), even though the insurers would be adding elective abortion
coverage to religious employer plans that previously lacked it. Id.
In sum, Director Rouillard and the DMHC changed 40 years of
practice and sacrificed religious organizations to the abortion industry.
E. The DMHC selectively enforces the abortion-coverage

requirement.
In addition to secular exemptions, Director Rouillard and the
DMHC have selectively enforced the abortion-coverage requirement
since August 2014. Although they refuse to accommodate the Churches’
13
beliefs, they have since accommodated religious employers whose beliefs
allow them to cover elective abortions in some circumstances.
Indeed, in both September and December 2014, Director Rouillard
rejected requests to reverse her August 2014 letter, claiming that the
DMHC had “carefully considered all relevant aspects of state and
federal law in reaching its position.” ER 74–75, 110, 112. Director
Rouillard and the DMHC again refused to change their position when
the Churches filed an administrative complaint with the U.S.
Department of Health and Human Services, alleging violation of the
federal Weldon Amendment. See ER 72, 187–89. And Director Rouillard
and the DMHC have vigorously defended the abortion-coverage
mandate over four years and three separate lawsuits, including this
one. 5
Yet, certain government officials within the DMHC’s Office of
Plan Licensing had off-the-record conversations with a few health
insurers about restoring a religious accommodation for religious
5See Skyline Wesleyan Church v. California Department of Managed

Health Care, No. 18-55451 (9th Cir.); Missionary Guadalupanas of the
Holy Spirit Inc. v. Rouillard, C083232 (Cal. Ct. App., 3d Dist.).
14
employers whose beliefs allowed abortion coverage in the cases of rape,
incest, and to save the mother’s life. ER 72. Although the August 2014
letter insisted that all healthcare plans must cover all legal abortions
and rescinded existing religious exemptions, the DMHC secretly
approved plan language in October 2015 allowing “religious employers,”
as defined by California Health & Safety Code § 1367.25(c), to exclude
abortion services except when performed in the instances of rape,
incest, and to save the mother’s life. ER 73.
F. District Court proceedings
The Churches filed a § 1983 lawsuit in the U.S. District Court for
the Eastern District of California in October 2015. The initial complaint
sought declaratory and injunctive relief and alleged violations of the
Churches’ rights under the Free Exercise, Establishment, Free Speech,
and Equal Protection Clauses of the U.S. Constitution. ER 150–65.
Director Rouillard moved to dismiss for lack of standing and fail-
ure to state a claim. The District Court held that the Churches had
standing, but it dismissed for failure to state a claim. ER 25–46. The
District Court dismissed the establishment and free-speech claims with
prejudice but granted the Churches leave to amend their free-exercise
15
and equal-protection claims, ER 46, which they did in August 2016, ER
113–34.
The District Court then granted Director Rouillard’s motion to
dismiss the first amended complaint, but again gave the Churches leave
to amend. ER 14–24. The Churches filed their second amended
complaint in October 2017, adding further factual support for their free-
exercise and equal-protection claims. ER 50–81. The District Court
dismissed the action with prejudice in March 2019. ER 1–13.6
Free Exercise. In dismissing the Churches’ free-exercise claim,
the District Court determined that the abortion-coverage requirement is
subject to rational basis review under Employment Division v. Smith,
494 U.S. 872 (1990), because it is based on a “neutral law of general
applicability.” ER 7. In the District Court’s view, allegations that the
Director and the DMHC knew only religious organizations would be
affected by the August 2014 letter did not, without more, “make it
plausible that [their] object was to target religious employers.” ER 9.
The court stated that, to establish a lack of neutrality, the Churches
6In all three orders granting dismissal, the District Court held that the
Churches sufficiently alleged standing. ER 7, 18–19, 33–36.
16
must show more than “awareness of consequences” and instead must
“plausibly plead that defendant acted ‘because of, not merely in spite of’
the impact of her actions on religious entities.” Id. (quoting Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540
(1993)).
The District Court also determined that the abortion-coverage
requirement is generally applicable, even though: (1) the Knox-Keene
Act—the law on which the requirement purportedly is based—exempts
entire categories of healthcare plans from its requirements; (2) the
Knox-Keene Act gives Director Rouillard broad discretion to grant
individualized exemptions from the basic healthcare services provision
(and thus the abortion-coverage requirement); and (3) Director
Rouillard and the DMHC exercised this discretionary exemption
authority to accommodate some (but not all) religious objections to the
abortion-coverage requirement. ER 9–10. The District Court claimed
that it could not consider the effect the statutory exemptions and
discretionary exemption authority had on the coverage requirement’s
general applicability because the Churches brought an as-applied (as
opposed to facial) constitutional challenge. Id.
17
Finally, the District Court held that the individualized assessment
exception to Smith did not trigger strict scrutiny, even though the law
gives Director Rouillard virtually unfettered exemption authority and
the DMHC subsequently granted an exemption for some (but not all)
religious objections to abortion coverage. ER 10–11. According to the
District Court, the individualized assessment exception applies only
when the plaintiff can establish that the government engaged in
intentional religious discrimination. See ER 11. The court believed that
the operative complaint’s “allegations d[id] not support a reasonable
inference that the Director deliberately sought to give preference to one
set of religious beliefs regarding abortion over others because
reasonable alternate non-discriminatory explanations exist for the
Director’s actions.” ER 11.
Equal Protection. In dismissing the Churches’ equal-protection
claim, the District Court first determined that the August 2014 letter
“appl[ies] to Plans, not [plan] purchasers, and do[es] not make any
classification with respect to purchasers.” ER 11. Next, the District
Court concluded that a viable equal-protection claim must “show that
the defendants acted with an intent or purpose to discriminate against
18
the plaintiff based upon membership in a protected class,” which the
court did not believe had been established. ER 11–12.
Establishment Clause. In dismissing the Churches’
Establishment Clause claim, the District Court applied what it
described as the “much maligned” Lemon test. ER 42. The District
Court then held that the abortion-coverage requirement had the
“plausible secular purpose” of ensuring that “women in California have
access to what the Director views as ‘basic health services,’ and that
plans do not discriminate against women who choose to terminate their
pregnancies, regardless of the plans’ religious or other affiliations.” ER
43. Moreover, the District Court held that “a reasonable observer”
would not view the coverage mandate as “sending ‘primarily’ a message
disapproving of religion,” because the August 2014 letter did not
“mention any religious practice or belief” and “opposition to coverage of
abortion services is not an exclusively religious position.” Id.
SUMMARY OF ARGUMENT
The District Court improperly dismissed the Churches’ legal
challenge to the abortion-coverage requirement.
19
Taken as true, the Churches’ allegations state a claim under the
Free Exercise Clause because they establish that the abortion-coverage:
(a) interferes with the Churches’ ability to conduct their internal affairs
consistently with their religious beliefs about abortion and thus violates
the church autonomy doctrine; and (b) substantially burdens the
Churches’ religious beliefs, involves a system of “individualized assess-
ments,” and is neither neutral nor generally applicable.
The Churches also adequately alleged a violation of the Equal
Protection Clause because Director Rouillard interfered with a funda-
mental right, intentionally applied and interpreted the Knox-Keene Act
in an unfair way, and created an inherently suspect classification for
who may be exempted from the abortion-coverage requirement.
Finally, the Churches sufficiently alleged a violation of the
Establishment Clause because Director Rouillard and the DMHC
exercised their discretionary exemption authority in a way that
discriminates among religions, violating the Establishment Clause’s
absolute mandate of government neutrality in religion.
20
STANDARD OF REVIEW
This Court reviews de novo a district court’s dismissal for failure
to state a claim upon which relief can be granted. Werft v. Desert Sw.
Annual Conference of United Methodist Church, 377 F.3d 1099, 1100
(9th Cir. 2004). In reviewing the lower court’s ruling, this Court must
“take all allegations [of the complaint] as true and construe them in the
light most favorable to the plaintiff.” Id.
ARGUMENT
I. The abortion-coverage requirement violates the Free

Exercise Clause.
The Churches’ allegations, taken as true, support a free-exercise
claim for two, independent reasons. First, enforcing the abortion-
coverage requirement against the Churches’ employee healthcare plans
“interfere[s] with an internal church decision that affects the faith and
mission of the church itself.” Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. E.E.O.C., 565 U.S. 171, 190 (2012). Second, the
abortion-coverage requirement triggers (and fails) strict scrutiny
because it involves a system of “individualized assessments” and is
neither neutral nor generally applicable.
21
A. The abortion-coverage requirement impermissibly

interferes with church autonomy.
The District Court failed to consider that Employment Division v.
Smith, 494 U.S. 872 (1990), does not apply to free-exercise claims
implicating a church’s internal affairs and religious autonomy. The
District Court did not even acknowledge, let alone meaningfully
address, the fact that the First Amendment “gives special solicitude to
the rights of religious organizations.” Hosanna-Tabor, 565 U.S. at 189.
The Supreme Court has rejected the proposition that “any
application” of a neutral and generally applicable law is “necessarily
constitutional under the Free Exercise Clause.” Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 n.2 (2017).
And it has consistently held that the First Amendment prohibits laws
interfering with a religious organization’s ability to conduct its internal
affairs consistently with its faith and teachings, regardless whether the
interference results from a neutral law of general applicability. E.g.,
Hosanna-Tabor, 565 U.S. 171 (2012); Kedroff v. St. Nicholas Cathedral
of the Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)
(First Amendment protects the power of religious organizations “to
22
decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine”).
For example, in Hosanna-Tabor, the Supreme Court unanimously
held that the government could not enforce a neutral and generally
applicable nondiscrimination law against a religious school because it
would have interfered with the school’s selection of its teachers and
“internal governance.” 565 U.S. at 188. Declining to apply Smith, the
Court explained that Smith concerned an across-the-board criminal
prohibition on the possession of peyote and thus “involved government
regulation of only outward physical acts.” Id. at 190. In contrast, the
situation in Hosanna-Tabor “concern[ed] government interference with
an internal church decision that affects the faith and mission of the
church itself.” Id. at 190. “[A] church’s selection of its ministers,” the
Court stated, “is unlike an individual’s ingestion of peyote.” Id.
This Court has likewise declined to apply Smith in cases implicat-
ing church autonomy. E.g., Werft v. Desert Sw. Annual Conference of
United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (applying
compelling-interest test post-Smith); Bollard v. California Province of
the Soc’y of Jesus, 196 F.3d 940, 948 (9th Cir. 1999) (same). So too have
23
other federal appeals courts. E.g., Bryce v. Episcopal Church in the
Diocese of Colo., 289 F.3d 648, 656 (10th Cir. 2002) (“The Supreme
Court’s decision in [Smith] does not undermine the principles of the
church autonomy doctrine.”); E.E.O.C. v. Catholic Univ. of Am., 83 F.3d
455, 462 (D.C. Cir. 1996) (“It does not follow … that Smith stands for
the proposition that a church may never be relieved from” compliance
with an otherwise neutral law of general applicability).
Although this Court’s decisions in Werft and Bollard involved
claims arising from clergy-church employment relationships, “[t]he
[Supreme] Court has made clear that the constitutional protection
extends beyond the selection of clergy to other internal church matters.”
Bryce, 289 F.3d at 656. The church autonomy doctrine “applies with
equal force” to matters of “church administration,” Serbian E. Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 710 (1976), and matters generally
affecting the church’s “faith and mission.” Hosanna-Tabor, 565 U.S. at
190.
This includes a church’s beliefs about the sanctity of human life
and the immorality of abortion, as courts have long recognized. E.g.,
Curay-Cramer v. Ursuline Academy of Wilmington, 344 F. Supp. 2d 923,
24
935 (D. Del. 2004) (teacher at Catholic school could be fired for
supporting abortion rights), aff’d, 450 F.3d 130 (3d Cir. 2006); Catholic
Bishop of Chicago v. N.L.R.B., 559 F.2d 1112, 1124 (7th Cir. 1977)
(recognizing a bishop’s right “to discharge” a “heretical” teacher at a
religious school who “advocate[d] the cause of birth control to his or her
students or favor the availability to poor people of abortion”). Indeed,
that is why federal and state governments—including California—have
historically exempted churches from this sort of coverage requirement.
The California Legislature exempted houses of worship from the Knox-
Keene Act’s contraceptive coverage mandate. Cal. Health & Safety Code
§ 1367.25(c). And the federal government exempted churches from the
Affordable Care Act’s contraceptive coverage mandate, specifically
noting that such an exemption was “provided against the backdrop of
the longstanding governmental recognition of a particular sphere of
autonomy for houses of worship.” Real Alternatives, Inc. v. Sec’y Dep’t of
Health & Human Servs., 867 F.3d 338, 345 (3d Cir. 2017) (quoting 80
Fed. Reg. 41,318, 41,325 (July 14, 2015)).
Because the abortion-coverage requirement involves a government
violation of church autonomy, this Court must weigh:
25
(1) the magnitude of the [law’s] impact upon the

exercise of the religious belief, (2) the existence of
a compelling state interest justifying the burden
imposed upon the exercise of the religious belief,
and (3) the extent to which recognition of an
exemption from the statute would impede the
objectives sought to be advanced by the state.
Werft, 377 F.3d at 1102; Bollard, 196 F.3d at 946. Applying this three-
part balancing test, the abortion-coverage requirement is unconstitu-
tional.
1. That the abortion-coverage requirement substantially burdens
the Churches’ religious exercise is beyond dispute. The second amended
complaint alleges that it violates the Churches’ sincerely held religious
beliefs to provide elective abortion coverage in their employee
healthcare plans, ER 55, yet that is precisely what the DMHC’s
abortion-coverage requirement forces them to do, ER 57. By enforcing
the coverage requirement against the Churches’ healthcare plans,
Director Rouillard has “coerce[d] [the Churches] into acting contrary to
[their] religious beliefs,” Lyng v. N.W. Indian Cemetery Protective Ass’n,
485 U.S. 439, 450–51 (1988), and has exerted “substantial pressure on
[them] to modify [their] behavior and to violate [their] beliefs.” Thomas
v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981).
26
2. There can be no compelling government interest in forcing
churches to provide their employees with elective abortion coverage in
violation of their shared religious convictions. California has virtually
unlimited methods to ensure that abortion coverage is available, and to
the extent the State believes it necessary to offer such coverage to
employees who share their employers’ pro-life convictions, the
government is free to use those alternatives.
3. For the same reason, exempting churches will not impede any
purported governmental interest. If so, then the government would not
have granted so many other exemptions from the coverage requirement.
See infra Sections I.B.1, I.B.2.
Because the abortion-coverage requirement interferes with the
Churches’ internal affairs and institutional autonomy, the District
Court wrongly dismissed the Churches’ free-exercise claim. Just as the
Churches have a First Amendment right to decide “who will preach
their beliefs, teach their faith, and carry out their mission,” Hosanna-
Tabor, 565 U.S. at 196, so too must they have the right to structure
their internal affairs and employee relationships consistently with their
religious beliefs and convictions. See Pennsylvania v. President United
27
States, No. 17-3752, 2019 WL 3057657, at *13 n.26 (3d Cir. July 12,
2019) (church exemption from contraceptive mandate “dictate[d]” by
“Supreme Court precedent” and churches’ special status); see also
E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 618 n.13
(9th Cir. 1988) (First Amendment limits the government’s “ability to
regulate the employment relationships within churches and similar
organizations”). After all, why would the First Amendment protect a
church’s right to select who teaches its faith and hire only those who
share its beliefs, if it did not also protect the church’s right to follow
those teachings and beliefs within its four walls?
Finally, the general rule articulated in Smith should not apply to
this case for another reason: it is bad law and should be overturned.
While the Churches recognize that this Court is bound by Supreme
Court precedent, it is undeniable that Smith has fostered conflict and
confusion in the lower courts and that it has “drastically cut back on the
protection provided by the Free Exercise Clause.” Kennedy v. Bremerton
Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, J., concurring). The
Churches preserve this additional argument for any potential appeal.
28
B. The abortion-coverage requirement triggers, and

fails, strict scrutiny even under a Smith analysis.
The abortion-coverage requirement also triggers—and fails—strict
scrutiny because it is neither neutral nor generally applicable and
because it involves a system of “individualized governmental
assessment[s].” Lukumi, 508 U.S. at 537.
1. Strict scrutiny applies because the abortion-

coverage requirement involves a system of
“individualized governmental assessments.”
The District Court should have at least subjected the abortion-
coverage requirement to strict scrutiny—not rational basis review—
because the law on which it is based—the Knox-Keene Act’s basic
healthcare services provision—involves “a system of individual
exemptions.” Smith, 494 U.S. at 884.
In Smith, the Supreme Court concluded that laws burdening
religious exercise must survive strict scrutiny if they are not “neutral”
towards religion or “of general applicability.” Id. at 879. Applying that
test, the Court held that the Free Exercise Clause did not prohibit the
government from denying unemployment benefits to a worker fired for
using illegal drugs, even if the drugs were used for religious reasons. Id.
at 890. In so doing, the Court was careful to distinguish neutral,
29
generally applicable drug laws from laws allowing a government official
to make an “individualized … assessment of the reasons for the relevant
conduct.” Id. at 882–84 (citing cases).
In explaining this distinction, the Court discussed Sherbert v.
Verner, 374 U.S. 398 (1963), which involved an unemployment
compensation law that allowed the government to deny unemployment
benefits if the person refused work “without good cause.” Smith, 494
U.S. at 884. The Court explained that strict scrutiny properly applied in
Sherbert because the law’s “good cause” inquiry “created a mechanism
for individualized exemptions” depending on a government official’s
discretion. Id. at 884–85. “[W]here the State has in place a system of
individual exemptions, it may not refuse to extend that system to cases
of ‘religious hardship’ without compelling reason.” Id. at 884.
This case fits squarely within the “individualized assessments”
exception to Smith. The Knox-Keene Act gives Director Rouillard nearly
unbridled discretion to grant individualized exemptions. Director
Rouillard may “exempt a plan contract or any class of plan contracts”
from the Act’s basic healthcare services provision “for good cause.” Cal.
Health & Safety Code § 1367(i) (emphasis added). She may also “waive
30
any requirement of any rule or form,” including the abortion-coverage
requirement, “in situations where in the director’s discretion that
requirement is not necessary in the public interest.” Cal. Health &
Safety Code § 1344(a). And she may “unconditionally” exempt “any class
of persons or plan contracts” from all of the Act’s requirements,
including any abortion-coverage requirement, if “in the public interest.”
Id. § 1343(b). What is more, Director Rouillard delegated this broad,
discretionary exemption authority to the DMHC’s Office of Plan
Licensing without providing any guidance about how or when to apply
it. ER 71–72.
The District Court declined to apply the “individualized
assessments” exception to Smith based on the view that Director
Rouillard did not “deliberately” seek “to give preference to one set of
religious beliefs regarding abortion over others because reasonable
alternate non-discriminatory explanations exist for the Director’s
actions.” ER 11 (emphasis added). But proof of intentional religious
discrimination is not needed to trigger strict scrutiny. The “individual-
ized assessments” doctrine triggers strict scrutiny whenever a system of
individual exemptions is in place, but the government “refuse[s] to
31
extend that system to cases of ‘religious hardship.’” Smith, 494 U.S. at
884; accord Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1081–82 (9th
Cir. 2015) (individualized assessments exist where a law allows for
“unfettered discretion that could lead to religious discrimination”)
(emphasis added).
Because Director Rouillard’s unfettered exemption authority
creates a system of “individualized assessments”—i.e., whether “good
cause” exists for an exemption, or whether one would be “in the public
interest”—the decision to rescind already-existing religious accommoda-
tions and enforce the abortion-coverage requirement against the
Churches’ plans triggers strict scrutiny, regardless whether Director
Rouillard deliberately targeted churches.
2. Strict scrutiny also applies because the abortion-

coverage requirement is not generally
applicable.
For purposes of a free-exercise claim, a law or regulation is not
generally applicable when it exempts nonreligious conduct that under-
mines the government’s interests “in a similar or greater degree than
[religious conduct] does.” Lukumi, 508 U.S. at 543–44. Here, there are
numerous secular exemptions from the abortion-coverage requirement.
32
As just explained, Director Rouillard has unfettered discretion to grant
exemptions for almost any reason. Moreover, California has used
statutes and regulations to exempt entire categories of healthcare plans
from the abortion-coverage requirement. Cal. Health & Safety Code §
1343(e); Cal. Code Regs. tit. 28, §§ 1300.43–43.15.
For example, healthcare plans “directly operated by a bona fide
public or private institution of higher learning which directly provides
health care services only to its students, faculty, staff, administration,
and their respective dependents” are not required to comply with any of
the Knox-Keene Act’s requirements, which by extension includes the
abortion-coverage requirement. Cal. Health & Safety Code § 1343(e)(2).
Nor must healthcare plans operated by “[t]he California Small Group
Reinsurance Fund,” id. § 1343(e)(5), or “small plans” administered
solely by an employer that “does not have more than five subscribers.”
Cal. Code Regs. tit. 28, § 1300.43.
While the District Court concluded that these exemptions can
undermine general applicability “only in a facial challenge to a statute,”
ER 9, there is no legal support for this proposition. To the contrary,
courts routinely consider the effect exemptions have on general
33
applicability in cases involving as-applied free-exercise challenges. E.g.,
Ward v. Polite, 667 F.3d 727, 739 (6th Cir. 2012); Blackhawk v.
Pennsylvania, 381 F.3d 202, 209–11 (3d Cir. 2004) (Alito, J.).
Because the numerous exemptions here undermine the govern-
ment’s purported interest in guaranteeing employee access to abortion
coverage just as much as, if not more than, any religious exemption
would, the coverage requirement is not generally applicable. Lukumi,
508 U.S. at 543–44; see also Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1234–35 (11th Cir. 2004) (exempting clubs and lodges,
but not houses of worship, “violates the principles of neutrality and
general applicability because private clubs and lodges endanger [the
town’s] interest in retail synergy as much or more than churches and
synagogues”); Fraternal Order of Police Newark Lodge No. 12 v. City of
Newark, 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (“[W]hen the
government makes a value judgment in favor of secular motivations,
but not religious motivations, the government’s actions must survive
heightened scrutiny.”).
34
3. Strict scrutiny applies because rescinding

existing religious exemptions and forcing the
Churches’ plans to cover abortion is hardly
neutral.
A law or regulation is non-neutral if its practical effect or “object”
is to “infringe upon or restrict practices because of their religious
motivation.” Lukumi, 508 U.S. at 533. Relevant factors “include ‘the
historical background of the decision under challenge, the specific series
of events leading to the enactment or official policy in question, and the
legislative or administrative history.’” Masterpiece Cakeshop, Ltd. v.
Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting
Lukumi, 508 U.S. at 540)). Here, applying the abortion-coverage
requirement to the Churches’ healthcare plans is not neutral for three
independent reasons.
First, Director Rouillard rescinded existing religious accommoda-
tions and issued the August 2014 letter in direct response to requests by
pro-abortion organizations complaining that two religious institutions
excluded or limited abortion coverage in their employee healthcare
plans. See ER 62–66, 98, 100, 104. That is targeting, and government
action that “target[s] religious beliefs as such is never permissible.”
Lukumi, 508 U.S. at 533.
35
Second, the August 2014 letter’s practical effect fell exclusively on
religious organizations. Indeed, only religious organizations had
healthcare plans excluding or limiting abortion coverage, and the
DMHC did not approve (nor were insurers offering) plan language that
allowed secular, nonreligious employers to limit or exclude abortion
coverage. ER 52, 66–67. This practical “effect” of the abortion-coverage
requirement “in its real operation is strong evidence of its object.”
Lukumi, 508 U.S. at 535–36; see also Grossbaum v. Indianapolis-
Marion Cty. Bldg. Auth., 100 F.3d 1287, 1298 n.10 (7th Cir. 1996) (“A
regulation that prohibited all private groups from displaying nine-
pronged candelabra may be facially neutral, but it would still be
unconstitutionally discriminatory against Jewish displays.”).
Third, Director Rouillard rescinded existing abortion exclusions
and limitations for religious employers despite the DMHC’s own legal
analysis concluding that such “religious employers” could legally
exclude or limit abortion coverage under California law. ER 67. In other
words, Director Rouillard required religious employer plans to cover
elective abortion even though she knew they had no legal obligation to
do so. Such “gratuitous restrictions on religious conduct[ ] seeks not to
36
effectuate the stated government interests, but to suppress the conduct
because of its religious motivation.” Lukumi, 508 U.S. at 538.
Despite all this, the District Court dismissed the Churches’ free-
exercise claim because it did not think the operative complaint’s
allegations established that Director Rouillard had “acted ‘because of,
not merely in spite of’ the impact of her actions on religious entities.”
ER 9. But the allegations, when taken as true and viewed in the light
most favorable to the Churches, establish that Director Rouillard issued
the August 2014 letter “because of” the effect it would have on religious
entities. See Central Rabbinical Congress of U.S. & Canada v. N.Y. City
Dep’t of Health & Mental Hygiene, 763 F.3d 183, 195 (2d Cir. 2014)
(holding that regulation singled out religious practice, and thus
triggered strict scrutiny, where government admitted that religious
practice “prompted” the regulation and religious practice was “the only
presently known conduct” covered by the regulation).
Even so, the District Court erred by holding that anti-religious
motive is necessary to trigger strict scrutiny. In fact, the language used
by the District Court—that the Churches must prove the State acted
“because of, not merely in spite of” their religious beliefs—is the
37
language of equal protection and nondiscrimination law. Under that
body of law, a plaintiff challenging a facially neutral law as “a
purposeful device to discriminate,” Washington v. Davis, 426 U.S. 229,
246 (1976), may show that the law was adopted “at least in part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.” Personnel Administrator v. Feeney, 442 U.S. 256,
279 (1979).
In contrast, “at a minimum, the protections of the Free Exercise
Clause pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons.” Lukumi, 508 U.S. at 532 (emphasis
added). Because “close scrutiny of laws singling out a religious practice
for special burdens is not limited to the context where such laws stem
from animus,” strict scrutiny must apply to the abortion-coverage
requirement for the reasons above. Central Rabbinical Congress, 763
F.3d at 197; accord Shrum v. City of Coweta, 449 F.3d 1132, 1144 (10th
Cir. 2006) (“[T]he Free Exercise Clause is not limited to acts motivated
by overt religious hostility or prejudice.”).
38
4. The abortion-coverage requirement, as applied

to the Churches, cannot satisfy strict scrutiny.
Because strict scrutiny applies, Director Rouillard must prove
that applying the abortion-coverage requirement to the Churches’
healthcare plans “advance[s] ‘interests of the highest order’ and [is]
narrowly tailored in pursuit of those interests.” Lukumi, 508 U.S. at
546 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)). Strict scrutiny
requires this Court to “look[ ] beyond broadly formulated interests” and
to instead “scrutinize [ ] the asserted harm of granting specific
exemptions to particular religious claimants.” Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006).
In Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), for example, the
Supreme Court exempted Amish children from a compulsory school
attendance law, even though the government had a “paramount”
interest in education. The Court explained that the government needs
“to show with more particularity how its admittedly strong interest …
would be adversely affected by granting an exemption to the Amish.” Id.
at 236 (emphasis added).
California cannot meet that lofty standard here. No court has
held—ever—that requiring a church to fund abortion coverage for its
39
employees is a compelling governmental interest. And that for good
reason: forcing churches to cover elective abortion does not promote the
public interest because the only people affected are church employees
who share and abide by the church’s pro-life religious beliefs.
Moreover, any purported governmental interest cannot be
considered compelling when based on the State’s own behavior. As
detailed above, California’s abortion-coverage requirement is riddled
with exemptions. Such exemptions show that the law “cannot be
regarded as protecting an interest of the highest order” because the
existing exemptions already permit “appreciable damage to that
supposedly vital interest.” Lukumi, 508 U.S. at 547.
Nor is the abortion-coverage requirement narrowly tailored to
achieve any purported government interest. When categorical and
individualized exemptions already exist, forcing the Churches’ to cover
elective abortions in violation of their sincerely held religious beliefs
and convictions is unnecessary. See id. at 546 (“underinclusive”
ordinances are not narrowly tailored).
Finally, it is axiomatic that a program is not narrowly tailored
when there are less intrusive alternatives available. Here, California
40
has many means of ensuring that employees of pro-life churches have
access to abortion, and it has not proven that these options are not
viable. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728–29 (2014)
(engaging in analogous analysis under RFRA).
II. The abortion-coverage requirement violates the Equal

Protection Clause.
The Equal Protection Clause requires that “all persons similarly
situated should be treated alike” by the government. City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439 (1985). No group should be
preferred; no group should be disfavored.
Here, the abortion-coverage requirement—as applied to the
Churches—violates the Equal Protection Clause for many of the same
reasons explained above. The coverage requirement not only violates
the Churches’ fundamental right to the free exercise of religion, it also
has not been applied evenhandedly. Director Rouillard and the DMHC
rescinded approval of plan language accommodating the Churches’
religious beliefs about abortion, ER 59–60, but later accommodated
different religious beliefs, ER 72–73. Such selective enforcement has
created an inherently suspect classification for who may be exempted,
in violation of the Equal Protection Clause. E.g., City of New Orleans v.
41
Dukes, 427 U.S. 297, 303 (1976) (law or regulation triggers strict
scrutiny under the Equal Protection Clause if it “is drawn upon
inherently suspect distinctions such as … religion.”).
III. The abortion-coverage requirement has been selectively

enforced in violation of the Establishment Clause.
“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.”
Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, the challenged
law required charitable organizations to abide by a series of income
reporting requirements. Id. at 231–32. Although the law initially
exempted all religious organizations, the legislature later narrowed the
exemption so that it applied only to religious organizations that
obtained more than half of their contributions from their own members
and affiliated organizations—a definition that did not include the
Unification Church. Id. at 230–32. The statute did not mention any
organization or denomination by name, yet the Supreme Court held
that it did not “operate evenhandedly” and “grant[ed] denominational
preferences.” Id. at 246, 253.
So too here. The DMHC’s exercise of its discretionary exemption
authority has effectively resulted in religious preference. When Director
42
Rouillard issued the August 2014 letter, the DMHC knowingly
rescinded approval of all existing religious exemptions, including those
accommodating the Churches’ religious beliefs. See ER 59–60. But in
October 2015 (the same month the Churches filed their lawsuit), the
DMHC’s Office of Plan Licensing secretly approved plan language
accommodating “religious employers” whose beliefs allow for abortion in
the cases of rape, incest, and to save the life of the mother. See ER 72–
73. Five years later, the DMHC still refuses to make a similar accom-
modation for churches whose religious beliefs allow for abortion only
when necessary to save the life of the mother. This disparate treatment
violates the Establishment Clause. See Sch. Dist. of Abington Township
v. Schempp, 374 U.S. 203, 226 (1963) (“In the relationship between man
and religion, the State is firmly committed to a position of neutrality.”)
CONCLUSION
For five years now, the Churches have been forced to pay for and
participate in what their religious beliefs teach is sin. This is an
unprecedented, unnecessary, and unlawful infringement of church
autonomy and religious belief. The Churches respectfully request that
this Court reverse the judgment of the District Court.
43
Dated: August 14, 2019 Respectfully submitted,
s/Jeremiah Galus
John J. Bursch Kristen K. Waggoner
David A. Cortman Kevin Theriot
ALLIANCE DEFENDING FREEDOM Jeremiah J. Galus
440 First Street, NW, Suite 600 ALLIANCE DEFENDING FREEDOM
Washington, D.C. 20001 15100 N. 90th St.
(202) 393-8690 Scottsdale, AZ 85260
(480) 444-0020
Alexander M. Medina [email protected]
MEDINA MCKELVEY LLP
983 Reserve Drive
Roseville, CA 95678
(916) 960-2211
[email protected]
44
STATEMENT OF RELATED CASES
Pursuant to 9th Cir. Rule 28-2.6, the Churches advise that the
related case of Skyline Wesleyan Church v. California Department of
Managed Health Care, No. 18-55451, which involves closely related
issues and involves the same transaction or event, is currently pending
before this Court.
45
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system on August 14, 2019. I
certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
s/ Jeremiah Galus
Jeremiah Galus
Attorney for Plaintiffs-Appellants
47
ADDENDUM
Constitutional Provisions
U.S. CONST. amend I .............................................................................. A-2
Statutes and Regulations
California Health & Safety Code
§ 1343 ............................................................................................. A-2
§ 1344 ............................................................................................. A-4
§ 1345 ............................................................................................. A-5
§ 1367(i).......................................................................................... A-8
§ 1367.25 ........................................................................................ A-8
California Code of Regulations
Title 28, § 1300.67 ....................................................................... A-13
Title 28, § 1300.43 ....................................................................... A-16
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CONSTITUTIONAL PROVISIONS
U.S. CONST. amend I
Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
STATUTES AND REGULATIONS
Cal. Health & Safety Code § 1343. Application of Chapter;

Exemptions
(a) This chapter shall apply to health care service plans and
specialized health care service plan contracts as defined in subdivisions
(f) and (o) of Section 1345.
(b) The director may by the adoption of rules or the issuance of

orders deemed necessary and appropriate, either unconditionally or
upon specified terms and conditions or for specified periods, exempt
from this chapter any class of persons or plan contracts if the director
finds the action to be in the public interest and not detrimental to the
protection of subscribers, enrollees, or persons regulated under this
chapter, and that the regulation of the persons or plan contracts is not
essential to the purposes of this chapter.
(c) The director, upon request of the Director of Health Care Services,
shall exempt from this chapter any county-operated pilot program
contracting with the State Department of Health Care Services
pursuant to Article 7 (commencing with Section 14490) of Chapter 8 of
Part 3 of Division 9 of the Welfare and Institutions Code. The director
may exempt noncounty-operated pilot programs upon request of the
Director of Health Care Services. Those exemptions may be subject to
conditions the Director of Health Care Services deems appropriate.
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(d) Upon the request of the Director of Health Care Services, the
director may exempt from this chapter any mental health plan
contractor or any capitated rate contract under Chapter 8.9
(commencing with Section 14700) of Part 3 of Division 9 of the Welfare
and Institutions Code. Those exemptions may be subject to conditions
the Director of Health Care Services deems appropriate.
(e) This chapter shall not apply to:
(1) A person organized and operating pursuant to a certificate issued

by the Insurance Commissioner unless the entity is directly providing
the health care service through those entity-owned or contracting
health facilities and providers, in which case this chapter shall apply to
the insurer's plan and to the insurer.
(2) A plan directly operated by a bona fide public or private

institution of higher learning which directly provides health care
services only to its students, faculty, staff, administration, and their
respective dependents.
(3) A person who does all of the following:
(A) Promises to provide care for life or for more than one year in
return for a transfer of consideration from, or on behalf of, a person 60
years of age or older.
(B) Has obtained a written license pursuant to Chapter 2

(commencing with Section 1250) or Chapter 3.2 (commencing with
Section 1569).
(C) Has obtained a certificate of authority from the State

Department of Social Services.
(4) The Major Risk Medical Insurance Board when engaging in

activities under Chapter 8 (commencing with Section 10700) of Part 2 of
Division 2 of the Insurance Code, Part 6.3 (commencing with Section
12695) of Division 2 of the Insurance Code, and Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code.
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(5) The California Small Group Reinsurance Fund.
Cal. Health & Safety Code § 1344. Rules; Interpretive opinions;

Good faith acts
(a) The director may from time to time adopt, amend, and rescind
any rules, forms, and orders that are necessary to carry out the
provisions of this chapter, including rules governing applications and
reports, and defining any terms, whether or not used in this chapter,
insofar as the definitions are not inconsistent with the provisions of this
chapter. For the purpose of rules and forms, the director may classify
persons and matters within the director’s jurisdiction, and may
prescribe different requirements for different classes. The director may
waive any requirement of any rule or form in situations where in the
director’s discretion that requirement is not necessary in the public
interest or for the protection of the public, subscribers, enrollees, or
persons or plans subject to this chapter. The director may adopt rules
consistent with federal regulations and statutes to regulate health care
coverage supplementing Medicare.
(b) The director may, by regulation, modify the wording of any notice
required by this chapter for purposes of clarity, readability, and
accuracy, except that a modification shall not change the substantive
meaning of the notice.
(c) The director may honor requests from interested parties for
interpretive opinions.
(d) No provision of this chapter imposing any liability applies to any

act done or omitted in good faith in conformity with any rule, form,
order, or written interpretive opinion of the director, or any opinion of
the Attorney General, notwithstanding that the rule, form, order, or
written interpretive opinion may later be amended or rescinded or be
determined by judicial or other authority to be invalid for any reason.
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Cal. Health & Safety Code § 1345. Definitions
As used in this chapter:
(a) “Advertisement” means any written or printed communication or

any communication by means of recorded telephone messages or by
radio, television, or similar communications media, published in
connection with the offer or sale of plan contracts.
(b) “Basic health care services” means all of the following:
(1) Physician services, including consultation and referral.
(2) Hospital inpatient services and ambulatory care services.
(3) Diagnostic laboratory and diagnostic and therapeutic radiologic

services.
(4) Home health services.
(5) Preventive health services.
(6) Emergency health care services, including ambulance and

ambulance transport services and out-of-area coverage. “Basic health
care services” includes ambulance and ambulance transport services
provided through the “911” emergency response system.
(7) Hospice care pursuant to Section 1368.2.
(c) “Enrollee” means a person who is enrolled in a plan and who is a

recipient of services from the plan.
(d) “Evidence of coverage” means any certificate, agreement,

contract, brochure, or letter of entitlement issued to a subscriber or
enrollee setting forth the coverage to which the subscriber or enrollee is
entitled.
(e) “Group contract” means a contract which by its terms limits the
eligibility of subscribers and enrollees to a specified group.
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(f) “Health care service plan” or “specialized health care service plan”
means either of the following:
(1) Any person who undertakes to arrange for the provision of health
care services to subscribers or enrollees, or to pay for or to reimburse
any part of the cost for those services, in return for a prepaid or periodic
charge paid by or on behalf of the subscribers or enrollees.
(2) Any person, whether located within or outside of this state, who
solicits or contracts with a subscriber or enrollee in this state to pay for
or reimburse any part of the cost of, or who undertakes to arrange or
arranges for, the provision of health care services that are to be
provided wholly or in part in a foreign country in return for a prepaid or
periodic charge paid by or on behalf of the subscriber or enrollee.
(g) “License” means, and “licensed” refers to, a license as a plan

pursuant to Section 1353.
(h) “Out-of-area coverage,” for purposes of paragraph (6) of

subdivision (b), means coverage while an enrollee is anywhere outside
the service area of the plan, and shall also include coverage for urgently
needed services to prevent serious deterioration of an enrollee's health
resulting from unforeseen illness or injury for which treatment cannot
be delayed until the enrollee returns to the plan's service area.
(i) “Provider” means any professional person, organization, health

facility, or other person or institution licensed by the state to deliver or
furnish health care services.
(j) “Person” means any person, individual, firm, association,

organization, partnership, business trust, foundation, labor
organization, corporation, limited liability company, public agency, or
political subdivision of the state.
(k) “Service area” means a geographical area designated by the plan

within which a plan shall provide health care services.
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(l) “Solicitation” means any presentation or advertising conducted by,

or on behalf of, a plan, where information regarding the plan, or
services offered and charges therefor, is disseminated for the purpose of
inducing persons to subscribe to, or enroll in, the plan.
(m) “Solicitor” means any person who engages in the acts defined in
subdivision (l).
(n) “Solicitor firm” means any person, other than a plan, who through
one or more solicitors engages in the acts defined in subdivision (l).
(o) “Specialized health care service plan contract” means a contract

for health care services in a single specialized area of health care,
including dental care, for subscribers or enrollees, or which pays for or
which reimburses any part of the cost for those services, in return for a
prepaid or periodic charge paid by or on behalf of the subscribers or
enrollees.
(p) “Subscriber” means the person who is responsible for payment to

a plan or whose employment or other status, except for family
dependency, is the basis for eligibility for membership in the plan.
(q) Unless the context indicates otherwise, “plan” refers to health

care service plans and specialized health care service plans.
(r) “Plan contract” means a contract between a plan and its

subscribers or enrollees or a person contracting on their behalf
pursuant to which health care services, including basic health care
services, are furnished; and unless the context otherwise indicates it
includes specialized health care service plan contracts; and unless the
context otherwise indicates it includes group contracts.
(s) All references in this chapter to financial statements, assets,

liabilities, and other accounting items mean those financial statements
and accounting items prepared or determined in accordance with
generally accepted accounting principles, and fairly presenting the
matters which they purport to present, subject to any specific
requirement imposed by this chapter or by the director.
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Cal. Health & Safety Code § 1367. Requirements for health care
service plans
A health care service plan and, if applicable, a specialized health care

service plan shall meet the following requirements: …
(i) A health care service plan contract shall provide to subscribers

and enrollees all of the basic health care services included in
subdivision (b) of Section 1345, except that the director may, for good
cause, by rule or order exempt a plan contract or any class of plan
contracts from that requirement. The director shall by rule define the
scope of each basic health care service that health care service plans are
required to provide as a minimum for licensure under this chapter.
Nothing in this chapter shall prohibit a health care service plan from
charging subscribers or enrollees a copayment or a deductible for a
basic health care service consistent with Section 1367.006 or 1367.007,
provided that the copayments, deductibles, or other cost sharing are
reported to the director and set forth to the subscriber or enrollee
pursuant to the disclosure provisions of Section 1363. Nothing in this
chapter shall prohibit a health care service plan from setting forth, by
contract, limitations on maximum coverage of basic health care
services, provided that the limitations are reported to, and held
unobjectionable by, the director and set forth to the subscriber or
enrollee pursuant to the disclosure provisions of Section 1363.
Cal. Health & Safety Code § 1367.25. Contraceptive coverage;

religious employer exemption
(a) A group health care service plan contract, except for a specialized
health care service plan contract, that is issued, amended, renewed, or
delivered on or after January 1, 2000, to December 31, 2015, inclusive,
and an individual health care service plan contract that is amended,
renewed, or delivered on or after January 1, 2000, to December 31,
2015, inclusive, except for a specialized health care service plan
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contract, shall provide coverage for the following, under general terms
and conditions applicable to all benefits:
(1) A health care service plan contract that provides coverage for
outpatient prescription drug benefits shall include coverage for a
variety of federal Food and Drug Administration (FDA)-approved
prescription contraceptive methods designated by the plan. In the event
the patient’s participating provider, acting within his or her scope of
practice, determines that none of the methods designated by the plan is
medically appropriate for the patient’s medical or personal history, the
plan shall also provide coverage for another FDA-approved, medically
appropriate prescription contraceptive method prescribed by the
patient’s provider.
(2) Benefits for an enrollee under this subdivision shall be the same
for an enrollee’s covered spouse and covered nonspouse dependents.
(b) (1) A health care service plan contract, except for a specialized
health care service plan contract, that is issued, amended, renewed, or
delivered on or after January 1, 2016, shall provide coverage for all of
the following services and contraceptive methods for women:
(A) Except as provided in subparagraphs (B) and (C) of paragraph

(2), all FDA-approved contraceptive drugs, devices, and other products
for women, including all FDA-approved contraceptive drugs, devices,
and products available over the counter, as prescribed by the enrollee’s
provider.
(B) Voluntary sterilization procedures.
(C) Patient education and counseling on contraception.
(D) Followup services related to the drugs, devices, products, and

procedures covered under this subdivision, including, but not limited to,
management of side effects, counseling for continued adherence, and
device insertion and removal.
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(2)(A) Except for a grandfathered health plan, a health care service

plan subject to this subdivision shall not impose a deductible,
coinsurance, copayment, or any other cost-sharing requirement on the
coverage provided pursuant to this subdivision. Cost sharing shall not
be imposed on any Medi-Cal beneficiary.
(B) If the FDA has approved one or more therapeutic equivalents of a

contraceptive drug, device, or product, a health care service plan is not
required to cover all of those therapeutically equivalent versions in
accordance with this subdivision, as long as at least one is covered
without cost sharing in accordance with this subdivision.
(C) If a covered therapeutic equivalent of a drug, device, or product is

not available, or is deemed medically inadvisable by the enrollee’s
provider, a health care service plan shall provide coverage, subject to a
plan’s utilization management procedures, for the prescribed
contraceptive drug, device, or product without cost sharing. Any request
by a contracting provider shall be responded to by the health care
service plan in compliance with the Knox-Keene Health Care Service
Plan Act of 1975, as set forth in this chapter and, as applicable, with the
plan’s Medi-Cal managed care contract.
(3) Except as otherwise authorized under this section, a health care

service plan shall not impose any restrictions or delays on the coverage
required under this subdivision.
(4) Benefits for an enrollee under this subdivision shall be the same
for an enrollee’s covered spouse and covered nonspouse dependents.
(5) For purposes of paragraphs (2) and (3) of this subdivision, and
subdivision (d), “health care service plan” shall include Medi-Cal
managed care plans that contract with the State Department of Health
Care Services pursuant to Chapter 7 (commencing with Section 14000)
and Chapter 8 (commencing with Section 14200) of Part 3 of Division 9
of the Welfare and Institutions Code.
(c) Notwithstanding any other provision of this section, a religious

employer may request a health care service plan contract without
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coverage for FDA-approved contraceptive methods that are contrary to

the religious employer’s religious tenets. If so requested, a health care
service plan contract shall be provided without coverage for
contraceptive methods.
(1) For purposes of this section, a “religious employer” is an entity for

which each of the following is true:
(A) The inculcation of religious values is the purpose of the entity.
(B) The entity primarily employs persons who share the religious
tenets of the entity.
(C) The entity serves primarily persons who share the religious
tenets of the entity.
(D) The entity is a nonprofit organization as described in Section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as
amended.
(2) Every religious employer that invokes the exemption provided

under this section shall provide written notice to prospective enrollees
prior to enrollment with the plan, listing the contraceptive health care
services the employer refuses to cover for religious reasons.
(d) (1) Every health care service plan contract that is issued,
amended, renewed, or delivered on or after January 1, 2017, shall cover
up to a 12-month supply of FDA-approved, self-administered hormonal
contraceptives when dispensed or furnished at one time for an enrollee
by a provider, pharmacist, or at a location licensed or otherwise
authorized to dispense drugs or supplies.
(2) Nothing in this subdivision shall be construed to require a health

care service plan contract to cover contraceptives provided by an out-of-
network provider, pharmacy, or location licensed or otherwise
authorized to dispense drugs or supplies, except as may be otherwise
authorized by state or federal law or by the plan’s policies governing
out-of-network coverage.
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(3) Nothing in this subdivision shall be construed to require a

provider to prescribe, furnish, or dispense 12 months of self-
administered hormonal contraceptives at one time.
(4) A health care service plan subject to this subdivision, in the

absence of clinical contraindications, shall not impose utilization
controls or other forms of medical management limiting the supply of
FDA-approved, self-administered hormonal contraceptives that may be
dispensed or furnished by a provider or pharmacist, or at a location
licensed or otherwise authorized to dispense drugs or supplies to an
amount that is less than a 12-month supply.
(e) This section shall not be construed to exclude coverage for

contraceptive supplies as prescribed by a provider, acting within his or
her scope of practice, for reasons other than contraceptive purposes,
such as decreasing the risk of ovarian cancer or eliminating symptoms
of menopause, or for contraception that is necessary to preserve the life
or health of an enrollee.
(f) This section shall not be construed to deny or restrict in any way
the department’s authority to ensure plan compliance with this chapter
when a plan provides coverage for contraceptive drugs, devices, and
products.
(g) This section shall not be construed to require an individual or

group health care service plan contract to cover experimental or
investigational treatments.
(h) For purposes of this section, the following definitions apply:
(1) “Grandfathered health plan” has the meaning set forth in Section
1251 of PPACA.
(2) “PPACA” means the federal Patient Protection and Affordable

Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and any
rules, regulations, or guidance issued thereunder.
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(3) With respect to health care service plan contracts issued,

amended, or renewed on or after January 1, 2016, “provider” means an
individual who is certified or licensed pursuant to Division 2
(commencing with Section 500) of the Business and Professions Code, or
an initiative act referred to in that division, or Division 2.5
(commencing with Section 1797) of this code.
Cal. Code Regs. tit. 28 § 1300.67. Scope of basic health care

services
The basic health care services required to be provided by a health care

service plan to its enrollees shall include, where medically necessary,
subject to any copayment, deductible, or limitation of which the Director
may approve:
(a) Physician services, which shall be provided by physicians licensed

to practice medicine or osteopathy in accordance with applicable
California law. There shall also be provided consultation with and
referral by physicians to other physicians.
(1) The plan may also include, when provided by the plan,
consultation and referral (physician or, if permitted by law, patient
initiated) to other health professionals who are defined as dentists,
nurses, podiatrists, optometrists, physician's assistants, clinical
psychologists, social workers, pharmacists, nutritionists, occupational
therapists, physical therapists and other professionals engaged in the
delivery of health services who are licensed to practice, are certified, or
practice under authority of the plan, a medical group, or individual
practice association or other authority authorized by applicable
California law.
(b) Inpatient hospital services, which shall mean short-term general

hospital services, including room with customary furnishings and
equipment, meals (including special diets as medically necessary),
general nursing care, use of operating room and related facilities,
intensive care unit and services, drugs, medications, biologicals,
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anesthesia and oxygen services, diagnostic laboratory and x-ray

services, special duty nursing as medically necessary, physical therapy,
respiratory therapy, administration of blood and blood products, and
other diagnostic, therapeutic and rehabilitative services as appropriate,
and coordinated discharge planning including the planning of such
continuing care as may be necessary, both medically and as a means of
preventing possible early rehospitalization.
(c) Ambulatory care services, (outpatient hospital services) which

shall include diagnostic and treatment services, physical therapy,
speech therapy, occupational therapy services as appropriate, and those
hospital services which can reasonably be provided on an ambulatory
basis. Such services may be provided at a hospital, any other
appropriate licensed facility, or any appropriate facility which is not
required by law to be licensed, if the professionals delivering such
services are licensed to practice, are certified, or practice under the
authority of the plan, a medical group, or individual practice association
or other authority authorized by applicable California law.
(d) Diagnostic laboratory services, diagnostic and therapeutic

radiological services, and other diagnostic services, which shall include,
but not be limited to, electrocardiography and electroencephalography.
(e) Home health services, which shall include, where medically

appropriate, health services provided at the home of an enrollee as
prescribed or directed by a physician or osteopath licensed to practice in
California. Such home health services shall include diagnostic and
treatment services which can reasonably be provided in the home,
including nursing care, performed by a registered nurse, public health
nurse, licensed vocational nurse or licensed home health aide.
(1) Home health services may also include such rehabilitation,

physical, occupational or other therapy, as the physician shall
determine to be medically appropriate.
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(f) Preventive health services (including services for the detection of

asymptomatic diseases), which shall include, under a physician's
supervision,
(1) reasonable health appraisal examinations on a periodic basis;
(2) a variety of voluntary family planning services;
(3) prenatal care;
(4) vision and hearing testing for persons through age 16;
(5) immunizations for children in accordance with the

recommendations of the American Academy of Pediatrics and
immunizations for adults as recommended by the U.S. Public Health
Service;
(6) venereal disease tests;
(7) cytology examinations on a reasonable periodic basis;
(8) effective health education services, including information

regarding personal health behavior and health care, and
recommendations regarding the optimal use of health care services
provided by the plan or health care organizations affiliated with the
plan.
(g) (1) Emergency health care services which shall be available and
accessible to enrollees on a twenty-four hour a day, seven days a week,
basis within the health care service plan area. Emergency health care
services shall include ambulance services for the area served by the
plan to transport the enrollee to the nearest twenty-four hour
emergency facility with physician coverage, designated by the Health
Care Service Plan.
(2) Coverage and payment for out-of-area emergencies or urgently

needed services involving enrollees shall be provided on a
reimbursement or fee-for-service basis and instructions to enrollees
must be clear regarding procedures to be followed in securing such
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services or benefits. Emergency services defined in section 1317.1

include active labor. “Urgently needed services” are those services
necessary to prevent serious deterioration of the health of an enrollee,
resulting from an unforeseen illness, injury, or complication of an
existing condition, including pregnancy, for which treatment cannot be
delayed until the enrollee returns to the plan's service area. “Urgently
needed services” includes maternity services necessary to prevent
serious deterioration of the health of the enrollee or the enrollee's fetus,
based on the enrollee's reasonable belief that she has a pregnancy-
related condition for which treatment cannot be delayed until the
enrollee returns to the plan's service area.
(h) Hospice services as set forth in Section 1300.68.2.
Cal. Code Regs. tit. 28 § 1300.43. Small plans
A health care service plan or specialized health care service plan which
provides health care services or specialized health care services only to
the employees of one employer, or only to the employees of employers
under common ownership and control, which is administered solely by
the employer, and which does not have more than five subscribers
(regardless of the number of persons enrolled based upon their
relationship to or dependence upon such subscribers) is exempt from all
provisions of the Act and the rules thereunder, except Sections 1381,
1384 and 1385. Such plans are exempt from any rules adopted pursuant
to such sections unless such rules are made specifically applicable to
plans exempted under this section.
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Case: 19-15658, 08/14/2019, ID: 11397520, DktEntry: 13, Page 1 of 72

IN THE UNITED STATES COURT OF APPEALS

FOOTHILL CHURCH, a California non-profit corporation, CALVARY

On Appeal from the United States District Court

APPELLANTS’ OPENING BRIEF

John J. Bursch Kristen K. Waggoner

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-

Appellants Foothill Church, Calvary Chapel Chino Hills, and Shepherd

no parent corporation or publicly held corporation owns 10% or more of

CORPORATE DISCLOSURE STATEMENT ........................................... ii

TABLE OF CONTENTS ..........................................................................iii

TABLE OF AUTHORITIES ...................................................................... v

STATEMENT OF JURISDICTION .......................................................... 3

STATUTES AND REGULATIONS .......................................................... 4

STATEMENT OF THE CASE .................................................................. 4

A. The Churches’ religious beliefs about abortion and

B. The DMHC and the Knox-Keene Act ................................. 6

C. Abortion advocates lobby the DMHC to eliminate

D. Director Rouillard issues the August 2014 letter,

E. The DMHC selectively enforces the abortion-

F. District Court proceedings ............................................... 15

SUMMARY OF ARGUMENT ................................................................. 19

I. The abortion-coverage requirement violates the Free

A. The abortion-coverage requirement impermissibly

B. The abortion-coverage requirement triggers, and

1. Strict scrutiny applies because the abortion-

2. Strict scrutiny also applies because the

3. Strict scrutiny applies because rescinding

4. The abortion-coverage requirement, as applied

II. The abortion-coverage requirement violates the Equal

III. The abortion-coverage requirement has been selectively

STATEMENT OF RELATED CASES .................................................... 45

CERTIFICATE OF COMPLIANCE ........................................................ 46

ADDENDUM ......................................................................................... A-1

Bollard v. California Province of the Society of Jesus,

Bryce v. Episcopal Church in the Diocese of Colorado,

Burwell v. Hobby Lobby Stores, Inc.,

Catholic Bishop of Chicago v. N.L.R.B.,

Central Rabbinical Congress of U.S. & Canada v. New York

Church of the Lukumi Babalu Aye Inc. v. City of Hialeah,

City of Cleburne v. Cleburne Living Center,

City of New Orleans v. Dukes,

Curay-Cramer v. Ursuline Academy of Wilmington,

E.E.O.C. v. Catholic University of America,

E.E.O.C. v. Townley Engineering & Manufacturing Co.,

Employment Division v. Smith,

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

Grossbaum v. Indianapolis-Marion County Building Authority,

Hosanna-Tabor Evangelical Lutheran Church & School

Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church

Kennedy v. Bremerton School District,

Lyng v. Northwest Indian Cemetery Protective Association,

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

Midrash Sephardi, Inc. v. Town of Surfside,

Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard,

Pennsylvania v. President United States,

Personnel Administrator v. Feeney,

Real Alternatives, Inc. v. Secretary Department of Health and