Abortion Coercion

In October 2014, Pastor Jim Garlow couldn’t believe what the voice on the other end of the phone was telling him. And two years later, it still sometimes seems unreal.

“I got a call from an attorney with Alliance Defending Freedom, Casey Mattox, telling me that my church”—Skyline Church in the San Diego suburb of La Mesa, Calif.—“was covering abortions in our health-care plan.” Garlow recalls. “I said, ‘That can’t be.’ And he said, ‘Oh, yes—you are.’ ”

So Garlow called his business office to find out what was going on. They, too, thought it couldn’t be true. But upon checking, it turned out to be all too true: On Aug. 22, 2014, California’s Department of Managed Health Care (DMHC) had ordered state health insurers to cover abortion in all their plans. No exceptions for churches. No exceptions for anyone.

“That was a shock,” Garlow says. “By the act of some unelected bureaucrat in Sacramento—with no discussion, no public notification, no legislative hearings, no law being passed, not even any media coverage that I’m aware of—we were suddenly paying for elective abortions with our tithes.”

Garlow told his church board members and got the same reaction. “They were horrified as well,” he says. “They immediately agreed that we had to do something.”

That’s a story that’s been replicated, with variations, in churches across California.

Chris Lewis, lead pastor of Foothill Church in Glendora, remembers how he found out the state was mandating abortion coverage. In the summer of 2014, his church checked with its insurers to make sure they weren’t paying for abortifacient drugs. “We thought we were crossing our T’s and dotting our I’s,” he says, “Our insurers told us we were OK, there wasn’t a problem.”

Then came the Aug. 22 DMHC order. “Our insurance companies wrote back to us, rather sheepishly, and said, ‘We’re sorry. They’ve forced our hand. We have no control over this,’ ” Lewis says.

Wherever he went, Lewis got the same reaction. His congregation was stunned. Other local pastors reacted with disbelief. “I told some of them at breakfast one morning and their reaction was, ‘Nooo. It’s not happening to us. We have different insurance companies,’ ” he says. ‘And I said, ‘No, it’s you. It’s every- body.’ We’d all thought we lived in a country where the First Amendment would protect us from this sort of overreaching.”

Churches in California aren’t just wringing their hands, how- ever. They’re fighting back.

‘IT DOESN’T HAVE TO HAPPEN’

Alliance Defending Freedom (ADF) has been on the case from the start, representing seven pro-life churches in protesting the policy to the U.S. Department of Health and Human Services (HHS)—and filing two federal lawsuits against California on behalf of four of those churches.

One of the suits, Skyline Wesleyan Church v. California Department of Managed Health Care, is pending in the Southern District of California in San Diego. The other, Foothill Church v. Rouillard—also joined by Calvary Chapel Chino Hills in Chino and Shepherd of the Hills Church in the Los Angeles suburb of Porter Ranch—is being heard in the Eastern District of California in Sacramento.

And ADF Legal Counsel Jeremiah Gaius says both involve one of the most outrageous examples of governmental overreach he’s ever seen.

“The state of California is forcing houses of worship to take tithe money out of their coffers and pay for something their faith teaches is murder,” Gaius says. They didn’t provide any notice to the public that they were going to do this. Instead, they sent letters to the insurance companies that had limitations or ex on abortion coverage and said, ‘You can’t do anymore. We want you to immediately start elective abortions and send us amended plans within 90 days for us to approve.’ ”

What makes this especially striking is that California law expressly does prevent religious bodies from having to pay to cover contraceptive services, precisely because of the ethical objections some of those bodies have.

“That was done through the legislative process, the way things should work, where everybody’s needs and interests are considered,” Gaius says. “But with this abortion decision, elected officials had no say. We had a bureaucratic fiat.”

Of course, that’s not what DMHC says. It claims the edict from its director, Shelley Rouillard, is merely enforcing an existing law—the Knox-Keene Act of 1975—which requires coverage for “basic health care services.”

But that, Gaius argues, is a definition DMHC just made up. “In the 40 years since that law was passed, ‘basic health-care services’ had never been interpreted to cover elective abortions,” he explains—abortions no one is even claiming are medically necessary.

Moreover, he adds, the Knox-Keene Act specifically allows the DMHC director to exempt any organization or health care plan from the requirement, requiring only that it be done for “good cause.”

“Every day that goes by when these churches aren’t exempted is a determination by the state that religious beliefs aren’t good cause,” Gaius says. “This isn’t some- thing DMHC wishes didn’t have to happen—that these are unintended consequences of the law and these churches are just unavoidable casualties. This is very deliberate and intentional. It doesn’t have to happen.”

CONGRESSIONAL REMEDY

Although the churches have gone to court, that wasn’t their first resort. Rather, the first thing they did—aided by ADF and the Life Legal Defense Foundation—was to file a complaint in September 2014 with HHS.

They did so because HHS was the agency tasked with enforcing a 2005 federal law known in shorthand as the Weldon Amendment, which stipulates that no federal funds may go to a state that discriminates against a “health care entity that does not provide, pay for, provide coverage of, or refer for abortions.”

It took nearly two years for HHS to issue a ruling— on June 21, 2016, to be exact—which came down in favor of the State of California, against the churches.

Though ADF didn’t think much of the ruling (“This is a very straightforward violation of the Weldon Amendment,” Gaius says), the feds’ response wasn’t unexpected. So ADF hadn’t waited to file the lawsuits. Their arguments, unfortunately, had to be built on grounds other than the Weldon Amendment, which didn’t provide for legal action by private parties. “Under that law, if you’re one of the parties discriminated against by the state, you’re totally dependent on the federal government to enforce your rights,” Gaius says. “If they don’t, you’re out of luck.”

Some members of Congress are trying to remedy that. The proposed Conscience Protection Act of 2016— drafted by a doctor (Rep. John Fleming, R-La.) and sponsored by a nurse, (Rep. Diane Black, R-Tenn.)— would make the provisions of the Weldon Amendment permanent, but also enable private groups and individuals to take legal action to enforce it. The measure passed the House on July 13 with a 245-182 vote, and was awaiting action in the Senate at press time. (Social-media traffic on the bill can be followed with the hashtag #NoAbortionCoercion.)

In early July, Garlow made the coast-to-coast trip to Washington, D.C., to support the bill. There, he found himself delivering congressional testimony for it in a group that included the author of the original Weldon Amendment, former Rep. Dave Weldon, R-Fla.

“That was a privilege,” Garlow says. “When (Weldon) laid out what the intentions of his amendment had been, how HHS turned it on its head and how the federal government is refusing to honor it, it just illustrated the loss of the rule of law in this country.”

Garlow sees that as a growing problem, looming over the immediate issues of the sanctity of life and the protection of conscience “There’s a lawlessness in the land,” he says, manifest in the actions of many judges and bureaucrats, and reaching up into the White House. “Instead of being ruled by law, we are now ruled by the will of an oligarchy. We’ve got to try to turn that around.”

‘EVERY PASTOR NEEDS AN ATTORNEY

Meanwhile, on the courtroom front, California is seeking to have both ADF lawsuits dismissed before they can get out of their earliest stages. That’s not going to happen with at least one of them: The state’s motion to dismiss Skyline was rejected by the Southern District in June, so the suit will proceed.

The Foothill case, on the other hand, was dismissed by the Eastern District. But that’s not the last word: The court allowed ADF to amend its suit, and Gaius thinks they’ve found additional information since the case was filed last October that could change the judge’s mind. If not, ADF can appeal the decision to the 9th U.S. Circuit Court.

One thing Gaius looks forward to is the discovery process—and learning what other exemptions DMHC may have granted to other groups that it won’t grant to churches or their insurance providers.

Granting exemptions “is a secretive process where they don’t have to explain to anybody why they did or didn’t grant them,” Gaius says. “It’s all behind closed doors. It really is government bureaucracy at its worst. Who knows what other exemptions they’ve granted and what conversations they’ve had relating to them?

That’s what we’re hoping to find out.”

As for Garlow, he’s found this a sobering experience—and one that leaves him grateful for his knowledgeable allies.

“For years, I’ve said every pastor needs many things,” Garlow says. “He needs a calling, biblical understanding and a clear grasp of theology. He needs leadership ability, love and com- passion for people.

“Now I’ve added one: Every pastor needs an attorney. I can’t say enough good about the Alliance Defending Freedom.”

It shouldn’t be that way, of course. “These pastors are the kind of people who’d rather be focusing all their energy and efforts on their ministries, on serving others and pursuing their gospel calling,” Gaius says. “This is a fight they did not want, a fight they did not pick. But it’s critically important to them, so they’re taking a bold stand in saying that no government should force a church to pay for something they believe to be the taking of innocent human life.”

And Lewis wants to leave no doubt: They won’t be backing down.

“I will give Caesar my taxes,” he says. “I will give him what belongs to him. But my conscience does not belong to Caesar. Our tithes and offerings do not be- long to Caesar: They belong to God.

“We’ll see this through all the way to the end. This is bigger than Foothill Church. We’re just one representative of so many other folks who would be affected by the state of California digging in its heels. This has to be heard. This has to be heard all the way to the U.S. Supreme Court if that’s what it takes.”

Originally published in the October 2016 issue of Citizen magazine.

© 2016 Focus on the Family. All rights reserved.