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Abortion opponents get all clear to challenge NY labor law

The Second Circuit said the freedom of expressive association might protect a religious group in firing employees who seek abortions.

MANHATTAN (CN) — A panel of three Trump-appointed judges issued a reversal Monday that opens New York state to a constitutional challenge from the operators of a group of anti-abortion pregnancy centers.

“On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion," U.S. Circuit Judge Steven Menashi wrote for the Manhattan-based panel. "On the other side is the First Amendment right of a particular association ... to advocate against that conduct."

The case comes from a group called the Evergreen Association, which operates crisis pregnancy centers called EMC Frontline, short for Expectant Mother Care, where employees and volunteers counsel patients terminating their pregnancies.

Evergreen and its president, Christopher Slattery, brought a civil suit against the state of New York in Northern District of New York in January 2020, arguing the state's so-called Boss Bill of 2019 unconstitutionally infringed on its freedoms of speech and religious exercise by forcing them to keep employees who've had abortions.

Reviving the group's lawsuit Monday, Judge Menashi said the constitutional balance tips in the employer's favor.

“If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion," he wrote." But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association."

Evergreen’s St. Louis-based attorney J. Matthew Belz commended the result.

"We are pleased that the panel recognized the need to protect mission-oriented organizations from intrusions by the State, and we look forward to cementing this victory at the district court level,” Belz said in a statement on Monday afternoon.

Senior U.S. District Judge Thomas McAvoy Sr. had previously dismissed Slattery and Evergreen's suit, and the Second Circuit heard arguments on the ensuing appeal late last year.

“Everything Evergreen does — from counseling pregnant women, to providing women with nursing services, to speaking in defense of the unborn, to communicating expectations to its employees — aims at bringing about an abortion-free culture,” Belz and his co-counsel at the Thomas More Society wrote in an appeals brief. “Anything less would compromise Evergreen’s message by requiring it to employ as its representatives people who actively dissent from the worldview it exists to communicate to clients and the world.”

U.S. Circuit Judge Menashi was joined on the panel by two fellow Trump appointees, U.S Circuit Judges Michael Park and William Nardini.

While the court revived the expressive association claim, it affirmed dismissal of the remaining issues, including freedom of speech and free exercise of religion.

The New York Attorney General’s Office did not immediately respond to a request for comment.

Evergreen credits its services with having prevented 43,000 abortions.

According to Statista, New York performed the most legal abortions in the country, topping 77,000, in 2018.

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Categories / Appeals, Civil Rights, Employment, Law

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