MANHATTAN (CN) — Three Trump appointees to the Second Circuit presided over a tense hearing Monday on a New York law that tightens discrimination protections for workers based on their reproductive health choices.
“Actions speak louder than words,” attorney Matthew Belz told the panel this morning, after being questioned as to why it matters if his clients, the Evergreen Association, employs counselors who have had an abortion or use contraceptives.
“If we have an employee counseling a woman about options, while simultaneously having an abortion that goes against our message,” the partner at Ottsen Leggat and Belz added.
Evergreen and its president, Christopher Slattery, sued New York last year, arguing the state's Boss Bill of 2019 violated its free-speech rights by forcing them to keep employees who may go against their message since they’ve had an abortion. The Yonkers-based nonprofit operates pregnancy centers in the city, such as Expectant Mother Care and EMC Frontline Pregnancy, that seek to counsel pregnant women away from abortion services.
A federal judge dismissed Slattery and Evergreen's suit in March, finding that while the law may force the group to associate with such employees, it does not restrict their ability to advocate against abortion or contraceptives.
On Monday, however, at a hearing on the nonprofit's appeal Monday, the state appeared to struggle in response to a hypothetical posed from U.S. Circuit Judge Michael Park.
The Trump appointee asked if Evergreen could fire an employee who mentioned she had an abortion but refused to tell clients she regretted it.
Frederick Brodie, an assistant to the New York solicitor general, said that the statute is focused narrowly on when workers are fired over their reproductive health choices. Nothing would stop Evergreen from firing someone who goes against its message, he said.
But the distinction did little to assuage Park. “So you’re saying it's a don’t ask, don’t tell policy,” the judge asked. “So you're not actually firing someone for having an abortion, you’re firing her for mentioning it?”
Brodie, with effort, stressed that an employee can still be fired under the statute for not promoting the message. He said the statute does not stop Evergreen from asking employees their beliefs, only their medical history.
“Nothing in this statute stops them from asking employees if they are pro-life or pro-choice,” said Brodie. “Nothing is stopping them from hiring only pro-choice people.”
Evergreen claims to have prevented 43,000 abortions with its services. According to Statista, New York performed the most legal abortions in the country, topping 77,000, in 2018.
In a statement after arguments, Belz said the law is on Evergreen's side.
"To pursue its mission with integrity, Evergreen must be able to employ only those who support their mission in both word and deed,” Belz said in an email. "The Boss Bill has no purpose other than to limit First Amendment rights, so it is illegal.”
Back at the hearing, the attorney led Park through the Evergreen policy that states employees may be fired if they have an abortion or use certain contraceptives.
“I take it there's no employee that you would enforce this policy against,” asked Park.
Belz agreed they have not fired anyone under this policy yet, but stressed the fact that the law would make it impossible to ever do so.
Park was joined on the panel by U.S. Circuit Judges William Nardini and Steven Menashi, both fellow Trump appointees.
New York's opposition brief is adamant that the Boss Bill is essential to combat discrimination and to promote employee privacy. Brodie did not immediately respond to email seeking comment.
With Evergreen suggesting in its brief that the nonprofit operates on a case-by-case basis when it comes to its employees' reproductive histories, the assistant state solicitor general noted that New York has taken no enforcement action under the Boss Bill against any organization, Evergreen included, as of last week.
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