New York abortion coverage mandate challenged at state’s high court

ALBANY, N.Y. (CN) — The New York Court of Appeals heard arguments Tuesday on whether a state law that requires group health insurance plans to cover “medically necessary abortions” infringes the free exercise of religion for churches and other service organizations.

The Roman Catholic Diocese of Albany brought the challenge alongside other churches, religious orders and service organizations after the state enacted a regulation in 2017 that included a narrow exemption for religious employers.

A lower appellate court dismissed the religious organizations’ claims twice based on precedent from New York’s high court rejecting a challenge to a mandate requiring coverage for contraceptive drugs and devices.

But in light of the U.S. Supreme Court’s 2021 decision in Fulton v. Philadelphia, in which the nation’s high court ruled in favor of a Catholic foster agency that refused to allow same-sex couples to be foster parents, the religious organizations brought the challenge to New York’s high court now claiming the health insurance regulations lack “general applicability.”

“The abortion mandate is not a neutral law of general applicability because it contains exemptions that undermine its asserted purposes,” the religious organizations say in their brief.

Noel J. Francisco of Jones Day, an attorney for the religious organizations, said Tuesday that the statute is not a neutral law because the religious exemption only applies to some religious organizations, while leaving out others.

He pointed to the exemption’s specifications that religious organizations must serve and employ individuals who share the entity’s “religious tenets.” For example, Francisco said the Sisters of St. Joseph in Albany were denied a religious exemption in 2019 because it failed to meet these requirements.

“They hadn’t put forward enough documentation to show that they were only serving people of the same religion and that their purpose was the inculcation of religious values,” Francisco said Tuesday.

Justice Jenny Rivera similarly expressed concern over the statute’s requirement that a religious organization must prove it serves people that share a similar faith.

“It says the entity serves primarily persons who share the religious tenets of the entity. What if they don’t ask, what if they feel that’s not appropriate?” Rivera asked.

Assistant Solicitor General Laura Etlinger, representing the State Department of Financial Services and acting superintendent Maria Vullo, responded that it was an “exercise of discretion.”

“You either fit in or you don’t fit in,” Etlinger said.

Justice Anthony Cannataro also questioned the statute’s requirement that a religious organization prove it serves individuals of the same faith.

“What’s the work that prong’s doing there, in terms of determining whether this should be a religious exemption?” Cannataro asked. “What’s the relationship between who you serve and what your beliefs are?”

Etlinger said the Legislature doesn’t have to establish a direct connection between the two in deciding what kind of accommodation to provide.

“Here we have a requirement that applies to everybody but then an accommodation for a different purpose, not to ensure access to critical health care,” Etlinger said.

When Cannataro pressed Etlinger on that question, she responded that it was traditionally the line drawn for religious accommodations for contraceptive insurance coverage requirements.

The panel did not indicate when it would rule.

Attorneys on both sides did not respond to requests for comment.

Follow @NikaSchoonover

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