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Friday, June 14, 2024 | Back issues
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New York top court upholds abortion insurance coverage requirement

The New York Court of Appeals found that a recent U.S. Supreme Court decision didn't make broadly-applied rules unconstitutional violations of religious freedom, but Albany's Catholic diocese vowed to change that.

(CN) — The New York Court of Appeals ruled Tuesday that an administrative rule requiring employer-provided insurance plans to cover medically necessary abortions is not unconstitutional, rejecting a challenge by a number of religious groups who said an exemption carved out for religious employers was too narrow. 

New York's highest court found that the U.S. Supreme Court’s 2021 decision in Fulton v. Philadelphia wasn’t enough to make the abortion coverage requirement illegal since it hadn’t overturned a line of prior cases allowing enforcement of neutral laws and regulations “uniformly applied without regard to religious belief or practice.” 

The regulation at issue, imposed by the state's Department of Financial Services, prohibits health insurance policies from excluding coverage for medically necessary abortions if they cover other hospital, surgical or medical expenses. An exemption for “religious employers” requires that they satisfy four criteria — that they be nonprofits, with a purpose of inculcating religious values, and employ and serve chiefly people who share their religious tenets. 

A collection of religious organizations, including the Roman Catholic dioceses of Albany and Ogdensburg, a number of charity and church organizations and a general contractor, argued that this was too narrow, and that the very existence of exemptions like this one meant that it was not “generally applicable” and therefore an unconstitutional burden of the right to free exercise of religion, particularly in light of Fulton. 

Writing the court’s opinion, Chief Judge Rowan Wilson disagreed. He compared the case to 2006’s Catholic Charities of Diocese of Albany v. Serio, in which the court upheld the 2002 New York Women’s Health and Wellness Act and its requirement that employee health insurance plans cover prescription contraceptives.

Serio, he noted, was premised on a 1990 case, Oregon v. Smith, in which Supreme Court Justice Antonin Scalia shied away from the possibility of allowing religious exemptions for any number of laws seen as discriminatory. That case and its progeny, he found, had been left undisturbed by Fulton.

“Although several justices wrote concurring opinions in Fulton suggesting that Smith was wrongly decided and should be overruled ... Smith remains good law, and the question before us is whether Fulton impaired Smith in a way that undoes Serio in whole or in part,” Wilson wrote. 

He found that it didn’t. The regulation’s “religious employer” definition, he wrote, was generally applicable under Fulton, and didn’t violate the Free Exercise Clause by granting its religious exemption to the abortion mandate to "secular" employers, since the secular employers the appellants cited were not secular but a different group of religious organizations. 

“Plaintiffs do not point to any secular employers who are exempt from complying with the mandate; thus, they cannot show that New York has undermined its interest in the mandate by its treatment of secular employers,” he wrote. “Instead, they advance a novel argument, seeking to extend the language in Fulton to a different situation: one in which the comparison is not of religious versus secular employers, but among different types of religious employers.” 

In effect, Wilson wrote, the religious organizations claimed that the state was unlawfully privileging the methods of religious exercise that it preferred. This line of reasoning did not go far with the court, which concluded that the plaintiffs' arguments were without merit.

New York Attorney General Letitia James celebrated the ruling in a press release.

“Today’s decision affirming abortion coverage must be included in insurance plans as outlined in state law is a win for all New Yorkers and for our most basic right to make decisions about our own bodies,” James said. “Abortion care is health care, and my office will always protect our state’s residents and ensure our laws are respected and upheld.”

The Diocese of Albany issued its own statement, promising to appeal the decision.

“While we respect the decision issued today by the New York State Court of Appeals, we will again seek review by the United States Supreme Court of this critical challenge to religious freedom,” the diocese wrote.

“At stake is regulatory action by a state to require religious organizations to provide and pay for coverage of abortion in their employee health plans," it said. "We believe this is unconstitutional since it involves government entanglement in the fundamental rights of free exercise of faith and conscience.”

Categories / Appeals, First Amendment, Health, Regional, Religion

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