Question of discretion

A COALITION of religious groups—including Anglican nuns, Roman Catholic dioceses, Christian churches, and religious social ministries—went to the New York Court of Appeals in April to defend their right not to cover abortions in employee health insurance plans.

The April 16 hearing before the state’s highest court in Diocese of Albany v. Harris was the latest round in a seven-year battle against a 2017 state abortion mandate. New York’s law offers a religious exemption, but only for entities that inculcate religious values and serve and hire those who share their religious beliefs. That leaves other religious groups with an untenable choice: either provide abortion coverage or curtail their ministry to the community in order to gain an exemption.

Nuns have battled government mandates before: In 2020, the U.S. Supreme Court sided with the Little Sisters of the Poor to uphold a Trump administration rule exempting employers with religious and moral objections from providing contraception in group healthcare plans.

State courts previously dismissed a challenge to New York’s abortion coverage law. But on appeal, the U.S. Supreme Court sent the case back to the state appeals court to reconsider in light of its 2021 decision in Fulton v. Philadelphia. (In that case, the high court ruled Philadelphia had wrongly shut a Catholic foster agency out of its foster system because the group wouldn’t work with gay couples.)

Former U.S. Solicitor General Noel Francisco, arguing for the plaintiffs in the New York case, told the appeals court’s seven justices the state law violated the Fulton test because it gave the state free discretion to determine who is religious. The state could pick “winners and losers,” he said, by deciding which religious organizations are exempt.

That legal discretion troubled Justice Jenny Rivera. “[The law] 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?” she asked.

Assistant Solicitor General Laura Etlinger, who represented New York, replied that this was not, like Fulton, an “exercise of discretion [where] you either fit in or you don’t fit in because somebody says so.” She argued the abortion law’s criteria for an exemption were objective and standardized.

Francisco disagreed. “When you have factors that require you to assess the religious tenets of an organization, its employees, and the people it serves and requires you to assess whether the purpose is the inculcation of religious values or providing services to the poor … I don’t think that’s a neutral law,” he said.

Becket Fund for Religious Liberty attorney Lori Windham agreed the standards were vague, permitting too much discretion by state officials. “How do you decide who is a member of a certain faith?” she said. “And how do you even know who is being served if you’re going out and providing a warm meal to anyone who asks?”

Windham noted that not even a church could truly certify it was ­serving only people of its faith. “If they want an exemption, they have to meet a test that Jesus’ ministry wouldn’t pass,” she said.

The court didn’t indicate when it would rule, but its decision will affect religious nonprofits all over New York.