New York court OKs abortion coverage mandate

New York’s highest court ruled last week that a mandate requiring employer-provided insurance plans to cover “medically necessary” abortions does not violate constitutional rights.

New York’s Court of Appeals’ ruling rejected a lawsuit that argued the mandate forces religious organizations to violate their beliefs about the sanctity of life. The lawsuit was backed by a ​coalition of religious groups, including Anglican nuns, Roman Catholic dioceses, Christian churches, and religious social ministries.

The groups now plan to appeal the case to the U.S. Supreme Court, continuing a seven-year battle, said Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty.

The regulation at issue, implemented by the state’s Department of Financial Services first as a regulation and then later made into law, prohibits health insurance policies from excluding coverage for “medically necessary abortions,” which it defines as including elective abortions in cases of rape, incest, or “fetal malformation.”

While the law provides an exemption for religious employers, it has strict criteria for what defines that type of employer, Baxter said. To be considered a religious employer, the organization must be a nonprofit with a purpose of inculcating religious values and employ and serve chiefly people who share its religious tenets.

This exemption is too narrow and allows the government to determine what groups are or aren’t religious, Baxter said.

New York courts previously dismissed a challenge to this abortion coverage law. On appeal, the Supreme Court sent the case back to the New York Court of Appeals to reconsider in light of the Supreme Court’s 2021 decision in Fulton v. City of Philadelphia. (In this case, the court found that Philadelphia couldn’t prevent a Catholic foster agency from participating in the city’s foster care program because the group required foster parents to adhere to a Biblical position on sexuality.)

Last Tuesday, the state Court of Appeals unanimously found that Fulton wasn’t enough to make New York’s abortion coverage mandate illegal. Judge Caitlin Halligan recused herself from the ruling.

The judges said Fulton’s ruling was narrowly focused on the facts of that case, and did not overturn a longstanding precedent that neutral, generally applicable laws can sometimes restrict religious expression.

Religious groups argued that both the very existence of the mandate’s exemption and the fact that the government was allowed to pick and choose which religious organizations were exempt rendered the mandate unconstitutional.

Writing the court’s opinion, Judge Rowan Wilson disagreed. He said that several previous cases affirm that neither the medically necessary abortion regulation nor the religious employer exemption violate the free exercise clause.

Baxter explained that the New York court applied very technical reasoning in their opinion. However, the judges never addressed the straightforward principles of what “justifies violating someone’s religious beliefs,” he said.

“And really [there is] no justification to how they could violate some people’s religious beliefs while exempting others from the abortion coverage mandate,” Baxter said. “It’s long been established that the government cannot favor some religious groups over others. And that’s exactly what New York is doing here.”

Baxter said when the case was argued in court, the judges “really pressed” the Department of Financial Services’ defense, which he thought indicated that the judges better understood the unconstitutionality of New York’s law.

One of the plaintiffs in the case, the Roman Catholic Diocese of Albany, said that while it respects the judges’ decision, the ruling is a “critical challenge to religious freedom.”

“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,” the diocese said in a statement. “We believe this is unconstitutional since it involves government entanglement in the fundamental rights of free exercise of faith and conscience.”

Others, such as state Gov. Kathy Hochul and the Department of Financial Services, have applauded the court’s ruling.

While the law stands, religious ministries and employers are in a “difficult spot,” Baxter said. They either have to provide coverage that goes against their beliefs or change the work they do to fit under the law’s exemption, he said.

“Religious organizations are essentially left without protection. So many of them are left either defying the law or changing their ministries to comply with the regulations,” Baxter said. “It really interferes with ministries’ abilities to do the things that they feel called to do.”