New York pro-life pregnancy centers secure employment win

A New York organization that operates pregnancy resource centers scored an important victory in court last week. A federal appeals court affirmed Evergreen Association’s right to employ only people who share its pro-life beliefs, providing relief from non-discrimination requirements of a state law.

Evergreen and its founder and president Christopher Slattery have operated Expectant Mother Care and EMC FrontLine Pregnancy Centers in New York City since 1985. They follow Catholic teachings that abortion is immoral and that sexual relationships outside of marriage contribute to abortions.

In addition to offering ultrasounds and other prenatal services, Evergreen’s employees counsel women about sex, abortion, and family life from a “religiously-informed, pro-life worldview.” To further its mission, it hires only employees who do not “obtain, assist in obtaining, or condone abortion” nor engage in extramarital sexual relationships.

When the New York legislature passed three pro-abortion laws in 2019, one immediately created a problem for Evergreen. The “Boss Bill,” as it is popularly known, prohibits discrimination by an employer against an employee on the basis of the employee’s reproductive health decision-making. The law provides no exceptions for religious employers. If an employee gets an abortion, a pro-life organization like Evergreen cannot dismiss her under this law, said Tim Belz, Evergreen’s attorney and special counsel for the Thomas More Society.

Faced with an untenable conflict between its mission and the new law, Evergreen filed a lawsuit in January 2020 against New York. It asserted that the Boss Bill would unconstitutionally force it to hire or retain employees whose personal lives and actions fail to comply with Evergreen’s policies, undermining its message.

Senior Judge Thomas McAvoy, a 1986 appointee of former President Ronald Reagan, dismissed the lawsuit without hearing its merits. He issued a decision on March 31, 2021, finding that the law did not target religious beliefs, but only related to a legitimate government interest to protect against workplace discrimination. 

Even so, McAvoy partially agreed with Evergreen on one point—the law might force it to associate with employees who do not share its views. He recognized the Boss Bill might prevent Evergreen from firing or taking action against employees if their decisions about abortion, contraception, sexuality, or religion contradicted the organization’s policies. But McAvoy reasoned these possibilities only imposed incidental limitations on Evergreen’s rights. In other words, McAvoy acknowledged Evergreen’s concern that employees with abortions could undermine its message, but he said this should not stop Evergreen from advocating for its pro-life beliefs.

Evergreen appealed to the 2nd U.S. Circuit Court of Appeals, where a panel of three circuit judges, all appointees of former President Donald Trump, disagreed. It reversed the lower court’s dismissal on Feb. 27.

The appeals court explained that the Supreme Court recognizes that the First Amendment includes the right of individuals to engage as a group in all activities protected by the First Amendment. This right also “presupposes a freedom not to associate,” according to the Supreme Court. The appeals court held that the Boss Bill significantly burdened Evergreen’s right of expressive association. 

The appeals court additionally ruled that the bill imposed severe consequences on Evergreen’s First Amendment right. Referring to earlier legal opinions and commentary, the court acknowledged that Evergreen’s beliefs define the organization, and that forcing it to employ individuals who approve of abortion would undermine its mission.

Because the district court decided the case before hearing the lawsuit on its merits, the appeals court sent the case back to the district court with instructions about how to evaluate this issue further. 

Those instructions are important to the ruling, Belz said. New York must now prove that the interest served by the law, unrelated to the suppression of ideas, is compelling and justifies limitations on certain private rights. The appeals court recognized that the state’s interest in preventing employment discrimination of individuals with abortions may be compelling. Still, such an interest “cannot overcome the expressive rights of an association dedicated to outlawing or otherwise opposing that specific conduct.”

Belz applauded the decision. “The government can’t tell you who you can associate with,” he said. Belz can’t predict what the lower court will do, but he said the court had little “wiggle room.” 

He added that the decision is also a big win for other Christian organizations facing discrimination laws that fail to accommodate faith-based activities, even outside of New York, as other courts look to the appeals court’s decision.