Cuomo tips his cap to Roe

NEW YORK—Riding the wave of antipathy against President Donald Trump in the Empire state, New York Gov. Andrew Cuomo, a Democrat, announced new regulations requiring insurers to cover contraceptives and “medically necessary” abortions.

Cuomo said he made the announcement to coincide with the anniversary of Roe v. Wade and last week’s Women’s March.

“These regulatory actions will help ensure that whatever happens at the federal level, women in our state will have cost-free access to reproductive health care,” Cuomo said. He received praise from several abortion groups, including Planned Parenthood of New York.

Cuomo, who faces reelection next year, is one of a number of blue state governors already setting themselves as foils to the new Trump administration. Cuomo tried unsuccessfully to pass several measures in the state legislature during the last few years to expand the legality of abortion. When his efforts failed, state Attorney General Eric Schneiderman issued a legal notice green-lighting late-term abortions in the state.

For these new regulations, Cuomo argued he did not need legislative approval. Under New York insurance law, the executive branch has the power to “set the minimum standard for health insurance policies.”

The new abortion regulation gives an exemption to any religious groups that object to covering abortion based on their beliefs. But individual employees may add a rider to their plan at no cost that would cover abortions.

Edward Mechmann, director of public policy for the Catholic Archdiocese of New York, worries that without any language banning the mingling of costs, the objecting organization would de facto pay for such abortion riders as premiums increase.

The new contraceptive requirement, which would offer more coverage than current federal requirements, relies on an existing state exemption for religious groups, which only covers churches. Under New York law, religious groups qualify for an exemption if they employ and serve only members of their own faith, which excludes any groups that offer services to the public.

Catholic Charities—along with a Baptist church that had homeless services, a prison ministry, and a crisis pregnancy center—challenged the exemption in 2006 as too narrow. They lost in state court. The regulation requires coverage of all forms of contraceptives, which include abortifacient drugs like Plan B and Ella.

How can the state require contraception and abortion coverage from religious groups or business owners after the U.S. Supreme Court decisions in the Hobby Lobby and Little Sisters of the Poor cases? In this area, states play by their own rules. The Supreme Court cases were based on a federal statute, the Religious Freedom Restoration Act (RFRA). So those decisions apply to federal, not state regulations. If the Supreme Court had made a decision on constitutional grounds, it would have applied to all regulations. Some states have their own versions of RFRA, but New York does not.

Cuomo’s office did not return a request for comment on the narrowness of the religious exemption.