On Friday, a coalition of Roman Catholic, Baptist, Anglican, and Lutheran churches and charities asked the Supreme Court to consider whether or not New York’s abortion mandate violates their religious freedom. New York requires employers to cover “medically necessary abortions” — broadly defined — in their employee health care plans. While the mandate includes a religious freedom exemption, it does not apply to pro-life entities unless they only serve members of the same religion, among other things.
The Christian groups appealed to the Supreme Court, asking the Court to take up the case because it presents an opportunity to clarify critical religious freedom issues after many cases involving the COVID-19 pandemic. These churches and charities noted that if the abortion mandate remains in place, they will have to violate their core beliefs, cease offering health insurance to their employees, or shut down altogether.
Yet on a more practical level, the Court is more likely to take up a case when it presents an opportunity to clarify federal law under the Constitution. This case gives the Court an opportunity to revisit its ruling in Employment Division v. Smith (1990), in which the Court ruled that Oregon could refuse unemployment benefits to a Native American man because he had smoked peyote in a religious ritual. The decision shocked Americans, and Congress passed the Religious Freedom Restoration Act in 1993 to impose strict limits on government abuses of religious freedom.
The case, Roman Catholic Diocese of Albany v. Linda Lacewell, Superintendent of New York State Department of Financial Services, centers on a 2017 mandate requiring employers to cover “medically necessary abortions” in their employee health care plans. Neither the proposed regulation nor the final version define “medically necessary abortions,” but in “model language” for health insurance contracts, the superintendent stated that “medically necessary abortions” include at least “abortions in the case of rape, incest or fetal malformation” (emphasis added).
“The mandate thus appears to cover abortions of babies afflicted with Down Syndrome and other maladies,” the Christian groups argued in their petition to the Supreme Court (emphasis added).
“Apparently recognizing the severe burden this regulation would impose on religious employers, the Superintendent proposed to include a religious exemption,” the Christian groups noted.
When the department proposed the rule, it included an exemption allowing a “qualified religious employer” to opt out of funding abortions if it “opposes medically necessary abortions on account of a firmly-held religious belief” and was either a nonprofit that holds itself out as religious or a closely-held for-profit that “adopted a resolution … establishing that it objects to covering medically necessary abortions on account of the owners’ sincerely held religious beliefs.”
The Christian groups noted that this exemption “largely tracked” with religious liberty exemptions created after the Supreme Court’s rulings in Wheaton College v. Burwell (2014) and Burwell v. Hobby Lobby (2014).
Yet when the agency published its final regulation, the exemption had been “eviscerated”:
Instead, the religious exemption applies only to “[r]eligious employer[s],” defined as “an entity for which each of the following is true”:
(1) The inculcation of religious values is the purpose of the entity.
(2) The entity primarily employs persons who share the religious tenets of the entity.
(3) The entity serves primarily persons who share the religious tenets of the entity.
(4) The entity is a [tax-exempt] nonprofit organization … .
The Obama administration had applied this kind of exemption to the Obamacare contraception mandate, and the Court had ruled against it in cases involving the Catholic charity Little Sisters of the Poor.
This more limited exemption — and the fact that New York originally considered a far broader version — arguably interfered with the internal operations of Christian churches and charities, penalizing them for having charitable purposes, for employing non-Christians, and for serving non-Christians.
The Roman Catholic Dioceses of Albany and Ogdensburg; the Anglican Sisterhood of St. Mary; the Brooklyn, Albany, and Ogdensburg chapters of Catholic Charities; St. Gregory The Great Catholic Church Society of Amherst; First Bible Baptist Church; Our Savior’s Lutheran Church in Albany; the Carmelite charity Teresian House Nursing Home Company; the Catholic senior living nonprofit Depaul Housing Management Corporation; and Renee Morgiewicz asked the Supreme Court to take up the case after New York courts upheld the abortion mandate.
The Christian groups raised four major reasons why the Court should take up the case: federal courts are split on whether exemptions preclude a law from being “generally applicable” and on whether a law that differentiates between religions is subject to strict scrutiny; the Court should consider whether New York interfered with the internal affairs of religious groups; the Court should reconsider Smith; and other states are likely to force other pro-life institutions to pay for abortions as health care.
The Christian groups noted the Supreme Court’s recent history of issuing orders to block COVID-19 restrictions that violate religious freedom.
“If this Court’s COVID-related emergency cases have shown anything, it is that the lower courts are hopelessly divided on these issues, thus requiring repeated intervention by this Court in a series of emergency applications, on rushed schedules, often with factual and legal events changing by the day,” the petitioners explained. “This case provides an ideal vehicle to address these issues in a systematic manner, after full briefing and argument, and thus provide clear guidance to the lower courts. The Court should take that opportunity.”
The Christians also argued that the abortion mandate “impermissibly interferes with internal religious governance and doctrine.” Citing Our Lady of Guadalupe School v. Morrissey-Berru (2020), they noted that “‘any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion.’ Yet that is exactly what New York has done, by exerting pressure on religious groups to employ only coreligionists, serve only coreligionists, and limit their ‘purpose’ to inculcating religious values.”
The Christian groups also asked the Supreme Court to revisit Smith if it does not do so in the religious freedom adoption case Philadelphia v. Fulton.
“If there is any chance that Smith allows New York to compel religious organizations to fund what, in their view, is a grave moral evil, the Court should reexamine Smith. Surely, such a world is not ‘a society in which people of all beliefs can live together harmoniously,'” the Christian groups argued, citing the American Legion Bladensburg Cross case from 2019.
On a more direct level, the New York abortion mandate forces the Christian churches and charities to make an impossible choice.
With the mandate in place, these groups “and like-minded religious organizations will be in an intolerable position,” they argued in the brief. “They will have to violate core beliefs, cease offering health insurance (a financially and morally fraught outcome), or shut down altogether. Surely, no one is better served in New York if the Teresian House stops serving the elderly, or Catholic Charities stops serving the poor. At the very least, before that happens, this Court should decide whether New York can put them to that choice without violating the First Amendment.”
The Supreme Court should take up this case. It is heinous that New York would require pro-life employers to pay for abortion — the intentional killing of a defenseless unborn baby in the womb, in some cases only due to a “malformation” — as health care, and it is even worse that the state would restrict its religious exemption to exclude churches or charities that aim to help the communities around them.
Yet this case is also extremely important considering the fact that President Joe Biden — once a long-time defender of the Hyde Amendment (which protects pro-life taxpayers from funding abortion) — now wants to get rid of the Hyde Amendment and fund abortion as a form of health care. The Democrats’ push on this issue and on the anti-Christian Equality Act make questions of religious freedom even more pressing and critical.
No state should force pro-life employers to foot the bill for the intentional killing of unborn babies in the womb, but this case presents an even more egregious attack on religious freedom. The Court must take it up.