New York High Court Upholds Coverage Requirement for Medically Necessary Abortions
- May 24, 2024
A New York state regulation requiring employer health insurance policies to cover medically necessary abortions does not violate the First Amendment, the New York Court of Appeals held May 21.
The Roman Catholic Diocese of Albany and other religiously affiliated organizations, which brought the lawsuit, argued that the regulation’s exemption for “religious employers” was too narrow.
As it did in previous litigation challenging an insurance mandate for contraceptive coverage, see Catholic Charities of Diocese of Albany v Serio, 7 N.Y. 3d 510 (2006), the high court held that the medically necessary abortion coverage requirement and the regulatory definition of “religious employer” were generally applicable and therefore did not violate the Free Exercise Clause.
“Neither the existence of the exemption in the regulation nor the defined criteria allow for ‘individualized exemptions’ that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct,” the state high court said.
The Department of Financial Services issued the amended regulation in 2017 to require health insurance companies to provide coverage for medically necessary abortions with an exemption for policies offered by “religious employer[s],” which must meet four statutory criteria including that the entity “primarily” employ and serve those who share its religious tenets.
Citing Serio, the trial and appeals courts upheld the regulation in 2020, with the state high court affirming. Plaintiffs then petitioned the U.S. Supreme Court for review. While the petition was pending, the Court decided Fulton v Philadelphia, 593 U.S. 522 (2021), which held that the city’s policy to stop referring children to Catholic Social Services because it would not certify same-sex couples to be foster parents violated the Free Exercise Clause. Following that decision, the Court vacated the judgment in the instant action and remanded to the New York Appellate Division to reconsider the case in light of Fulton.
On remand, the Appellate Division held Serio was still good law and affirmed its previous decision upholding the regulation. The New York Court of Appeals again affirmed.
In Employment Div., Dept. of Human Resources of Oregon v Smith, 494 U.S. 872 (1990), the Court held that laws incidentally burdening religion are not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. The Court in Fulton expressly chose not to overrule Smith and instead elaborated on the circumstances when a law does not qualify as “generally applicable,” according to the state high court.
Unlike the City of Philadelphia’s policy, the "religious employer" exemption at issue passed Fulton’s test for general applicability—namely, it did not incorporate entirely discretionary “mechanisms for individualized exemptions” or prohibit “religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”
In this case, the decision to grant or deny the exemption is not “at the sole discretion” of any single person or authority, but instead is determined by objective criteria enumerated in the regulation.
The high court also found the exemption did not violate the Free Exercise clause by permitting comparable secular conduct. “The exemption provides a way to accommodate religious beliefs in some cases. In doing so, the regulation favors religious exercise rather than discriminates against it,” the high court observed.
Plaintiffs argued that the regulation treats religious employers differently, exempting “some religious organizations but not others.” The high court said this “novel” argument was without merit.
“The creation of any religious accommodation necessarily requires the government to distinguish the types of entities or activities that are covered from those that are not,” the high court observed.
The Roman Catholic Diocese of Albany said it will ask the U.S. Supreme Court to review the decision. “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. We believe this is unconstitutional since it involves government entanglement in the fundamental rights of free exercise of faith and conscience,” the group said in a statement.
Roman Catholic Diocese of Albany v. Vullo, No. 45 (N.Y. May 21, 2024).