Supreme Court Reins in New York’s Abortion Coverage Mandate – Again

Diocese of Albany v. Harris

​The U.S. Supreme Court has once again stepped in to remind the State of New York – and any state tempted to do likewise – that religious liberty is not a favor dispensed by bureaucrats but a constitutional guarantee. On June 17, the Court ordered New York courts to take another look at Diocese of Albany v. Harris, a case in which religious organizations are challenging a state mandate requiring employers to provide abortion coverage in their health insurance plans.
 
The plaintiffs include Catholic dioceses, Anglican and Baptist ministries, and faith-based social service providers like the Carmelite Sisters, who run nursing homes, and the Sisterhood of St. Mary, a contemplative Anglican order. Their objection is simple: They believe life begins at conception, and they refuse to be complicit in taking it. New York has bizarrely decided that this belief – shared by millions – is not worthy of respect if such a religious group is also willing to serve the public without religious discrimination.
 
When New York first proposed the abortion coverage rule, it included a broad exemption for religious objectors. But under pressure from abortion-rights activists, the exemption was narrowed to cover only those that teach religion and serve only those who share their faith. This would leave out virtually every real-world religious charitable ministry. As Lori Windham, vice president and senior counsel at Becket, noted, not even Jesus or Mother Teresa would qualify under New York's miserly exception for religious freedom.
 
The case is part of a broader legal conflict that traces back to the contraceptive mandate imposed under the Affordable Care Act. Religious groups like the Little Sisters of the Poor, who serve the elderly poor, spent a decade in court fighting the federal government over being forced to cover contraceptives and abortifacients. The Supreme Court repeatedly sided with them. But New York has pushed even further, mandating coverage for surgical abortions and setting up a restrictive exception for religious associations, denying the religious legitimacy of ministries that serve people of other faiths.
 
The Supreme Court already told New York to reconsider this case once – instructing state courts to account for its ruling in Fulton v. City of Philadelphia, which held that governments cannot condition public benefits on abandoning religious beliefs. But the New York Court of Appeals upheld the mandate again this May. That refusal led to another trip to the Supreme Court and another remand back down to try again.
 
A new pivot point is the Court’s unanimous June 5 decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. In that case, Wisconsin denied Catholic Charities a religious exemption from unemployment insurance rules, arguing that serving the poor wasn't inherently religious. The Court rejected this reasoning emphatically. Justice Sonia Sotomayor wrote that such theological judgment by the government is “a textbook violation” of both the Free Exercise and Establishment Clauses.
 
With that decision in hand, the Supreme Court sent the Diocese of Albany case back to New York, making clear that religious groups don’t need to prove that their service is “religious enough” to be protected. If a ministry’s charitable work is rooted in its religious beliefs, it cannot be penalized for refusing to uncharitably limit its charity to its co-religionists. New York, for its part, has already conceded that its abortion coverage scheme cannot stand under the new precedent.
 
This is a victory not just for the nuns and ministries involved, but for anyone who believes that religious liberty does not vanish when faith communities choose to serve the public. The First Amendment does not allow states to punish religious conviction by substituting their own standards for religiosity or demand a cramped notion of religious charity.
 
Meanwhile, another case on the Supreme Court’s docket – Mahmoud v. Taylor – could further define the constitutional boundaries of religious liberty in public education. A decision is expected as early as this Thursday.
 
All eyes on Mahmoud.

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