Top New York State court rejects challenge in abortion rights case

ALBANY — New York’s top court upheld a state regulation Tuesday requiring health insurance policies to cover medically necessary abortions, dealing a defeat to the Roman Catholic Church and religious employers.

The Court of Appeals, in a 7-0 decision, ruled the regulation, adopted in 2017, did not impair church groups’ “right to free exercise of religion” under the state and federal constitutions.

Among other issues, the court rejected the argument a religious exemption tucked into the insurance regulation gave the state too much discretion in determining which employers qualify.

The court noted none of the groups that filed the lawsuit had applied for the exemption and the exemption depends on the nature of an employer’s business activities, not religious beliefs.

“It differentiates between religious and nonreligious entities,” Chief Judge Rowan Wilson wrote.

“For example, a person having two part-time jobs, one cleaning the floors of a Catholic Church and one cleaning the floors of a soup kitchen run by a Catholic charity that serves all people, may be entitled to obtain insurance covering medically necessary abortions from one but not the other,” Wilson wrote. “Nothing about that situation disfavors any religion based on its beliefs; it differentiates between employers and the type of entity.”

The New York State Catholic Conference called the decision “wrongly decided” and the insurance mandate “unjust.”

“By forcing this mandate on our ministries, the state has unconstitutionally entangled itself in the free exercise of our faith,” said Dennis Poust, executive director of the Catholic Conference, in a statement. 

Later Tuesday afternoon, the Roman Catholic Diocese of Albany, the lead plaintiff, said it will appeal to the U.S. Supreme Court.

“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,” the diocese said in a statement. “We believe this is unconstitutional since it involves government entanglement in the fundamental rights of free exercise of faith and conscience.”

In contrast, Gov. Kathy Hochul said: “The Court of Appeals' unanimous ruling to uphold New York's nation-leading regulations for insurance coverage of abortion care is a critical step toward protecting these fundamental freedoms. As governor, I'm committed to ensuring New York continues to be a safe harbor for anyone who needs abortion care.”

The issue began in 2017 when New York financial regulators, under the direction of then-Gov. Andrew M. Cuomo, approved the abortion insurance coverage requirement. An array of church groups filed the lawsuit soon after.

A state Supreme Court dismissed the lawsuit in 2019, citing the Court of Appeals’ 2006 decision in a case known as Serio, challenging a mandate that insurance policies cover contraceptive drugs and devices. A midlevel court upheld the ruling.

But later, the U.S. Supreme Court vacated that and ordered New York to rehear the case in light of its 2021 decision in Fulton v. Philadelphia — which found the city violated the First Amendment when it declined to renew a foster care contract with a religious agency that refused to place children with same-sex couples.

Meanwhile, the New York State Legislature and Hochul codified the rule into law in 2022, soon after the Supreme Court overturned federal abortion rights. 

Attorneys for the church groups, relying on the Fulton decision, said New York’s regulation should allow religious organizations to self-certify they qualify for exemption. By making them document they serve a religious purpose or serve a population that shares their religious beliefs, the state violates the rights of a society of Catholic nuns who run a nursing home for a general population — which is one of the plaintiffs in the lawsuit.

But New York's top court ruled the Fulton decision does not undermine the 2017 insurance regulation. The court's unanimous opinion included the bench's three most conservative judges.

Among other issues, the court said the “existence of a 'religious employer' exemption that does not extend to all possible religious entities does not” invalidate the regulation. 

“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,” Wilson wrote. “Although a state may not distinguish between religious denominations or entangle itself in assessments regarding 'the centrality of particular beliefs or practices to a faith', that is not what the regulation’s definition of a 'religious employer' does.”

By Yancey Roy

yancey.roy@newsday.com@yanceyroy