Appeals court rules pregnancy center can't be forced to hire employees who support abortion

A federal appeals panel in Manhattan said a New York State law that prohibits retaliation against employees for undergoing abortions violates a nonprofit agency’s right to freedom of association.

The three-judge panel from the Second U.S. Circuit Court of Appeals ruled Monday that the Evergreen Association Inc.’s right to freedom of association was violated because the law forced the agency, which counsels against abortion, to hire people opposed to its message. 

The 2019 “Boss Bill” remains intact and the panel’s decision only impacts Evergreen, which filed a lawsuit in 2020 to block enforcement of the law. The court sent the case back to a federal judge in Syracuse for further proceedings. 

New York State Attorney General Letitia James’ office declined comment. 

"We are pleased that the panel recognized the need to protect mission-oriented organizations from intrusions by the state, and we look forward to cementing this victory at the district court level," said J. Matthew Belz, an attorney for Evergreen. 

The 2019 “Boss Bill” also barred employers from retaliating against employees for other reproductive health decisions involving “a particular drug, device or medical service,” according to court papers. 

Evergreen, which does business as Expectant Mother Care and EMC FrontLine Pregnancy Centers, is opposed to abortion and has operated a network of pregnancy crisis centers in the New York City area that discourage women from having the procedure. 

It also provides ultrasounds, counseling, and information about adoption. In 2020, the organization filed a lawsuit to block the state from enforcing the law. 

“On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association — in this case, Evergreen — to advocate against that conduct,”  Circuit Judge Steven Menashi said in Monday’s decision.

“If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion,” Menashi said. “But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association.”