FPA in the News: 2006

Metroland

“Walking the Line: Definition of Catholic and Baptist organizations as nonreligious raises First Amendment questions in state's highest court”

By Nicole Klas

9.14.06

For nearly three years, eight Catholic and two Baptist organizations have been embroiled in lawsuits surrounding a state law they argue violates their First Amendment rights by requiring them to provide prescription contraceptive coverage to employees—financial support they say forces them to commit sin.

Despite defeats in two lower appeals courts, the appellant organizations are hoping a forthcoming decision from New York's highest court of appeals will affirm their allegations that the state's Women's Health and Wellness Act constitutes unlawful restraint on the free exercise of religion.

The act, which was signed into law in 2002, requires employers to provide insurance coverage for women's-health services, including prescription contraceptives. Although the law specifies criteria allowing certain religious organizations to exempt themselves from the requirement, this definition primarily protects churches, and not religiously affiliated charitable, educational or medical groups.

"We don't think the state has the right to define religion at all," said Dennis Poust, director of communications for New York State Catholic Conference, which represents the state's bishops. "In Catholic teaching, performing charitable works is part of our essential mission. It's Jesus' own commandment, and the church has always done that. You can't separate the church's charitable ministries from the church itself."

According to the state, it can, and it does. The law's exemption criteria specify that an organization must qualify as a nonprofit, operate with teaching religious values as its primary purpose, mostly employ persons who share those values, and serve primarily those who also share the religious tenets. Religious-based organizations, despite their affiliation with the church, fail to satisfy all these criteria, especially in that they typically employ and serve people of all faiths. The appellants allege that the criteria are unconstitutionally narrow and argue for broadening the definition of religion in the law.

"The government certainly wouldn't be violating anybody's constitutional rights if it expanded the exemption and allowed all of the plaintiff organizations to be treated as exempt under the statute," said Robert Tuttle, professor of law at George Washington University and legal analyst for the Albany-based Roundtable on Religion and Social Welfare Policy. "So, the question is whether the government's doing anything impermissible with what it has done with this more narrow definition."

It's a tough argument for religious organizations to make, Tuttle said, though not impossible.
"As a practical matter, the churches' argument seems pretty compelling because there are very limited justifications for the state not going ahead and extending the exemption to take in the other folks," he said. This is especially true because the level of harm to the state and individuals would be low, thanks in part to a rider program that allows employees of exempt organizations to purchase contraceptive insurance for a minimal monthly fee of about $1.50.

While the rider program may be a good-faith idea, JoAnn Smith, president and CEO of Family Planning Advocates, said she's hesitant to call it a workable solution. That's because employees still would have to purchase the waiver through their employer's insurance provider, potentially subjecting themselves to the scorn of an employer who openly objects to contraceptives. The rider also does not address the central purpose of ending the discrimination against women that fueled creation of the act, she said.

"[Extending the exemption] would be for the state to authorize discrimination because women of all faiths are affected by this, women of all income levels are affected by this," Smith said. "So this is very clearly a serious situation where discrimination would be institutionalized, and that would be unacceptable."

She said FPA members are confident the New York Court of Appeals will reaffirm the lower court decisions by ruling the Women's Health and Wellness Act constitutional.

A case involving similar legislation in California also establishes a degree of precedence for the New York Court of Appeals, Smith said. The First Amendment question surrounding the California law was put to rest in 2004 when the U.S. Supreme Court refused to review the state supreme court's decision that upheld the law.

"Certainly we wish it would have gone the other way," Poust said of the California case. "It would have been helpful, but we don't see that as being overly burdensome to proving our case" due to several critical differences between the two laws.

The California legislation contains no rider provision for employees of exempt religious employers. Whereas 10 plaintiffs have appealed the New York law, only Catholic Charities challenged the California version. "We also believe that New York state's constitution has stronger religious-liberty protection than California," Poust said.

Attorneys on both sides argued the New York case before the Court of Appeals last Wednesday. A decision is expected in a matter of weeks.

"I think it's a hard argument," Tuttle said of the appellants' case. "I think it's more likely that the government will win, but I think it's close."

In January, the previous appellate decision came back split three-to-two in favor of the state.

"We supported the aspects of the bill that mandated coverage for mammograms and pap smears and cancer screenings," Poust said. "What we objected to is, very simply, forcing religious institutions to pay for the contraceptive coverage. For us it's simply a religious teaching. Every religion is entitled to its teaching and should not have to be forced to violate it."