FPA in the News: 2006

The Times Union

“Birth Control Suit Tests Court: Religious Groups Argue They Should Not Have to Provide State-Mandated Contraceptive Coverage”

By: Michele Morgan Bolton

9.7.06

ALBANY -- Should religion-based organizations that serve all people have to abide by a law that they say forces them to sin?

Lawyers argued this state health insurance dilemma on Wednesday before the state Court of Appeals, observed by a crowded gallery that included clergy on both sides of the debate.

The Women's Health and Wellness Act of 2003 requires employers that provide group insurance coverage for prescription drugs to include coverage for prescription contraceptives.

Catholic Charities of Albany and others who brought the lawsuit against the state Insurance Department say the religious exemption for those, like seminaries, that employ people who share their organizations' faith-based beliefs is unconstitutional.

"This is an issue of historic consequences for religious liberty," said their lawyer, Albany attorney Michael Costello.

Lawyers for the state, including Assistant Solicitor General Shaifali Puri and those from the American and New York Civil Liberties Unions, argued that the law promotes women's health and is an important step toward ending gender discrimination in insurance coverage.

During a fast-paced debate in which both sides and the judges weighed in, Costello asked the seven-member court, the highest in the state, to issue an injunction that would release the religiously affiliated groups from compliance.

By their actions, the employees spread "the Gospel message," Costello said. "We preach the Gospel at all times and use words when necessary."

"You can judiciously craft an appropriate exemption," he told the judges. "You can either expand it or declare the exemption unconstitutional."

"Aren't you entangling us in those tenets?" asked Chief Judge Judith S. Kaye.

No, Costello said. There are precedents, including Human Rights Law, where the Legislature provided broad-based exemptions. "But this is the first time it has established a notion of what it means to be a religious employer," Costello said. "They've crossed the line here in an unconstitutional way."

"You want us to rewrite the statute to expand the exemption?"  Associate Judge Carmen Ciparick asked.

"The court has the right to expand the statute," Costello said.

"And how is that done, precisely?" Kaye said.

By expanding the religious exemption to include groups like Catholic Charities, he replied.

Associate Judge Albert Rosenblatt asked, though, where the line is drawn.

"Presuming the Legislature drew the lines with some intelligent basis, what about associations of Catholic restaurant owners or hotel owners or police officers and right down the line?" he asked. "Where does it end?"

In her argument, Puri said lawmakers who spent four years from introduction to inclusion of the women's health act were responsive to the clear and abundant evidence that the law, modeled on California legislation, helps women.

"It is a women's health issue," she said.

The New York State Catholic Conference, which advocates for the state's bishops, has said the law attempts to destroy the church's network of social services, hospitals, nursing homes and schools.

The conference also maintains that the law is a means of mandating coverage for abortion.

"Are abortion and contraception really distinguishable at all?" pressed Judge Robert Smith.

As a matter of religious doctrine, Puri said, the cases would raise the same legal questions. There is certainly evidence to indicate, however, that abortion and contraception are different, she said.

"Do we really serve as a superlegislature?" Smith continued, questioning the court's eventual role."

You do have to defer to the Legislature, your honor," Puri replied, stressing how the exemption was not constitutionally compelled.

Even if religiously affiliated organizations allowed employees to purchase contraception through a rider on their insurance policies, it would still be discrimination, the law's advocates said.

After the hourlong court proceeding, Rabbi Dennis S. Ross, director of Concerned Clergy for Choice, said the state law leaves the private decision of whether to use contraception to the individual, where it

belongs: "Any faith-based impairment of that right interferes with an employee's religious freedom."

Dennis Poust, a spokesman for the Catholic Conference, said he's confident the court will uphold the church's position. "This is about whether the state has a right to narrowly define what is and is not religion."

Joann Smith, president and CEO of Family Planning Advocates of New York State, said, "We are confident the Court of Appeals will affirm the lower courts' rulings."

Services offered by Catholic Charities and other groups in question are primarily funded by the government, said George Washington University professor Robert Tuttle, co-director for legal research for the Rockefeller Institute's Roundtable on Religion and Social Welfare.

So, he said, it will be tough to persuade the court that being excluded from the exemption is an impermissible discrimination against religious groups.

But if the court buys the argument that the state constitution protects the rights of religious institutions more than the federal constitution, "that gives the churches a chance," he said.

On the other hand, Tuttle said, "if it would have been legally permissible to provide no exemption, are you going to punish the state for not being as generous as possible? The churches have a pretty heavy burden" to prove their case.

"It's very hard to tell how a case will go, but my guess is the court will rule against the churches. But it's a close call."

A decision should be rendered in about a month.