(OSV News) — A federal appeals court on January 2 revived a challenge to a New York state law that opponents alleged violates the hiring practices of churches and pro-life pregnancy centers.
The law broadly proscribes “discrimination based on an employee’s or a dependent’s reproductive health decision-making.” It bars employers from accessing this personal information, from requiring employees to sign documents or waivers that deny “the right to make their own reproductive health care decisions,” and from taking any retaliatory employment action in response to those reproductive health decisions.
Supporters of the provision of the New York employment law, sometimes called the “Boss Bill,” which prohibits workplace discrimination based on employees’ positions on abortion, argue it prohibits retaliation against employees who have had abortions.
However, opponents, such as CompassCare, a network of faith-based pregnancy centers with limited medical services across New York, argue it infringes on their ability to hire employees who agree with their core mission.
Court documents noted that CompassCare “requires that all staff members ‘know Jesus Christ as their Lord and Savior … support CompassCare’s religious mission, … personally conduct themselves consistent(ly) with the Christian faith,’ and ‘believe in and agree to abide by its positional statements on abortion, birth control, religious faith, and organizational principles.'” It noted that CompassCare stated it “‘requires such assent because it believes that by associating with like-minded individuals, it will be able to spread an authentic message of love and hope that will be received more readily by patients, which will ultimately save more lives and reduce the perceived need for abortion.'”
The unanimous three-judge panel of the Manhattan-based 2nd U.S. Circuit Court of Appeals said in its 43-page ruling that the plaintiffs — which also include the National Institute of Family and Life Advocates, and First Bible Baptist Church — would be able to proceed with their challenge to the 2019 state law.
The panel rejected the plaintiffs’ argument that the law infringed upon their constitutionally protected rights to free speech and free exercise of religion. However the panel noted that First Amendment jurisprudence also protects the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
However, the court noted that the Supreme Court’s “expressive-association decisions” deal with voluntary associations.
“The Supreme Court has never explicitly addressed whether, and to what extent, an employer has a right of expressive association with respect to its paid employees,” it stated.
The appellate ruling directed a lower court to examine the merit of each group’s claims based on expressive association to determine whether “the very mission of its organization” was threatened. It emphasized the outcomes for each organization may be different.
A spokesperson for Governor Kathy Hochul, D-N.Y., did not immediately respond to a request for comment.
Alliance Defending Freedom attorneys representing the plaintiffs argued that the law could force faith-based pregnancy care centers and other religious nonprofits to undermine their own beliefs about abortion by hiring those who do not share them.
“Our nation has long respected the rights of religious organizations to associate with like-minded believers, and the court’s decision rightly reinstates our clients’ claim seeking to affirm that this right protects employment practices affecting the groups’ mission,” Kevin Theriot, senior counsel at ADF, said in a statement. “Religious employers are free to hire individuals who share their core beliefs, and no government can force faith-based organizations to contradict those convictions.”
Theriot argued the appellate court “was right to revive this challenge, allowing our clients the opportunity to defend their constitutionally protected freedom to join with others and express what they believe without fear of government punishment or coercion.”
The case is CompassCare v. Hochul.
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Kate Scanlon is a national reporter for OSV News covering Washington. Follow her on X.