New York’s highest court refused to recognize the right of religious employers to be exempt from the state’s abortion mandate, requiring most private insurance plans to cover abortion, in a ruling handed down on Tuesday, May 21.

The New York Court of Appeals rejected the lawsuit by the Diocese of Albany and other religious groups, heard on April 16, in a unanimous decision.

“We decline to engage in a searching analysis as to whether the factors used in the ‘religious employer’ definition are the most careful and narrowly tailored as can be envisioned, as that would effectively incorporate strict scrutiny through the back door,” Chief Judge Rowan Wilson wrote, as reported by the Albany Times Union.

“We are disappointed in this ruling and believe it is wrongly decided. We continue to believe that the regulatory action by the state, as well as subsequent legislative action, requiring religious organizations to provide and pay for coverage of abortion in its employee health plans is unconstitutional and unjust,” Dennis Poust, executive director of the New York State Catholic Conference, which represents the bishops of the state in public policy matters, said in a statement.

“It will come as a surprise to exactly no one that abortion violates the tenets of the Catholic Church. By forcing this mandate on our ministries, the state has unconstitutionally entangled itself in the free exercise of our faith. We fully expect the plaintiffs ask the U.S. Supreme Court to overturn this ruling and the earlier decisions on which it is based. The Supreme Court already has vacated this New York court decision once, remanding it to be reconsidered. We are confident the Court will grant a writ of certiorari again now that the New York courts have disregarded recent Supreme Court religious liberty precedent,” Poust said. 

Governor of New York Kathy Hochul called the plaintiffs “right-wing extremists” in a statement she issued following the ruling.

“While right-wing extremists attempt to undermine our fundamental freedoms, New York will continue standing strong to protect women’s health care and safeguard abortion rights. The Court of Appeals’ unanimous ruling to uphold New York’s nation-leading regulations for insurance coverage of abortion care is a critical step towards 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,” Hochul said.

“To be clear, this case had nothing to do with the legality of abortion; it only involved the question of whether the state could force religious employers to violate the tenets of their faith by mandating coverage for abortion in employee health insurance plans,” Poust said in a further statement following Hochul’s remarks.

“Last week Governor Hochul met Pope Francis at the Vatican during a conference on the climate crisis that he hosted, and she spoke fondly of the experience. But by the Governor’s definition, Pope Francis himself would qualify as a ‘right-wing extremist’ because he does not share her views on abortion.

“Governor Hochul’s words regarding the plaintiffs are divisive and offensive. She should apologize,” Poust said.

The plaintiffs in case are: The Roman Catholic Diocese Of Albany, New York; The Roman Catholic Diocese Of Ogdensburg; Trustees Of The Diocese Of Albany; Sisterhood Of St. Mary; Catholic Charities Of The Diocese Of Brooklyn; Catholic Charities Of The Diocese Of Albany; Catholic Charities Of The Diocese Of Ogdensburg; St. Gregory The Great Roman Catholic Church Society Of Amherst, N.Y.; First Bible Baptist Church; Our Savior’s Lutheran Church, Albany, N.Y; Teresian House Nursing Home Company, Inc.; Renee Morgiewicz; and Murnane Building Contractors, Inc.

In a case that has bounced around state court for a few years, a coalition of religious groups, including Catholic women religious and dioceses and faith-based social ministries, sued New York after the state mandated they cover abortion in their employee health insurance plans in violation of their religious beliefs.

The DFS included the mandate in 2017, although abortion has been legal for decades prior.

New York legalized abortion through 24 weeks with a Republican-controlled Legislature three years before the U.S. Supreme Court’s Roe v. Wade decision (overturned in 2022) legalized it nationwide. In 2019, the state, under Gov. Andrew Cuomo and the Democratic-controlled Legislature, expanded legal abortion even further throughout the third trimester. The state’s residents are set this November to vote on a constitutional amendment that would protect abortion access by banning discrimination based on “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”

In 2017, when the state’s abortion mandate was originally proposed, the DFS promised to exempt employers with religious objections. However, the exemption was since narrowed to cover religious groups that primarily teach religion and mostly serve and hire only those who share their faith.

As a result, an exemption cannot apply to Catholic organizations such as Catholic Charities, which seek to serve all in need, regardless of faith.

In 2021, the U.S. Supreme Court vacated the rulings by New York state courts that left the mandate in place and asked them to reconsider the case in light of its ruling in Fulton v. Philadelphia. In that case, the high court ruled Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services — unless CSS agreed to certify same-sex couples as foster parents — violated the First Amendment’s free exercise clause.

The case was brought by two public-interest law firms, Jones Day and Becket Law, respectively, representing Catholic, Anglican/Episcopal, Lutheran, and Baptist religious groups.

Their brief argued, “The Abortion Mandate is not ‘generally applicable’ because it contains an express exemption for some religious organizations but not others. That exemption applies only to organizations for which ‘the purpose of the entity’ is ‘inculcation of religious values,’ and even then, only if the entity also ‘primarily employs’ and ‘primarily serves persons who share the religious tenets of the entity.'”

This exemption, the brief continued, “bears no relationship to any of the State’s purported interests in the Abortion Mandate — and the State has never argued otherwise.

“Indeed, a religious entity’s ‘purpose’ or whom the entity ‘serves’ bears no apparent link to its employees’ need for abortion services, ability to access such services without employer-sponsored coverage, or ability to compare healthcare plans that offer different scopes of coverage,” the brief stated. “To the contrary, the exemption reflects only the State’s decision that the religious beliefs of certain entities are more ‘worthy of solicitude’ than the religious beliefs of other entities.”

And that, Noel Francisco, a former U.S. solicitor general who argued the case for Jones Day, put the state in the position of deciding who is authentically religious.

“Do a pro-life Catholic and a pro-choice Catholic share the same religious tenets?” he asked the judges on April 16. Francisco said it’s “not a question this court should answer.”

He asked the court to allow religious organizations to make that decision for themselves, and allow exemptions based on the beliefs of the organization, and not on whom they employ.

Under the current rule for exemptions, Francisco argued, “the state has to engage in quantitative analysis to determine what is a religious organization.”

Laura Etlinger, an assistant solicitor general for the state, argued that the burden of the mandate “is constitutionally tolerable” if rules “are objective and uniformly applied.”

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Kurt Jensen of OSV News contributed to this story.