New York Court of Appeals Rules on Contraception Case

Seeking to advance women’s health and their overall treatment on terms equal to men, the New York Legislature in 2002 enacted the Women’s Health and Wellness Act (WHWA). WHWA’s most controversial provision amended the state’s insurance laws: requiring that any employer health plan “which provides coverage for prescription drugs shall include coverage for the cost of contraceptive drugs or devices.” 

Plaintiffs in Catholic Charities of Diocese of Albany v. Serio were ten “faith-based social service organizations,” eight of which were affiliated in some way with the Roman Catholic Church and two affiliated with the Baptist Bible Fellowship. All had purchased health insurance for their employees and these plans included prescription drugs. The problem, as the New York Court of Appeals described it, was that “[p]laintiffs believe contraception to be sinful, and assert that the challenged provisions of the WHWA compel them to violate their religious tenets by financing conduct that they condemn.” 

“At the heart of this case”, the court wrote, is WHWA’s exemption for “religious employers.” An employer may request an insurance contract “without coverage for... contraceptive methods that are contrary to the religious employer’s religious tenets.” Wherever such a request is granted, the insurance carrier must “offer coverage for contraception to individual employees, who may purchase it at their own expense ‘at the prevailing small group community rate.’”

WHWA stipulated a four-part test for this exemption. The criteria were carefully crafted to exclude all educational, health, and social service agencies, even those operated by the church itself. In order to qualify, an organization would have to have as its purpose the “inculcation of religious values.” It would also have to employ as well as serve “primarily” members of the sponsoring organization’s faith. In effect, the only “religious employers” who qualify for this exemption would be religious congregations themselves — churches, synagogues and the like. The stated reason for the narrow exclusion was the following: in the legislators’ judgment, too many female employees would otherwise be left outside the must-carry provision of WHWA. 

Plaintiffs in Serio asserted that the exemption was unconstitutionally narrow. They did not challenge the law facially, but instead said it was unenforceable as applied to them. The stated reason for their concern was simple: legally, they retained the option of foregoing prescription drug insurance altogether; morally, however, they judged that option to be inconsistent with their duty to provide a just wage. The court did not question the sincerity of this claim, or of the plaintiffs’ conviction that contraception is wrong, or the centrality of these beliefs to their faiths. 

The court of appeals nonetheless upheld the law against federal and state Free Exercise challenges, and also against federal Establishment Clause attack. There were no dissents or concurrences; one judge did not participate. The result in Serio is the same as that reached by the California Supreme Court upholding a nearly identical statute.¹ The U.S. Supreme Court denied review of that case.² 

The New York court decided both federal challenges speedily, on the basis of U.S. Supreme Court precedent. In these parts of its opinion the court of appeals gave almost no credence to the plaintiffs’ arguments and, in fact, made new law on the state Free Exercise claim. It is this part of the opinion which is likely to be critically engaged by commentators and other courts alike.

On the Establishment Clause: The plaintiffs asserted that the exemption provision was an invalid discrimination between (as the Court of Appeals phrased it)) “religious organizations that are exempt from the contraception requirements and those that are not.” As the court recognized, the “clearest command” of the Establishment Clause is that “one religious denomination cannot be officially preferred over another” (citing the Supreme Court’s holding in Larson v. Valente, 456 U.S. 228 (1982)). 

The New York court rejected the discrimination analogy, saying that the plaintiffs’ claim was “without merit.” The court dismissed any possibility that WHWA was aimed at Catholics or Baptists. The law instead drew a distinction based upon the “nature of [the denominations’] activities.” The court further observed that the plaintiffs’ theory of Larson “would call into question” any attempt to define an exemption for religious organizations from a generally applicable law. 

Whether or not the court of appeals arrived at the right answer, the question is more difficult than it allowed. The New York legislature wanted to have some exemptions, but not too many: “[t]he Legislature decided that to grant the broad exemption that plaintiffs seek would leave too many women outside the statute.” This desire was the wellspring of the precise exemption it recognized. The statutory definition did not spring, in other words, from some conventional definition or internal logic of churches or religion.

Nor was the statutory definition explainable according to the problem which the exemption provision addressed. The plaintiffs’ convictions do not vary with the size or diversity of their clientele. A Catholic hospital is a Catholic hospital independent of who occupies its beds. The need for the exemption, and thus the reason for having any exemptions at all apply all the same to churches, hospitals and social service agencies. It was, then, a wholly extrinsic factor — the “wellspring” desire to limit the number of women employees affected — which produced the exemption in WHWA. 

Even so, the “clearest command” of the Establishment Clause would prohibit achieving the desired goal by discriminatory or arbitrary means. The legislature could not say that only “small” churches or churches outside New York City or every third church in the state directory qualified for the exemption, because that would yield the right number of exemptions. The “clearest command” of the Establishment Clause could actually present the legislature with a hard choice, that between a non-discriminatory definition which yielded too many exemptions, and no exemption at all. 

On the federal Free Exercise Clause: The New York court applied the U.S. Supreme Court’s controlling precedent of Oregon v. Smith.³ Smith was a watershed case. In it the Supreme Court held 5-4 that the Free Exercise Clause did not authorize the judiciary to craft exemptions from “neutral” legal regulations for religious conscientious objectors. The New York court quoted Smith: “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”⁴  

It is important to note that Smith had entirely to do with courts’ power under the federal Constitution. Nothing in Smith or in any case since casts doubt upon courts’ authority to enforce exemptions from general laws, such as the exemption put into WHWA by the New York legislature. Much less has any Free Exercise case since Smith cast doubt upon legislators’ authority to craft exemptions. 

The doubt about exemptions stems instead from confusion in Establishment Clause jurisprudence. The uncertainty has nothing to do with the sect-neutrality requirement of Larson. It has long been universally agreed that no law — even one setting out an exemption — may intentionally discriminate among religions. The real problem owes to a more secularized interpretation of the Establishment Clause, a reading supported by holdings of the U.S. Supreme Court to the effect that no law may “endorse” religion or favor it in any way when compared to non-religion. 

This extraordinary sort of “neutrality” would imperil any exemption limited to those who are “religious,” no matter how generously that class was defined. Fortunately, this peril was laid to rest by the Supreme Court in the 2005 case of Cutter v. Wilkinson.⁵ There the Court affirmed that even where Free Exercise did not require an exemption, the Establishment Clause permitted accommodations which do not “come packaged with benefits to secular entities.”⁶

On the state Free Exercise Claim: New York’s Constitution provides that the “free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind.”7 The court of appeals declined to follow the “inflexible rule” of Smith in its interpretation of the state clause. The court articulated a rule more protective of believers than Smith, but less protective than that of some states (and, for that matter, of some federal legislation). This latter rule would invalidate any burden save where it was necessary to a compelling state interest. The Serio court rejected it: “such a rule of constitutional law would give too little respect to legislative prerogatives, and would create too great an obstacle to efficient government.” A more forgiving and flexible rule was needed.

The court of appeals adopted a “balancing” test, with a “deference” kicker: 

“[W]e have held....that we must consider the interest advanced by the legislation that imposes the burden, and that the respective interests must be balanced to determine whether the incidental burdening is justified.… We now hold that substantial deference is due to the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom” (internal quotation marks and citation omitted).

The court of appeals had no difficulty finding that the plaintiffs’ interest in their moral integrity was outweighed by the state’s “substantial” interest in fostering equality between the sexes and in providing better healthcare for women. 

The court hastened to make clear that its deferential standard and easy application of it to the case at hand did not signal that its review was toothless. The court asserted that several hypothetical scenarios— including one in which a priest is made to testify about confessional confidences—were “well beyond the bounds of constitutional acceptability.”

Critics of Serio argue that the real challenge, however, is not to hypothesize conclusions, but instead show that the conclusions result from the impartial application of norms grounded in reasons. In other words, the challenge is to show that more than judicial predilections are at work. 

*Gerard Bradley is a professor of law at Notre Dame University

 

Endnotes

1 See Catholic Charities of Sacramento, Inc., v. Superior Court, 32 Cal. 4th 527, 85 P. 3d 67 (2004). 

2 See 543 U.S. 816 (2204). 

3 494 U.S. 872 (1990). 

4 Id. at 879 (internal quotation marks omitted). 

5 544 U.S. 709 (2005). 

6 544 U.S. at 724 (quoting Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987).. 7 N.Y. Const. Art. I, sect. 3.

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