Health Plans Must Offer Birth Control

Lawmakers crafted an exemption for those employers whose main purpose is the promotion of theological values. But they rejected a far broader 'conscience clause' that would have permitted many more employers, such as church-sponsored or affiliated schools and clinics like those involved in the case decided Thursday, to avoid the contraceptive coverage provision.

Eight affiliates of the Roman Catholic Church and two connected with the Baptist Bible Fellowship International challenged the contraceptive provision and the narrow exclusion. They argued that the act placed them in the morally untenable position of either paying for contraception, which is repugnant to their religious beliefs, or denying their employees what they view as a basic human right to just compensation and benefits.

But the Court of Appeals, in a 6-0 affirmance of a 3-2 opinion from the Appellate Division, 3rd Department, upheld the provision.

Non-Believers Affected

Writing for the court, Judge Robert S. Smith said that while the Women's Health and Wellness Act places a substantial burden on the plaintiffs' religious practices, that burden does not rise to a constitutional violation.

'The burden the [act] places on plaintiffs' religious practices is a serious one, but the [act] does not literally compel them to purchase contraceptive coverage for their employees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives,' Smith wrote.

The decision was apparently influenced by the fact that the plaintiffs hire people of various faiths.

'[W]hen a religious organization chooses to hire non-believers it must … be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit,' Smith wrote. 'This would be a more difficult case if plaintiffs had chosen to hire only people who share their belief in the sinfulness of contraception.'

Much of the decision, however, focused on the reasonableness of the legislative mandate, and whether an individual or organization can avoid on religious grounds a neutral and generally applicable law.

Deference to Legislature

In previous free exercise cases, the court had not made clear 'how much, if any, deference we will give to the judgments of the Legislature when the result of those judgments is to burden the exercise of religion.' Thursday's decision gave the Legislature wide berth.

'We now hold that substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation … is an unreasonable interference with religious freedom,' Smith wrote. Critically, the court said it will not hold the state to a strict scrutiny standard when it defends its enactments against claims of religious interference.

'Where the state has not set out to burden religious exercise, but seeks only to advance, in a neutral way, a legitimate object of legislation, we do not read the New York Free Exercise Clause to require the State to demonstrate a 'compelling' interest in re-sponse to every claim by a religious believer to an exemption from the law; such a rule of constitutional law would give too little respect to legislative prerogatives, and would create too great an obstacle to efficient government,' Smith wrote.

The court said the rule adopted by the U.S. Supreme Court in Smith ' that citizens must abide by generally applicable and neutral laws even if offensive to their religious beliefs ' is generally a good one.

But while the Smith court seemed to leave no leeway, the Court of Appeals said that if a citizen can meet the high burden of showing that a law unreasonably interferes with religious practice, he or she may be able to avoid a neutral and general law. It added that the burden 'should not be impossible to overcome.'

John Caher is a reporter for the New York Law Journal, a sister publication of this newsletter.

As goes New York, so goes the nation? Last month, the New York Court of Appeals upheld the constitutionality of a women's health act that pressures some religious-affiliated employers to either offer their employees a prescription plan that includes contraceptive coverage, or deny their workers any drug coverage at all.

In Catholic Charities of the Diocese of Albany v. Serio, 110, the court rejected the claims of 10 faith-based organizations and refused to exempt them from a key provision in the Women's Health and Wellness Act. The ruling makes it difficult, but not impossible, for an individual or group to avoid on religious grounds a neutral law of general application. But the judges also explicitly refused to narrow the Free Exercise Clause in the state Constitution to conform with the U.S. Supreme Court's interpretation of the Establishment Clause in Employment Division v. Smith , 494 US 872 (1990). They insisted that the rule they adopted, while deferential to the Legislature and weighted toward 'efficient government,' is 'more protective of religious exercise' than the one embraced in Smith. That, experts said, remains to be seen.

At issue in this appeal is an election-year compromise bill, the Women's Health and Wellness Act of 2002, mandating expanded health insurance coverage. The act requires coverage of such services as mammography, bone density screening and cervical cytology. It also requires employers who choose to provide prescription drug coverage to offer a plan that covers contraceptives.

Lawmakers crafted an exemption for those employers whose main purpose is the promotion of theological values. But they rejected a far broader 'conscience clause' that would have permitted many more employers, such as church-sponsored or affiliated schools and clinics like those involved in the case decided Thursday, to avoid the contraceptive coverage provision.

Eight affiliates of the Roman Catholic Church and two connected with the Baptist Bible Fellowship International challenged the contraceptive provision and the narrow exclusion. They argued that the act placed them in the morally untenable position of either paying for contraception, which is repugnant to their religious beliefs, or denying their employees what they view as a basic human right to just compensation and benefits.

But the Court of Appeals, in a 6-0 affirmance of a 3-2 opinion from the Appellate Division, 3rd Department, upheld the provision.

Non-Believers Affected

Writing for the court, Judge Robert S. Smith said that while the Women's Health and Wellness Act places a substantial burden on the plaintiffs' religious practices, that burden does not rise to a constitutional violation.

'The burden the [act] places on plaintiffs' religious practices is a serious one, but the [act] does not literally compel them to purchase contraceptive coverage for their employees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives,' Smith wrote.

The decision was apparently influenced by the fact that the plaintiffs hire people of various faiths.

'[W]hen a religious organization chooses to hire non-believers it must … be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit,' Smith wrote. 'This would be a more difficult case if plaintiffs had chosen to hire only people who share their belief in the sinfulness of contraception.'

Much of the decision, however, focused on the reasonableness of the legislative mandate, and whether an individual or organization can avoid on religious grounds a neutral and generally applicable law.

Deference to Legislature

In previous free exercise cases, the court had not made clear 'how much, if any, deference we will give to the judgments of the Legislature when the result of those judgments is to burden the exercise of religion.' Thursday's decision gave the Legislature wide berth.

'We now hold that substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation … is an unreasonable interference with religious freedom,' Smith wrote. Critically, the court said it will not hold the state to a strict scrutiny standard when it defends its enactments against claims of religious interference.

'Where the state has not set out to burden religious exercise, but seeks only to advance, in a neutral way, a legitimate object of legislation, we do not read the New York Free Exercise Clause to require the State to demonstrate a 'compelling' interest in re-sponse to every claim by a religious believer to an exemption from the law; such a rule of constitutional law would give too little respect to legislative prerogatives, and would create too great an obstacle to efficient government,' Smith wrote.

The court said the rule adopted by the U.S. Supreme Court in Smith ' that citizens must abide by generally applicable and neutral laws even if offensive to their religious beliefs ' is generally a good one.

But while the Smith court seemed to leave no leeway, the Court of Appeals said that if a citizen can meet the high burden of showing that a law unreasonably interferes with religious practice, he or she may be able to avoid a neutral and general law. It added that the burden 'should not be impossible to overcome.'

John Caher is a reporter for the New York Law Journal, a sister publication of this newsletter.