Monday, November 1, 2021

REPRISE: Religious Institutions Must Pay Abortion Coverage in NY

In a series of posts last year, I discussed the challenge to New York's abortion insurance mandate brought by religious objectors. Led by the Roman Catholic Diocese of Albany, the challengers sought an exemption on sincere religious grounds.
In a case involving the state's regulation requiring employers to provide abortion insurance coverage, New York's highest court wouldn't even hear an appeal. In Roman Catholic Diocese of Albany v. Vullo, religious objectors--to whom abortion is, for some, the equivalent of killing a human being and, for others, akin to it--were seeking an exemption on tha basis of religious liberty. But apparently, the Judges of New York's highest court didn't even think that the fundamental right of free exercise of religion is serious enough to deserve a hearing. 

         Here is the entirety of the Court of Appeals' ruling:

On the Court's own motion, appeal dismissed, 
without costs, upon the ground that no substantial
constitutional question is directly involved.
Motion for leave to appeal denied with one hundred
dollars costs and necessary reproduction 
Chief Judge DiFiore and Judges Rivera, Stein, 
Garcia, Wilson and Feinman concur.
Judge Fahey dissents and votes to retain the appeal.
(Mo. No. 2020-549, Nov. 24, 2020) [My emphasis added.

"No substantial constitutional question." And "On the Court's own motion." It is difficult to see anything but contempt on the part of the court for sincere, central religious beliefs and for genuine claims that constitutional religious liberty is being violated. Regardless of how the court would or should ultimately have ruled after an appeal, the refusal to even hear the appeal seems inexcusable.

So, in the New York State courts:
the trial judge denied the religious objection;
the Appellate Division (the state's intermediate court) affirmed that denial;
and the Court of Appeals (the state's highest court) deemed the case unworthy to hear.

Understanding full well that a serious question of religious free exercise was in fact at issue--despite the Court of Appeals dismissive contempt--the Albany Catholic Diocese petitioned the U.S. Supreme Court for certiorari (i.e., to review the case). Moreover, numerous scholars and various religious and religious liberty organizations submitted briefs to the Court in support of the Albany Diocese's constitutional argument which New York's highest court didn't consider worthy of an appeal.

The Supreme Court today granted the Albany Diocese's petition for certiorari, summarily vacated the decision of the New York courts, and sent the case back to New York's Appellate Division for reconsideration. Here's the order:
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the Appellate
Division, Supreme Court of New York, Third Judicial Department
for further consideration in light of Fulton v. Philadelphia,
593 U. S. ___ (2021). Justice Thomas, Justice Alito, and
Justice Gorsuch would grant the petition for a writ of
The Supreme Court unanimously--that includes all three liberal justices: Breyer, Sotomayor, and Kagan--vacated the rulings of the New York courts which had denied the religious exemption to the state's abortion insurance mandate. A six-justice majority voted to summarily remand the case back to the New York courts for reconsideration. And three justices, Thomas, Alito, and Gorsuch--who have previously made clear that (Employment Division...of) Oregon v. Smith has to go--wanted the Supreme Court to proceed with a full appeal, presumably to overrule that precedent.

[N.B., Oregon v. Smith is the Supreme Court decision which, in Justice Scalia's dreadful and dishonest majority opinion--no, I'm not pulling any punches, any more than did Justice O'Connor--ruled against the religious liberty claim of The Native American Church on the truly incredible ground that any "otherwise valid law" defeats constitutional free exercise of religion. Yep, legislation defeats a fundamental constitutional right!
I've written and spoken at length about the Smith decision and its impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018)The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

The question is, what will the New York courts do with the case in light of the Supreme Court's summary vacatur? It's doubtful that the Appellate Division this time around will be so dismissive of the Albany Diocese's religious liberty claim for an exemption. It's also doubtful that the Court of Appeals this time around--however the Appellate Division rules--will treat this fundamental constitutional claim so contemptuously.

I guess we shall see.

[Disclosure: I have been assisting counsel for the Albany Diocese in this case, just as I did in Catholic Charities v. Serio (2006), involving New York's contraceptive insurance mandate.
Regardless of my strong support for the right to use contraceptives and for the right to choose, I believe that the free exercise of religion, like other fundamental constitutional rights, must not be lightly disregarded and, rather, should be limited only when actually necessary to protect important health, safety, national security, and other critical concerns. And that's hardly a unique or radical position. In fact, it is the most basic principle of constitutional law.]