[Crossposted to my Vox blog.]
It’s been a while since I’ve heard good news on the reproductive rights front – it’s been abortion bans and “conscience clauses” for so long.
Yesterday the New York Court of Appeals issued a decision in Catholic Charities of the Diocese of Albany v. Serio upholding a provision of the Women’s Health and Wellness Act which requires all but a narrowly defined category of religious institutions to provide insurance coverage for contraception if they provide prescription drug coverage.
It should be noted that some religious entities can exempt themselves from this requirement, if they meet the following criteria:
(a) The inculcation of religious values is the purpose of the entity.
(b) The entity primarily employs persons who share the religious tenets of the entity.
(c) The entity serves primarily persons who share the religious tenets of the entity.
(d) The entity is a nonprofit organization as described in Section 6033 (a) (2) (A) i or iii, of the Internal Revenue Code of 1986, as amended.
(That last provision means that the entity qualifies as a church or religious order under the federal tax code.)
What the WHWA does not exempt are religious organizations engaging in fundamentally non-religious activities that wish to use their clout to deny contraception to nonreligious employees:
It is also important, in our view, that many of plaintiffs’ employees do not share their religious beliefs. (Most of the plaintiffs allege that they hire many people of other faiths; no plaintiff has presented evidence that it does not do so.) The employment relationship is a frequent subject of legislation, and when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.
They actually recognize that everyone has beliefs, not just the anti-choicers!
Finally, we must weigh against plaintiffs’ interest in adhering to the tenets of their faith the State’s substantial interest in fostering equality between the sexes, and in providing women with better health care. The Legislature had extensive evidence before it that the absence of contraceptive coverage for many women was seriously interfering with both of these important goals. The Legislature decided that to grant the broad religious exemption that plaintiffs seek would leave too many women outside the statute, a decision entitled to deference from the courts.
Finally, this shouldn’t need pointing out, but even if you take the idea of “judicial activism” as a bad thing seriously, this is not a case of “judicial activism,” but of enforcement of legislation. It is the religious organizations who wish to deny contraception coverage to their employees who are petitioning for a duly enacted law to be overturned.