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ALBANY – The Court of Appeals upheld on Thursday 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 on 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, Third 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,” Judge 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,” Judge 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,” Judge 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 response 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,” Judge 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.” Contrasting views Women’s rights groups praised the ruling, noting that Thursday’s decision marks the third time that a New York court has rejected the claims of the plaintiffs. They were especially heartened by the fact the Court considered the reasonableness of the legislative enactment and recognized the state interest in promoting equal health care for women. “[I]t recognizes that it is wrong to discriminate against women,” said JoAnn M. Smith, president and chief executive officer of Family Planning Advocates of New York State. “That was at the core of what brought the Legislature to work on the issue, what brought the advocates together to work on the legislation. To find that reflected in a decision of the Court of Appeals was most exciting, powerful and important, not only to every women in New York State, but to every woman and family in the United States.” But Albany Law School Professor Vincent M. Bonventre said that “anyone concerned about freedom of conscience and freedom to practice one’s religion should be appalled” by the rule the Court adopted on Thursday. “Now . . . the rule is that the violation of religious free exercise is fine whenever the Legislature has some reason for the law it enacted,” Mr. Bonventre said. “Freedom of religion, which has always been considered a preferred, fundamental right, has now been reduced to a privilege which may be sacrificed whenever it gets in the way of something the Legislature has some reason for doing.” Health-related evidence Here, the Court said the Legislature considered evidence that contraceptive services promote women’s health. It cited a study indicating that unintended pregnancies are associated with delayed prenatal care and aggravation of such conditions as diabetes and arthritis. The Court also noted children born of unintended pregnancies are more likely to suffer developmental problems, and that of the 3 million unintended pregnancies recorded annually in the United States about half end in abortion. With that evidence, the Court said, the Legislature had clearly demonstrated a need for the bill that could not be overcome by the plaintiffs’ religious considerations. Richard E. Barnes, an attorney and executive director of the New York State Catholic Conference, said Thursday’s ruling could have profound implications. “In effect, the state has declared Catholic schools, hospitals and charitable agencies to be secular,” Mr. Barnes said. “Worst of all, the New York state court system has now given lawmakers carte blanche to pass laws even more offensive to religious practice. It should come as no surprise that legislation already has been introduced that would force Catholic entities to pay for employees’ abortions. Could the Court of Appeals reject such a new law in light of today’s decision?” Dennis Poust, spokesman for the Catholic Conference, said the plaintiffs in this case have been paying for contraceptive coverage under protest, and will continue to do so while considering an appeal to the U.S. Supreme Court. However, the odds of getting the matter before the justices in Washington may be slim, Mr. Poust acknowledged, since the Supreme Court has already refused to hear a California case involving the exact same provision in the New York law. The appeal was argued by Assistant Solicitor General Shaifali Puri for the state and Michael L. Costello of Tobin & Dempf in Albany for the plaintiffs. John Caher can be reached at [email protected]

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