The Corner

Health Care

New NY Law Forbids Religious Employers from Firing for Abortion

St. Patrick’s Cathedral in New York City (Photo: William Perry/Dreamstime)

With the Trump Administration supportive of religious liberty, the attacks against free exercise are currently coming from politically progressive states. New York just enacted a law that forbids any employer from punishing an employee for any reproductive health-care medical decision and specifically allows an employee to sue if he or she believes they have been so sanctioned. From S 660 (my emphasis):

2. An employer shall not:(a) discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision making, including, but not limited to, a decision to use or access a particular drug, device or medical service; or (b) require an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.

The law also forces speech by requiring employee handbooks to inform employee of their rights under this law:

An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section.

Here’s the problem. Whatever one might think of such a law applying to secular employers, it contains no exceptions or exemptions for churches, seminaries, religious organizations, or faith-based institution employers.

This would seem to literally mean that, say, the Catholic Archdiocese of New York is legally required to inform employees they have the right to act as they choose with regard to issues such as birth control, abortion, or sterilization surgery — and moreover, tell such employees that they can so act openly even though contrary to the faith without fear of subsequent job consequence. Or, as another example, a visibly pregnant teacher at a Catholic school could obtain an abortion, and the school would be prevented from taking any remedial action regarding her employment under threat of litigation.

Does the law violate the First Amendment? Maybe. The Supreme Court overturned a California law that required pregnancy counseling centers to publicize where to find information about abortions. Similarly, a Lutheran school was protected against being sued after a disabled teacher was fired, based on the right of churches to hire their own “ministers.”

But, maybe not. The Lutheran school case is certainly limited. Moreover, the First Amendment does not necessarily apply to laws of general applicability even if it forces some to violate their religious beliefs. The Religious Freedom Restoration Act — which protected Hobby Lobby from Obamacare regulations that infringed the owners’ religious beliefs — only applies to federal law unless a state has an RFRA of its own.

Either way, litigating the case would be time consuming, expensive, uncertain as to outcome, and probably subject the resisting religious employer to adverse publicity and resulting social persecution.

Laws such as this are not going to be limited to reproductive issues but eventually will also be passed regarding other individual behaviors as they may conflict with the moral teaching and dogmas of religious employers.

This much is clear: Progressives intend to shatter religious liberty as it applies in the public square, shriveling the First Amendment’s guarantee to a mere freedom of worship. For example, a California Court of Appeals is allowing a Catholic hospital to be sued for discrimination after administrators refused to permit a transgender hysterectomy on premises.

If they ever retake the national government, federal power will be harnessed toward attaining the same end. At the risk of echoing our friend Rod Dreher, religious organizations would be wise to start planning their responses now. Because the whirlwind is coming.

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