This is a victory for civil liberties against a state government that is intolerant of pro-life dissent.
New York State’s ongoing war against crisis pregnancy centers just ran into an opponent that can’t be bullied: the Constitution. Unfortunately, it took three years for the crisis pregnancy centers to get a favorable ruling from the Manhattan-based United States Court of Appeals for the Second Circuit — and the lawsuit may not be over.
At issue is New York’s “Boss Bill” passed in 2019, Labor Law § 203-e, which forbids discrimination against employees “because of or on the basis of the employee’s or dependent’s reproductive health decision making,” a definition plainly intended to cover abortions. It allows civil damages suits. The Evergreen Association, Inc., which has run pro-life crisis pregnancy centers in New York City since 1985 under the names of Expectant Mother Care and EMC FrontLine Pregnancy Centers, filed suit in January 2020 against the enforcement of the law.
Evergreen is against abortions; its centers provide ultrasounds, adoption information, and counseling. It wishes to employ only pro-lifers and to say so openly in interviews and job advertisements and “will not hire or retain employees who violate its policies against procuring abortions or engaging in extramarital sexual relations” on the grounds that they will not credibly represent the organization. It argues that compelling it to employ people who don’t believe in its mission violates its freedom of association, a right the Supreme Court has long found to be an essential and traditional component of the explicitly protected rights of free speech, freedom of religion, and freedom of assembly and petition.
Unfortunately, the federal district judge in upstate New York (Thomas McAvoy, a Reagan appointee) gave Evergreen’s lawsuit the back of his hand, applying only the lowest standard — rational basis review — to a claim of violations of fundamental constitutional rights, even though the Second Circuit had ruled months earlier that freedom of association claims are subject to the highest standard of review, strict scrutiny. Judge McAvoy found that the law imposed only “incidental limitations on the Plaintiffs’ associational rights” because it only presented a “danger that others could call the Plaintiffs hypocrites . . . given the way that our political discourse currently works, such allegations are surely a feature of advocacy in the highly charged area in which the Plaintiffs engage.”
Evergreen appealed, and the case was argued in November 2021. It wasn’t until Monday that a three-judge panel of the Second Circuit rule unanimously in favor of Evergreen. The opinion in Slattery v. Hochul was written by Judge Stephen Menashi and joined by judges Michael Park and William Nardini — all Trump appointees. The court concluded that strict scrutiny applies and that — at least based on the facts alleged in the complaint — New York’s law failed that stringent test.
The court noted the crucial importance to an advocacy organization of the right to employ people that agree with its aims — an interest that goes far beyond questions of hypocrisy to matters of trust and sincere pursuit of the group’s goals:
The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization . . . The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views. To decide whether someone holds certain views—and therefore would be a reliable advocate—Evergreen asks whether that person has engaged or will engage in conduct antithetical to those views.
The idea that an organization could effectively warn the public that it was simply forced by the government to employ people who didn’t share its views:
could always justify a state’s forcing an association to accept members it does not desire…The right of Evergreen to choose those who promote its views is not protected by the First Amendment simply because it ‘communicates’ a message, but because an expressive association’s membership and leadership is integral to its ability to play an important role in nurturing the freedom of speech . . . For an expressive association that opposes certain conduct, the government’s general interest in bolstering the legal right to engage in that conduct gives way to the freedom of those in the association to join together to express a different view. Here, Evergreen has a right to limit its employees to people who share its views and will effectively convey its message. (Citations and quotations omitted).
Judge Menashi noted that even if it could be said that the government has a compelling interest in preventing discrimination against women who have abortions or men who obtain them for others — a point the court assumed for the sake of argument without deciding — it still must show that it has chosen the least burdensome and restrictive of ends.
But here, the burden on Evergreen is much higher than the burden on the potential employee:
The state’s interest cannot overcome the expressive association right of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion. But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association. It would be difficult,” to say the least, for an organization “to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct. Evergreen’s beliefs about the morality of abortion are its defining values; forcing it to accept as members those who engage in or approve of [that] conduct would cause the group as it currently identifies itself to cease to exist. (Citations and quotations omitted).
This is a signal victory for civil liberties against a state government that is intolerant of dissent and has sought multiple avenues to prevent women from being offered any choice besides the state’s favored choice — abortion. New York is entirely on board with the “Don’t Say Baby” campaign. It seems unlikely that Kathy Hochul will try to appeal this ruling to the Supreme Court.
The case does not end here. The court noted that it typically prefers to let a full discovery record decide the ultimate question of the burden on freedom of association. However, strict scrutiny and the court’s reasoning suggest New York has a high hurdle to clear.