Court Setback for NY Pro-Lifers

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by Kristine Christlieb  •  ChurchMilitant.com  •  June 16, 2020   

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ALBANY, N.Y. (ChurchMilitant.com) - A New York judge is upholding a substantive portion of a state labor law that bars pro-life employers from "discriminating" against employees' "reproductive health care choices" — including abortion. The ruling forces faith-based groups to retain staff who promote health care values that directly violate the employers' core values and mission.

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U.S. District Judge Thomas J. McAvoy

According to the court decision earlier this month, if an individual applies for employment but holds a position on health care that violates a would-be employer's religious or moral convictions, the individual cannot be discriminated against: Employers can be compelled to hire such applicants, and they are prohibited from dismissing them.

Three pro-life organizations — CompassCare, The National Institute of Family and Life Advocates and First Bible Baptist Church of Hilton, New York — sued the state of New York, questioning the constitutionality of the law.

The legislation in question added a new component, Section 203-e, to New York state's labor law. The legislation passed the New York Legislature in January 2019 and was signed into law in November 2019 with the provision that it would take effect immediately. 

A New York firm specializing in labor law noted that the legislation came less than one year after the New York City Council added "sexual and other reproductive health decisions" to the list of protected categories under the New York City Human Rights Law. This statewide measure is likely a response to the federal government's efforts to increasingly regulate this area.

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In other words, the legislation is part of the Left's commitment to fight any regulation of the abortion industry, regardless of how many women may suffer injury or how many innocents are slaughtered. Fueling abortion is the motive behind all the legislative maneuvering.

'Adverse Effects' Claimed by Pro-Lifers

According to the judge's decision, employers "allege that the statute in question will have an adverse effect on their ability to operate for their intended purposes and will restrict their freedom of speech." For example, it will force the organizations to "associate with employees who do not share" their values and permit them to serve "as their messenger to third parties." 

The law also inhibits faith-based organizations' ability to recruit new employees.

The law also inhibits faith-based organizations' ability to recruit new employees, they argue, since they face "uncertainties surrounding how to find, recruit and hire new employees consistent with their pro-life and religious missions." Since reinstatement is one of the remedies permitted in the law, faith organizations would not be able to avoid employees who act contrary to their beliefs.

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Kevin Theriot

All the organizations involved in the lawsuit claim that if they were required to "hire and employ those who have abortions, use abortifacient drugs, or flout their beliefs regarding sexual morality, it would have a negative effect on their fundraising."

Analysis of the Decision

Kevin Theriot, an attorney for Alliance Defending Freedom (a legal defense organization), is assisting the plaintiffs in their action against the state of New York. He tells Church Militant that U.S. District Judge Thomas J. McAvoy is a Republican appointee who "is trying to be fair."

On one hand, McAvoy ruled that he could not issue a preliminary injunction because the plaintiffs had not shown irreparable harm, a requirement for a preliminary injunction. He also did not see that the law was too vague; nor did he believe the law limited the plaintiffs' freedom of expression.

McAvoy did, however, find that a portion of the law amounts to unconstitutional compelled speech and rejected its enforcement. The law required organizations with employee handbooks to provide notice that discrimination on the basis of reproductive health care choices was illegal. McAvoy said that part of the law was unconstitutional:

The notice directed by the statute is language that the plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of "reproductive decision making" undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control and conduct their sexual lives according to the standards plaintiffs claim the Bible sets out.

While the language in Section 203-e's notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available and does not direct anyone to use birth control, the Court finds that the statute compels defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. 

Theriot told Church Militant that an appeal of the ruling is being considered.

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