The US Court of Appeals for the Second Circuit Monday ruled that employers who oppose abortion have a right to refuse to employ people on the basis of their reproductive health decisions under the freedom of association contained in the First Amendment of the US Constitution.
The case arose over a 2019 New York law that prohibits an employer from “discriminat[ing] nor tak[ing] 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.” The statute contains no express exemptions for religious employers or small employers who object to abortions.
A lower court decision was appealed by Evergreen Association, Inc., doing business as Expectant Mothers Care and EMC FrontLine Pregnancy Centers, a nonprofit organization that has operated in New York City since 1985. Evergreen runs a network of pregnancy crisis centers and opposes abortion. Evergreen only hires employees who are against abortion and extramarital sex. In pursuit of continuing these hiring practices, Evergreen brought suit against New York, arguing that the New York law is unconstitutional because the statute violates the organization’s right to freedom of expressive association, among other things.
The court held that Evergreen “plausibly alleged that [the New York law] imposes severe burdens on Evergreen’s right to freedom of expressive association” by forcing the organization to hire employees with beliefs contrary to Evergreen’s mission. Circuit Judge Steven Menashi wrote that the district court improperly failed to review the statute under strict scrutiny and that, under strict scrutiny, the statute fails to satisfy the standard of being the least restrictive means of achieving a compelling government interest.
The case now goes back to the district court on remand to reconsider the freedom of expressive association claim.