Religious groups are heading to the New York Court of Appeals this week to fight against a state mandate requiring all employers that offer private insurance to provide abortion coverage. 

The case, Diocese of Albany v. Harris, will be heard by the New York Court of Appeals on Tuesday in what has become a years-long legal saga as a coalition of churches, nuns, and Roman Catholic dioceses argue that a 2017 state regulation violates their religious freedom. 

As other states have implemented similar mandates, the case has national ramifications, an attorney representing the groups and senior counsel at the Becket Fund for Religious Liberty, Eric Baxter, tells the Sun. 

“The ruling here — and especially if it goes to the Supreme Court — would dictate what has to happen in all those states,” he says. 

The state mandate has a narrow religious exemption that only applies to religious entities that “stick to preaching religion” and only preach to their own members, he adds.

“If you do other things, like care for the poor or provide social services, and you provide those to people other than your own members, then you’re not covered,” Mr. Baxter says. “So it’s one of the most odious examples of the government picking favored religious groups, favoring those that are insular and only preach to their own members, and disfavoring those that are trying to reach a broader population.”

Originally, state courts upheld the mandate and the exemption but in 2021, the Supreme Court ordered the lower courts to take another look after its decision in Fulton vs. City of Philadelphia, which held that the government has to show a compelling reason to burden religious freedoms. 

“Fulton said that there’s no compelling reason if you’ve made other exceptions,” Mr. Baxter says, adding that in the New York case, there are several insurance coverage exceptions, including that some religious entities are exempt and some are not. 

“There are a lot of women who work for employers that don’t provide insurance and they’re not getting coverage, there are women who are unemployed, they’re not getting coverage,” he says. “So because the state has such a large swath of this unregulated, it can’t show that it has a compelling government interest that would allow it to burden the rights of religious institutions.”

The religious groups would “definitely” appeal the case to the United States Supreme Court if they lose at the state level, he adds. 

“We would expect that the New York court, if it does its job, will correct the decision and extend the exemption to all religious organizations,” Mr. Baxter says. If not, though, “since the Supreme Court has already indicated that it thinks the decision is wrong, we would absolutely go to the U.S. Supreme Court and anticipate winning there,” he says. 

The case echoes another years-long legal dispute when a group of nuns serving the elderly, the Little Sisters of the Poor, famously fought a rule from the Department of Health and Human Services that required employers to cover contraceptives.

Though the Supreme Court ruled in the nuns’ favor three times, New York’s abortion mandate took it “a step further,” Becket notes in a case summary. “A lot of federal courts have already indicated this as an unconstitutional exemption, but the state courts are so far rejecting that,” Mr. Baxter says. 

In New York’s case, if the religious groups don’t receive court protection, they “will either have to violate their deepest religious convictions and provide abortions, or eliminate their employees’ health insurance altogether, which would subject them to crippling fines totaling millions of dollars per year,” according to Becket. 

At the time the rules were announced in 2017, then-superintendent of Financial Services, Maria Vullo, praised the mandate as protecting access to women’s reproductive health services. 

“DFS will take all necessary actions to make sure that insurers cover abortions and contraceptives with no copayments, deductibles or any out-of-pocket costs,” Ms. Vullo said in a statement. “New York will not tolerate any impediments or impairments of women’s rights and access to reproductive health care.”

The Department of Financial Services did not immediately respond to a request for comment. 

In an amicus brief supporting the state, the New York Civil Liberties Union argues that the standards sought by the religious groups are too broad, would “open a Pandora’s Box,” and would “disincentivize the government from providing any religious exemptions.” “This case could have massive consequences for future cases regarding religious burden, and could expand the types of laws that could be challenged,” the group writes.