Court Rules New York Labor Law Violates Pregnancy Center’s ‘Right to Expressive Association’
“The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views.”
The U.S. Court of Appeals for the Second Circuit reversed a lower court decision that dismissed a pregnancy center suit challenging Labor Law § 203-e, New York’s “Boss Bill.” The law prohibits employers from discriminating against an employee or future employee’s views on “reproductive health decision making.”
Evergreen Association, which has pro-life pregnancy centers called Expectant Mother Care and EMC FrontLine Pregnancy Centers in New York City, claimed the law “unconstitutionally burdens its right to freedom of expressive association—as guaranteed by the First and Fourteenth Amendments—by preventing it from disassociating itself from employees who seek abortions.”
Why would a pro-life pregnancy center or pro-life anything hire anyone who supports abortion? I agree with Evergreen that having an employee “undermines its anti-abortion message.”
Well, the United States District Court Northern District of New York disagreed and dismissed all claims. The court found the burden on expressive association rights as “incidental.”
The Second Court found it “severe”:
The district court here declined to apply strict scrutiny because it decided that the burden on Evergreen’s expressive association rights was incidental rather than severe. That determination was erroneous. After weighing all reasonable inferences in Evergreen’s favor, we conclude that Evergreen plausibly alleged that § 203-e imposes severe burdens on Evergreen’s right to freedom of expressive association. The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization. Evergreen alleged that it “provides counseling, education,” and “information to … women during their decision-making processes in an untimely pregnancy” and that it provides such counseling “from a life-affirming, abstinence promoting perspective only.” J. App’x 49- 50. To that end, Evergreen “hires or retains only personnel” who “effectively convey” its “mission and position regarding ‘reproductive health decisions.’” Id. at 50. 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. Evergreen has plausibly alleged that, by foreclosing Evergreen’s ability to reject employees whose actions suggest that they believe the opposite of the message it is trying to convey, § 203-e severely burdens Evergreen’s First Amendment right to freedom of expressive association.
The Second Court remanded the case to the “district court for further proceedings consistent with this opinion.”
St. Thomas More Society, which represented Evergreen Association, celebrated the news.
“A counselor who espouses pro-life values, but did not regret having had an abortion or would opt to have an abortion in the future would undercut Evergreen’s message,” said Thomas More Society Special Counsel Timothy Belz via a press release. “Evergreen’s constitutional right to expressive association allows it to determine that its pro-life views can be conveyed only by those who completely support and affirm the organization’s mission, in both word and deed.”
Belz also stressed that no one should force an organization to hire anyone with views opposite to its principles: “That would be a contradiction and expose the organization to accusations of hypocrisy. That is true across the board for all types of groups. For example, a parochial school should not be forced to employ an atheist as a teacher, and an animal shelter should not have to hire an adoption facilitator who hates dogs.”
Would Planned Parenthood hire me? No. Then again, I wouldn’t ever apply to work there.
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Comments
“The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization.”
Wow. It’s getting to be just like the middle part of “Atlas Shrugged.”
We are even having the big rail disasters.
It was fun to read that book. It is less fun to live in it.
My thoughts exactly!
They missed that the Dystopian novels are all *cautionary tales* not *how-to manuals.* Must be products of govt education.
Back under The Wan, it became all about “deals”, just like in The Big Book About Trains. Wrong so many ways it made me twitch.
To start, featuring the trading, not the agreement. Then what’s it for? Why do you expect it to work? How will we know if it isn’t, and how do we bail out or change?
We keep discovering that the whack-job dystopians didn’t go far enough. Sad.
No sense can be made of law decisions in any case, once the civil rights law banned freedom of association in general.
It ought to have banned freedom of association only in monopoly markets.
As it is, common sense has to recover freedom of association as this or that kind of exception that happens also be protected by the Constitution, e.g. religion.
While that may be legally correct, allowing businesses to advertise “No Blacks Allowed” – which is the predictable result of enforcing true freedom of association – is so far outside the Overton Window it’ll never happen.
Assumes that there was business interest in excluding blacks. The problem was that if you allowed blacks, enforcers persuaded you to change. That made it a monopoly market.
Otherwise it’s free money to the business that allows blacks.
The railroads weren’t keen at stopping trains on the Mason Dixon line and moving blacks to the back cars either.
The whole thing depended on state or private violence to keep it going.
Hiring a pro-abortionist in a female reproductive health center would be akin to housing a feminine-adjacent male with female captives, a diversitist to tend Jews in a camp, a Levine to raise boys and girls through puberty, a trans/homosexual with grooming tendencies, a Rainbow zealot in a community of albinos, a feminist/masculinist to teach women and men, etc.
That district court is an example of the politicized court system, and what President Trump has to deal with in that state.
Mommy, you know that you could have a better quality of life if you abort your child, and reproductive rites clinics will share responsibility and recycle and sequester the excess carbon in darkness at no cost to you.
However, the reproductive rites clinic will not share in any profits made by selling the parts of you baby.
Hmmm. I don’t know. This sword cuts both ways. Can Ben & Jerry’s refuse to hire someone who is pro-Israel?
Why would someone who is Pro-Israel want to work there? I don’t know. Maybe they like the ice cream.
I could imagine organizations doing deep dives into job applicant’s political views before choosing whether to hire them.
If a pro-Israel person got a job at Ben & Jerry’s would it also be ok if they change the labels on the product to say how awesome Israel is. That is what this is about. You can be a person who supports abortion “rights” and work there as long as you don’t push you opinion. That would never happen but theoretically it would be fine.
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.
I don’t know. It just seems like a slippery slope to me.
This sword cuts both ways. Can Ben & Jerry’s refuse to hire someone who is pro-Israel?
Yes. You don’t get to choose whose ox gets gored.
How many Republicans work for the New York Democratic Party ?
One can argue most of the GOPe.
Subotai Bahadur
the United States District Court Northern District of New York disagreed and dismissed all claims
Why can’t these courts be dissolved in favor of ones that actually will support the Constitution and constitutional laws? Why can’t we have some sort of consequence for these folks who are so obviously NOT interested in the actual law, but instead in their agendas?
In a similar vein:
That determination was erroneous.
No, it wasn’t. It was not a mistake, it was intentional. It wasn’t “erroneous”, it was a lie.
Why can’t we say this? Why can’t we act on it?
Then again, I wouldn’t ever apply to work there.
Unless 1) you didn’t really hold to the principles you claim, or 2) you were determined to undermine them in some way. Number 2 is why they wouldn’t risk hiring you.
PP should be required to hire pro-life counselors.
All of these religious organizations were warned decades ago about accepting government funding.