by Mary Chastain at legalinsurrection.com
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.