Can Anti-Abortion Organizations Discriminate Against Employees Based on Reproductive Healthcare Decisions?
Last year, I wrote about a case challenging New York’s reproductive healthcare nondiscrimination bill on First Amendment freedom of speech grounds. Now, in a related case, the Second Circuit recently held that the law may violate the right to freedom of “expressive association” for certain anti-abortion employers.
The law in question provides that employers may not retaliate against an employee because of their reproductive healthcare decisions, including making the decision to take birth control or to obtain an abortion (the decision to become and remain pregnant is already protected as pregnancy discrimination). Furthermore, the law forbids employers from looking into a patient’s private health records to learn about their reproductive health choices. Finally, the law requires that employers’ handbooks inform employees of their rights to be free from discrimination on the basis of their reproductive healthcare decisions.
Thereafter, a number of anti-abortion organizations initiated suit. Last year, I wrote about one such suit in the Northern District of New York, NIFLA v. Cuomo, brought by an anti-abortion counseling organization (sometimes referred to as “crisis pregnancy center,” wherein employees try to dissuade pregnant people from obtaining an abortion) that argued that, because the organization opposes abortion and requires all of its employees to state their opposition to abortion, contraception, and extra-marital sex, forcing the organization to then tell employees that they have the right to not be fired for doing those things violated their freedom of speech. As the court wrote at the time, given NIFLA’s anti-abortion and anti-contraception mission statement, “any statement about women’s right to autonomy about reproductive health decision-making is contrary to the message that Plaintiffs wish to promote about biblical values and sexuality.” (emphasis added). The court dismissed the remainder of the lawsuit, seeking to strike down the rest of the law, and NIFLA appealed. That appeal is still pending.
This past Monday, the Second Circuit court of appeals considered a similar question in a case brought by a different anti-abortion organization, Evergreen Associates, which, like NIFLA, explicitly exists to discourage pregnant women from getting abortions (though it is worth noting that these organizations have also been repeatedly found to be purposefully misleading women). The organization argued, among other things, that requiring them to refrain from retaliating against employees for their reproductive healthcare decisions violates their First Amendment right to “expressive association”—essentially, the right to associate with people who share your views in order to collectively try and promote that viewpoint. An example of expressive association might be people joining with other people at Black Lives Matter protests to try and promote the view that the over-policing of Black and Brown people in America is an injustice that needs to be corrected. Evergreen Associates argues that they are joined with other people who oppose abortion—they require all employees to attest that they oppose abortion, most forms of contraception, and extramarital sex—in order to promote the view that abortion is morally wrong. According to them, requiring them to then promise not to terminate people who have abortions would countermand this message and undermine the expressive association.
I think it’s worth noting that, at least anecdotally, I have worked with many abortion providers who have provided abortions to regular clinic protestors, often accompanied to their appointments by other protestors—meaning, many people with very strong anti-abortion views still get abortions when they need them and, indeed, support their friends or families who need abortions. Oftentimes these protesters will resume protesting outside the clinic after the abortion because having the abortion did not change their views. So, it is not necessarily the case that an employee who has an abortion stops being “pro life” or “anti abortion.” This is particularly the case when the term “abortion” is so ill-defined in the case of these anti-abortion organizations that many forms of birth control are considered to be potentially “abortion-causing.” One imagines that most miscarriage management would also fall under these organizations’ definition of “abortion.”
Moreover, there is a hint in the opinion and briefing in the case that only a “certain kind of woman” gets abortions and that people opposed to abortion should be allowed to refuse to associate with them. But of course, in reality, all kinds of people get abortions.
For now, the Second Circuit remanded the case back to the district court to do some fact-finding to determine whether the law can be justified despite infringing on the expressive association rights of Evergreen Associates. We will have to wait and see what happens to this case. However, it’s worth noting that the Second Circuit opinion, as it stands, already opens quite a can of worms.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Christine Clarke who counsels clients on employment, labor, healthcare, housing, and civil rights law, as well as legal compliance for non-profit organizations; First Amendment free speech and constitutional due process claims; and discrimination dispute resolution and prevention trainings. Ms. Clarke is admitted to practice law in New York, as well as the U.S. District Courts in the Southern and Eastern Districts of New York, the Second Circuit Court of Appeals, and the United States Supreme Court. Attorney Advertising.
Image Credit to Horia Varlan via Flickr