‘WE CANNOT RELENT’

Bishop Edward B. Scharfenberger is ready to go to the Supreme Court.

After the New York State Court of Appeals on Monday, Nov. 23, upheld a state regulation mandating health insurance in the workplace cover abortion services, Bishop Scharfenberger vowed to fight the decision.

"We are going to pursue this matter aggressively. There is far too much at stake in terms of religious liberty and freedom of conscience to allow this to stand,” Bishop Scharfenberger said in a statement Wednesday. “It is an issue that affects people of all faiths, not just one faith. We are confident that the Supreme Court will preserve our right to practice our faith and fulfill our mission according to our beliefs and not according to the whims of the State. 

“The freedom to choose to protect life is being violated by unconstitutional regulations forcing the insured to pay for its destruction. We cannot relent on a matter that affects the dignity of all human lives." 

The Diocese of Albany, and a broad coalition of religious organizations and others, have been fighting to overturn the regulation since 2016, when it challenged in New York State Supreme Court, the constitutionality of two abortion mandates placed on insurers by the New York State Department of Financial Services (DFS) that forced religious and other employers to pay for abortions in employee health plans.

In 2017, a backdoor attempt at abortion expansion by the Cuomo administration was again challenged by the Diocese of Albany and other plaintiffs. The Cuomo administration quietly added "model language" which forced insurance plans to cover abortions, even in Catholic-sponsored healthcare plans, after Gov. Andrew Cuomo's Abortion Expansion Act was stymied in the State Legislature, where it was vigorously opposed by Catholic and other religious organizations.

"These coercive mandates are an attack on innocent human life, but also an attack on religious liberty and the democratic process itself," said Bishop Scharfenberger at the time. "Whatever its motivations, the Cuomo administration has shown a troubling disregard for religious faith and practice, and the rights of conscience of our state's citizens.

"In oral arguments, the attorney for the state referred to the abortion mandate as an 'incidental burden' on religious organizations in the balance of providing health care to employees. There is nothing incidental about the taking of an unborn child's life, and we are appalled that the state would label it as such.”

The suit referred to two distinct mandates on insurance providers, both of which were implemented absent any legislative or regula­tory process:

•  In one, DFS (which regulates the insurance industry) issued "model language" to insurers, requiring that their individual and small group health plans, including those sponsored by religious entities, include coverage of abortions.

•  A second mandate, which was previously undisclosed by DFS, only came to light during plaintiffs' communications with the department objecting to the "model language" mandate. In the undisclosed mandate, plaintiffs charged, abortion coverage "is encrypted in health insurance contracts under the rubric of 'medically necessary' surgery. This hidden coverage was never disclosed to plaintiffs or other employers who may have conscience, moral or religious objections to abortion."

In January of 2019, State Supreme Court Justice Richard McNally dismissed the Diocese’s challenge to the abortion mandate, which the Diocese promptly appealed. Then on Jan. 22, Cuomo and  New York State enacted the Reproductive Health Act (RHA) which greatly expanded abortion on demand in the state. Bishop Scharfenberger garnered national attention by calling the legislation the “death star.”  

In addition to the Roman Catholic Diocese of Albany, plaintiffs included the Roman Catholic Diocese of Ogdensburg; the Trustees of the Episcopal Diocese of Albany; the Sisterhood of St. Mary (an order of Anglican/Episcopal nuns); Catholic Charities of the Diocese of Brooklyn; Catholic Charities of the Diocese of Albany; Catholic Charities of the Diocese of Ogdensburg; St. Gregory the Great Roman Catholic Church Society of Amherst; First Bible Baptist Church, Rochester; Our Savior's Lutheran Church, Albany; Teresian House Nursing Home, Albany; Renée Morgiewicz, an employee of the Roman Catholic Diocese of Albany; and Murnane Building Contractors, Plattsburgh.

Defendants were Maria Vullo, superintendent of DFS; Capital District Physicians Health Plan; Blue Shield of Northeastern NY; UnitedHealthCare of New York; MVP Health Care; Excellus Health Plan; and Independent Health Association.