TO THE HIGHEST COURT

Last November, Bishop Edward B. Scharfenberger said he would not “relent” in his fight against a New York State regulation mandating religious organizations cover abortion services as part of their health-insurance plans.

Now Bishop Scharfenberger, the Diocese of Albany and a broad coalition — that have been fighting to overturn the regulation since 2016 — have asked the U.S. Supreme Court to hear their case (Diocese of Albany v. Lacewell) against New York’s abortion mandate. After losing in New York State court, the religious organizations have now petitioned the nation’s highest court in what is essentially a fight for “religious liberty.”

Bishop Scharfenberger has been one of the leading voices questioning the constitutionality of two mandates placed on insurers by New York State’s Department of Financial Services (DFS) that would force religious and other employers to pay for abortions in employee health plans. Bishop said last November that he wanted “to pursue this matter aggressively,” adding “there is far too much at stake in terms of religious liberty and freedom of conscience to allow this to stand.”

The Bishop added then: “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.”

In 2017, a backdoor attempt at abortion expansion by Governor Andrew Cuomo’s administration was challenged by the Diocese of Albany and other plaintiffs. After Cuomo’s Abortion Expansion Act was stymied in the State Legislature, where it was vigorously opposed by Catholic and other religious organizations, the Cuomo administration quietly added “model language” which would force insurance plans to cover abortions, even in Catholic-sponsored health-care plans.

“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 Nov. 23, 2020, the New York State Court of Appeals upheld the ruling.