By Dave Andrusko
A three judge panel of the U.S. Second Circuit Court of Appeals ruled Monday in favor of the pro-life Evergreen Association, which operates the Expectant Mother Care and EMC FrontLine Pregnancy Centers in New York City, in an important freedom of expressive association case.
U.S. District Judge Thomas McAvoy Sr. dismissed the case in 2021, but Evergreen appealed and its president, Christopher Slattery “brought a civil suit against the state of New York in Northern District of New York in January 2020,” Josh Russell wrote. “They argued the state’s so-called Boss Bill of 2019 unconstitutionally infringed on its freedoms of speech and religious exercise…”
Judge Steven Menashi wrote for the unanimous appeals court that “[I]f the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association.”
“Evergreen argues that the statute 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. Evergreen contends that the statute undermines its anti-abortion message as a crisis pregnancy center because associating with such employees contradicts its central message,”Judge Menashi wrote for himself and Judges Park and Nardini.
“We hold that Evergreen stated a plausible claim that the labor law unconstitutionally burdens its right to expressive association…. Here, Evergreen has a right to limit its employees to people who share its views and will effectively convey its message. Thus, the district court erred in dismissing Evergreen’s expressive association claim.”
“We are thrilled that New York’s Federal Second Circuit Court of Appeals upheld my EMC FrontLine Pregnancy Centers non-profit, organization in a key claim in a major free speech and right to expressive association case yesterday,” said Slattery.
Slattery went on to explain
In 2019, New York State and New York City made major new employment laws called “Boss Bills”, which highly regulated employment law for those employers opposing abortion in the State of New York, and the City of New York.
This new Second Circuit Court Appeals ruling in a case the Northern District of New York had dismissed, gives major new hope to abortion opponents, like me in NYC, and by extension across the United States. The case also opens up an opportunity for the open Eastern District court case out of Brooklyn to soon rule in our favor, in our separate New York City lawsuit.
Evergreen’s attorney J. Matthew Belz, who represents Evergreen through the Thomas More Society, said, “We are pleased that the panel recognized the need to protect mission-oriented organizations from intrusions by the state, and we look forward to cementing this victory at the district court level.”
In his appeals brief, Belz wrote
“Everything Evergreen does — from counseling pregnant women, to providing women with nursing services, to speaking in defense of the unborn, to communicating expectations to its employees — aims at bringing about an abortion-free culture. …Anything less would compromise Evergreen’s message by requiring it to employ as its representatives people who actively dissent from the worldview it exists to communicate to clients and the world.”
The Court of Appeals decision in this case “effectively said that the law in New York State (the New York City law is almost identical) denied our pro-life pregnancy our constitutional ability to insist on hiring and retaining only like-minded pro-life employees,” Slattery said. “And they claimed the law severely impairs our ability to communicate our anti-abortion message.”
The case has been sent back to the Northern District of New York for further review, and is now clear that the Court of Appeals will not tolerate this bad law as partly unconstitutional, which is a major victory for the pro-life world, and Catholic and Christian schools and organizations, thanks in large part to the Thomas More Society and their great crack attorneys.