Catholic bishop vows to fight NY court's upholding of abortion-coverage rule

ALBANY — New York's highest court this week upheld a state regulation requiring that workplace health insurance cover "medically necessary abortion services." The ruling ended a four-year effort by Catholic organizations and other religious groups to overturn the regulation based on religious and moral objections.

In response to the state Court of Appeals' decision, Albany Diocese Bishop Edward B. Scharfenberger said Wednesday he will press the issue with the United States Supreme Court on constitutional grounds.

"There is far too much at stake in terms of religious liberty and freedom of conscience to allow this to stand," Scharfenberger said. "It is an issue that affects people of all faiths, not just one faith … the freedom to choose to protect life is being violated by unconstitutional regulations forcing the insured to pay for its destruction."

Religious employers can still seek a contract for health care that excludes coverage for abortions, the state Department of Financial Services said Wednesday. An attorney for the bishop, however, said that exemption is drawn so narrowly the option can’t be used.

On Monday, the state appeals court voted 6-1 to let lower court decisions stand that require health insurance companies operating in New York to provide coverage for abortions to all customers. The Court of Appeals refused an appeal by the Catholic organizations to hear the case, stating that it found "no substantial constitutional question is directly involved."

In 2016, the Roman Catholic Diocese of Albany and other religious employers sued the state Department of Financial Services over its 2015 regulation that in effect required religious employers to pay for abortion services, despite their moral and religious objections.

The regulation requires commercial health insurance plans regulated by the state to include coverage for abortions deemed medically necessary. The regulation requires coverage of "therapeutic" abortions as well as abortions in cases of rape, incest and birth defects under the broad heading of "medically necessary."

The state courts didn’t engage in a constitutional argument in response to the suit by religious groups. Instead, the courts ruled New York had the legal authority to set minimum coverage for health insurance companies licensed statewide. The state Department of Financial Services said its regulation protects workers with company-provided health insurance coverage who need surgeries.

An Appellate Division panel in July said engaging in some of the constitutional arguments brought by the Catholic groups would "require this court to enter the thicket of making a religious value judgment."

The panel continued: "This particular ‘medically necessary’ procedure has been among the most divisive issues in our politics for several decades."

In 2017, the Department of Financial Services provided an exemption for "religious employers." On Wednesday, the agency said in a statement that faith-based employers that meet the definition outlined in New York insurance law "may obtain a contract without coverage for medically necessary abortions. In that case, insurers must provide employees with a rider, at no charge, that covers medically necessary abortion services."

But the exemption for religious employers is so narrowly defined that it’s unattainable, according to Michael Costello, the Albany bishop’s attorney.

"In practice, the Department of Financial Services as well as insurance carriers have consistently denied conferring the exemption to religious employers including the Roman Catholic Diocese of Albany and religious communities," Costello said. "The limited 'religious employer' exemption in reality and application is nonexistent."

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.