The Supreme Court Shouldn’t Let New York Keep Forcing Nuns to Pay for Abortions

In an early application of the Supreme Court’s unanimous decision in Catholic Charities Bureau v. Wisconsin last week, a group of nuns, churches, and other religious ministries is sparring with New York over what the Supreme Court should do about a pending petition over New York’s abortion-coverage mandate for employment health plans.

New York’s mandate, like Wisconsin’s scheme, discriminates along theological lines — i.e., proselytizing faiths are protected, non-proselytizers are not. The nuns’ case is back before the Supreme Court for a second time, after the Court granted, vacated, and remanded (GVR'd) it in 2021 for reconsideration in light of Fulton v. City of Philadelphia.

After several years of litigation, the New York courts found Fulton irrelevant. The nuns now take the entirely unsurprising position that the Supreme Court should, at a minimum, grant summary reversal or perhaps plenary review. After almost a decade trying to vindicate their First Amendment rights, the nuns don’t think New York and its courts should get a third bite at the apple.

New York just responded, and its position is surprising. The state concedes that its mandate is at least partially unconstitutional under Catholic Charities Bureau. But then it asks for the case to be GVR’d yet again to let the New York courts figure out precisely how the First Amendment should apply, arguing that Catholic Charities Bureau leaves open significant “question[s]” to resolve in the state courts, including what remedy the First Amendment gives the nuns and how much the nuns’ “theological practices” are really burdened by an abortion mandate.

Nowhere does New York acknowledge that Catholic Charities Bureau was a fairly straightforward application of a 1982 denominational-discrimination ruling, Larson v. Valente, that Larson’s application has already been addressed by both the nuns and the state in the New York courts, and that those courts rejected it (just as they did almost 20 years ago in a very similar case brought by Catholic Charities of Albany against New York’s contraception insurance mandate).

New York’s response counsels two outcomes. Either the Court should summarily reverse, given New York’s concession of unconstitutionality, or it should grant plenary review given New York’s assertion that Catholic Charities Bureau doesn’t resolve the First Amendment questions in the case. What would be unreasonable, though, is consigning the nuns to yet more litigation before unreceptive state courts and to governmental probing of their “theological practices.”

Everyone knows that a(nother) GVR will only end in a third petition for certiorari four or five years from now, with the same nuns seeking the same relief from the same mandate. The only thing that will change is that the nuns will have lost more of their First Amendment rights in the meantime.