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5/12/2016 9:00:00 AM
Abortion mandate violates religious freedom

The Roman Catholic Diocese of Albany, together with other plaintiffs, filed a lawsuit May 4 against the New York State Department of Financial Services (DFS) and a number of health insurance companies, challenging the constitutionality of two mandates placed on insurers (without any legislative or regulatory enactment) that have the effect of forcing religious and other employers to pay for abortions in employee health plans.

In a complaint filed May 4 in State Supreme Court, County of Albany, plaintiffs charge that the mandates represent "an invidious governmental coercion of religious institutions, employers and individuals, and, if unchecked, will result in further dangerous incursions on religious freedom and liberty of conscience.

"Anyone of good will who values religious liberty or our country's cherished freedoms should be deeply concerned by the actions of the state," said Bishop Edward B. Scharfenberger. "The Department of Financial Services, without any authority by the Legislature, has taken it upon itself to force religious organizations and individuals with strong conscientious objection to abortion to fund this procedure which, in every case, kills a developing unique human person.

"We simply cannot live with this policy, and unfortunately have been left with no choice but to bring this action. "I am proud to stand with my brothers and sisters in an ecumenical expression of unity in challenging this unconstitutional infringement on religious faith and practice."

The suit refers to two distinct mandates on insurance providers. In one, DFS (which regulates the insurance industry) issued "model language" to insurers, requiring that their individual and small group health plans include coverage of so-called "therapeutic" and "non-therapeutic" abortions.

The suit charges: "The Model Language Abortion Mandate directly coerces religious employers, religiously-affiliated employers, objecting secular employers and individuals to fund, provide and cooperate with the morally offensive procedure."

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 charge, 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."

The plaintiffs seek judicial intervention for both declaratory judgment on a number of state and federal constitutional grounds, as well as injunctive relief.

All of the plaintiffs have deeply-held religious and moral objections to abortion. Some are religious organizations, while one is a lay employee of a religious organization and one is a privately-held business. In addition to the Roman Catholic Diocese of Albany, plaintiffs include 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; Ms. Renée Morgiewicz, an employee of the Roman Catholic Diocese of Albany; and Murnane Building Contractors, Plattsburgh.

The defendants are Maria T. Vullo, acting superintendent of DFS; Capital District Physicians Health Plan; Blue Shield of Northeastern New York; UnitedHealthcare of New York; MVP Health Care; Excellus Health Plan; and Independent Health Association.


Recently it has come to light that a New York State agency had, without any prior public notice, approved and issued mandates forcing church institutions, employers and individuals to cover so-called therapeutic and non-therapeutic abortions in their health insurance plans.

The health insurers that were required to include this abortion coverage had already been contracted -- some, with long-standing relationships -- by a number of dioceses and religious agencies throughout the state, both Catholic and non-Catholic, including our own Diocese. But neither the agency nor the insurers informed us or the general public of these mandates.

Therefore, while any mandate to fund abortions is clearly in direct violation of what we hold and teach to be gravely immoral, the manner in which this came to be is also something that should be of profound concern to all.

The agency in question is the New York State Department of Financial Services, which, on June 26, 2015, and again on April 26, 2016, approved and issued this abortion mandate in the form of "model language" requiring individual and small group employers offering health insurance benefits to include in their renewal contracts coverage of non-therapeutic and therapeutic abortions.

Separately, this agency mandates abortion coverage by all employers in their health plans under the undefined service category of "medically necessary" surgery.

Some of the dioceses and religious agencies in New York State are self-insured and are not currently affected by such a mandate. Once I learned of the mandates, and on the advice of our Diocesan Finance Council, I proceeded to seek out the option of self-insurance.

There is no guarantee that, should such an option prove feasible, the mandates currently being dictated by one regulatory agency might not be coerced through some other state action.

What is objectionable in the mandates is not only that they force us to fund and participate in actions that are gravely immoral and contrary to our religious beliefs and conscience, but also that they were promulgated and enforced under color of law, without our knowledge and in clear violation of the law.

Read more about our efforts to seek judicial intervention for declaratory and injunctive relief in the press release at right.

As with all constitutional rights, the exercise of the religious freedom and liberty of conscience guaranteed by the New York State and United States Constitutions is not absolute, especially if to do so would infringe on the rights of others. Public order does at times require some limitation or regulation.

Clearly, however, no sound public policy should sanction the suppression of the rights of any class of persons simply because of beliefs, age, ethnicity, health, nationality or any other status.

In our time, it has become customary to think of the assertion of religious freedom and liberty of conscience as an exercise of pursuing one's personal or individual convictions or feelings. This kind of reasoning tends to reduce the notion of religious freedom and conscience rights to a purely subjective standard, with little grounding in objective morality: that is, what is right or wrong for all, regardless of how one thinks or feels about it.

In my column last week, reflecting on religious freedom, I attempted to make the point that this right is rooted in our fundamental humanity, our right to follow the truth about who we are as human beings -- all of us -- and how it is fundamental to our humanity that human beings not be treated differently by the law because of any accidental, or subjective, aspect of their status.

This would logically apply to those who are vulnerable because of the state of their health, development, age or the aging process. While there are those who -- contrary to all scientific evidence -- still advance the argument that the unborn are appendages or products of the mother carrying them, it remains the conviction of many more, and evidence also continues to unfold in the sciences that the humanity of the unborn cannot be rationally denied.

Wherever the rule of law can be employed in order to pursue the free exercise of one's religious freedom and liberty of conscience rights, free and fair society should encourage such due process. Those joining in the current challenge, which raises issues of great public importance, are exercising their legal and constitutional rights not to have them compromised or stripped away by any agency of the government exceeding its authority -- especially when these underground mandates are reached in such an unprecedented and unilateral manner, without any prior public or contractual notice, as in this case.

The quote, "Eternal vigilance is the price of liberty," has been attributed to a number of historically-prominent persons, including the Irish lawyer and politician John Philpot Curran and Thomas Jefferson. Like every truth, it really does not matter who announces it or who even believes it, only that the truth itself be told and upheld. In any civil and democratic society, it is important that all government agencies operate in a fair and transparent manner and be held accountable to the rule of law.

(Follow the Bishop at www.facebook.com/AlbanyBishopEd and on Twitter @AlbBishopEd.)

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