Case 1:20-cv-00112-TJM-DJS Document 33 Filed 03/31/21 Page 1 of 33
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`__________________________________________
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`CHRISTOPHER T. SLATTERY, and
`THE EVERGREEN ASSOCIATION, INC.,
`Plaintiff,
`
`v.
`
`ANDREW M. CUOMO, in his official capacity
`as the Governor of the State of New York;
`ROBERTA REARDON, in her official capacity
`as the Commissioner of the Labor Department
`of the State of New York; and LETITIA JAMES,
`in her official capacity as the Attorney General
`of the State of New York,
`
`Defendants.
`___________________________________________
`
`Thomas J. McAvoy,
`Sr. U.S. District Judge
`
` 1:20-CV-112
` (TJM/TWD)
`
`DECISION & ORDER
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`Before the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint. See dkt. #
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`22. Plaintiffs seek declaratory and injunctive relief related to a New York State law aimed
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`at regulating employment decisions based on an employees reproductive health
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`decisions. The parties have briefed the issues and the Court will decided the matter
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`without oral argument.
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`I.
`
`BACKGROUND
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`This case involves a statute enacted by the State of New York, New York Labor
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`Law § 203-e (“Section 203-e”) that aims at regulating employment decisions that take into
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`account employees’ use of reproductive health services. Plaintiffs Christopher T. Slattery
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`and The Evergreen Association, Inc. (“Evergreen”), contend that the legislation violates
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`their rights as religious employers who seek to promote a pro-life message by educating
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`women about reproductive health-care choices and providing them pregnancy related
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`services as an alternative to abortion.
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`Christopher Slattery is President and co-founder of Evergreen. Complaint
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`(“Complt.”), dkt. # 1, at ¶ 1. Evergreen does business as Expectant Mother Care and
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`EMC FrontLine Pregnancy Centers. Id. Evergreen operates “crisis pregnancy centers”
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`throughout New York City. Id. at ¶ 2. Those centers have “the morally and religiously
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`motivated mission of saving children from abortion and providing alternatives to abortion.”
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`Id. Those alternatives include providing “support for mothers who decide against abortion
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`or adoption.” Id.
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`Slattery, a “sincere practitioner of the Catholic religion,” alleges that Catholicism
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`“forbids performing, aiding, assisting or condoning abortion or infanticide under any
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`circumstances and condemns these acts as intrinsic evils and ‘abominable crimes.’” Id. at
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`¶ 4. As part of his sincere beliefs, Slattery “has established and enforces” an employment
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`policy at Evergreen that provides that “persons who wish to be hired or remain employed
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`by Evergreen must not obtain, assist in obtaining, or condone abortion, and must not be
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`involved in sexual relationships outside of marriage (such as cohabitation).” Id. at ¶ 5.
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`The Catholic religion considers sexual relationships outside of marriage to be “an intrinsic
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`evil in violation of the Sixth Commandment.” Id. Because of this belief, “Evergreen . . .
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`expects its employees, regardless of their sexual orientation, to observe sexual abstinence
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`outside of marriage.” Id. Plaintiffs therefore “hire only employees, interns or volunteers . .
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`. who adhere to Plaintiffs’ mission and policy of opposition to abortion and sexual
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`relationships outside of marriage, which typically involve the use of contraception that can
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`have abortifacient effects.” Id. at ¶ 6.
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`Plaintiffs allege that they “profess and promote the moral and religious belief that all
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`human life is equally valuable and deserving of protection, from fertilization until natural
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`death.” Id. at ¶ 30. They “believe that every abortion claims an innocent life.” Id. They
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`likewise believe that sexual relationships, including “cohabitation” outside of marriage, are
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`immoral and contribute to “what they oppose as the intrinsic evil of abortion.” Id. at ¶ 31.
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`The “pregnancy care centers” they operate “exist to serve women considering abortion,
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`along with their unborn children” by “provid[ing] the compassion, concern, and support
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`necessary to enable women to carry their unborn children to term.” Id. at ¶ 32. Plaintiffs
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`seek to serve “primarily poor, low-income and working pregnant women in distressed
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`conditions, many of whom are considering abortions.” Id. at ¶ 33. Plaintiffs offer these
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`women “counseling, education, ultrasounds and information” during the “decision-making
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`process in an untimely pregnancy.” Id. Plaintiffs contend that they offer counseling “from
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`a life-affirming, abstinence-promoting perspective only.” Id.
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`Because Plaintiffs believe that abortion creates more problems for women than it
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`solves and that “the purpose of medical care is to heal and maintain the health of the
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`individual and that abortion does neither for the woman or the baby,” they do not
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`“recommend, provide, or refer for abortions, contraceptives, birth control, or abortifacient
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`drugs or devices.” Id. at ¶¶ 35-37.
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`To achieve these aims, Plaintiffs only hire and maintain the employment of
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`“personnel who agree with, adhere to, and effectively convey Evergreen’s mission and
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`position regarding ‘reproductive health decisions’ including but not limited to decisions
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`related to abortion and sexual relationships outside of marriage and related use of
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`potentially abortifacient contraception.” Id. at ¶ 37. They expect employees “to abide and
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`agree with their positions” on these issues “in both their work and private life.” Id. at ¶ 38.
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`Evergreen asks job candidates if they are “pro-choice or pro-life,” and does not consider
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`employing pro-choice candidates. Id. at ¶ 39. Evergreen makes these positions clear in
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`advertising from jobs “and specifically states that it is seeking only pro-life candidates.” Id.
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`at ¶ 40. Evergreen includes this information in relation to positions like “nurses,
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`counselors, technicians, interns and volunteers.” Id. Plaintiffs will not hire persons and
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`will discipline current employees “who refuse to act in accordance with Plaintiffs’ position
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`on abortion and sexual relations outside of marriage and Evergreen’s corresponding
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`religiously and morally motivated employment policy.” Id. at ¶ 41.
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`Plaintiffs’ complaint here is with a particular piece of legislation passed by New York
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`that purported to address employment discrimination. Id. at ¶ 42. Before 2019, Plaintiffs
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`contend, New York law prohibited discrimination based on: “age, race, creed, color,
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`national origin, sexual orientation, military status, sex, disability, predisposing genetic
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`characteristics, familial status, marital status, or domestic violence victim status.” Id. at ¶
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`43 (citing N.Y. Executive Law, Article 15, § 296(a)). New York protected pregnant people
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`from discrimination by including “[p]regnancy-related conditions” as part of the statute’s
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`definition of “disability.” Id. at ¶ 44 (citing N.Y. Executive Law, Article 15, § 292(21-e, 21-f).
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`Section 296 of the Executive law “makes it illegal, among other things, to make hiring or
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`firing decisions, or compensation decisions, on the basis of one of the delineated
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`protected classes.” Id. at ¶ 45.
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`New York added to the list of categories offered protection against employment
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`discrimination in early 2019. Id. at ¶ 46. New York enacted Section 203-e as part of a
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`series of three bills that addressed abortion rights. Id. at ¶ 47. The first two of the bills,
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`Plaintiffs allege, permits abortion “until the birth of the child if the abortion is deemed
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`necessary to protect” the health of the pregnant woman. Id. The second bill “requires
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`insurers to provide no-cost coverage for contraceptives” in health plans. Id.
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`Rather than amending the New York Human Rights Law, where other anti-
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`discrimination provisions are located, Section 203-e amends New York’s Labor Law. Id. at
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`¶ 48. The Senate version of the bill stated as its purpose “to ‘prohibit employers from
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`discriminating against employees based on the employee’s or dependent’s reproductive
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`health decisions, and to provide remedies for such violations.’” Id. at ¶ 49. The statute
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`“prohibits discrimination or any retaliatory action by an employer against an employee on
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`the basis of the employee’s or his or her dependent’s reproductive health decision making,
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`including, but not limited to, a decision to use or access a particular drug, device or
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`medical service.” Id. at ¶ 50. The statute also prohibits an employer from requiring an
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`employee “to sign a waiver or other document which purports to deny an employee the
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`right to make their own reproductive health care decisions, including use of a particular
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`drug, device, or medical service.” Id. at ¶ 51. The statute allegedly fails to define
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`“reproductive health decision making” or “employee.” Id. at ¶ 52. Plaintiffs contend that
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`“employee” might “include Evergreen’s interns or volunteers.” Id. Another portion of the
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`statute requires that an employee that provides an employee handbook “‘include in the
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`handbook notice of employee rights and remedies’” under the law. Id. at ¶ 53 (quoting
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`Section 203-E(3)).
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`Plaintiffs allege that the statute prevents an employer from taking an adverse
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`employment action against an employee because of that employee’s “decision ‘to use or
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`access a particular drug, device or medical service.’” Id. at ¶ 54. Plaintiffs claim that
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`reproductive health decision making “could include not only contraception and abortion,
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`but also in vitro fertilization, human cloning, sterilization, sex reassignment surgery,
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`surrogacy, and other highly controversial procedures.” Id. at ¶ 55. Plaintiffs contend that
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`such a decision could also include “a decision to support or publicly advocate for abortion
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`rights.” Id. at ¶ 56.
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`Employees have a private right of action under the statute. Id. at ¶ 57. Violators
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`face damages, including back pay and attorneys fees, injunctive relief, reinstatement, and
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`liquidated damages. Id. at ¶ 58. Plaintiffs also contend that the statute subjects violators
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`to prosecution by the State Attorney General. Id. at ¶¶ 59-62.
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`Plaintiffs allege that the legislative history of the bill contains no examples of actual
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`discrimination because of reproductive health decision making in New York State. Id. at ¶
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`63. When questioned about whether such discrimination was taking place in New York,
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`Assembly member Ellen Jaffee, who sponsored the Act, could cite no examples of such
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`discrimination. Id. at ¶ 64.
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`Plaintiffs allege that, though they are subject to the statute, the religious beliefs that
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`guide their operations and their mission mandate that they violate the law. Id. at ¶¶ 65, 76-
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`77. As a result, they claim, they will likely suffer sanctions under the law and have their
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`mission undermined. Id. at ¶¶ 78-79. They also claim that the statute restricts their
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`freedom of speech and association. Id. at ¶¶ 67-76. The statute therefore causes them
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`serious hardship. Id. at ¶¶ 79-83. They seek relief from enforcement of the law.
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`Plaintiff’s Complaint raises four causes of action. Count One alleges that Section
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`203-e violates Plaintiffs’ First Amendment right to freedom of association. Count Two
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`compels speech from the Plaintiffs and therefore violates their First Amendment rights.
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`Count Three alleges a violation of the First Amendment’s free exercise clause. Count IV
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`alleges that the statute violates Plaintiffs’ right to equal protection under the Fourteenth
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`Amendment.
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`After Plaintiffs served Defendants with the Complaint, Defendants filed a motion to
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`dismiss. The parties then briefed the issue, bringing the case to its present posture.
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`II.
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`LEGAL STANDARD
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`The Defendants have filed a motion to dismiss Plaintiffs’ claims pursuant to Federal
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`Rule of Civil Procedure 12(b)(6). Defendants argue that Plaintiffs have not stated a claim
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`upon which relief could be granted, even if all factual allegations in the complaint were
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`proved true. In addressing such motions, the Court must accept “all factual allegations in
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`the complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Holmes
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`v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply to legal
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`conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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`Id. at 678. “To survive a motion to dismiss, a complaint must contain sufficient factual
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`matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting
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`Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
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`III.
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`ANALYSIS
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`Defendants seek dismissal of each count. The Court will address them in turn.
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`A.
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`Free Exercise
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`Defendants first argue that Plaintiffs have failed to state a First Amendment free
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`exercise claim. Defendants contend that Plaintiffs have not alleged that the statue’s aim is
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`to infringe upon or restrict practices because of their religious motivation or that the aim of
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`the statute is to suppress religion or religious conduct. Instead, the law is a valid one of
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`general applicability. As such, the statute needs only to have a rational basis to pass
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`constitutional muster, and the law here does, Defendants claim. Plaintiffs content that,
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`because they have alleged that Defendants have targeted religion, they have stated a free
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`exercise claim.
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`“The free exercise of religion means, first and foremost, the right to believe and
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`profess whatever religious doctrine one desires.” Employment Div. v. Smith, 494 U.S.
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`872, 876 (1990). “The Free Exercise Clause ‘protect[s] religious observers against
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`unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for
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`‘special disabilities’ based on their ‘religious status.’” Trinity Lutheran Church of Columbia,
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`Inc. v. Comer, 137 S.Ct. 2012, 2019 (2017) (quoting Church of Lukumi Babalu Aye, Inc. v.
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`Hialeah, 508 U.S. 520, 533 (1993)). At the same time, a profession of religious faith does
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`not permit an observant religious person to ignore any law that contradicts that person’s
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`religious beliefs: the Supreme Court has “never held that an individual’s religious beliefs
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`excuse him from compliance with an otherwise valid law prohibiting conduct that the State
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`is free to regulate.” Smith, 494 U.S. at 879. To the contrary, “the right of free exercise
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`does not relieve an individual of the obligation to comply with a ‘valid and neutral law of
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`general applicability on the ground that the law proscribes (or prescribes) conduct his
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`religion prescribes (or proscribes).’” Id. (quoting United States v. Lee, 455 U.S. 252, 263
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`n.3 (1982)). “Where the government seeks to enforce a law that is neutral and of general
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`applicability,” the government “need only demonstrate a rational basis for its enforcement,
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`even if enforcement of the law incidentally burdens religious practices.” Fifth Ave.
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`Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002).
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`The parties first disagree about whether the statute is neutral. To show that the
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`statute is neutral and not aimed at religious exercise, Defendants point to the statements
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`of the Senate sponsor of the legislation and the State Assembly’s Memorandum of
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`Legislation. The Memorandum states:
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`This bill ensures that employees or their dependents are able to make their
`own reproductive health care decisions without incurring adverse
`employment consequences. The federal Affordable Care Act (ACA) recently
`required that health insurance plans cover FDA-approved birth control methods
`without out-of-pocket costs. Some for-profit employers have attempted to prevent
`employees from accessing this benefit because it conflicts with their personal
`beliefs. As a result, over 100 federal lawsuits have been filed by employers to
`deny employees this benefit, including employers operating in New York State.
`Employers should not be able to discriminate or interfere in employees’ personal
`medical decisions. While federal and state laws have been enacted which
`demonstrate a commitment to protect individuals against employment
`discrimination, loopholes exist which leave employees vulnerable to
`discrimination based on their reproductive health decisions. The Legislature
`must ensure that the legal loopholes are corrected to ensure that employees’
`decisions about pregnancy, contraception, and reproductive health are also
`protected under state law.
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`Appendix A&B to Defendants’ Brief, dkt. #s 22-2, 22-3.
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`In arguing that the law targets religion, Plaintiffs point to their own religious
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`perspectives. They oppose abortion and have established a set of employment practices
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`that allow them to stay true to their sincere beliefs. The Defendants, they claim, have
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`passed a statute that prevents them from acting according to the dictates fo their religion.
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`They point to four paragraphs in the Complaint to argue that they have plausibly alleged
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`that the statute targets them because of their religious beliefs:
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`127. The Boss Bill is not neutral or generally applicable because it disfavors
`Plaintiffs’ religious beliefs and targets them for punishment, imposing special
`disabilities on the basis of Plaintiffs’ stating or acting according to officially
`disfavored religious views as opposed to the officially favored “reproductive
`health decisions” of those who support abortion, abortifacient contraception
`and sexual relations outside of marriage.
`128. The Boss Bill is not neutral or generally applicable because its legislative
`history reveals that it is intended to target religious organizations by
`prohibiting them from maintaining employment practices and standards or
`conduct in accordance with their religious beliefs.
`129. The Boss Bill is not neutral or generally applicable because its legislative
`history reveals that it was passed specifically to prevent religious employers,
`including even churches or priests, from making any employment decision
`based on religious opposition to abortion, abortifacient contraception, sexual
`relations outside of marriage or an employee’s advocacy thereof.
`130. The Boss Bill was designed precisely to prevent Plaintiffs and other like
`organizations from operating their organizations in accord with their
`religiously motivated life missions and beliefs.
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`Complt. at ¶¶ 127-130. Plaintiffs also contend that the statute’s sponsors did not offer any
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`evidence at the time of the bill’s passage that showed actual discrimination on the basis of
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`reproductive health-care decisions.
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`“To determine neutrality, we begin with the statute’s text, ‘for the minimum
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`requirement of neutrality is that a law not discriminate on its face.” Cent. Rabbinical Cong.
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`of the Untied States v. New York City Dep’t of Health & Mental Hygiene, 763 F.3d 183,
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`193 (2d Cir. 2014) (quoting Lukumi, 508 U.S. at 533). The inquiry does not end with facial
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`neutrality, however, “because the neutrality requirement extends beyond facial
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`discrimination.” Id. at 193-194. “‘Official action that targets religious conduct for
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`distinctive treatment’ must also satisfy strict scrutiny.” Id. at 194 (quoting Lukumi, 508
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`U.S. at 534 (emphasis added in original)). A neutral law that “‘target[s] the practices of a
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`particular religion’” is not neutral. Id. (quoting Lukumi, 508 U.S. at 542). A regulation that
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`“purposefully singles out religious conduct performed” by a particular religious group is not
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`neutral. Id. (emphasis in original).
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`The statue in question, New York Labor Law § 203-e, provides in relevant part that:
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`2.
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`An employer shall not:
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`(a) discriminate nor take any retaliatory personnel action against an
`employee with respect to compensation, terms, conditions, or privileges of
`employment because of or on the basis of the employee’s or dependent’s
`reproductive health decision making, including, but not limited to, a decision
`to use or access a particular drug, device or medical service; or
`(b) require an employee to sign a waiver or other document which purports
`to deny an employee the right to make their own reproductive health care
`decisions, including use of a particular drug, device, or medical service.
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`N.Y. Labor L. § 203-e(2).
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`The statute is obviously neutral on its face. It applies to all employers, regardless
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`of the type of business. Moreover, an employer who fired an employee who refused to
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`use contraception or decided not to have an abortion would as clearly violate the law as
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`an employer who fired an employee for having an abortion or using contraception. On its
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`face, then, the statute does not discriminate.
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`The question here, then, is whether the statute, despite its facial neutrality, targets
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`religious conduct in an impermissible way. Plaintiffs allege that the statute does in the
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`paragraphs of the Complaint cited above. Those paragraphs, however, are merely
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`conclusory, offering legal conclusions that recite the legal analysis that the Court would
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`apply to facts that demonstrate improper targeting of religion in a neutral statute. Those
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`allegations do not offer facts which make plausible that such targeting actually occurred.
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`Plaintiffs here contend that the statute will have a particular effect on them, because they
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`would like to avoid hiring or terminate the employment of persons whose conduct or
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`beliefs violate their religious tenets. That the law would affect them does not mean,
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`however, that law targeted their particular religious belief. The issue of decisions about
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`reproduction is a concern that extends beyond particular religious beliefs and which cuts
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`in all directions, regardless of such beliefs. A person can easily face employment
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`discrimination for choosing to have a child as for choosing not to do so. The statements
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`provided by the Defendants and referenced in the Complaint do not indicate that
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`legislators aimed at those opposing abortion in protecting reproductive health care
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`decisionmaking, but simply that legislators had a concern about employers attempting to
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`interfere with what they saw as women’s private health care decisions.1 Plaintiffs contend
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`that legislators failed to identify particular cases of such discrimination in advocating for
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`the law, but this allegation is not evidence that they singled out religious people in the
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`Statute. The statement might convince some that the law was unnecessary, but
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`legislators decided otherwise. The statement does not show a desire to aim legislation at
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`particular religious groups.
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`Since “‘the government seeks to enforce a law that is neutral and of general
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`1See CompassCare v. Cuomo, No. 19cv1409 (N.D.N.Y.), dkt. # 27, at 37-42, for a
`fuller discussion of this issue. The Court concluded:
`the Court cannot find that the evidence presented by the Plaintiffs establishes that
`the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and
`instead finds that “there was a neutral, secular purpose” for Section 203-e:
`protecting New Yorkers’ right to make their own decisions about reproduction,
`including whether to have a child and whether to use birth control. Commack Self-
`Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 211 (2d Cir. 2012). In the
`legislative debates cited above, legislators made clear that they had a concern
`about employers punishing employees for choosing to use birth control or have an
`abortion, but the debates also indicate that legislators considered the neutral
`language in the law a benefit because it would protect whatever choice New
`Yorkers made about having children.
`Id. at 41. The Court finds that the same reasoning applies here.
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`applicability, . . . it need only demonstrate a rational basis for its enforcement.’” Fortress
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`Bible Church v. Felner, 694 F.3d 208, 220 (2d Cir. 2012) (quoting Fifth Ave. Presbyterian
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`Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002)). That level of review
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`requires that the statute “be rationally related to a legitimate state interest.” Lange-Kessler
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`v. Department of Educ., 109 F.3d 137, 140 (2d Cir. 1997). “Plaintiffs ‘have the burden to
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`negat[e] every conceivable basis which might support” the statute. Stormans, Inc. v.
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`Wiesman, 794 F.3d 1064, 1084 (2d Cir. 2015) (quoting FCC v. Beach Commc’ns. Inc.,
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`508 U.S. 307, 315 (1993)). The Defendants argue that the State had a compelling
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`interest in passing the legislation: protecting individual citizens’ right to privacy and
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`autonomy. They contend that the statute bears a rational relation to that claim . Likewise,
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`the statute bears a rational relationship to the state’s interest in advancing laws that
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`protect against discrimination in the workplace. The Court agrees that the State has a
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`legitimate interest in protecting both individuals’ right to privacy and personal autonomy as
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`it relates to health-care decisions surrounding reproduction and a legitimate interest in
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`protecting against workplace discrimination. Section 203-e prohibits discrimination on the
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`basis of choices about reproductive decisions and thus bears a rational relationship to
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`those aims. The Court will grant the motion in this respect.
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`B.
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`Free Speech
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`Defendants next contend that the Plaintiffs have failed to allege facts sufficient to
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`support a free-speech claim. Defendants argue that the statute does not implicate speech
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`at all, but instead regulates conduct. The statute also does not, Defendants insist, prevent
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`employers from expressing their views on reproductive health care matters.
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`“The First Amendment . . . prohibits laws that abridge the freedom of speech.” Nat’l
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`Inst. of Family & Life Advocates v. Becerra, 138 S.Ct. 2361, 2371 (2018). Courts
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`“distinguish between content-based and content-neutral regulations of speech.” Id.
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`“Content-based regulations ‘target speech based on its communicative content.’” Id.
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`(quoting Reed v. Town of Gilbert, 576 U.S. ____, ____, 135 S.Ct. 2218 (2015)). Such
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`regulations “‘are presumptively unconstitutional and may be justified only if the
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`government proves they are narrowly tailored to serve compelling state interests.’” Id.
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`(quoting Reed, 135 S.Ct. 2218). When a state compels an individual “to speak a
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`particular message,” the state “alter[s] the content of [their] speech,’” and engages in
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`content-based regulation. Id. (quoting Riley v. National Federal of Blind of N.C., Inc., 487
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`U.S. 781, 795 (1988)). A court is to “apply the most exacting scrutiny” to such restrictions
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`on speech. Turner Broad. Sys. v FCC, 512 U.S. 622, 642 (1994).2 Under such “strict
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`scrutiny,” a court considers “whether a law is narrowly drawn to serve a compelling
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`governmental interest.” Evergreen Ass’n v. City of New York, 740 F.3d 233, 245 (2d Cir.
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`2014). “The statute must use the least restrictive means to achieve its ends.” Id. (quoting
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`United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000)). The standard is a
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`difficult one to meet, but “it is not true ‘that strict scrutiny is strict in theory, but fatal in
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`fact.’” Id. (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)). “The
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`First Amendment is concerned with a balancing of interests.” Id. at 247 (emphasis in
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`original).
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`2The Court notes that the strict scrutiny test is different in the context of a free-
`exercise claim. In that setting, a court considering whether legislation advances a
`compelling state interest is to “[look] beyond broadly formulated interests justifying the
`general applicability of government mandates and [scrutinize] the asserted harm of
`granting specific exemptions to particular religious claimants.” Gonzales v. O Centro
`Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 431 (2006).
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`Case 1:20-cv-00112-TJM-DJS Document 33 Filed 03/31/21 Page 15 of 33
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`Plaintiffs allege that Section 203-e violates their free speech in several ways. First,
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`Plaintiffs contend that the statute “compels Plaintiffs to speak a message contrary to their
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`moral and religious beliefs not only to their current employees, but also to prospective
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`employees and the public in general.” Complt. at ¶ 101. They contend that they will be
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`forced to limit their speech about abortion because such speech could be used as
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`“evidence of discrimination” or “a hostile work environment.” Id. at ¶ 102. Second,
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`Plaintiffs allege that the statute suppresses their speech “by restricting them from
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`expressing preferences as to having employees who share common beliefs as to abortion,
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`and from outwardly expressing pro-life and pro-chastity values in the workplace.” Id. at ¶
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`103. Plaintiffs have a right, they claim, to discuss their views on abortion and sexual
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`morality with their employees. Id. at ¶ 104. Punishing such speech, they claim, interferes
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`with their First Amendment rights. Id. at ¶ 105.
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`Defendants argue that the statute in question regulates conduct, not speech, and
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`therefore does not violate Plaintiffs’ First Amendment rights. They also contend that
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`Section 203-e does not limit Plaintiffs’ ability to communicate their pro-life message or
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`their message about sexual morality, either within or without the workplace. Plaintiffs
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`respond that “Plaintiffs’ uniquely expressive nature means that the people Plaintiffs hire
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`affect their message. Just as a film company must be able to choose its actors and
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`producers and a news company must be able to choose its editors and writers to convey
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`its desired message, Plaintiffs must also be able to select their staff to convey their
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`desired message.” To permit otherwise, Plaintiffs claim, would “compromise” their
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`message. They insist they have alleged that Section 203-e “restricts their speech, and
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`regulates its based on content and viewpoint by eliminating the expression of a preference
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`Case 1:20-cv-00112-TJM-DJS Document 33 Filed 03/31/21 Page 16 of 33
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`for pro-life workers.” The statute must therefore undergo strict scrutiny, an evaluation
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`Plaintiffs claim would fail.
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`As a general matter, Section 203-e does not serve to limit any of Plaintiffs’
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`advocacy against abortion, promotion of certain religious views, and public arguments for
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`particular versions of sexual morality. The statute does not prevent the Plaintiffs, who
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`provide medical information to pregnant women, from telling those women that they
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`should not get abortions, urging them not to use contraception, or telling them about
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`Plaintiffs’ religious beliefs. The statute simply prohibits employers from taking
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`employment action based on the reproductive health decisions of an employee or
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`potential employee. Hiring, firing, or refusing to hire an employee is conduct, not speech,
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`and the law does not implicate Plaintiffs’ First-Amendment rights in that.
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`Plaintiffs’ response to that argument is to explain that, because of their unique
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`mission, who they hire is a form of speech, and that Defendants’ regulation of such
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`“speech” violates their First Amendment rights. They point to a Ninth Circuit case,
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`McDermott ex rel. NLRB v. Ampesand Publ’g, LLC, 593 F.3d 950 (9th Cir. 2010), to argue
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`that they “must be able to select their staff to convey their desired message.” There, the
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`court agreed with an administrative law judge that a newspaper did not have to “reinstate
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`employees it discharged for union activity directed at pressuring the newspaper’s owner
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`and publisher to refrain from exercising editorial control over news reporting.” Id. at 953.
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`The government or a court “[i]ntervening to support the