New York Must Defend ‘Boss Bill’ in Associational Rights Row

A crisis pregnancy center operator in New York can proceed with a lawsuit alleging that a state law prohibiting employers from firing or disciplining employees based on their reproductive health decisions unconstitutionally interferes with employers’ expressive association rights, the Second Circuit said Monday.

Evergreen Association Inc. and its president, Christopher Slattery, plausibly alleged that the law, known as the “Boss bill,” violates their First and 14th Amendment rights to freedom of expressive association, the US Court of Appeals for the Second Circuit said. Evergreen opposes abortion and operates a network of crisis pregnancy centers, including Expectant Mother Care and EMC FrontLine Pregnancy Centers.

The case represents another front in the war over reproductive rights—liberal states’ attempts to protect individual privacy in health-care decision making.

Evergreen is a small, nonprofit corporation that alleged the Boss bill violated its speech, association, and religious rights. It hires only people who share its anti-abortion views and opposition to premarital sex and use of abortifacient contraception. A federal district court dismissed the case after finding that law didn’t impermissibly target religious conduct and was rationally related to a legitimate state interest in protecting citizens’ privacy and autonomy relative to health care decisions.

The law imposed only “incidental” limitations on Evergreen’s associational rights because it didn’t affect the employer’s ability to advocate against abortion or contraception, the district court also said.

The Second Circuit mostly affirmed the dismissal, but reversed on the associational rights claim.

The US Supreme Court has recognized a right to associate for the purpose of engaging in First Amendment-protected activities, the Second Circuit said. These include the right to worship and to petition the government free from state interference, it said.

Evergreen satisfied the top court’s test for evaluating an expressive association claim, the court said. First, the employer engaged in expressive activity—sharing its anti-abortion message with the world, it said.

The Boss bill significantly burdened Evergreen’s ability to communicate that message by forcing it to associate with employees who don’t share its views, the court said. The burden was severe, not incidental as found by the district court, because it forced the employer to accept employees who might act in ways contrary to its mission, the appeals court said.

The district court ought to have subjected the Boss bill to strict scrutiny based on its potentially severe impact on Evergreen’s associational rights, the appeals court said. And, on balance, Evergreen’s interests outweighed those of the state, Judge Steven J. Menashi said in the opinion.

Judges Michael H. Park and William J. Nardini joined.

Thomas More Society and Clayton Plaza Law Group represent Evergreen. The New York Attorney General’s Office represents the state.

The case is Slattery v. Hochul, 2d Cir., No. 21-911, 2/27/23.