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Health Plans Must Offer Birth Control

By John Caher

As goes New York, so goes the nation? Last month, the New York Court of Appeals upheld the constitutionality of a women's health act that pressures some religious-affiliated employers to either offer their employees a prescription plan that includes contraceptive coverage, or deny their workers any drug coverage at all.

In Catholic Charities of the Diocese of Albany v. Serio, 110, the court rejected the claims of 10 faith-based organizations and refused to exempt them from a key provision in the Women's Health and Wellness Act. The ruling makes it difficult, but not impossible, for an individual or group to avoid on religious grounds a neutral law of general application. But the judges also explicitly refused to narrow the Free Exercise Clause in the state Constitution to conform with the U.S. Supreme Court's interpretation of the Establishment Clause in Employment Division v. Smith, 494 US 872 (1990). They insisted that the rule they adopted, while deferential to the Legislature and weighted toward 'efficient government,' is 'more protective of religious exercise' than the one embraced in Smith. That, experts said, remains to be seen.

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