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WBASNY Dismayed by Supreme Court Decisions that Undermine Equal Employment Rights and Limit Access to Contraception under Affordable Care Act

(New York, NY, Tuesday, July 8, 2020) – The Women’s Bar Association of the State of New York (WBASNY) is disappointed by two decisions issued by the U.S. Supreme Court this week in which the majority upheld regulations that expanded the ability of employers and businesses to use asserted religious grounds and/or undefined “moral beliefs” (a) to deny women access to free contraception as was expressly required under the terms of the U.S. Patient Protection and Affordable Care Act (ACA), and (b) to fire employees, in violation of fundamental rights under Title VII of the Civil Rights Act of 1964, using  the regulations’ “ministerial exception.” In the past, this exception applied to clergy. However, in 2017 and 2018 the exception was broadened to apply to teachers, guidance counselors and laypersons.

WBASNY has long supported women’s freedom of choice in regard to their reproductive health and the employment rights of women, minorities and LGBTQ individuals under the Civil Rights Act. Accordingly, WBASNY participated with more than 50 other advocacy organizations in “friend of the court” briefs sponsored by the National Women’s Law Center (NWLC) in both cases: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru.  The amicus briefs explained that the regulations gave sweeping authority for employers and institutions (such as hospitals, schools, retail establishments, etc.) to deny employees’ fundamental rights under existing laws based on the purported religious or moral beliefs of senior management.

As noted by NWLC concerning the Little Sisters case: “61.4 million women currently have insurance coverage of birth control without out-of-pocket costs due to the ACA. The Supreme Court’s decision will leave their ability to receive this critical coverage at the whim of their employers and universities. This decision will disproportionately harm low-wage workers, people of color, LGBTQ people, and others who already face barriers to care.”  Fortunately for women in New York, the State’s Comprehensive Contraceptive Care Act (“CCCA”) continues to require most employers to provide cost-free contraceptive coverage as part of their health insurance plans.  For years, WBASNY lobbied for the passage of CCCA.  Several other states also have mandates that require in-state employers to provide such coverage.

In the other case, Our Lady of Guadalupe School,” the court held that lay teachers and other staff at private schools may be fired, based on such schools’ religious or moral criteria.  By assigning employees such tasks as accompanying a class in a morning prayer, employers may now assert that the employees are, in effect, “ministers,” who may not avail themselves of any rights to protection under federal laws against discrimination on the basis of race, age, national origin, sex (including LGBTQ rights), or other protected classes.  Such employees no longer will have standing to sue, even if their religion is different from that of the employer, or if the real reason for their firing is their age, sexual orientation, or other grounds barred by Title VII of the Civil Rights Act.

Joy A. Thompson, President of WBASNY, stated: “For more than 40 years, WBASNY has advocated for civil rights and the fair and equal administration of justice.  These two decisions undermine the equal protection for all, as articulated in the underlying laws.”  

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The Women’s Bar Association of the State of New York (WBASNY) is the professional membership organization of choice for more than 4,000 attorneys throughout New York State, and the largest statewide women’s bar association in the country.  For four decades, WBASNY has been a singularly important resource for women lawyers, with professional networking, continuing legal education programming, leadership training, and advocacy for the rights of women, children, and families.  Through involvement with WBASNY’s 20 regional chapters and its 40-plus substantive law committees, WBASNY’s members collaborate with one another on a variety of issues and perform public and community service, in furtherance of its mission to promote the advancement of the status of women in society and women in the legal profession; to promote the fair and equal administration of justice; and to act as a unified voice for its members with respect to issues of statewide, national and international significance to women generally and women attorneys in particular. WBASNY holds United Nations NGO status with the U.N.’s Department of Public Information, and Special Consultative status in association with the U.N. Economic and Social Council (ECOSOC). WBASNY is also a founding member of the National Conference of Women’s Bar Associations.