The Supreme Court Takes Aim at Abortion Protections in Blue States
When the Supreme Court overturned Roe v. Wade three years ago, he assured the nation that it was returning authority over abortion to the states. That promise, insincere from the start, looks hollower every day. On Monday, the court made moves against two states, New York and New Jersey, that have attempted to protect access to reproductive health care in the face of relentless assault from anti-abortion forces. SCOTUS' conservative supermajority appears poised to declare that the Constitution prohibits these states from safeguarding their own residents' ability to safely terminate a pregnancy. By doing so, the court will deepen a perverse asymmetry in its jurisprudence that gives red states unlimited power to persecute abortion providers and their patients while handcuffing blue states' efforts to provide effective and affordable reproductive care.
The first of these two moves came in Roman Catholic Diocese of Albany v. Harris , a battle over the scope of a New York statute that requires insurance coverage for pregnancy-related treatments. This law compels employer health insurance to cover “medically necessary abortion services” if they cover other medically necessary “hospital, surgical, or medical expenses.” So, for instance, these policies must cover termination in the case of ectopic pregnancies and other conditions that seriously threaten the health of the patient. It includes an exemption for “religious employers,” which are defined as nonprofit entities that exist to “inculcate religious values” that primarily employ and serve people who “share its religious tenets.” This exception was intended to cover houses of worship and similar organizations, allowing them to deny their employees coverage for any abortion, even life-saving care, through their insurance plans.
Yet even this generous carveout was not broad enough for some religious groups. They demanded a broader exemption that covers any employer with a religious “mission,” including the mother desire to “serve the poor.” (If granted, this exemption would allow a vast range of employers to exclude all abortion coverage from their insurance plans by claiming some religious “mission,” even if their work was not religious in the slightest.) Led by the Roman Catholic Diocese of Albany, these groups sued, alleging that New York's statute violated the First Amendment's free exercise clause by “discriminating” against religious employers who cannot claim the accommodation. They asserted that the law treats “some religions better than others” based upon “their perceived level of religiosity.” And they demanded a constitutional right to deny medically necessary abortion coverage to their own employees. (Notably, the diocese itself has not actually requested an exemption under the current law, and New York acknowledges that it may well receive one if it asks.)
New York's highest court unanimously rejected the diocese's constitutional claim. It ruled that the law used sensitive, “objective” criteria to determine which entities must receive the exception, and foreclosed the kind of “discretion” that could invite “religious discrimination.” States, the court explained, must have a constitutional prerogative to draw the line somewhere when deciding how far to extend exemptions for believers. And the existence of such limits does not render a law discriminatory. Otherwise, the court would have to hold that “no one claiming a religious belief may be subjected to any law inconsistent with that belief”—a principle that SCOTUS has consistently rejected.
On Monday, however, the Supreme Court tossed out this eminently reasonable ruling. It then instructed New York's high court to reconsider its decision in light of SCOTUS' recent opinion in Catholic Charities Bureau v. Wisconsin . But that case should not affect this one. In Catholic Charities , Wisconsin used an overtly discriminatory test to decide which religious charities deserved an exemption from an unemployment tax, exempting only those that proselytized to recipients or limited services to co-believers. As Justice Sonia Sotomayor explained, this test favored certain denominations over others based on subjective judgments about their theological practices —a cardinal sin under the First Amendment's establishment clause. New York's law, by contrast, uses objective standards to distinguish true houses of worship, and other genuinely religious entities, from employers who simply want to impose their personal beliefs on the people who work for them.
And yet the Supreme Court's action sends a clear signal that some justices—probably a majority—think the New York court got this case wrong. If that court reaches the same conclusion this go-round, SCOTUS will likely intervene again, this time explicitly shooting it down on the merits. By doing so, the Supreme Court would essentially create a new First Amendment right against abortion coverage, giving employers newfound freedom to deny their workers insurance coverage for the termination of a pregnancy. This rule would extend even to medically necessary abortions, leaving low-income workers scrambling to pay out-of-pocket for procedures that might be necessary to save their lives. It would weaponize “religious liberty” to stop blue states from protecting their residents' access to crucial reproductive care. And it would do all this while freely letting red states deny life-saving abortion care to their residents. The court would defy Dobbs ' assurance of neutrality toward abortion by wielding the Constitution to restrict coverage for the procedure in states that allow it.
Monday's second case, First Choice Women's Resource v. Platkin —which the court took up for next term—tells much the same story. The case revolves around a “crisis pregnancy center” that's suspected of breaking multiple state laws. Many CPCs fraudulently pose as legitimate reproductive health clinics, luring in patients who seek an abortion then attempting to trick them out of getting one; they are also notorious for practicing medicine without a license , offering fake ultrasounds , and providing patently false medical advice, all while obscuring their true identity.
The New Jersey attorney general's office suspects that First Choice, a CPC within the state, is engaging in this kind of misconduct. It has already uncovered evidence that it maintains two different websites—one for donors, which boasts that it is anti-abortion flytrap in order to raise money, and another that conceals this fact to deceive patients. Officials also allege that First Choice provided false medical information, including the myth of “ abortion pill reversal ”; may have allowed unlicensed staff to perform medical procedures; and may have shared patients' private information after promising not to disclose it.
In response, the New Jersey Attorney General Matthew Platkin issued a civil subpoena seeking information about First Choice. Among other things, the attorney general sought information about a subset of donors who may have been unlawfully misled about the services that the organization provides. On its own, this subpoena does nothing; it must be enforced by a state court. And a New Jersey court has not yet enforced the subpoena; to the contrary, a court has declined to enforce it, instead ordering the parties to negotiate over narrowing its scope. Yet First Choice raced to federal court anyway. The center argued that it had a First Amendment right to conceal its donors. And it said it could vindicate this supposed right in federal court before a state court has even ordered any disclosure at all.
That claim marks a rather starting affront to basic limits on the power of federal courts, as the US Court of Appeals for the 3rd Circuit explained in its ruling against First Choice. The center has not yet suffered any injury; it has not been ordered, by any court, to disclose the contested information. There is still ample time for the state court to determine that the First Amendment prohibits the disclosure. But First Choice does not want to wait; it seeks to short-circuit the New Jersey judiciary and win a get-out-of-subpoena-free card from the federal courts immediately. That shortcut, the 3 rd Circuit held, would run foul of the Constitution itself, exceeding federal courts' authority to decide only live cases or controversies.
By taking up the 3rd Circuit's decision, SCOTUS has signaled that at least four justices think the lower court got it wrong. If a majority agrees, it will create yet another bespoke exception for crisis pregnancy centers seeking to ignore or evade the law. Seven years ago, SCOTUS granted CPCs a First Amendment right to conceal their lack of a medical license from patients. First Choice could go even further, shielding these groups from a whole suite of regulations that guard against consumer fraud and medical negligence. A CPC suspected of egregious wrongdoing, including serious harm to patients , could defeat a subpoena by securing a victory in federal court. Blue states like New Jersey would struggle to impose the most basic oversight of these bogus clinics, consistently thwarted by federal injunctions. SCOTUS would transform the First Amendment into a shield against legal scrutiny for CPCs, giving them an all-purpose escape hatch from state court when accused of violating the law. No one else would receive this special privilege handcrafted for anti-abortion activists alone. And it would become that much more difficult for progressive state attorneys general to hold CPCs accountable for malpractice.
Such a decision would further betray Dobbs' supposed commitment to state control over abortion policy. Like the court's move in the abortion exemption case, such an outcome would leave red states unshackled to impose draconian bans while curbing blue states' ability to defend reproductive autonomy. This one-sided approach to reproductive rights would also undercut Dobbs' promise to end the so-called “abortion distortion”—the supposed bending of other constitutional doctrines, including the First Amendment, to accommodate the right to choose. The Dobbs majority claimed that Roe had warped these doctrines and vowed to stop contorting the law to favor reproductive freedom. Yet now, that same majority stands poised to twist those very doctrines in the opposite direction to undermine reproductive freedom instead. The Supreme Court has not taken itself out of the battle over abortion. It has merely picked a different side.
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