CompassCare v. Hochul: Court Revives Expressive Association Claim

On January 2, 2025 the U.S. Court of Appeals for the Second Circuit issued its decision in CompassCare v. Hochul. The case arose after three religious organizations—CompassCare, the National Institute of Family and Life Advocates (NIFLA) and First Bible Baptist Church—filed suit against several New York officials challenging the constitutionality of New York Labor Law Section 203‑e (the Act). Section 203‑e prohibits employers from discriminating against employees or their dependents based on reproductive‑health decisions, including the decision to use contraception or have an abortion. It also contains an Information Provision barring employers from accessing private information about employees’ reproductive‑health decisions, a Discrimination Provision prohibiting retaliation based on such decisions, a Waiver Provision prohibiting employers from requiring employees to waive these rights, and a Notice Provision requiring employers who issue handbooks to include notice of employee rights and remedies.

The plaintiffs, all of whom operate ministries that adhere to strict religious views on abortion and contraception, argued that the Act forced them to hire or retain employees who disagreed with their beliefs and compelled them to include a notice contradicting their pro‑life mission. They asserted violations of their First Amendment rights to expressive association, free speech and free exercise of religion, and sought to enjoin enforcement of the Act. The district court dismissed their expressive‑association, free‑speech and free‑exercise claims but granted a preliminary (and later permanent) injunction against the Notice Provision. Both sides appealed. While the appeal was pending, the Second Circuit issued its decision in Slattery v. Hochul, holding that an employer has an associational‑rights claim under Section 203‑e if the Act “forces [the employer] to employ individuals who act or have acted against the very mission of its organization”. In light of Slattery, the CompassCare appeal was reopened and decided at the start of 2025.

Facts about the plaintiffs

CompassCare

CompassCare is a New York nonprofit pregnancy‑care center that provides pregnancy tests, ultrasounds and consultations on pregnancy, abortion and adoption. It is a Christ‑centered agency and describes its mission as providing services pursuant to a pro‑life religious viewpoint. The organization opposes both abortion and the widespread use of birth control and believes that sexual relations should occur only within marriage. To ensure that its message is “authentic,” CompassCare requires all staff members to profess faith in Jesus Christ, support its mission and conduct themselves consistently with the Christian faith. Employees must agree to abide by positional statements on abortion, birth control and organizational principles. CompassCare argues that hiring or retaining staff who support abortion or contraceptive use dilutes its message and harms its mission to reduce abortions.

NIFLA (National Institute of Family and Life Advocates)

NIFLA is a Virginia‑based national organization composed of pregnancy‑care centers across the United States. Many of its member centers in New York are religious organizations committed to pro‑life missions. NIFLA provides legal resources and training to these centers and encourages them to implement statements of faith and codes of conduct. Because it represents member centers with pro‑life missions, NIFLA joined the suit to challenge the Act on behalf of its New York members.

First Bible Baptist Church

First Bible Baptist Church operates ministries such as an outreach center, foster‑care ministry, private day school and recreational sports center. The church teaches that human life begins at conception and that abortion is the unjustified taking of life. It requires all pastors, directors, employees and volunteers to agree with its statement of faith and to live in accordance with its moral and ethical standards. First Bible asserts that the Act infringes on its ability to hire only those who share its views regarding abortion and contraception.

Procedural history

The plaintiffs filed suit on November 14, 2019, seeking declaratory and injunctive relief against the Act. On June 5, 2020, the district court (CompassCare I) dismissed their claims alleging violations of expressive association, free speech, free exercise and religious autonomy, and denied their motion for a preliminary injunction against enforcement of the Act’s core provisions. The court allowed the claim challenging the Notice Provision to proceed to summary judgment and issued a preliminary injunction blocking its enforcement. After discovery, the court (CompassCare II) granted summary judgment to the plaintiffs on the notice claim, declared the Notice Provision unconstitutional and entered a permanent injunction. Both sides appealed, and the appeal was held in abeyance pending the Second Circuit’s decision in Slattery v. Hochul.

In Slattery, the court held that an anti‑abortion pregnancy center plausibly alleged that Section 203‑e violated its freedom of expressive association by forcing it to employ individuals who had abortions. That ruling set the stage for a reevaluation of the CompassCare case.

Second Circuit’s decision

Expressive‑association claim

The Second Circuit vacated the dismissal of the plaintiffs’ expressive‑association claim. The court explained that the freedom of association includes a “right not to associate,” which permits an organization in some circumstances to exclude individuals whose presence would significantly burden the group’s expressive message. Although the Supreme Court has not explicitly addressed whether employers have expressive‑association rights with respect to paid employees, the Second Circuit noted that Slattery recognized that a pregnancy‑care center could state a plausible claim if Section 203‑e forced it to hire individuals whose reproductive‑health decisions conflicted with its mission. Because the district court had dismissed the CompassCare plaintiffs’ association claim before Slattery was decided, the appellate court vacated the dismissal and remanded for the district court to determine whether any plaintiff has plausibly alleged an expressive‑association claim under the Slattery framework.

Notice Provision and compelled speech

The court next addressed the Notice Provision, which requires employers who issue employee handbooks to include a notice informing employees of their rights and remedies under Section 203‑e. The plaintiffs argued that this requirement compels them to speak against their religious beliefs. Applying the Supreme Court’s Zauderer standard for compelled commercial disclosures, the Second Circuit concluded that the Notice Provision mandates only purely factual and uncontroversial information about employee rights. The court compared the requirement to other workplace disclosures mandated by federal and state law (such as notices of minimum‑wage rights, health‑and‑safety regulations, harassment policies and labor‑law postings) and noted that such notification requirements have a long tradition and serve the legitimate state interest of ensuring that employees understand their rights. Because the notice is confined to employee handbooks and does not usurp or contradict the organizations’ own messages, the court held that the requirement is subject to rational basis review and is reasonably related to the state’s interest in preventing deception of employees.

The court emphasized that the Notice Provision does not compel the plaintiffs to endorse reproductive‑health decisions that they oppose; rather, it simply requires them to inform employees about the existence of the law. Employers remain free to express disagreement with the policy and to articulate their own moral, political and religious views in their handbooks or elsewhere. Furthermore, the requirement applies only if an employer voluntarily issues a handbook; an employer may avoid the notice by choosing not to issue a handbook. Accordingly, the Second Circuit vacated the grant of summary judgment to the plaintiffs on the notice claim and vacated the permanent injunction. It remanded the matter for the district court to determine—if an expressive‑association claim is found plausible—whether the required notice is factually accurate and not misleading as applied to each plaintiff.

Free‑speech and free‑exercise challenges

The plaintiffs also argued that the Act’s Discrimination and Waiver provisions violate their freedom of speech by forcing them to retain employees who cannot credibly convey their message, and that the Act violates their free exercise of religion by compelling them to retain employees whose reproductive‑health decisions conflict with their beliefs. The Second Circuit rejected these arguments. For the free‑speech claim, the court noted that the plaintiffs did not plausibly allege that their hiring or firing decisions themselves constitute protected expressive conduct; a mere “kernel of expression” in a decision to terminate an employee is insufficient to trigger First Amendment protection. For the free‑exercise claim, the court held that Section 203‑e is a neutral law of general applicability that applies equally to religious and non‑religious employers. The Act is directed at preventing employment discrimination based on reproductive‑health decisions and does not target religion. Because the plaintiffs did not allege that use of employee handbooks is a religious practice or that the Act burdens religious activity specifically, the free‑exercise challenge failed.

Outcome

The Second Circuit affirmed the district court’s dismissal of the plaintiffs’ free‑speech and free‑exercise claims, vacated the dismissal of their expressive‑association claim and remanded for further proceedings consistent with the Slattery decision. It also vacated the summary judgment and permanent injunction regarding the Notice Provision and instructed the district court to assess the accuracy of the notice if the plaintiffs ultimately establish a viable associational‑rights claim.

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