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Second Circuit – Expressive association: Slattery v. Hochul

United States Court of Appeals for the Second Circuit

Expressive association

Labor Law – Strict scrutiny

Slattery v. Hochul


Judges Park, Nardini, and Menashi

Background: The plaintiffs commenced an action to enjoin enforcement of Section 203-e of New York’s Labor Law against them. The statute prohibits employers from taking adverse employment actions against employees for their reproductive health decisions. The plaintiffs argue that the statute unconstitutionally burdens its right to freedom of expressive association by preventing it from disassociating itself from employees who seek abortions. The plaintiff argues that the statute undermines its anti-abortion message as a crisis pregnancy center because associating with such employees contradicts its central message. The plaintiffs appealed from the dismissal of its claim at the pleading stage.

Ruling: The Second Circuit reversed. The court held that the plaintiffs stated a plausible claim that the law at issue unconstitutionally burdened its right to expressive association and it does not survive the strict scrutiny analysis.

Stephen M. Crampton, of the Thomas More Society, for the plaintiffs-appellants; Frederick A. Brodie, assistant solicitor general, for the defendants-appellees.

Oral argument audio