Since 2016, the Roman Catholic Diocese of Albany has been challenging a New York law that mandates that insurance policies must cover abortions. The state courts upheld this mandate as a neutral law under Employment Division v. Smith. In June 2021, the Supreme Court decided Fulton. Justices Thomas, Alito, and Gorsuch would have overruled Smith. But Justices Barrett and Kavanaugh had some questions. After Fulton was decided Roman Catholic Diocese of Albany wound its way to the Court.
In November 2021, after several relists, the Court GVR'd the case in light of Fulton. Justices Thomas, Alito, and Gorsuch would have granted the petition. There was no reason for a GVR, since Fulton did not actually change Smith. The options were grant or deny. At the time, I wrote "It is very obvious to me that Justices Kavanaugh and Barrett have no interest in deciding another Free Exercise Clause case now–especially after the denial of review in the Maine case."
Since that GVR, the case moved its way through the state courts. In June 2022, the New York Appellate Division ruled that Fulton did not change the relevant standard, so the Diocese lost again. I observed:
