Must my boss’s religious freedom trump my own?


On June 30, the United States Supreme Court enabled business owners to make decisions about their employees’ religious freedoms and reproductive and healthcare rights. The court once again expanded the powers of corporations in this country when it allowed Hobby Lobby, a for-profit craft store chain, and Conestoga Woods Specialties Corporation, a for-profit furniture manufacturer, to deny access to certain family planning services, specifically emergency contraception and IUD’s, through employer-based health insurance. The court overruled the Affordable Care Act’s (ACA) requirement to include access to all family planning services in employer-based health insurance.

The ruling was based on the claim that some employers have personal religious objections to those forms of contraception and that, therefore, their religious rights are violated by the ACA requirement. As a Jewish woman and an advocate with the National Council of Jewish Women, I find the court’s ruling to be unjust, discriminatory and erroneous.

What’s clear is that the court is favoring the religious rights and freedoms of the companies’ owners over those of the employees of these companies.  The owners of Hobby Lobby and Conestoga are individuals who have the right to practice their religious beliefs. However, health insurance is a form of compensation to employees, and just as employers are not permitted to control how their employees use their wages, they should not be able to control how employees use their health insurance compensation.

The United States is a diverse nation, with varying practices and religious traditions even within individual religious groups. But even among those religious groups commonly referred to as anti-abortion, there is overwhelming support for contraception among the religions’ followers as a necessity for family planning and women’s health. Ninety-eight percent of sexually active Catholic women say they have used a contraceptive method prohibited by the Vatican “>89 percent of adults in the U.S. view contraception as morally acceptable. This is why women’s rights advocates, as well as faith-based, and social justice organizations fought so hard to include coverage of contraception in the ACA.

The so-called Hobby Lobby ruling, while intentionally narrow in its language,  already has moved beyond the companies who brought the case to the Supreme Court. It has already been broadened in its application to Wheaton College, which has objected to the fact that filing a form required by the ruling made the school complicit in providing contraceptives. So the court allowed the college to simply file a letter with the federal government stating its objections as a means of complying with the law.

It is clear that the court’s interpretation of the Religious Freedom Restoration Act easily could lead to the exclusion of other healthcare practices from employer-based health insurance plans, including employers who hold religious beliefs against blood transfusions, psychiatric care, medically necessary abortions and hysterectomies, and even vaccinations. The Hobby Lobby ruling could be used as a precedent to exclude such essential forms of care from company health insurance plans.

The owners of Hobby Lobby and Conestoga could have easily paid a tax penalty for not providing their employees with health insurance that meets the ACA requirements. This would have cost them less than half the price of insurance.  Hobby Lobby asserted that they would not be able to attract quality employees if they did not offer health insurance and so were “forced” to take the issue to court. But polls have shown that more than 85 percent of employees would stick with their employer, even if their employer-sponsored health insurance were to be dropped. 

On July 9, Democratic lawmakers in Congress introduced legislation that would effectively reverse the Hobby Lobby ruling, preventing for-profit companies from seeking exemptions to the ACA mandates. (Religious organizations would remain able to opt out.) The Senate bill, sponsored by Patty Murray (D-Wash.) and Sen. Mark Udall (D-Colo.), won support from three Republican Senators, but that wasn’t enough for the measure to advance.  The prospects for its passage in the Republican-dominated House of Representatives are even dimmer. 

Yet the necessity of such new legislation should not be questioned. Women should not be denied the right to have coverage for the health and their reproductive choices. The Jewish community needs to speak out on behalf of this new legislation with a loud and clear voice. 

Maya Paley is the Director of Legislative and Community Engagement for the National Council of Jewish Women/Los Angeles.

Jewish groups stand by religious freedom law, but Supremes’ take divides them


Two decades ago the Jewish community united in support of landmark religious freedom legislation. Now the Supreme Court’s application of that law has Jewish groups divided.

Leading Jewish advocacy groups denounced the court’s 5-4 decision Monday in the Hobby Lobby case granting religious freedoms protections to companies, while Orthodox groups lauded the ruling.

In ruling that closely owned corporate firms with religious objections do not have to provide contraceptive coverage in their employee health plans, the majority based its decision on the Religious Freedom Restoration Act of 1993.

“They’ve opened up a Pandora’s box through corporations claiming religiously motivated exemptions against an array of rules and regulations the government passes to enhance the public welfare,” Rabbi David Saperstein, director of the Reform movement’s Religious Action Center, said in an interview.

In two friend-of-the-court briefs, nine Jewish groups had opposed arguments by Hobby Lobby, a crafts chain, and Conestoga Wood Specialities, a cabinet maker, that their owners’ devout Christianity exempted them from extending to employees contraceptive coverage under the Affordable Care Act, President Obama’s signal first-term legislation.

But the Orthodox groups that had joined an amicus brief backing Hobby Lobby and Conestoga praised the decision.

“The Court’s ruling stands for the proposition that — even when the government seeks to implement valuable policy goals — it must do so without trampling upon the conscientious beliefs of American citizens, especially, as is the case here, when there are many other ways to meet the policy goals without infringing on religious liberty,” Nathan Diament,  director of the Orthodox Union’s Washington office, said in a statement.

Both sides referred to the law that undergirded the conservative majority’s decision authored by Justice Samuel Alito.

Saperstein said the majority ruling badly missed the point of the Religious Freedom Reform Act.

“We believe deeply in RFRA and robust religious liberties,” he said. “We believe the court was wrong in saying there are religious claims corporations can make. Corporations don’t have souls or consciences the way that people or associations of like-minded people do.”

Diament had a much different perspective on the law.

“RFRA is about keeping the government from inhibiting people’s practice,” he said in an interview. “It doesn’t mean employees can have their employers’ religion imposed upon them, it means the government can’t force employers to violate religious beliefs.”

But even Jewish groups that are critical of the ruling are standing by RFRA. Nancy Kaufman, the CEO of the National Council of Jewish Women, said the slippery slope she now feared was in the ruling, not the law.

“RFRA was not a mistake because it was designed to help protect individual people’s religious freedom -– we worked hard for its passage,” she said in an email to JTA. “The problem is that the court has granted closely held corporations (without really defining what that is) religious freedom even when it means that it would take away religious liberty from their individual workers who are ‘people’.”

Rabbi Abba Cohen, the Washington director of Agudath Israel of America, another Orthodox group that sided with the two corporations in the case, applauded the court for balancing the freedoms of employers and employees.

“We are all too familiar with the problem from the perspective of the employee, who often must choose between his religious beliefs and his livelihood,” he said in a statement. “But the problem is no less compelling from the employer’s point of view, where that Hobson’s choice may likewise force him or her to sacrifice either his religion or his business.”

Liberal Jewish groups said the decision’s broader implications were troubling and could lead to chaotic menus of what might and might not be available to employees.

“While the majority’s assertion that the ruling is limited solely to the contraception mandate is worth noting, we are troubled that it may be used by corporations seeking to impose other religious beliefs on employees,” the Anti-Defamation League said in a statement.

Alito in his decision took pains to confine the ruling to contraceptive coverage.

“This decision concerns only the contraception mandate and should not be understood to hold that all insurance-covered mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs,” he wrote.

Ruth Bader Ginsburg in her dissent for the four liberal justices chided Alito, arguing that the declaration that religious exemptions not having to do with contraception would be turned away under the ruling does not necessarily make it so.

“The court, I fear, has ventured into a minefield,” she said, a phrase that a number of groups, including the ADL, echoed in their statements.

“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment clause was designed to preclude,’ ” Ginsburg wrote, citing Supreme Court precedents.

Kaufman of the NCJW said in an interview that Alito’s distinction between contraceptive coverage and vaccinations or blood transfusions relegated women’s health needs to second class.

“It’s really saying contraception is not health care,” she said.

Despite their misgivings, the Reform and Conservative movements saw in the narrow ruling a way toward restoring coverage: Alito wrote that the government had failed to persuasively distinguish privately held companies from religious nonprofits, which have been granted a workaround under Department of Health and Human Services regulations, and that the same workaround could be extended to the privately owned companies.

The government “could extend the accommodation that HHS has already established for religious non-profit organizations to non-profit employers with religious objections to the contraceptive mandate,” Alito wrote.

The government’s solution requires health insurance companies to bypass the religious nonprofit employer and provide contraceptive coverage to the employee directly.

“That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion,” Alito wrote.

That prompted a degree of hope from the Reform and Conservative movements.

“We urge that this decision be read more narrowly to hold that it is only permissible to accommodate a ‘closely held private corporation’s’ religious beliefs about contraception to the extent that there is a readily and easily implementable alternative to provide all contraceptive options to affected employees,” Rabbi Julie Schonfeld, the executive vice president of the Conservative movement’s Rabbinical Assembly, said in a statement.

Saperstein of the Religious Action Center also saw that aspect of the ruling as an avenue to restoring contraceptive coverage.

“The court did not do anything to inhibit the government’s ability to create a mandate for health care coverage and contraception” under the terms that now govern religious nonprofits, he said.

Using the nonprofit workaround would be a solution that the Orthodox Union would welcome, Diament said in an interview, noting that Orthodox groups had opposed the mandate not because of objections to contraceptive coverage but because of the broader issue of requiring compliance with practices that violate a religion.

“The key point in this particular case is that it’s very clear that the government has other channels to serve its goal of getting women to have access to contraception,” he said.

Marc Stern, the general counsel for the American Jewish Committee, which signed onto a friend-of-the-court brief in support of the Obama administration’s position, said it was unclear from the court’s ruling how the nonprofit workaround could be applied to privately owned companies.

“It’s an untested plan with uncertain costs and uncertain ability, given the importance of the availability of contraception,” he said.

Alito wrote that his ruling does not cover publicly traded corporations such as IBM.

The National Council of Jewish Women and the ADL said they would back legislative redress, something Obama spokesman Josh Earnest also anticipated, but with the Republican majority in the U.S. House of Representatives, the passage of a bill that enshrines a contraceptive coverage mandate is unlikely.

One bill that has such provisions, the Women’s Health Protection Act, has a 4 percent likelihood of passage, according to govtrack.us, a legislation monitor.

Israeli officials order halt to underhanded contraception of Ethiopian women


Following a TV report alleging that Ethiopian Israeli women were being given contraceptive shots against their will, Israel’s Health Ministry has ordered physicians to put a stop to the practice.

The report, broadcast Dec. 8 on the “Vacuum” investigative news program on Israeli Educational Television, alleged that Ethiopian immigrants were coerced or coaxed into receiving Depo Provera, a long-term contraceptive shot that lasts three months, both by Jewish aid officials before their immigration to Israel and by health workers once in Israel.

In the past decade, births among Ethiopian women in Israel have fallen by nearly 50 percent, according to the report.

Last week, the Health Ministry instructed doctors to stop administering the shots unless women ask for them and understand their ramifications.

The ministry’s directive, sent by Director General Ron Gamzu on Jan. 20 in response to a petition filed by the Association for Civil Rights in Israel, instructs doctors “not to renew prescriptions of Depo Provera to women of Ethiopian origin or any other women who, for whatever reason, may not understand the treatment’s implications.”

The directive also instructs doctors to ask patients why they want to take the shot before administering it, and to use a translator if necessary. The directive does not confirm the allegations or acknowledge any wrongdoing.

“We didn’t give the shots,” ministry spokeswoman Einav Shimron Greenbaum told JTA. “We didn’t give them to anyone. We still deny it today.”

The allegations extend as far back as the health clinics the women visited in Ethiopia prior to immigrating to Israel, where the American Jewish Joint Distribution Committee provides an array of health services to prospective Ethiopians immigrants, including contraception.

“They said, ‘Come, there are vaccinations, gather everyone,” Amawaish Alane, an Ethiopian immigrant to Israel, told “Vacuum” reporter Gal Gabbay in the Dec. 8 broadcast. “We said we wouldn’t receive it. They said, ‘You won’t move to Israel.’ ”

Alana and others on the program charged that workers at the JDC clinic told them it would be hard for them to work, get apartments or survive in Israel with large families.

A woman identified as S. said on the program that she was told at the Jewish aid compound in Gondar, Ethiopia, that she wouldn't get a ticket to Israel if she didn't take the shot.

“I didn’t want to take it. They wanted me to take it. But I didn’t know it was a contraceptive,” she said. “I thought it was an immunization.”

JDC denies the charges.

“At no time did JDC coerce anyone into engaging at family planning at its clinics. Those options were totally voluntary and offered to women who requested it,” a JDC spokesman in New York told JTA in December. “They chose the form of contraceptive based on being fully informed of all the options available to them.”

The “Vacuum” report alleged that the women continued to be coaxed into receiving the shots once they immigrated to Israel, often without their knowledge that what they were getting was contraception.

A spokesman for ACRI, which filed its petition after the Dec. 8 report aired, said ACRI is interested in preventing future unwanted contraceptive shots rather than casting blame.

“Admission of guilt is not what we’re about,” ACRI spokesman Marc Grey told JTA. “It’s more about acknowledging that this occurred and making sure it doesn’t happen again.”

The project coordinator for women and medical technologies at Isha L’Isha, an Israeli feminist group that also signed the petition, praised the Health Ministry’s Gamzu for issuing the new directive.

“What he’s done is different from all the other statements from the Health Ministry, which blamed the women and said that’s what they want,” said Hedva Eyal, the project coordinator. “He said maybe we made a mistake. We need to make sure this never happens to any group with any health issue.”

Report: Coerced contraception behind 50 percent decline in Ethiopian-Israeli birth rate


Israeli and Jewish aid officials are denying an Israeli TV report alleging that Ethiopian immigrant women have been coerced into taking contraceptive shots.

The report, which aired Saturday night on Israeli Educational Television, charged that coercive contraception is behind a 50 percent decline in the Ethiopian birth rate in Israel over the last decade.

Ethiopian women interviewed in the program, called “Vacuum” and hosted by Gal Gabbai, said they were coerced into receiving injections of Depo-Provera, a long-acting birth control drug, both at Jewish-run health clinics in Ethiopia and after their move to Israel.

Rachel Mangoli, executive director of the WIZO chapter in Katz Village, told the TV show that she realized something was amiss when during a full year in her Ethiopian program just one Ethiopian baby was born.

“I went to the health clinic and I was told that Ethiopian immigrants were given the contraception because they couldn’t be relied upon to take the pills every day,” Mangoli said.

In the report, a woman identified as S. said she was told at the Jewish aid compound in Gondar, Ethiopia, “If you don’t get the shot, we won’t give you a ticket.”

She recalled, “I didn’t want to take it. They wanted me to take it. But I didn’t know it was a contraceptive,” she said. “I thought it was an immunization.”

Another Ethiopian interviewed for the program, Amawaish Alane, said, “We said we won’t accept the shot. They told us, ‘You won’t immigrate to Israel. You also won’t come into this clinic. You won’t get help and medical treatment.’ ”

“We had no choice,” Alane said. “That’s why we took the shot. We could only get out with their permission.”

The American Jewish Joint Distribution Committee, which runs the health clinics in Ethiopia for prospective immigrants to Israel, says it offers contraception among its array of services but that it is purely voluntary.

“At no time did JDC coerce anyone into engaging at family planning at its clinics. Those options were totally voluntary and offered to women who requested it,” a JDC spokesman in New York said. “They chose the form of contraceptive based on being fully informed of all the options available to them.”

The TV program alleged that coercive contraceptive tactics continued once the Ethiopians immigrated to Israel, where health clinics have been administering the contraceptive shots. The shots, which must be taken every three months, normally are given to women who cannot be relied upon to take daily pills, such as the mentally ill, according to health experts cited in the program.

The TV show sent a hidden camera into an Israeli health clinic, where an employee told the undercover reporter that Ethiopian women are given the contraceptive shots “because they forget,” “explanations are difficult for them” and “they essentially don’t understand anything.”

The Israeli Health Ministry has denied any systematic suppression of Ethiopian pregnancy or coerced contraception.

Watch the show here (Hebrew):

O.U. formally comments on Obama contraceptive coverage rules


The Orthodox Union formally commented on pending Obama administration regulations mandating employer-sponsored health plans for contraceptives and sterilization.

The comments filed Monday with U.S. Department of Health and Human Services express concerns over the regulations’ exemption of houses of worship, but not other religious entities like schools, hospitals and social welfare program providers.

“If the First Amendment’s pair of clauses guaranteeing the right of ‘free exercise’ and prohibiting ‘establishment’ of religion stand for anything, they stand for the protection of citizens against government compulsion to act contrary to conscience and for prohibiting government officials from parceling out religious protection subjectively,” the comments stated.

In a press release, O.U. executive director for public policy Nathan Diament stated the “deepest concern” is “the notion that the federal government will create two tiers of religious organizations with each receiving different apportionments of religious liberty protection. “

“We fully appreciate that on this issue, President Obama is trying to delicately balance competing concerns, and that he recognizes the importance of religious liberty and further recognizes the crucial role religious institutions play in American society,” Diament said. “But we respectfully disagree with how the President and the Secretary of HHS have decided to strike the balance.  We hope he will change the policy.”

The Orthodox Union raised the matter in a meeting with President Obama on June 5. In that meeting, they made clear that the Orthodox Jewish objection was not to contraceptives coverage, but to government interference in the management of institutions owned by religious groups.

The federal government opens proposed regulations to commentary for a period through publication the Federal Register.

How Jewish groups became involved in the contraception coverage debate


What were the Jews doing becoming so involved in a debate over contraception?

It was a question that more than Jewish official asked themselves over recent months as tensions between the Obama administration and leaders of the Catholic Church rose to the boiling point over the issue of contraceptive coverage.

The Catholic Church rejects contraceptive use as immoral, and Catholic bishops protested vigorously when the Obama administration established a federal regulation that would have required an array of Catholic institutions to cover contraception as part of their health insurance plans for employees. By contrast, Jews across the religious spectrum sanction the use of contraception, albeit for different reasons.

Yet Jewish groups ended up weighing in on both sides of the controversy.

How Jews became involved in the debate—even making suggestions regarding the eventual compromise proposal that the White House hoped would put the controversy to rest—is a tale of deep ties between some Jewish groups and the White House, the interfaith alliances forged by the politically like-minded and the tendency of Jewish groups to involve themselves in narrow questions that may not affect them directly but have broader implications for the relationship between religion and state.

Speaking on background, a number of Jewish organizational officials said at times they felt discomfited being drawn into a dispute between the White House and another religion.

Yet Jewish groups weighed in even before the Department of Health and Human Services first issued the regulation that provided only a narrow exception from the contraceptive coverage mandate for houses of worship and other institutions deemed to have a primarily religious purpose—an exemption that effectively excluded many other religiously affiliated institutions such as hospitals, universities and charities.

Nathan Diament, the Orthodox Union’s executive director of public policy, said his group joined a loose alliance of religious groups in writing to the White House seeking reassurances about reports that such a rule was in the offing. When the groups’ fears were realized, the coalition again wrote to protest.

“We signed on with Catholic groups and other Christian groups expressing concern, and there were conversations over the ensuing time,” he said.

Diament noted that the OU does not reject contraception coverage per se.

“Our concerns are less contraception than that some organizations are deserving of protection” from government mandates “and others are not,” he said.

Agudath Israel of America, the haredi Orthodox umbrella group, also weighed in against the rule. Its Washington director, Abba Cohen, cast the implications as broader than contraceptive coverage. Government mandates conceivably could extend to end-of-life issues, he said, where Orthodox practices at times clash with those of the medical community.

“Fundamentally, we believe that constitutional rights of free exercise [of religion] must be honored,” Cohen said. “It’s not just birth control and abortion, it’s the larger issue of health and medical ethical issues.”

At the same time that Orthodox Jews were joining with other critics of the new regulation, another important Jewish organizational constituency, Jewish women’s groups, were praising it.

The National Council of Jewish Women, Jewish Women International and Hadassah all favored the plan because it was a natural for groups dedicated equally to protecting the rights of Jews and women, said Sammie Moshenberg, director of NCJW’s Washington office.

The focus, she said, was “how can we ensure that women in this country have access to no-cost birth control regardless of where they work.”

There was a Jewish issue at play as well, she said, noting that Catholic institutions often employ non-Catholics. It was objectionable, Moshenberg said, “to say that a woman’s employer’s beliefs on this trump her religious beliefs.”

Catholic bishops had pressed so hard by December for the regulation to be changed and the exemption expanded that Moshenberg found herself wondering whether the Obama administration would come out with a new ruling that would unsettle her. She asked for and received a meeting with high-ranking officials. Representatives from JWI and an array of liberal Christian groups joined Moshenberg at the meeting, where they were given the reassurances they sought.

While the Orthodox and women’s groups were coming at the issue from opposite ends, the Reform movement was mulling the inherent contradictions posed by the regulation to two of its core beliefs—the autonomy of religious institutions and of women.

Throughout the process, the White House consulted with Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, who has a strong relationship with the White House and is on the president’s group of faith advisory leaders.

On Jan. 20, the White House reasserted its commitment to its August rule: none but the most strictly defined religious institutions would be exempt. But the ensuing expressions of outrage from Catholics—and condemnations from Republicans, as well as some Democrats—caused the White House to seek a compromise.

Saperstein and Orthodox Union officials were among the religious leaders who contributed ideas toward a potential compromise solution, although most of the work was done in house by the Obama administration.

“I like others pushed for both a robust religious exemption and a goal of covering every woman in ensuring access to contraception,” Saperstein said.

President Obama announced the resulting mechanism last Friday, noting that women would still have access to free preventive care that includes contraceptive services no matter where they work.

“But if a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company—not the hospital, not the charity—will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles,” the president said.

This time, a wide spectrum of Jewish groups was on board. Hadassah, the Reform movement, the Orthodox Union, NCJW and JWI each welcomed the compromise.

Kinks remain, the White House told groups that attended a special briefing on the matter that afternoon—for instance, what to do about institutions that are self-insured.

“The president’s stated commitment is a positive first step forward, the details of implementation are crucial and we look forward to working with the administration to see that through,” the OU said.

The U.S. Conference of Catholic Bishops still had strong objections, however, to the administration’s new solution—and for at least one Jewish group, that’s what really matters.

“Whether or not the White House’s new ‘compromise’ proposal adequately addresses the religious freedom concerns raised by the Catholic Church is for the Catholic Church to say, not us—and, frankly, not the White House, either,” Agudah’s Cohen said in a statement. “The important points here are that no religiously sponsored entity, and no religiously motivated individual, should be forced by government to violate its or his sincerely held religious principles; and that the determination of religious propriety must be left to the religious entity or individual, not to the government.”

Indeed, even if the Jewish groups were not as invested in the specific issue of contraception, there was an assumption in some quarters that religious Jews would be sensitive to the religious concerns of others.

On Sunday, CNN’s Candy Crowley asked Jacob Lew, the new White House chief of staff, noting that he was an observant Jew, “Was there anything about this that made you think twice when it first went out?”

Lew avoided the question, saying that under the revised proposal, no religious institution would have to fund contraceptive coverage.