August 22, 2019

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.