On May 7, 2012, the Rabbinical Council of America (RCA), the largest organization of rabbis in the United States, approved a resolution recognizing that the Health and Human Services (HHS) regulation that mandates employers provide access to contraceptives, abortifacient drugs, and sterilizations forces many employers to “violate the injunctions of their religion.” The RCA, which represents more than 1,000 Orthodox rabbis, urged the Obama administration to amend the regulation to protect the religious liberties of all employers.
The RCA resolution also recognized the important role the Catholic Church has played in safeguarding religious liberties. Recently, 43 Catholic organizations filed lawsuits challenging the mandate. The rabbis who supported this resolution intended to correct the misconception that this is a uniquely Catholic or Christian issue, or that the desire to amend the resolution stems from an animus towards women. The HHS regulation coerces many Jewish employers into violating their theological obligations and demeans the important relationship between rabbis and their congregants. The question at the heart of this issue is whether the administration will create the religious exemption necessary to protect religious people’s ability to fully participate in the economy.
Prior to the new lawsuits, public scrutiny of this mandate had lost its intensity. The media had achieved some success in misconstruing opposition to the mandate as a “war on women” led by the Catholic Church, rather than as a broad multi-faith effort to protect constitutional rights. They had turned their coverage to other issues, and many people, even some opponents of the mandate, seemed to accept the mandate as a fait accompli. Against that backdrop, the RCA decided it had to act. The rabbis who supported this resolution hope to demonstrate that this issue affects people of all faiths and highlight the importance of safeguarding every American's religious liberty.
There are many cases in which the HHS regulation would coerce a Jewish employer into violating his conscience. Perhaps the most readily apparent problem from an Orthodox Jewish perspective is the regulation’s requirement that sterilization procedures be offered by employer-provided health insurance plans. (Jewish law usually prohibits sterilization.) The regulation also mandates that employer-provided plans provide their employees with a drug called Ella. Ella can be taken several days after conception and therefore cannot honestly be called a contraceptive, which by definition prevents conception. It is actually an abortifacient, a drug which causes an abortion. While abortion is a complicated topic in Jewish law, it has been generally prohibited by Jewish authorities from the most rational to the most mystical, from Maimonides (Code of Maimonides, Laws of Kings 9:4) to the Kabbalah’s most famous work, the Zohar (Exodus 3b). Even actual contraceptives are only allowed in certain circumstances. Some contraceptive methods are simply prohibited. In these circumstances the regulation would require an Orthodox Jewish employer to break the law, violate his conscience, or shut down his business. The government should not force this choice upon any American.
The regulation intrudes on religious liberties even in situations where the underlying drugs are religiously permitted. The circumstances in which Jewish law allows these drugs are complex and dictated by specific conditions. A mandate that requires an employer to distribute these drugs in every situation, without rabbinic guidance, intrudes on the relationship between rabbi and congregant. The Free Exercise and Establishment clauses of the First Amendment were intended to protect that very relationship from governmental interference. The Orthodox Jewish position involves nuance, and the administration’s refusal to grant religious waivers sends a clear message that nuance in this area is not welcome. Refusal to amend the regulation would send a clear message that these Orthodox beliefs are illegitimate and undeserving of basic constitutional protection.
Supporters of the current regulation frame arguments in favor of religious exemptions as a “war on women.” The supporters of this resolution want to make clear that they aim to protect the sacred relationship between clergy and the faithful. Religious people want the administration to take reasonable steps to protect their liberty; the “war on women” narrative is a politically motivated smear. A religious waiver is required in this area in order to ensure that Orthodox Jews, along with adherents of other faiths, can run businesses and employ others, without being mandated to violate the tenets of their religion.
Howard Slugh is an attorney in Washington, D.C.
