Reform Jewish Leader Criticizes One-Sided Contraception Hearings
February 17, 2012 
4 Comments
Bishop William Lori, representing the United States Conference of Catholic Bishops, testified at the House Committee on Oversight and Government Relations Hearing entitled, “Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?” In it, he analogized the government mandate that most employers must cover birth control, without co-pay, to a hypothetical situation in which a kosher restaurant would be mandated to include pork on the menu because of its health benefits.
Bishop Lori chose to use a vivid and unusual analogy between religious employers providing comprehensive health care coverage to their employees and kosher delis being forced by government to sell pork on the grounds that pork is good for you. While I appreciate the humor and creativity of this analogy that sought to raise important issues of balancing free exercise of religion against other compelling government interests, picturesque analogies are not always the most effective or accurate. Unfortunately, this analogy is flawed in ways that obscure rather than illuminate the important moral, religious and legal issues involved.
First, the government’s interests in the functioning of the health care system are manifestly far greater than mandating stores sell a particular healthy food, pork or otherwise, and the analogy unintentionally trivializes the need to ensure all Americans have access to quality healthcare in a manner that does not discriminate against women. Indeed, every individual partakes of the health care system at some point in his or her life – whether it is in the process of birth, death or points in-between. That care is paid for by the individual or the public; either directly or through some form of private or public insurance. As such, the government has a compelling interest of the first order in ensuring that all individuals are able to access necessary services. In contrast, no one needs to eat in a particular restaurant and no one needs to eat one particular form of (assumed) healthy food, pork or otherwise.
Second, Bishop Lori’s argument also fails to distinguish for-profit consumer relationships from employer-employee relations. The Supreme Court has long upheld a broad range of government regulation, including religious employers, health and safety requirements, requirements to pay into social security (which was upheld by the Supreme Court over employer’s religious objections in United States v. Lee), bans on a number of forms of discrimination (again with some accommodation of religious free exercise) and requirements that employers accommodate the religious practices of its employees, unless doing so would cause “undue hardship on the conduct of the employer’s business.” This is quite different than the government trying to regulate what foods a restaurant must provide to its customers, where there is a much lower government interest and no well-settled pattern of
government regulation.
Third, Bishop Lori’s analogy compares the limited religious exemption for kosher caterers allied with synagogues with the broad exemption that the Obama Administration has now established that would protect the religious conscience of employers with moral objections to contraceptive coverage. Not only will a church, synagogue or other house of worship, parochial school, or missionizing group not be required to include contraception in its health plan, but now religiously affiliated entities, such as church affiliated hospitals, social service entities and universities, will also be exempt from providing the coverage, under the compromise announced last Friday. This compromise was praised by Sister Carol Keehan, President of Catholic Health Services, who said she was “pleased and grateful that the religious liberty and conscience protection” was accomplished. What Bishop Lori did not elucidate was the moral basis for the Church to oppose the government providing millions of women with basic health care services, services that ironically will cut significantly unwarranted pregnancies and attendant abortions.
Finally, the attention to Bishop Lori’s analogy should not obscure the greatest flaw of these hearings. The House Oversight ommittee did not allow witnesses opposed to the church’s position to testify and, among the witnesses who testified, not a single one was a woman. Is diverse representative discourse not the point of Congressional hearings? Does the committee so lack confidence in the free marketplace of ideas that is at the core of our democratic system of government? I urge the committee to convene hearings that can truly debate the important issues involved. As someone who believes in ensuring both access to contraception for all women and the robust protection of religious autonomy, it seems clear that the fundamental rights of all women and the fundamental rights of religious conscience deserve no less.
Rabbi Saperstein decries the “lack of diverse representative discourse” regarding the mandate. Yet the RAC expressed no such concerns prior to Obamacare’s passage; a bill so notable for its lack of representative discourse that Speaker Pelosi famously admitted “that we have to pass the bill to find out what’s in it”. The former speaker apparently ‘so lacks confidence’ in Obamacare that a disproportionate number of waivers are in her congressional district. Rabbi Saperstein seems unconcerned that Obamacare creates a vast army of unelected and unaccountable administrators to interpret and promulgate regulations including the Medicare Independent Advisory Board which is granted great power to set prices and services. It seems incongruous that those who want others to “keep their rosaries from my ovaries” wholeheartedly embrace the idea of the government’s “bureaucratic hands all over their lymphatics”.
I suspect that historians will look back in wonderment that modern day Progressives define ‘choice’ and ‘accessibility’ as compelling someone else pay for a third party’s birth control. First of all, it is a misnomer to characterize this service as ‘free’. I think we can all agree that even if contraceptives grew on trees, some rapacious corporation (presumably controlled by Koch Industries) would have to pay someone a less than living wage to pick the contraceptives. Nor is this a matter of accessibility. Employers including synagogues do not provide food or shelter, yet somehow their employees manage to access these goods and services. Bishop Lori elucidated this moral basis for individual choice; you are free to use birth control and have an abortion; just don’t compel others to pay for it in direct opposition to their conscience.
While I can’t help feel a great sense of schadenfreude given the bishops strong support of Obamacare, Bishop Lori’s analogy is right on point. Many Catholic institutions self-insure, meaning that the so called accommodation makes no difference, they are mandated to provide contraceptive and abortifacient services in conflict with their faith. Hence the Catholic bishops strong rejection of this so-called accommodation. Rabbi Saperstein’s argument that “the government’s interest in the function of the health care system are manifestly far greater than mandating stores to sell a particular healthy food” is ahem, a false argument. Indeed, the perversion of the Commerce Clause required by Obamacare gives the federal government vast powers to regulate anything it deems related to healthcare. Certainly food would fall into that category. Supporters of the mandate fail to appreciate that the instrument of the state could be used in ways counter to their beliefs. I wonder what the RAC’s response would be if the HHS mandated parental notification, prenatal ultrasound, pre-procedural counseling and a five day waiting period prior to an abortion?
Ultimately, this is yet another example of how the leviathan state intrudes upon the civil organizations, including religious groups that mediate and buffer the individual from the authoritarian impulses of the state.
Thanks for these words, David, and for showing us how to say that contraception has nothing to do with pork!
I really can’t see why the United States Conference of Catholic Bishops, is making such a stink about providing birth control in their drug insurance plans now. The EEOC ruled that employers that provide prescription drug coverage, but not birth control, were in violation of Title VII of the 1964 Civil Rights Act, in effect during the Bush years and is still in effect for ALL employers of 15 or more employees. If any religious institution takes Federal funds then they should have to abide by the laws of the land. Otherwise stay out of government OR PAY TAXES.
Nice opinion and well-expressed Rabbi. But honestly, don’t the Catholic priests have a point? How would we Jews feel if the government mandated that we pay for something healthy that nonetheless we felt was manifestly against the tenets of our religion? Mandating that we eat pork is a poor example. How about paying for exercise classes on Shabbat?