by Lisa Fishbayn Joffe
As a Jewish woman, I was alarmed by two recent decisions of the United States Supreme Court giving employers a right to opt out of insurance coverage for contraception for their employees. Jewish law does not prohibit contraception or abortion. Jewish women who want to be guided by Jewish values in making decisions about their reproductive health may use forms of contraception that may work by preventing the implantation of a fertilized embryo. Some versions of Christianity prohibit this. If I am a Jewish woman working for an employer who holds a different religious view, why should the employer’s moral views take precedence over my own? Why should my employer be entitled to express his disapproval of my choice of contraception, and by extension my religious beliefs, by refusing to cover it in the company insurance plan? What would it feel like to work where Jewish practices are stigmatized in this way?
Two decisions rendered by the Supreme Court last week send a chilling message about the state of women’s equality and the rights of religious minority employees. In the Burwell v. Hobby Lobby case, the court found that an employer’s views on the moral acceptability of contraception could justify exempting them from general laws of health care coverage. In Wheaton College v. Burwell, decided a few days later, the Court granted an injunction against a regulation that required a religious organization to fill out a two-page form declaring that they wanted to opt out of providing contraception coverage.
The Affordable Care Act (better known as Obamacare) requires that all large companies provide insurance for their employees. To prevent insurers from providing inadequate policies, the ACA requires that all insurance plans provide for a bare minimum of essential health services. This list of essential services was drawn up on the advice of medical professionals and covers the basic needs of men and women equally. One of the basic needs women have is access to birth control.
In response to protests from churches and religious groups opposed to contraception, the ACA contains an exemption for non-profit organizations devoted to religious purposes. Insurance companies will devise special plans for them in which the insurance company, rather than the employer, is technically providing contraception coverage.
Hobby Lobby is not a church or a religious organization. It is a chain of craft supply stores owned by a corporation that is in turn owned by the Green family. The Greens follow a form of Christianity that prohibits the use of contraceptive drugs that end human life after conception. The Greens believe that certain intra-uterine devices and morning after medications work by preventing implantation of a fertilized ovum. Scientists aren’t sure how it works — it may actually prevent conception, but first amendment law entitles the Greens to toleration of their genuine belief, whether it is accurate or not.
The Greens argued that being forced to provide insurance coverage for these forms of contraception violated their freedom of religion by making them complicit in possible abortions secured by their employees. They asked that the exemption granted to churches be extended to employers like themselves. The Supreme Court granted the Green’s request. The court held that the employer’s religious freedom was implicated by being put to a choice between paying for abortion coverage and paying a fine. The government could meet its objective through less burdensome means, by allowing Hobby Lobby the same workaround as that offered to churches.
There are a lot of disturbing things about these cases:
How can a corporation have a religion?
A corporation is a separate legal entity from those who found it. It protects the assets and liberty of owners from lawsuits by unhappy customers and creditors. If Hobby Lobby sells you a defective glue gun, you can sue the company, but you can’t put a lien on Mr. Green’s house. How can the Greens be allowed to take the benefits of being a corporation when it helps them and reject the arms length nature of corporate identity when it doesn’t?
How does corporate religious belief work?
If there is more than one owner and they have a religious disagreement, what faith does the corporation have? Can a corporation convert?
Is there any limit in the chain of causation between the employer and potential acts of employees that are too attenuated to fall under this clause?
In Hobby Lobby, I count at least four steps in this chain:
- Employer offers medical coverage.
- Employee selects impugned formed of birth control.
- Employee uses it at a time when conception might occur.
- Contraception causes failure of embryo to implant.
In the Wheaton College case, there is an additional step:
- Employer signs form opting out of coverage and insurance company provides it coverage.
Will the next case involve an employer who wishes to avoid being implicated by refusing to employ anyone who does not undertake to avoid using these forms of contraception, so they are never put in the position of possibly facilitating abortion? Could an employer refuse to hire someone who did not share his faith in order to be sure she did not use money from her own wages to secure contraception he disapproved of? In her dissent, Justice Ruth Bader Ginsburg finds it doubtful that Congress viewed as substantial “ linkage thus interrupted by independent decision-makers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.”
What does this result mean for Jewish women?
I was surprised to learn that Jewish Orthodox organizations like the Orthodox Union and Agudath Israel had not merely praised the decision but had written an amicus brief to the court urging them to rule this way. How could this be good for the Jews? In their brief, they state that Jewish law does not recognize a corporation as a separate entity from those who hold shares in it, so that owners are personally morally responsible for the acts of the corporation and will suffer “divine punishment” for violating a religious duty. They admit that Jewish law does not prohibit contraception, so what kind of employer interest in controlling employee autonomy could they be seeking to defend? A reference in their amicus brief is instructive. It points to a recent New York City Commission on Human Rights case against Jewish-owned stores that posted signs denying admission to people who did not follow a dress code intended to impose Orthodox Jewish norms of modesty. The signs, in Hebrew, English and Spanish, read:
ENTRY HERE ONLY IN MODEST DRESS
No Low cut Neckline
ALLOWED IN THIS STORE.
The case was settled out of court with the stores agreeing to change their signs to make clear they are not only addressed to women and non-Orthodox Jews. The Agudath Israel brief argues that religious storeowners should be able to impose their modesty norms on customers regardless of the corporate form their ownership might take. Surely the same courtesy will be accorded to Muslim storeowners who insist staff and patrons wear a headscarf and niqab face veil in order to enter.
The tunnel vision of this approach is breathtaking. The Jews whose religious freedom are to be protected are male, empowered employers, not Jewish women who may have a range of views of appropriate dress. Nor does this view take into account the distinctive health needs and perspectives of Orthodox Jewish women. What about the woman who uses contraception pills in order to regulate her periods so that she can limit blood spotting in order to comply with Jewish laws of family purity? What about the Orthodox Jewish couple who wants to use reproductive technology to comply with the commandment to be fruitful and multiply, but the employer’s religious faith prohibits interfering with nature?
There is a long list of medical procedures that may be permissible under Jewish medical ethics that could be rejected by religious employers. Your employer could also object to:
- blood transfusions (Jehovah’s Witnesses),
- anti-depressants (Scientology)
- immunizations (Christian Science)
- medications derived from pigs (possibly Jewish and Muslim).
- medications derived from experimentation on stem cells (Methodism)
- heart valves derived from pigs (Hindu or Greek Orthodox).
Jewish law and the Jewish community do not speak with a single voice. Those Jewish voices, speaking on behalf of Jewish women, were present in briefs filed by other groups affiliated with the Jewish community in the Hobby Lobby case, if not in the final decision. The American Jewish Committee urged the court to reject the claim because religion could not outweigh the importance of providing equal health care to women. The Jewish Social Policy Action Network urged the court to reject Hobby Lobby’s claim because Jewish ethics place a high value of providing care for the sick. They also pointed out the important role Jewish women have played as activists in the movement to secure rights to contraception and abortion for American women. Jewish women continue to speak out for equality for all women and the right to make moral and religious decisions for themselves, without interference from the state, from their employer or from male dominated groups that want to present a limited conception of Jewish law and values.
Lisa Fishbayn Joffe
Lisa Fishbayn Joffe is director of the HBI Project on Gender, Culture, Religion and Law.
As part of a collaboration between the HBI’s Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world. Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news. They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.