During the holiday of Purim, celebrated last week, Jews recounted the story of Esther, a secretly Jewish woman who becomes queen, and the choices she makes to save her people. Esther’s actions were aimed at gaining acceptance for a minority religion that was reviled, and preventing the murder of its members. Even today, the echoes of Esther’s story are powerful and enduring. But she might be surprised to learn how the concept of religious freedom is being used now — not to protect minority religious practice or combat religious intolerance, but to give special exceptions from laws designed to prevent intolerance or provide needed services to all people.
Indeed, this year, on the day of Purim itself, the U.S. Supreme Court heard oral arguments on an important case relating to reproductive health access, in particular contraceptive coverage. Zubik v. Burwell considered whether religiously affiliated organizations can successfully claim that their religious expression rights would be violated if they filled out a government form. The form in question is designed to accommodate the organizations’ objections to providing their employees with coverage for contraception, which is a requirement of the Affordable Care Act. The petitioners in the seven consolidated cases object to providing contraceptive coverage, and argue in Zubik that filling out the form is in itself unduly burdensome on their religious practices, because providing the information triggers the coverage for their employees to be provided by someone else. Their logic is like that of a conscientious objector in a war refusing to tell the government he will not serve, because if he does, that means the government will send someone in his place. Having to register the objection in some way may be a burden, but arguably only logistically, not in a moral or religious sense.
My organization, Jewish Council for Public Affairs, long has been committed to supporting bold choices, even ones that don’t free an entire people. JCPA strongly supports a woman’s right to make her own reproductive decisions, and has opposed efforts to deny access to reproductive rights, contraception and family planning services. In the Zubik case, JCPA joined with the AJC, Union for Reform Judaism, and Central Conference of American Rabbis in a friend-of-the-court brief explaining why the accommodation does not impose a substantial burden on the petitioners’ exercise of religion. In 2014, JCPA participated in a brief on the predecessor to this case, Hobby Lobby, also with AJC.
Though these briefs represent the broad consensus view in the Jewish community, some of JCPA’s member agencies, including the Orthodox Union, have not taken a position on the central issue in these cases. JCPA has been involved in dozens of civil rights cases, including serving as a plaintiff in a seminal school prayer case, Engel v. Vitale. JCPA is concerned that access to medical care coverage for essential health needs could be curtailed if the court does not rule favorably in the Zubik case.
Equally important, this case is part of an ongoing and troubling trend in which claims of religious freedom are being wielded as trump cards to allow discrimination or deny other people’s rights. For example, some states have passed laws in the name of the Religious Freedom Restoration Act that go far beyond the federal law’s initial charge. Some of these laws give protections to businesses that refuse to serve certain patrons, claiming providing services to these individuals violates their religious beliefs. This is a use of religious freedom that is disingenuous at best, and venal at worst. As a religious organization, we have a special duty to speak out when religious freedom rights are used as an excuse to abridge the rights of others.
In this case, those rights are women’s rights to contraceptive coverage. Thinking how far we have come from the time of ancient Persia, it is hard to believe that in 2016 women’s choices are still being threatened. But there are bills and policies all the time in Congress and in state legislatures that seek to undo women’s access to reproductive health care. JCPA continues to believe that reproductive health decisions are best made by individuals in consultation with their families, health care professionals and with whomever else they choose. We respect and affirm the extensive Jewish teaching and tradition on family planning, including access to contraception and abortion — understanding that a decision to end a pregnancy is a difficult and deeply personal one, and that people do not take these decisions lightly. We trust women to make their own decisions about their reproductive lives; and for women who seek assistance in making difficult reproductive health decisions, we support full and unfettered access to confidential, affordable, and accurate health and medical guidance of whatever kind they desire, whether spiritual, religious or secular.
Many women who have made serious reproductive health decisions, such as terminating a pregnancy, don’t discuss them, even though those decisions may have been significant in their lives. Esther also chose to keep her Jewishness secret for a while, but eventually revealed it and convinced King Ahashveros to stop vilifying, and to spare the lives of, her people. We do need to be reminded every year: It is, unfortunately, still time to speak up for women, battle intolerance and affirm people’s ability to make their own decisions and be treated with respect.
Hanna Liebman Dershowitz is an attorney and director of legal affairs and policy development for JCPA.