Supreme Court Takes On Affordable Care Act Again

the PillSince its founding in 2003, Jewish Social Policy Action Network (JSPAN) has been in the forefront of the Jewish community in supporting the right to reproductive freedom and protecting religious liberty. Sometimes we take the lead by filing amicus briefs in the Supreme Court, as we did in the Hobby Lobby case, arguing that private corporations should not be able to claim a religious right to deny their employees access to reproductive healthcare services. At other times we work in coalition with Jewish and non-Jewish groups.

Recently JSPAN joined with the ADL in asking the Supreme Court to uphold the provision in the Affordable Care Act’s contraception mandate that requires a religious institution opposed to contraception to sign a waiver stating such, after which employees can receive it through third parties.

In Zubik v Burwell, petitioners claim that merely signing a waiver violates the signers’ religious tenets, and is thus unconstitutional according to the Religious Freedom Restoration Act. JSPAN heartily agrees with the ADL that signing the waiver does not pass RFRA’s “substantial burden” test. Moreover, finding for the petitioners would prevent employees who favor the use of contraceptives from exercising their own freedom of religion. An ADL press release said, “Allowing one’s religious beliefs to be an effective veto of virtually any federal law or rule would undermine our country as a nation of laws.”

Joining JSPAN in recognizing this as an issue of great interest to Jews were Bend the Arc (of which JSPAN is an affiliate), Keshet, National Council of Jewish Women, and Women’s League for Conservative Judaism.

Rabbi George Stern, Executive Director
Rabbi Seymour Rosenbloom, President



  1. Ken Myers says

    From the moment the Affordable Care Act passed Congress and was signed by the President, every conceivable opposition has been tried and retried. Congress has launched repeated efforts to repeal the Act although none had any prospect of success. Suits to challenge the Act in court as an infringement on states’ rights, seemingly a throwback to pre-New Deal times, also failed.

    Oddly, the closest a challenge has come to success is the effort to proclaim a portion of the Act a violation of the freedom of religion. The issue arises because one of the federally required components of health insurance is the provision of birth control medications, treatment and consultation for women.

    The problem was narrowly avoided in the ruling of a divided Supreme Court in the Hobby Lobby case. This was a private closely held business whose managers disapproved of providing contraceptive care insurance. The Court’s split decision rested, among other factors, on the idea that the federal government could provide the care itself, and thus take the religious issue off the table.

    The federal government came up with a related work-around for non-profit religious institutions: the institution need not provide its employees with insurance for reproductive care if that violates its religious principles. Instead, the employer must simply notify the federal government that its health plan does not include those benefits, leaving it to the government and insurance companies to come up with the missing coverage.

    Now a case is before the Supreme Court in which religious institutions argue that giving notice is itself a violation of their religious principles, an invasion of their freedom of religion under the First Amendment and the Religious Freedom Restoration Act.

    The proposition is not entirely absurd. For the devout Jew or Christian, there is respected authority for the principle that it is a sin to do things that enable another party to sin. The employer who cooperates with the government’s effort to provide insurance for contraceptive care for women is arguably an enabler – that is the issue.

    For most of us the salient factor in these cases is a grossly unequal burden. Should the employer, whether an institution or closely held company, observe an obscure religious scruple, at the cost of denying insurance benefits to its female employees who often number in the hundreds or more? Providing a notice required by law does not resolve whether or how any individual chooses to use contraceptive care insurance benefits. Moreover, in daily life we do not accept the idea that we must force other persons to conform to our own individual religious beliefs. That concept of religious tolerance is important to the success of our democracy.

    If they wish to uphold the law, the Justices of the Supreme Court have two apparent choices. They may weigh the significance of the scruple against enabling a third party to sin, and might conclude that in some aspects of our complicated 21st century society, it simply cannot overcome government law or policy. Or they may seek to balance the religious claim of the employers and the government’s policy of extending health insurance benefits to women, and decide which should prevail. Or the Justices may find neither option attractive.

    Our two prominent commenters, Rabbi Seymour Rosenbloom and Rabbi George Stern, have reached the logical result. We now await word from the Justices.

    – Ken Myers

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