Rabbi David Saperstein: "The government has a compelling interest of the first order in ensuring that all individuals are able to access necessary services."
WASHINGTON, D.C., February 17, 2012 - 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. Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, issued the following statement in response:
"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 Committee 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.