By Hanna Liebman Dershowitz
During the holiday of Purim, celebrated this week, Jews recount 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 Purim begins, the U.S. Supreme Court will hear oral arguments on an important case relating to reproductive health access, in particular contraceptive coverage. Zubik v. Burwell considers 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 she will not serve, because if she does, that means the government will send someone in her 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 (JCPA), 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 an amicus (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.