The Birth Control Lawsuits: Misusing Religious Liberty to Deny Women Their Rights


This post originally appeared in the Concerned Clergy for Choice May/June 2012 e-newsletter.

The Roman Catholic Archdiocese of New York and others recently sued the Obama administration over the birth control insurance benefit, to my dismay and to that of many people of faith. Our denominational bodies, including the Episcopal Church, the Presbyterian Church, the Central Conference of American Rabbis, and other groups, endorsed the moral good in access to birth control some 80 years ago. It’s sad and upsetting to return to a battle we fought and assumed was settled many years ago. New Yorkers are additionally concerned, in light of some recent state history.

Concerned Clergy for Choice and other women’s health groups welcomed the passage of the Women’s Health and Wellness Act (WHWA) for New York State in 2003. WHWA established health-care equity for women by including mammograms, bone density screenings, birth control, and other basic, preventive care in state insurance plans. But then, as today, it was the birth control requirement that irked some religious communities. They sued New York State to challenge the birth control provision for religiously affiliated institutions like hospitals and universities.

WHWA exempted houses of worship from the contraception requirement—religious institutions did not have to include it. However, schools and health centers that provide a secular service and hire and serve people from all walks of life had to provide it. But some religious leaders were unhappy with even that contraception requirement, and took the state to court to get out of it.

I was in the room when lawyers argued the Women’s Health and Wellness Act before the New York State Court of Appeals, the highest judiciary body in the state, and birth control opponents made their case to remove insurance coverage from their plans. “The Church condemns birth control as sinful,” I recall one of their lawyers saying, hoping the judges would buy his argument and write his religious restriction into the law. Fortunately for the women and families needing birth control, the court, in a unanimous decision, let WHWA stand as written. As time passed, religious opponents of birth control made their peace with the ruling in New York State, as well as in California where a similar situation got resolved the same way. But now, with the recent federal lawsuits, a matter we thought was settled in two states now goes before the entire nation.

We should all pray that the federal courts decide just as New York and California did. First of all, the federal contraception requirement resembles the New York requirement in many ways, and it would make sense for the federal courts to show the same wisdom. Second, a worker’s health insurance is an earned benefit, just like salary. Employer-sponsored insurance is part of one’s wages and, therefore, belongs to the worker, not the boss. Employers, no matter what their religion teaches, have no right to barge into the day-to-day details of the health care and prescriptions of their workforce. What is more, these lawsuits are wasting time and money, squandering limited resources that would be much better spent on making sure Americans have food, places to live and health care—instead of steering people to live by religious restrictions.

There has been all too much talk about “religious liberty” in this contraception debate, and most of these “religious liberty” arguments are misdirected. The real religious liberty in this case belongs to the woman who is working for her health care; she is the one who owns it and needs the protection. An outsider’s objection—even a faith-based objection by her employer—should play no role in her ability to pay for her health care. The patient—her health needs, decisions and her religious liberty—must always come first.

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  • painkills2

    I so welcome the voices of other religious affiliations in this battle and am glad to hear that these religious groups support a working woman’s right to contraception in her healthcare, for whatever she may need it for.

    I guess if you’re the Catholic church or an affiliate (or perhaps an anti-gay Mormon), there’s lots of money to fund these types of lawsuits, but it sure is giving these religions a bad name (as if they needed any more bad press). And in my opinion, these religions that are so negatively involved in the political arena just give other religions a bad name.

    I miss hearing about the Nuns on the Bus…

    • Rabbi Dennis S. Ross

      You got it! Thanks!

  • fiona64

    Second, a worker’s health insurance is an earned benefit, just like
    salary. Employer-sponsored insurance is part of one’s wages and,
    therefore, belongs to the worker, not the boss. Employers, no matter
    what their religion teaches, have no right to barge into the day-to-day
    details of the health care and prescriptions of their workforce.

    This. Right here. That’s all that need be said.

    • Rabbi Dennis S. Ross

      Thanks so much!!

  • JamieHaman

    The best way to prevent abortion is to prevent pregnancy. Birth control does that beautifully. It isn’t the business of the boss to know about a woman’s personal health decisions, nor is it his responsibility to defend her actions before God.
    Freedom of religion also means freedom from religion.
    Earned benefits.
    Have to remember this.
    Thank you Rabbi.

    • Rabbi Dennis S. Ross

      You are so right!