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Rabbi Saperstein Submits Comments on Birth Control Compromise

Rabbi Saperstein Submits Comments on Birth Control Compromise

As we get closer to hearing the Supreme Court’s decision about the constitutionality of the Affordable Care Act, we have been tirelessly working on one specific part of the ACA’s implementation: the women’s preventative health package. This package includes access to birth control without co-pay, as recommended by an Institute of Medicine panel in August 2011. In an effort to address concerns from religious institutions, the Obama Administration announced a compromise earlier this year in which it suggested that insurers would pay for the contraception, rather than the religious entities.

The Administration requested that the public comment on this compromise, and that public comment period was open until last night. Hundreds of you participated by articulating your concerns through our Chai Impact Action Center. Rabbi David Saperstein, director of the Religious Action Center, also submitted comments on behalf of the Union for Reform Judaism and the Central Conference of American Rabbis. His comments can be found below:

On behalf of the Union for Reform Judaism whose 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, with membership of more than 1800 Reform rabbis, I am pleased to submit comments in response to the Advanced Notice of Proposed Rulemaking on women’s preventative services and the student health plan. Coverage of preventative care services must ensure that all women receive access to birth control.

Birth control use is ubiquitous in the United States among people of all faiths and no faith. More than 99% of women aged 15-44 who have had sexual intercourse have used at least one method of contraception and, among the 43 million women who are fertile, sexually active, and do not want to become pregnant, 89% are practicing contraception.

The Reform Movement is well aware of the importance of the values of religious liberty that have made our nation unique and welcoming to people of all faiths and no faith. We have worked tirelessly to ensure that the sanctity of the separation of church and state is respected. We have strongly supported the religious autonomy principles upheld by the Supreme Court in the recent Hosanna-Tabor case.

At the same time, Jewish tradition has historically reflected the view that contraceptives are not only acceptable but a legitimate form of health care and family planning. The Reform Movement has long been staunch supporters of women’s reproductive rights and strongly supported the inclusion of birth control in the Women’s Health Amendment to the Affordable Care Act. Above all, we have long held that every woman is entitled to access and make her own decisions about reproductive health care.

We recognize the tension between these two core principles regarding the question of religious expression and birth control coverage in the Affordable Care Act. As the rule on contraceptive coverage is finalized, the principle must remain that every woman is entitled to access to contraception as a matter of basic rights and fundamental dignity, including women who work for entities covered by a religious exemption. There should be no discrimination in basic health services.

We believe that the compromise developed by the Obama Administration will provide much-needed reproductive health services to women in religiously affiliated institutions (e.g. colleges, hospitals, social service agencies), while ensuring that religious institutions can abide by the teachings of their faith traditions.

We remain concerned that there will be many covered by the core exemption for houses of worship et c. whose access to contraceptives will still not be covered. We would urge the Administration to find such coverage through public finances for these employees thereby upholding the religious autonomy of the houses of worship (who would not be implicated in providing such coverage). Alternatively, the Administration should consider allowing any religious institution to opt in to a full coverage option for their employees. At the same time, we are deeply concerned that the exemption for core religious institutions with its four-part test is too narrow. At a minimum, the third prong must be dropped, which defines a religious organization based on the people who they serve. In fact, many religious traditions require service to those in need, regardless of their faith. If religious organizations are now forced to shrink their services to cover primarily their own in order to preserve the exemption, this rule will undercut the invaluable role the non-profit community plays in supplementing government services to the most needy.

Finally, the Administration must define more clearly the word “primarily.” Without definition, it opens doors to fact-based political battles and litigation battles that can be mitigated by clear definition.

Therefore, we believe the proposed rule is a major step forward in ensuring a preventative health care package that includes birth control even while protecting religious liberty but believe the suggestions articulated in these comments further enhance both goals.


Rabbi David Saperstein
Director, Religious Action Center

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