US Supreme Court Move Opens Opportunity to Preserve Moral Autonomy
By Leanne Gale, NCJW Grassroots Associate
The United States Supreme Court sent a major birth control access and religious liberty case — Zubik v. Burwell — back to the lower courts on Monday for further review. With this ruling, our nation’s highest court has left critical questions unanswered. But what remains clear to me is that every woman deserves access to birth control, regardless of her employer’s religious beliefs.
The first time I took a birth control pill I was 15 years old. My doctor had prescribed it to treat my teenage acne. I still remember taking the pill every morning as a counselor-in-training at my Jewish summer camp and the nausea that would hit me at breakfast. Ultimately I had to stop taking hormonal birth control — my body couldn’t handle the side effects.
The second time around I was 21 years old and contemplating penetrative sex with my boyfriend. We were both anxious to prevent pregnancy and uncomfortable using only condoms for protection. We decided that using hormonal birth control would give us the freedom to explore our sexuality without fear, creating space for intentional communication and healthy practices of consent. The knowledge that abortion was an option was also valuable. I tried a new brand of hormonal birth control, and thankfully, the nausea was all but gone.
But there was a hiccup. As it turned out, the hormonal birth control activated a pelvic pain condition that made it impossible for me to experience penetrative sex without excruciating pain. After consulting with my doctor and friends, I switched to the IUD. By that time, I was employed by a faith-based nonprofit — the National Council of Jewish Women (NCJW) — which offers health coverage for the full range of reproductive health care, including a full range of birth control options and abortion.
I’m telling my (fairly common) birth control story because the right to access contraception is still, unfortunately, at stake. At issue in Zubik v. Burwell is the accommodation to the birth control benefit under the Affordable Care Act (ACA), which guarantees coverage for all FDA-approved methods of contraception. The accommodation allows an employer who objects to providing contraceptive coverage on religious grounds to “opt-out” by signing a short waiver. The insurance company then provides the birth control coverage directly to the employees seeking it. Seems pretty simple, and women are still able to get the birth control they need. But the employers in Zubik — several religious nonprofits — argued that merely filling out the waiver burdened their rights because they believe it “triggers” birth control coverage, making them complicit in an action that violates their religious beliefs. In reality, the ACA’s guarantee itself triggers this coverage.
I’m proud that my employer would never dream of using religion to deny birth control coverage to me or my colleagues. In fact, NCJW signed onto an amicus brief urging the US Supreme Court to preserve the accommodation and workers’ access to birth control under the ACA. But my roommate is employed by a religiously-affiliated university that objects to birth control access. She is one of many women across the country who work at religious nonprofits that would not hesitate to use religion to discriminate against their employees by denying them a health benefit guaranteed by law, and which is available to employees who work elsewhere. It’s frightening to imagine myself in their shoes. It is fairly typical for a woman to try several types of birth control before she finds the method and brand that work for her, as I did. How would I have done that without health coverage? How would I have been able to afford the upfront $1,000 cost for an IUD? What would it have felt like to go to work every day knowing that I was being forced to comply with my employer’s religious beliefs when making personal health decisions?
As a Jewish American woman, I’m conscious of the role religious liberty has played protecting my community in this country. Most of my friends and family are descended from waves of Jewish immigrants who fled anti-Semitic persecution. We recognize that religious liberty is not only freedom of religion, but also freedom from religion. What of the precious moral and bodily autonomy of Jewish women across this country who use birth control as a religious and ethical decision? What of the many women across the country who hold a range of beliefs about birth control? We should not have to compromise our health care or forfeit our religious liberty to accommodate the personal beliefs of our employers. Furthermore, while Zubik was about the birth control benefit specifically, there are important implications for institutions and individuals who may seek to use their religious beliefs to discriminate against others in a wider variety of situations.
Moreover, 99 percent of sexually active women — across religious traditions — have used birth control at some point in their lives. That’s because contraception is critical to our health, equality, and economic security. Barriers to birth control access most impact women already struggling to get by, who are disproportionately women of color, immigrant women, and young women. If employers are permitted to deny contraception access to their employees without a plausible, seamless work around, already marginalized women will literally be paying for their employers’ personal beliefs.
As an American Jewish woman, I am disappointed that the US Supreme Court punted on my freedom from the coercive imposition of religion. Along with every single woman in this country, I deserve affordable access to comprehensive health care, including reproductive health care like birth control, prenatal care, and abortion. I deserve the same opportunities to determine my own future, regardless of my gender. I deserve the right to make decisions about my own sexual life according to my own religious or moral beliefs. The decision in this case should have been clear.
But, there is hope. The court did say that the government can still ensure that women have access to birth control coverage under the Affordable Care Act, an opportunity I hope it seizes. I am also optimistic that the lower courts will conclusively rule in favor of religious liberty, and ensure seamless access to birth control to all who need it, regardless of where we work or our own moral beliefs.
Leanne Gale is the Grassroots Associate at the National Council of Jewish Women, where she focuses primarily on reproductive justice and anti-sex trafficking work. Prior to joining the NCJW team, she completed a New Israel Fund-Shatil Social Justice Fellowship at Ir Amim in Jerusalem, where she conducted field research and authored a report on the policy barriers facing Palestinian women and girls in East Jerusalem. Her writings appear in the Journal of Peacebuilding and Development, the Jewish Daily Forward, and +972 Magazine. Leanne holds a BA in Near Eastern Languages and Civilizations from the University of Pennsylvania.