One reason observant Jews might not celebrate the birth control rollback

This week the Trump administration announced that it was rolling back the previous administration’s measure to ensure access for all women to birth control medication through their employer sponsored healthcare. As approximately 70% of all Americans receive their healthcare through their employers between the ages of 18-64, and the American healthcare system is built upon healthcare as a benefit provided by employers as opposed to other possible frameworks utilized by other major Western countries, this rollback has deep repercussions for millions of people. In response to the announcement, the Union of Orthodox Jewish congregations (the OU) released a press release praising the action as a major step forward for guaranteeing religious freedom:

The new regulations are good news for all Americans. Religious freedom is a fundamental right for all, so when it is threatened for some, it is threatened for all.

Indeed, almost all advocates of this measure overwhelmingly see in it a victory for religious freedom. Yet, where do we draw the line? Should a company owned by followers of a religious denomination that eschew all modern medicine be allowed to deny all healthcare to their employees? What if they are only opposed to blood transfusions for religious reasons? Does that mean employees must not be allowed to have emergency blood transfusions paid for by their employer sponsored healthcare? In fact, birth control pills are used to treat medical conditions beyond their most notable use of preventing pregnancies. Individuals living with polycystic ovary syndrome (PCOS) and other issues will no longer have the treatment they need covered if their employer chooses to exercise their new religious freedom to not cover their much needed medicine. How does that balance with individual freedom?

These are very challenging questions for advocates of this measure. In a society that seeks to maintain a religiously neutral government, these sorts of measures that privilege one religious tradition’s moral sensibilities are very much a slippery slope where even the initial advocates may end up becoming alienated by where their actions lead.

I would like to address a particular aspect of this conversation. I do not possess the expertise to delve into the thorny constitutional questions of religious freedom or how to determine which religion gets the priority in determining for the government what ought to be or not ought to be the guiding moral values for a pluralistic and diverse public square. However, I do have what to say on Jewish law and Jewish values. Is it true that it is against Jewish values for an employer to offer healthcare that provides employees access to birth control medication?

I do not believe that is the case. I also know that my opinion is not an exclusive claim to Jewish law and values and is but one way of approaching the topic. I seek to make no claim of exclusivity, but merely to project an alternative in an atmosphere of unambiguous declarations of support by organizations seeking to represent the entirety of my community.

The Mishna in Tractate Shabbat 120a states the following:

MISHNA: Rabbi Shimon ben Nannas says: One may spread out a moist goat’s hide over a box, a chest, or a closet that caught fire, because the fire singes and does not burn it. And one may establish a barrier against the fire with all vessels, both full and empty, so that the fire will not pass. Rabbi Yosei prohibits using new earthenware vessels full of water, because they cannot withstand the heat of the fire and they will burst and extinguish the fire.

In this Mishna we discuss the concept of grama, or indirect action. To what extent am I liable for actions that do not directly transgress a law but merely bring about the prohibited action indirectly? Rabbi Shimon ben Nannas argues that one may go to great lengths to prevent financial loss on Shabbat in the presence of a disastrous event, like a fire, even as much as creating a barrier of vessels full of water so that the fire will come upon those barrels and be extinguished by the water. Rabbi Yosei adds a limitation to Rabbi Shimon ben Nannas by stating that one should not use new earthenware vessels, because those will certainly break when the fire encounters them and you cannot consider that action to be indirect.

The Shulchan Aruch in Choshen Mishpat carries this conversation to legal codification by arguing the difference between degrees of certainty in the action one commits. If the action will most definitely lead to a prohibited action then one is liable for it. However, if there is any doubt, one is not legally liable for that action. What does all of this have to do with the birth control decision made this week and the subsequent reactions?

First, even if one assumes providing birth control is at all times and in all circumstances prohibited according to Jewish law, one must consider what a modern healthcare plan is. When an employee receives their healthcare they receive a plethora of services and options. It is highly likely that any one employee will not take advantage of every service the healthcare provides. The employer is providing a comprehensive healthcare package to their employees that offers a multitude of services and is not specifically offering each individual service as a standalone item.

Second, most Jewish legal opinions do see a use for birth control at times in the course of a life. There is a wide divergence of opinions of what those circumstances might be and this blog post is not the forum to explicate all of them, but it is sufficient to state that modern Jewish legal authorities typically do not issue a lifetime blanket ban on birth control with no exceptions for every woman in every circumstance.

Third, as mentioned above, birth control medicine is used to treat more than the prevention of pregnancy. In that case, removing it entirely from the suite of services a modern healthcare provides is detrimental to the health of millions of people. For example, approximately 5-10 percent of American women are diagnosed with PCOS. It is indeed one of the most common hormone syndromes a woman can experience in her lifetime.

All of this is to say that it is possible to make the argument that an Orthodox or otherwise Jewish law observing employer does not need to experience providing comprehensive healthcare packages to their employees as a violation of their religious freedom. Further, unambiguous declarations by Orthodox umbrella organizations cause only to further lack of awareness and ignorance amongst the community and can lead to unnecessary suffering for female employees who rely on the medicine for their wellbeing.

Again, my aim here was not to conclusively prove that my opinion is the only correct one. My treatment of this topic in this forum is limited and a fuller examination in a forum more suited for in-depth analysis is called for. My goal was to add nuance to the conversation because what this rollback demands of us is not simple notes of congratulations but soul searching, intellectual examination and difficult ethical conversations.

When Orthodox organizations claim this solely as a victory and do not challenge our community to think more deeply about the topic, it only lowers the discourse and simplifies the average layperson’s understanding, which in this case, could have broad implications for the people who work for them and their health and wellbeing.