THE BLOG

When Will the U.S. Supreme Court Protect the Freedoms of Religious People Who Use Contraceptives?

06/30/2014 01:41 pm ET | Updated Aug 30, 2014

I must admit that I was shocked to read about today's 5-4 U.S. Supreme Court decision to uphold the claims made by the Hobby Lobby and Conestoga Wood Specialties corporations. Their argument, that a health care mandate that requires them to provide contraception to their employees is in violation of their religious rights, seemed out-of-step with reality on multiple levels. Corporations don't have religious rights, for one, or at least that is what I thought. And it seemed like the case was more about the current political tension over Obamacare -- a debate that pits small government and big government advocates against one another -- than a legitimate religious rights issue. But now that I have read the decision, I have to wonder: Was the court so overly-focused on the potential indirect violation of religious freedoms of one set of Americans that they forgot to consider the actual religious freedoms of millions of others?

Did the court consider that there are some people of faith who believe that there are times when we are morally and religiously compelled to provide contraceptives to those whose physical or mental health is at risk? As a rabbi and a Jew, I am one of those people. And I know that there are millions of others, of various faiths, who share this view.

Jewish ethics on contraceptive use are rooted in our earliest religious texts. If you can think back to your earliest childhood encounters with the Book of Genesis, you might recall the first divine command -- Genesis 9:1 -- "be fruitful and multiply!" The rabbinic sages of the fifth and sixth century looked closely at that passage and raised a compelling question, "Was the Holy One speaking only with the 'sons of Noah' or with women and men?" The conclusion of the great rabbis? Only men are commanded to be fruitful and multiply. Later rabbis clarified that being "fruitful" meant that men are obligated to have a male and a female child. The command to have a son and a daughter is a moment of indirect gender equity in a narrative that is often focused on gender difference and strict gender codes based on dress, religious duties, legal witnessing, and a host of other categories.

The rabbis of the Talmud concluded that men were commanded to have children, so any man who engages in a sexual act with a woman and uses a type of birth control that prevents him from fulfilling this command is, according to the ancient rabbis, going against divine law. (Some contemporary rabbis have allowed and encouraged condom use to prevent disease -- but this is a relatively modern position.) The classic example from the Torah is the story of Onan -- who spills his seed on the floor rather than impregnate his wife. Medieval rabbis explained that his act was an act of vanity -- he was obsessed with his wife's thin body and thought that pregnancy would ruin her. Their comments prove that even 1,500 years ago rabbis were worried about the objectification of women by men.

Since women are not, according to the rabbis, commanded to have children, then birth control, in some cases, is permitted by divine law. Fifteen hundred years ago the specific type of birth control, a vaginal sponge, was deployed during times when the health of the woman would be impacted adversely by pregnancy. The Talmud outlined three particular categories for birth control and even discussed herbal concoctions for women who had particularly difficult pregnancies and wanted a more permanent method of birth control. In the 12th Century, the great sage and leading legal scholar of his era, Rabbenu Tam, argued that religious men were morally obligated to provide women at risk with the contraception that they needed.

Today, even strictly traditional Orthodox women have the option to use a variety of birth control devices under the guidance of physicians and rabbis who consult on matters of medical ethics. (In some cases, this includes RU-486 and the morning-after pill that was a focus of the Hobby Lobby case.) In Liberal Jewish communities both women and men choose birth control as a path to strengthen a healthy family life.

Sadly, the Supreme Court ruling is going to make it more difficult for many people to exercise religious freedom in America. If other closely held corporations follow suit, we may have hundreds of thousands if not millions of people who will not have access to basic health coverage that helps them to uphold the religious and ethical principles that guide them in building their families.