- The Washington Times - Tuesday, February 4, 2014

Some religious groups are backing the government in the Supreme Court case over the contraceptive mandate, saying that while they believe in the freedom of worship, the Obama administration’s proposal to cover women’s health is the least objectionable path forward.

Dozens of religious organizations have signed on to friend-of-the-court briefs in the case pending before the high court — though not without a soul-searching conversation over the balance between their freedom of practice versus the government’s goals.

“This actually took five meetings of our legal committee to come to a position,” said Marc Stern, general counsel for the American Jewish Committee, which filed a brief in support of the Obama administration with the Jewish Council for Public Affairs. “They really struggled with the issue.”

To be sure, many religious organizations are on the other side, backing a pair of businesses that have challenged the administration’s contraceptive mandate. That rule, an outgrowth of the Affordable Care Act, requires large employers to insure a spectrum of birth control drugs and services as part of their company health care plans.

Those organizations generally argue that being forced to cover contraceptives or possible abortifacient drugs violates their religious beliefs, and some religious groups that do not morally object to contraception have joined them on the principle of the matter.

The mixed stance among religious groups stance runs counter to the with-us-or-against-us narrative that has emanated from Capitol Hill, where conservative lawmakers have lambasted the Obama administration for requiring that religiously devout business owners choose between providing employer-sponsored health care plans or insuring contraceptive drugs.

It also underscores the difficulty of the question before the justices — whether a law designed to protect religious liberties extends to owners of for-profit entities who seek to run a company in line with the tenets of their religion.

“The notion that for-profit entities cannot exercise religion rests on an unduly narrow view of religious liberty,” the U.S. Conference of Catholic Bishops said in its brief in support of the companies. “Such an approach would jeopardize the religious exercise of millions of Catholics who sincerely believe they are called to live out their faith in all aspects of their lives, including in the workplace.”

Others said that striking down the mandate would undermine religious liberties in America by constricting diversity.

“This diversity of religious belief extends to views about contraception. No single religious leader or group can speak for all faith traditions on this issue,” a coalition of about two dozen religious groups — Christian denominations, Jews and Hindus among them — said in one friend-of-the-court brief.

In its filing, the AJC said the case presents a rare instance in which they see a clash between religious liberty and the equal rights of women. They said the government’s mandate ultimately promotes women’s health “in the least restrictive means available.”

“I do think it is interesting in the sense that it focuses on inclusiveness,” said Holly Lynch, a health care law and bioethics researcher at Harvard Law School. “Whereas some of the religious groups have focused so intently on what they are being ‘forced’ to do and what the impact is on them, this perspective highlights the fact that in a pluralistic society, everyone has to give up something.”

Beyond the constitutional issues, those who are suing say that Obamacare also violates the Religious Freedom Restoration Act of 1993, which passed Congress on a near-unanimous bipartisan basis and with the support of President Clinton.

A coalition of eight Jewish groups that backed the suing companies and cited RFRA in a brief to the court said a ruling against the owners would have “a particularly harmful impact” on those “who observe Jewish ritual laws in operating individual or family-owned businesses.”

Mr. Stern said for this reason, the AJC, which backed the government, took pains not to wade into the broader debate about whether a for-profit enterprise can exercise religion. Instead, it focused on whether the Obama administration had a compelling interest in carrying out the mandate.