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Ruth Bader Ginsburg in her dissent for the four liberal justices chided Alito, arguing that the declaration that religious exemptions not having to do with contraception would be turned away under the ruling does not necessarily make it so.
“The court, I fear, has ventured into a minefield,” she said, a phrase that a number of groups, including the ADL, echoed in their statements.
“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment clause was designed to preclude,’ ” Ginsburg wrote, citing Supreme Court precedents.
Kaufman of the NCJW said in an interview that Alito’s distinction between contraceptive coverage and vaccinations or blood transfusions relegated women’s health needs to second class.
“It’s really saying contraception is not health care,” she said.
Despite their misgivings, the Reform and Conservative movements saw in the narrow ruling a way toward restoring coverage: Alito wrote that the government had failed to persuasively distinguish privately held companies from religious nonprofits, which have been granted a workaround under Department of Health and Human Services regulations, and that the same workaround could be extended to the privately owned companies.
The government “could extend the accommodation that HHS has already established for religious non-profit organizations to non-profit employers with religious objections to the contraceptive mandate,” Alito wrote.
The government’s solution requires health insurance companies to bypass the religious nonprofit employer and provide contraceptive coverage to the employee directly.
“That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion,” Alito wrote.
That prompted a degree of hope from the Reform and Conservative movements.
“We urge that this decision be read more narrowly to hold that it is only permissible to accommodate a ‘closely held private corporation’s’ religious beliefs about contraception to the extent that there is a readily and easily implementable alternative to provide all contraceptive options to affected employees,” Rabbi Julie Schonfeld, the executive vice president of the Conservative movement’s Rabbinical Assembly, said in a statement.
Saperstein of the Religious Action Center also saw that aspect of the ruling as an avenue to restoring contraceptive coverage.
“The court did not do anything to inhibit the government’s ability to create a mandate for health care coverage and contraception” under the terms that now govern religious nonprofits, he said.
Using the nonprofit workaround would be a solution that the Orthodox Union would welcome, Diament said in an interview, noting that Orthodox groups had opposed the mandate not because of objections to contraceptive coverage but because of the broader issue of requiring compliance with practices that violate a religion.
“The key point in this particular case is that it’s very clear that the government has other channels to serve its goal of getting women to have access to contraception,” he said.
Marc Stern, the general counsel for the American Jewish Committee, which signed onto a friend-of-the-court brief in support of the Obama administration’s position, said it was unclear from the court’s ruling how the nonprofit workaround could be applied to privately owned companies.
“It’s an untested plan with uncertain costs and uncertain ability, given the importance of the availability of contraception,” he said.
Alito wrote that his ruling does not cover publicly traded corporations such as IBM.
The National Council of Jewish Women and the ADL said they would back legislative redress, something Obama spokesman Josh Earnest also anticipated, but with the Republican majority in the U.S. House of Representatives, the passage of a bill that enshrines a contraceptive coverage mandate is unlikely.
One bill that has such provisions, the Women’s Health Protection Act, has a 4 percent likelihood of passage, according to govtrack.us, a legislation monitor.