Today, the Union of Orthodox Jewish Congregations of America — the nation’s largest Orthodox Jewish umbrella organization — filed formal comments with the United States Department of Health and Human Services with regard to pending regulations which will mandate employers to provide certain women’s health services (including contraceptives and sterilization) within their employer-sponsored health plans. The Orthodox Union’s comments are directed at the issue of whether, and which, religious employers will be exempt from the mandate should such services violate their religious tenets.

The core concern expressed in the Orthodox Union’s comments is over the Administration’s proposal to create two tiers of religious institutions for differentiated religious liberty protection. Houses of worship, under the proposed regulation, will be fully exempt from the mandate to provide the particular women’s health care services. Other religious entities — such as schools, hospitals, social welfare program providers and others — will not be fully exempt, but their employees are to be provided the services directly by their employers’ insurance company at no cost to the employee or the employer.

The comments state: “If the First Amendment’s pair of clauses guaranteeing the right of ‘free exercise’ and prohibiting ‘establishment’ of religion stand for anything, they stand for the protection of citizens against government compulsion to act contrary to conscience and for prohibiting government officials from parceling out religious protection subjectively.”

The comments therefore urge the Administration: That the narrow exemption for “religious employers” contained in the February 2012 regulation be reconsidered and enlarged to protect all religious organizations – not only houses of worship — with a religious objection to the preventive services mandate. [The full text of the Orthodox Union’s comments is available here.]

Nathan Diament, the Orthodox Union’s Executive Director for Public Policy, issued the following statement in conjunction with today’s filing with HHS:

“On February 10, 2012, the Orthodox Union expressed cautious optimism toward the Administration’s announcement that it would revise how the ‘Mandate’ relates to religious employers. We said the announcement by President Obama was ‘a positive first step forward.’ But we also stated that ‘the details of implementation are crucial.’

In the ensuing months, we have grown more concerned about the prospective implementation on terms of principle and practicality. On the latter, we have yet to see that the Administration’s assertion that health insurance companies will readily cover the cost of these services is the case, and we still await a realistic approach to dealing with self-insured entities. But our deepest concern is on principle — the notion that the federal government will create two tiers of religious organizations with each receiving different apportionments of religious liberty protection. Even in the service of honorable goals, the government should not be in the business of deciding what kind of institution or activity is ‘religious enough’ to merit the full measure of First Amendment protection.

In a meeting at The White House on June 5, we discussed this concern directly with President Obama. We fully appreciate that on this issue, President Obama is trying to delicately balance competing concerns, and that he recognizes the importance of religious liberty and further recognizes the crucial role religious institutions play in American society. But we respectfully disagree with how the President and the Secretary of HHS have decided to strike the balance. We hope he will change the policy.”

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