Indicting a ham sandwich

 We wrote last week about the attempt by Bishop William Lori of Bridgeport, Conn. to liken forcing kosher delis to sell ham sandwiches to compelling religious institutions to provide access to contraceptives coverage to staffers.

I pointed out the metaphor’s problem: Anyone using it must first dismantle the understanding implicit in the Obama administration’s regulation that contraceptives in some cases are a need, not a choice.

I came up with another metaphor, involving a kosher for meat restaurant — but it’s kind of tortured, on reflection. A friend of the blog (now I owe him two frozen custards) suggested another: Compelling an Orthodox Jewish agency that provides essential services to stay open on Shabbat.

But if the services are, indeed, essential, there are probably halachot that would in any case compel the agency to remain available in one way or another.

Anyway, Commentary’s Jonathan Tobin defends the metaphor:

If the analogy sounds ludicrous it is only because there is no national meal plan to feed Americans in the way that Obamacare has nationalized health insurance. But, as Lori points out, there isn’t any more need for anyone who works at a Catholic institution to get birth control from the church than there is for a pork-craving customer to get ham from a kosher deli.

The National Council of Jewish Women finds the metaphor "offensive":

Contraception is part of women’s basic, preventive health care. No one has proposed forcing women to use birth control if they are religiously opposed to doing so. 

The Reform’s movement’s Religious Action Center was not offended — the metaphor, acording to its director, Rabbi David Saperstein, is "vivid," "unusual," "creative" and "humorous." But he goes on to demolish it in four points. The first gets to my point about a choice vs. a need:

The government’s interests in the functioning of the health care system are manifestly far greater than mandating stores sell a particular healthy food, pork or otherwise, and the analogy unintentionally trivializes the need to ensure all Americans have access to quality healthcare in a manner that does not discriminate against women.

The second teases out the difference between the employer-employee relationship and that of a merchant with a consumer:

Bishop Lori’s argument also fails to distinguish for-profit consumer relationships from employer-employee relations. The Supreme Court has long upheld a broad range of government regulation, including religious employers, health and safety requirements, requirements to pay into social security …