Contraception and the Birth of Corporate Conscience
Sepper, Elizabeth, The American University Journal of Gender, Social Policy & the Law
"Conscience" was an election year catchphrase. Secular and religious businesses came forward with objections of conscience to the Affordable Care Act's requirement that employee health insurance plans cover contraception. Going into the election season, some predicted that the Obama Administration's refusal to exempt objecting employers-with the exception of houses of worship and a narrow array of religious organizations-from the contraception coverage benefit would cost the President votes among religious voters and Catholics in particular.1 In the end, as an electoral matter, contraceptive coverage was much ado about nothing. Attacks on contraception, which Americans overwhelmingly support and use, may even have aided the Democrats.2
The controversy over conscience, however, has only just begun. Corporations-for-profit and non-profit, religiously affiliated and secular- have filed more than seventy lawsuits challenging the contraception benefit.3 They claim that requiring a business to cover contraception within a comprehensive employer-based insurance plan violates the religious freedom of the business and its owners under the Free Exercise Clause of the Constitution and the Religious Freedom Restoration Act (RFRA).
I contend that a dangerous doctrine of "corporate conscience" may be born of the contraception controversy. Already, a number of courts have indicated a willingness to accept that artificial business entities have religious beliefs and consciences that excuse them from compliance with law.4 In so doing, they repudiate longstanding foundations of corporate law. They transform conscience, which is inherently human, into the province of business entities.
Drawing on health law and policy, I argue that in accepting these challenges to mandated insurance benefits, courts misunderstand the nature of health benefits and the structure of the healthcare system in two fundamental ways. First, employee benefits are a form of compensation, earned by and belonging to the employee like wages. By neglecting this economic reality, courts draw incorrect conclusions about the legal and moral responsibility of employers for the contents of their employees' insurance plans and thus about the burden that any regulation imposes. Employee use of benefits no more burdens employers than does their use of wages. Second, the Affordable Care Act functions like other social insurance schemes, which require the employer to play an administrative and funding role. Courts fail to acknowledge the social insurance function of recent health insurance reforms and, therefore, do not properly situate contraceptive challenges within the doctrinal tradition of religious objections to social insurance, which have typically failed.
Finally, I suggest that successful challenges to healthcare reform based on corporate conscience would destabilize the rights of employees and of women, in particular, beyond the context of contraception. Religiously affiliated commercial actors already assert rights to defy health and safety laws, pay women less, and fire pregnant women. If secular employers succeed in their challenge to the contraception mandate, it will open the door to their assertions of similar rights, risking gender equality and religious freedom in all workplaces.
The Article proceeds as follows. Part I describes the contraception benefit rule and the legal challenges to the rule from secular, for-profit corporations. Part II identifies a number of doctrinal and theoretical difficulties that the legal recognition of corporate conscience would create and that courts have largely elided. Part III contends that courts have relied on the mistaken premise that employers pay for employer-based insurance, ignoring that employees receive benefits as a form of compensation, or deferred wages. Part IV argues that the regulation of employer-based insurance, including the contraceptive mandate, should be understood as part and parcel of a comprehensive social insurance program, akin to worker's compensation or social security, that workers pay into in the form of deferred wages and that employers administer. …