Corporations — for-profit and non-profit, religiously affiliated and secular — have filed approximately sixty lawsuits challenging the Affordable Care Act’s requirement that employee health insurance plans cover contraception. In this paper, 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 incorporated for secular, profit-making aims have religious beliefs and consciences that excuse them from compliance with law. Their reasoning repudiates longstanding foundations of corporate law. It transforms conscience, which is inherently human, into the province of business entities.
Drawing on health law and policy, I argue that these courts fundamentally misunderstand the nature of health benefits. Health insurance is a form of compensation, earned by and belonging to the employee like wages. By neglecting this economic reality, courts draw incorrect conclusions about the responsibility, legal and moral, of employers for the contents of their employees’ insurance plans, and thus about the burden that any regulation imposes. Moreover, courts fail to recognize that the role the ACA ascribes to private employers bears striking similarity to other comprehensive social insurance schemes, all of which have faced and survived challenges based on free exercise. Any employer responsibility for employer-based insurance should be analyzed under this precedent.
Finally, I suggest that “corporate conscience” would destabilize the rights of employees far 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, gender equality and religious freedom will be at risk in all workplaces.
Sepper E. Contraception and the birth of corporate conscience. 22 Am. U. J. Gender, Soc. Pol’y & Law 303 (2014)