Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake

Amy J Sepinwall

Abstract
In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee’s health-care package the “boss’s business” (to borrow from the nickname of the Democrats’ proposed bill to overturn Hobby Lobby).

Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (for example, gays and lesbians)—do not turn on the organizational form that the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or nonprofit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially when that accommodation would impose costs on third parties?


Sepinwall AJ. Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake. U Chicago Law Rev. 2015 Fall; 82:1897-1980.

Rights, professional obligations, and moral disapproval

Mark R Wicclair

Cambridge Quarterly of Healthcare Ethics
Cambridge Quarterly of Healthcare Ethics

Extract
The claim that providing post-transplant care to Mr. C would compromise a physician’s moral integrity might have a consequentialist basis or it might rest on a conception of moral complicity. From a consequentialist perspective, it might be thought that refusing to provide post-transplant care would act as a disincentive for patients like Mr. C to go to China for organ transplants. That is, it might be thought that refusing to provide follow-up care will promote a reduction in unethical transplant practices, and transplant physicians might believe that they have an ethical obligation to do what they can to effectuate such a reduction. Alternatively, a physician might believe that to avoid moral complicity in an unethical practice, she must refrain from any direct or indirect participation in that practice, which includes providing post-transplant care.


Wicclair MR. Rights, professional obligations, and moral disapproval. Camb Q. Healthc Ethics. 2011;20(1):144-147.

Cooperation with Securities Fraud

Ronald J Colombo

Alabama Law Review
Alabama Law Review

Abstract
Although “proximity” is itself an indefinite concept, we are not without tools in deciphering it. For we have at our disposal a well-developed, longtested method of analyzing proximity with an eye toward the just imposition of culpability: moral philosophy’s “principles of cooperation.” By turning to these principles, we have at our fingertips a ready-made set of factors to consider in assessing whether one’s conduct should be deemed proximate versus remote to another’s fraud. The principles of cooperation also provide a framework around which we can organize securities fraud jurisprudence in general. For the insights gleaned from the principles regarding moral culpability in many respects parallel the conclusions reached by courts and commentators construing liability under the securities laws. Perhaps, in addition to the assistance it provides us in resolving the difficult issue of proximity, this framework could serve as a useful aid in resolving other, and future, securities fraud questions..


Colombo RJ. Cooperation with Securities Fraud. Alabama University Law Review. 2009 Dec;61(1)-66.

The Role of Moral Complicity in Issues of Conscience (Conscience in Medicine)

Robert D Orr

The American Journal of Bioethics
The American Journal of Bioethics

Extract
At what point is an individual accountable for involvement in an action that he or she believes to be immoral? This subquestion is, I believe, important to both the religious and the non-religious individual in dealing with matters of personal or professional conscience. . . Lawrence and Curlin (2007) have stated it is important to have a basic understanding of what an individual means when he or she invokes this right of conscience. I believe it is equally important for those individuals, and for the public at large, to understand that there is a spectrum of belief about one’s moral complicity. Thus two people of faith may arrive at different conclusions about when it is appropriate to invoke this right. Such variation is fundamental to the concept of an individual’s conscience.


Orr RD. The Role of Moral Complicity in Issues of Conscience (Conscience in Medicine). Am J Bioeth. 2007;7(12).