Elizabeth Sepper Archives - Protection of Conscience Project Library

Contraception and the birth of corporate conscience

Elizabeth Sepper

Journal of Gender, Social Policy and the Law

Abstract
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)

Not Only the Doctor’s Dilemma: The Complexity of Conscience in Medicine

Elizabeth Sepper

Abstract
In recent years, conscience has become a national catch phrase, invoked regularly in health policy discussions. The word “conscience,” however, often stands in for refusal to deliver abortions or contraception or to remove or withhold life support.

In this talk, I argue that conscience is not so one-sided, nor medical decisionmaking so straightforward. First, medical decisions – especially those involving questions of life and death – inspire divergent moral convictions. Second, medical decisions do not simply implicate conscience for the provider. They should be thought of instead as involving, at minimum, three parties: patients, providers, and institutions. This three-sided relationship complicates moral decisionmaking, with each party asserting potentially conflicting claims.

I contend that in responding to conflicts over medical decisions, lawmakers have overlooked their complexity. As a result, existing legislation undermines conscience, risks harm to patients, and destabilizes ethical decisionmaking within medicine itself. The talk concludes with several proposals to improve the law’s approach to morality in medicine.

Sepper E. Not Only the Doctor’s Dilemma: The Complexity of Conscience in Medicine. 4 Faulkner L. Rev. 385, 406 (2013)

Taking Conscience Seriously

Elizabeth Sepper

Abstract
For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments – most commonly end-of-life care, abortion, sterilization, and contraception – has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions. This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet existing legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work — regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.

Sepper E. Taking Conscience Seriously. 98 Va. L. Rv. 1501, 1532-39 (2012)