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CONSCIENCE AND COMPLICITY: WHEN ARE
EMPLOYEES’ HEALTHCARE DECISIONS THE
“BOSS’S BUSINESS”?
Amy J. Sepinwall, J.D., Ph.D.
A...
Burwell v. Hobby Lobby (2014)
¨  Held: Closely-held corporations may claim
exemptions from portions of the ACA to which t...
The “Parade” of Horribles
It extends beyond healthcare…
… and even beyond employees, to
customers, suppliers, etc., too
BUT not all instances of
conscientious objection are troubling
¨  Cases where we grant an exemption:
¤  Military conscri...
Central claims
1.  The factors that support CO’s claim in cases where
we do grant exemptions obtain as well in many
challe...
What I won’t be addressing
¨ For-profit corporations and conscientious
objection
¤ Organizational form doesn’t determine...
Religious challenges -- the law
¨  Religious Freedom Restoration Act (RFRA): A neutral
legal requirement may “substantial...
Hobby Lobby -- the Challenge and the
Outcome
¨  HL: Subsidizing insurance through which employees
can access “abortifacie...
Hobby Lobby’s Claim
“The owners of the businesses have religious
objections to abortion, and according to their
religious ...
Hobby Lobby’s Claim Parsed
1.  Moral claim: abortion is wrong
2.  Empirical claim: the four contraceptive
methods at issue...
Relational deference?
The Hobby Lobby owners “believe that providing the
coverage demanded by the HHS regulations is
conne...
The Central Claims
¨  COs rely on a view of complicity broader than the
one immanent in the law
¨  The law’s view isn’t ...
Tasks
1.  Make clear difference between views of
complicity of law and CO
2.  Critique the law’s conception of complicity
...
Relevant doctrines
¨  Not criminal law or torts
¨  Conscientious objection in cases that don’t involve
direct participat...
Implications
1.  HL is inconsistent with settled legal doctrines
2.  The decisive consideration for the law is proximity
1...
Why do we allow for CO in the
first place?
¨  E.g., physician who refuses to perform an abortion
¤  Narrative account: E...
The upshot
¨  Once we locate the rationale for CO in a special
entitlement each person has to preserve her sense of
self,...
Third-party costs
RFRA does not include consideration of 3rd-
party costs
¨  Recall: Government can defend legal
requirement so long as law...
Example: religious objection to serving alongside
gays in military
¨  Government’s interest:
¤  Ensuring adequate
staffi...
Balancing deference and third-
party costs: A spectrum
Deference threshold
|----------------|-----------------------------...
Applying the test
1.  Hobby Lobby:
♦  Moral and relational deference
♦  No third-party costs
→  Exemption
2.  Coverage for...
Conclusion
¨  Given that claims of conscience are rooted in
meaning, we have reason to treat these with great
deference –...
The Problem
¨  Employer seeks an exemption on controversial,
moral, empirical, and relational grounds.
¨  Whose views sh...
When should we refuse to defer?
Two constraints/considerations
1.  Neutrality: Government may not evaluate claims
on the b...
Moral deference?
¨  Abortion/contraception/blood transfusions/
psychiatric drugs/ are “morally impermissible”
à  Courts ...
Neutral Criteria
Centrality: Core vs. As-Applied Beliefs
¨  Core: It is wrong to eat leavened products on
Passover
¨  As-Applied: Kitnyot...
A potential objection
Response
¨  Accepting religious/moral belief does not entail
that government agrees with it
¨  If anything, in acknowled...
Empirical deference?
Empirical claims: Courts need not
defer
¨  Empirical claim: T/F can be determined through
observation
¨  No deference:
¨...
Why “facts” won’t decide ACA
challenges
1.  Many of the objecting employers oppose all forms of
contraception.
2.  Suppose...
Should court defer? Y/N
¨  Empirical claim: no deference
¨  Moral claim: absolute deference (with attendant
counter-spee...
Background
¨  ACA mandates coverage for women’s preventive
health care
¨  Among these are 20 FDA approved methods of
con...
Visualizing the difference:
0 n
The Complicity Spectrum
S’ S’’
The strength (S) of connection between A and W
A = agent wh...
What we do know
¨  1. Law's conception of complicity requires more
blameworthiness than the CO's
¨  2. Law does sometime...
Factors that negate deference
1.  No narcissism, neuroticism
2.  Relational claim is predicated on a causal claim
that exp...
An example
¨  Employer objects to
subsidizing
ultrasounds during
pregnancy because
he believes that
ultrasonic waves
caus...
(“Largely”) Proper bases of
evaluation
1.  Sincere?
2.  Applied to true facts?
3.  Relational claims reasonable?
a.  No wa...
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Amy J. Sepinwall, "Conscience and Complicity: When Are Employees’ Healthcare Decisions the 'Boss’s Business'?"

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Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.

This conference identified the various ways in which law intersects with religion and health care in the United States, examined the role of law in creating or mediating conflict between religion and health care, and explored potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

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Amy J. Sepinwall, "Conscience and Complicity: When Are Employees’ Healthcare Decisions the 'Boss’s Business'?"

  1. 1. CONSCIENCE AND COMPLICITY: WHEN ARE EMPLOYEES’ HEALTHCARE DECISIONS THE “BOSS’S BUSINESS”? Amy J. Sepinwall, J.D., Ph.D. Assistant Professor, Wharton, UPenn
  2. 2. Burwell v. Hobby Lobby (2014) ¨  Held: Closely-held corporations may claim exemptions from portions of the ACA to which they object on religious grounds provided they can demonstrate (as HL did) that the law substantially burdens their religious exercise and the government cannot establish that the law serves a compelling interest in the least restrictive way. ! Hobby Lobby does not have to include certain contraceptive products in its employee healthcare package.
  3. 3. The “Parade” of Horribles
  4. 4. It extends beyond healthcare…
  5. 5. … and even beyond employees, to customers, suppliers, etc., too
  6. 6. BUT not all instances of conscientious objection are troubling ¨  Cases where we grant an exemption: ¤  Military conscription ¤  Abortion services ¤  Prescribing/ Dispensing contraception ¤  Physician-assisted suicide ¤  Circumcision
  7. 7. Central claims 1.  The factors that support CO’s claim in cases where we do grant exemptions obtain as well in many challenges to employer mandate, including the parade of horribles cases ¤  What are these factors? ¤  What makes them compelling? ¤  What factors can undercut a claim of CO? 2.  If we are going to deny employers’ exemption, we will need to look to considerations extrinsic to the merits of the claim à third party costs.
  8. 8. What I won’t be addressing ¨ For-profit corporations and conscientious objection ¤ Organizational form doesn’t determine the challenges to the ACA’s contraceptive mandate.
  9. 9. Religious challenges -- the law ¨  Religious Freedom Restoration Act (RFRA): A neutral legal requirement may “substantially burden a person’s exercise of religion” only if the requirement is motivated by a “compelling interest” and there is no less “restrictive means” of satisfying that requirement. ¨  What makes a burden substantial? ¨  Whose interests does the test contemplate?
  10. 10. Hobby Lobby -- the Challenge and the Outcome ¨  HL: Subsidizing insurance through which employees can access “abortifacients” substantially burdens our religious freedom. ¨  Supreme Court: There is a substantial burden here. On the other hand, interest in women’s health is compelling. But government has not established “least restrictive means.” è Hobby Lobby gets an exemption.
  11. 11. Hobby Lobby’s Claim “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe … that [will] connect [them] to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.”
  12. 12. Hobby Lobby’s Claim Parsed 1.  Moral claim: abortion is wrong 2.  Empirical claim: the four contraceptive methods at issue are abortifacients 3.  Relational claim: subsidizing contraception makes HL complicit in a wrong.
  13. 13. Relational deference? The Hobby Lobby owners “believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Burwell v. Hobby Lobby 573 U.S. ___ (2014) at *56. à Even if contraception poses only a small risk of embryo destruction, and even if owners are only remotely related to contraceptive use, their relationship nonetheless renders them complicit.
  14. 14. The Central Claims ¨  COs rely on a view of complicity broader than the one immanent in the law ¨  The law’s view isn’t more defensible than the CO’s. à  We should, all else equal, defer to the CO’s view.
  15. 15. Tasks 1.  Make clear difference between views of complicity of law and CO 2.  Critique the law’s conception of complicity 3.  Address cases when all else is not equal – third- party costs.
  16. 16. Relevant doctrines ¨  Not criminal law or torts ¨  Conscientious objection in cases that don’t involve direct participation ¤  Tax resistance: In light of objection to particular government expenditure, resister withholds some portion of tax burden. ¤  Courts: Impermissible: taxpayer’s connection to the initiative she opposes is too attenuated to think her complicit.
  17. 17. Implications 1.  HL is inconsistent with settled legal doctrines 2.  The decisive consideration for the law is proximity 1.  Tax resistance 2.  University fees 3.  Euthanasia vs. PAS à Is proximity in fact a compelling and reliable guide?
  18. 18. Why do we allow for CO in the first place? ¨  E.g., physician who refuses to perform an abortion ¤  Narrative account: Even if outcome for the world is the same, I do not want my life story to include my having killed in war. ¤  Integrity-based: My convictions are central to my integrity and preserving my integrity is “central to my status as a moral person” (Brock) ¤  Existentialist: My actions constitute my identity and stand as guideposts for others, so they should be authentic -- they should instantiate those values I hold dear and that I want others to hold dear. à Meaning!
  19. 19. The upshot ¨  Once we locate the rationale for CO in a special entitlement each person has to preserve her sense of self, then we are largely without the resources to evaluate relational claims. ¨  Personal meaning is, by definition, subjective. On what basis, then, can we say that someone is mistaken to think that her deepest moral convictions are wrong, or that her sense of complicity is overly expansive? ! Defer. BUT deference does not automatically entail an exemption.
  20. 20. Third-party costs
  21. 21. RFRA does not include consideration of 3rd- party costs ¨  Recall: Government can defend legal requirement so long as law seeks to serve a “compelling interest” through the least restrictive means. ¨  But the government’s “compelling interest” need not be the interest third parties have at stake!
  22. 22. Example: religious objection to serving alongside gays in military ¨  Government’s interest: ¤  Ensuring adequate staffing for war effort ¨  Third parties’ interest: ¤  Equality; preventing government endorsement of anti-gay message
  23. 23. Balancing deference and third- party costs: A spectrum Deference threshold |----------------|------------------------------------------| 0 n Magnitude of 3rd-party costs
  24. 24. Applying the test 1.  Hobby Lobby: ♦  Moral and relational deference ♦  No third-party costs →  Exemption 2.  Coverage for blood transfusion •  Moral and relational deference •  Significant third-party costs →  No exemption 3.  Denying service/employment to gays and lesbians •  Moral and relational deference •  Significant third-party costs →  No exemption
  25. 25. Conclusion ¨  Given that claims of conscience are rooted in meaning, we have reason to treat these with great deference – even if they exceed scope of legal conception. ¨  BUT deference is not decisive: We must weigh costs of an exemption on third parties, and grant accommodation only where third-party costs fall below the democratically decided threshold.
  26. 26. The Problem ¨  Employer seeks an exemption on controversial, moral, empirical, and relational grounds. ¨  Whose views should prevail – employers’? Majority’s? Experts? ¨  How should we decide? 1.  Deference: Treat each element – moral, empirical, and relational – separately 2.  Third parties: Contemplate burdens of an accommodation on others.
  27. 27. When should we refuse to defer? Two constraints/considerations 1.  Neutrality: Government may not evaluate claims on the basis of “comprehensive doctrines” that not all citizens share. 2.  Centrality: In deciding whether to defer, governments should be sensitive to the place of a particular claim in the adherent’s universe of beliefs.
  28. 28. Moral deference? ¨  Abortion/contraception/blood transfusions/ psychiatric drugs/ are “morally impermissible” à  Courts must Defer. Why? 1. Neutrality: There are no neutral criteria to invoke for adjudicating between competing moral claims 2. Centrality: Moral convictions can be at the core of a person’s identity in a way that empirical claims are not.
  29. 29. Neutral Criteria
  30. 30. Centrality: Core vs. As-Applied Beliefs ¨  Core: It is wrong to eat leavened products on Passover ¨  As-Applied: Kitnyot (legumes) are leavened
  31. 31. A potential objection
  32. 32. Response ¨  Accepting religious/moral belief does not entail that government agrees with it ¨  If anything, in acknowledging a hateful belief, government incurs an obligation to speak against it: ¤  Equality is among fundamental constitutional values ¤  Government is obligated to uphold and promote fundamental constitutional values ¤  So, government must condemn anti-gay belief even as it defers.
  33. 33. Empirical deference?
  34. 34. Empirical claims: Courts need not defer ¨  Empirical claim: T/F can be determined through observation ¨  No deference: ¨  Observation is such a foundational source of knowledge; paralyzed if we were to abandon it.
  35. 35. Why “facts” won’t decide ACA challenges 1.  Many of the objecting employers oppose all forms of contraception. 2.  Suppose Hobby Lobby were to grant that chance of embryo destruction is exceedingly small. Still, it objects to facilitating conduct that has even an exceedingly small chance of causing embryo destruction. è What’s at stake is a relational claim, not a factual one.
  36. 36. Should court defer? Y/N ¨  Empirical claim: no deference ¨  Moral claim: absolute deference (with attendant counter-speech, if appropriate) ¨  Relational claim: near-absolute deference ¤  Exception: claim interwoven with faulty empirical claim
  37. 37. Background ¨  ACA mandates coverage for women’s preventive health care ¨  Among these are 20 FDA approved methods of contraception. ¨  Churches automatically exempt. Religious NFP organizations (universities) are offered an accommodation. ¨  “Religious” for-profit entities, like Hobby Lobby, claim exemption from contraceptive mandate too.
  38. 38. Visualizing the difference: 0 n The Complicity Spectrum S’ S’’ The strength (S) of connection between A and W A = agent whose complicity is at issue; W = wrong S’ = CO’s complicity threshold S’’ = standard complicity threshold
  39. 39. What we do know ¨  1. Law's conception of complicity requires more blameworthiness than the CO's ¨  2. Law does sometimes recognize and countenance CO, even though S' < S'' ¨  3. Where and why is this so, and what does it say about the cases of CO the law doesn't recognize?
  40. 40. Factors that negate deference 1.  No narcissism, neuroticism 2.  Relational claim is predicated on a causal claim that experience contradicts.
  41. 41. An example ¨  Employer objects to subsidizing ultrasounds during pregnancy because he believes that ultrasonic waves cause left- handedness, and left-handedness is evil.
  42. 42. (“Largely”) Proper bases of evaluation 1.  Sincere? 2.  Applied to true facts? 3.  Relational claims reasonable? a.  No wacky empirical facts b.  Not based in narcissism/neuroticism If “yes” to 1-3 à deference à  Deference to JW employer, employer who opposes raises and overtime, or employer who abhors homosexuality. à  BUT deference does not automatically entail exemption!

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