Contraception mandate debate leads to worrisome ‘corporate conscience’ concept, law professor warns​

The controversy and legal battles surrounding the contraception mandate in the Affordable Care Act have led to a new – and worrisome – legal concept: the idea of a “corporate conscience,” warns Elizabeth Sepper, JD, who teaches at Washington University School of Law in St. Louis.

Sepper, an associate professor of law at Washington University, contends the dangerous doctrine of “corporate conscience” has begun to emerge as courts endow secular, inanimate businesses with inherently human religious and moral beliefs to excuse them from complying with the law.

Sepper said courts have failed to grapple with tricky issues raised by these unprecedented decisions: How can a business have beliefs, religious or otherwise? What does it mean for a business to hold a faith or show sincerity? How, as courts now ponder, could a corporation exercise its religion, if it had one?

Sepper argues the premise goes against longstanding principles of corporate law.

“Wal-Mart is Wal-Mart, even when Sam Walton resigns,” Sepper said. “For-profit corporations are designed to be separate from the individuals who own them and to protect those individuals from corporate obligations and liabilities.”

Sepper said that the courts’ decisions in this area will have a wide effect on health-care benefits, anti-discrimination law and social insurance programs.

“If for-profit employers are unconstitutionally burdened by regulation of health insurance, they’ll be able to dispute other mandated benefits on religious grounds — from sexually transmitted infection counseling and testing to vaccination to depression screening,” Sepper pointed out. “It’s just a short step from deciding for-profit, secular employers can deny employees insurance for contraception to allowing them to get rid of employees for simply using contraception.”

Sepper wrote an article on the issue, “Contraception and the Birth of Corporate Conscience,” which will be published in a forthcoming issue of the American University Journal of Gender, Social Policy & the Law.

Review Sepper’s article here.

Check out Sepper’s blog posting on the topic.