Endowing businesses with human religious and moral beliefs to excuse them from complying with the law is a bad idea, warns a legal scholar.
The controversy and legal battles surrounding the contraception mandate in the Affordable Care Act have led to the new—and worrisome—legal concept of “corporate conscience,” according to Elizabeth Sepper, an associate professor of law at Washington University School of Law in St. Louis.
Sepper says 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?
The premise goes against longstanding principles of corporate law, says Sepper.
“Wal-Mart is Wal-Mart, even when Sam Walton resigns,” Sepper says. “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 says 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 points 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’s article on the issue will appear in a forthcoming issue of the Journal of Gender, Social Policy & the Law.