This document discusses the Supreme Court's ruling in Burwell v. Hobby Lobby regarding whether employers can claim religious exemptions from portions of the Affordable Care Act (ACA) that require coverage of contraceptives. The author examines factors that may support conscientious objection claims and considers when courts should defer to such claims versus consider costs to third parties. The author argues that while moral and relational claims of conscience deserve deference given their connection to personal identity and integrity, exemptions should not be granted if they impose significant costs on third parties. Courts need not defer to empirical claims. Overall, the analysis aims to balance respect for conscientious objection with consideration for its impacts on others.

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. 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. The “Parade” of Horribles

4. It extends beyond healthcare…

5. … and even beyond employees, to
customers, suppliers, etc., too

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Third-party costs

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. 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. Balancing deference and third-
party costs: A spectrum
Deference threshold
|----------------|------------------------------------------|
0 n
Magnitude of 3rd-party costs

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. 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. 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. 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. 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. Neutral Criteria

30. Centrality: Core vs. As-Applied Beliefs
¨ Core: It is wrong to eat leavened products on
Passover
¨ As-Applied: Kitnyot (legumes) are leavened

31. A potential objection

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. Empirical deference?

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. 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. 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. 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. 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. 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. Factors that negate deference
1. No narcissism, neuroticism
2. Relational claim is predicated on a causal claim
that experience contradicts.

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. (“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!