Tuesday, March 12, 2024

Check it Out: Sepper and Wiley on Religious Liberty Challenges to Social Insurance

Elizabeth Sepper and Lindsay Wiley recently posted The Religious Liberty Challenges to American-Style Social Insurance. Here's the abstract:

This Article argues that escalating religious challenges to the Affordable Care Act (ACA) form a major new vector in the campaign against social insurance in the United States. Where early constitutional challenges urging a libertarian ethos of “you’re on your own” largely failed, religious claimants are succeeding with a traditionalist entitlement to “take care of your own as you see fit.” In a mounting series of lawsuits, objectors challenge requirements that employers and insurers provide comprehensive, nondiscriminatory coverage of sexual and reproductive health services. They demand freedom to define their own communities and choose which medical needs they will support. They revive the notion of personal responsibility largely repudiated by health reform and add a moralized twist. The result is discrimination against marginalized groups, coercion of workers, and loss of democratically determined rights.

Bridging political economy and religion law scholarship, this Article attributes religious claimants’ successes to the ACA’s distinctively American accommodationist and market-first structure. Concessions that facilitated the Act’s passage in Congress now grant a foothold for religious objectors eager to rewrite the insurance social contract in the courts. Religious exemptions re-fragment the social collective—by family, firm, medical need, and religious belief. We are no longer “all in it together,” as the ACA would have it; we are separate and apart.


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