HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, October 6, 2011

Guest Blogger Elizabeth Sepper: “Insuring” Conscience for Contraceptive Coverage

Sepperphoto Thanks so much to Katharine Van Tassel and the rest of the Health Law Profs for the opportunity to guest-blog here!  My posts for the next month will focus on issues of reproductive health, medical ethics, and moral objections in healthcare.


Human beings have consciences, but do businesses?  Does a hospital or insurance company act on conscience? The U.S. Conference of Catholic Bishops says they do—and that businesses should not have to pay for, and insurance companies should not have to cover, employee health insurance that includes procedures to which they object. 

On Friday, the U.S. Department of Health and Human Services received the last of public comments on preventive health services that must be covered, without co-pay, by insurance companies under the Patient Protection and Affordable Care Act.  As expected, the bishops—along with other public commentators—focused on the requirement of contraception coverage in employer-sponsored plans.  Under the proposed rule, only a non-profit, religious employer that has the purpose of inculcating religious values and primarily employs and serves people who share its religious tenets will be exempted.  Religiously affiliated healthcare facilities, like hospitals and nursing homes, by contrast, will have to purchase insurance that cover these services for their employees (if they provide insurance coverage).

The bishops contend that those insurers and employers “with moral or religious objection to contraceptives or sterilization . . . will experience burdens to conscience under this new mandate.”  Yet, at the same time, they argue the rule should protect conscience for all individuals.

Corporate or institutional “conscience,” however, is inherently in tension with the exercise of individual conscience, as I argue in a draft paper on conscientious refusal in medicine.  Religiously affiliated healthcare facilities bring together physicians and nurses of all creeds, and treat patients of all beliefs. Responding to an employer’s moral objection means impeding women from exercising their own moral judgments about family planning, sex, and health—as some public comments pointed out.

This conflict between institution and individual can be seen in the bishops’ arguments in favor of a wider religious employer exemption.  If employees shared the institutional position, there would be no need for an employer exemption, because no employee would use insurance to purchase contraception.  But employees in Catholic healthcare (or other social services) facilities do not in fact share their employers’ convictions.  They may in good conscience use contraception, as indeed 99 percent of women (and 98 percent of Catholic women) do during their lifetimes.

Given this tension, bald assertions of a need for conscience protection often obscure the real questions.  Is individual conscience actually protected?  Or are institutional interests preeminent?  Are these values absolute or should they be balanced against interests in public health, equality, and patient autonomy?  As the trend of corporate conscience continues (most recently with the so-called Respect for Rights of Conscience Act, H.R. 1179), we should seriously weigh these questions – and consider can an insurance company have a conscience?

The views expressed in this post are those of the author and should not be attributed to the Center for Reproductive Rights or the Health Law Prof Blog.

- Elizabeth Sepper

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