The Religious Liberty Challenge to American-Style Social Insurance

61 Pages Posted: 11 Mar 2024 Last revised: 19 Jun 2024

See all articles by Elizabeth Sepper

Elizabeth Sepper

University of Texas at Austin - School of Law

Lindsay F. Wiley

University of California, Los Angeles (UCLA) - School of Law

Date Written: March 8, 2024

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.

Keywords: social insurance, health, ACA, religion, Braidwood, preventive services, PrEP, contraception

Suggested Citation

Sepper, Elizabeth and Wiley, Lindsay Freeman, The Religious Liberty Challenge to American-Style Social Insurance (March 8, 2024). UC Davis Law Review, Vol. 58, 2024, U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4752766

Elizabeth Sepper (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Lindsay Freeman Wiley

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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