Professor Elizabeth Sepper is a scholar of religious liberty and health law at Washington University. In 2017, she participated in a conference organized by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. The conference was dedicated to considering complex legal and ethical issues that emerged in light of cases such as the 2014 Burwell vs. Hobby Lobby Supreme Court Case. Perspectives from attendees of the conference were gathered in the manuscript, Law, Religion, and Health in the United States, published by Cambridge University Press in summer of 2017.

Alexandra Nichipor of the Initiative on Health, Religion, and Spirituality was able to ask Professor Sepper some questions about her recent book.

Alexandra Nichipor: What made you decide to edit a volume around the topic of law, religion, and health?

Elizabeth Sepper: Law, religion, and health were in the air when we brought together the contributors to this volume. The Supreme Court had recently decided the landmark case of Burwell v. Hobby Lobby Stores, Inc., recognizing a for-profit corporation’s right to exercise religion and granting it an accommodation from the Affordable Care Act’s mandate to cover contraceptives in employee insurance plans. Related litigation against the contraceptive mandate was ongoing and had brought to the fore central, unresolved issues in law and religion doctrine that affect health.

At the same time, scientific advances increasingly were challenging religious doctrine. Advances in assisted reproductive technology and life-saving procedures muddy moral and legal questions about the beginning and end of human life. Evolving understanding of human psychology likewise led medical professionals to reject, for example, sexual orientation conversion therapy over objection from some religious believers.

The successes of the marriage equality movement also had spurred a backlash. Mainstream conservative Christian organizations were demanding, and sometimes winning, exemptions from antidiscrimination law with impact on LGBT people and unmarried people. Access to abortion, sterilization, and, increasingly, contraception ran into religious refusal policies of hospitals and other healthcare institutions.

AN: What do you think are the most pressing questions around health, religion, and medicine in the Trump era? If you were editing the book now, what kinds of questions would you ask in light of the current political climate?

ES: Religion and health seemed hot in 2016 when we were editing this volume. In the Trump era, the issues are on fire. The administration has put out new regulations exempting employers (and insurers) with not only religious, but also moral objections to contraception from the Affordable Care Act’s mandate. The Department of Health and Human Services now has an entire office devoted to enforcing laws that permit refusal of reproductive care and other healthcare services. Religiously affiliated hospitals and Christian medical groups are resisting sex discrimination law—asserting a religious right to discriminate based on LGBT status or pregnancy termination.

The questions explored in the book have only become more timely. Can a corporation have a conscience or a religion? In a hospital, for example, whose religious perspective creates the institutional religion? Is it the board of directors, healthcare providers, patients, or other affiliates. What costs do religious exemptions for institutions—as opposed to individuals—impose on others? How can we develop a legal framework that recognizes religious values, not only of conservative religious healthcare facilities, but of the patients they serve and the providers they employ? The book is enormously helpful in the Trump Era for thinking through the implications of majoritarian, powerful religious actors taking the helm for health and healthcare. Rachel Sachs, for example, suggests that the availability of religious healthcare sharing ministries may undermine the ACA insurance markets. My own chapter shows that healthcare consolidation has meant government, for-profit, and publicly traded hospital corporations—far from the traditional Catholic hospital—now follow Catholic doctrine by contract.

While many of the chapters in the book do deal with issues related to religious minorities, I would expand upon these questions today. The traditional role of religious exemptions has been to protect disfavored religious minorities—either to allow them to maintain their way of life (like the Amish who want to discontinue formal schooling before high school) or to become incorporated into public life (like Jehovah’s Witnesses who want to go to public schools without being forced to say a pledge). Today, we’re experiencing a sea change. Religious exemptions are becoming the domain of powerful Christian institutions—like multi-billion-dollar healthcare systems and chain stores.

The Establishment Clause, which prohibits the government from favoring or disfavoring a religion, matters more today than it did in 2016 when we were editing the book. The Trump administration has focused its animus on an entire religion—setting up a Muslim ban. Sometime, the government itself has adopted a religion. Officials in the Department of Health and Human Services have been proselytizing to undocumented pregnant minors in their custody and interfering with their access to abortion. The state of Mississippi likewise has enacted a law that puts the imprimatur of the state on one religious position—favoring heterosexual marital sex—and tells other religious people that their religious beliefs are wrong.

AN: How did you select the contributors featured in this volume?

ES: We wanted to get leading academics, practitioners, and advocates in the same room to talk about religion and law in the context of healthcare and public health. So, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School hosted a conference, out of which this book comes, that attracted hundreds of thought leaders from across the nation.

The book benefited from the diversity of backgrounds and methodologies of our contributors. They bring expertise in philosophy, public health, law, theology, and medicine. They also offer competing visions of what success in balancing religion and health would look like and the best ways to achieve it in law and policy.

The book also includes lawyers and advocates who are making cutting edge arguments about law and religion in the courts and legislatures. Lawyers from opposing sides of religious challenges to the contraceptive mandate square off in the book. Some contributors combine scholarship and practice. Douglas Laycock, for example, is both a preeminent scholar and a practicing lawyer who regularly files briefs and argues before the Supreme Court on behalf of religious claimants. Robin Fretwell Wilson, whose research is at the intersection of health, religion, and family law, similarly lobbies state legislatures to adopt same-sex marriage related religious exemptions. These on-the-ground experiences bring a unique perspective to the volume.

AN: What unexpected insights derived from this conference?

ES: The chapters do a beautiful job of illustrating the myriad range of religious conflicts over health. We have Santeria practitioners using mercury, Evangelical believers founding alternative psychological methods, religious funeral practices creating risk of infectious disease transmission, and Black churches impeding best practices for HIV prevention.

They also show that conflicts over health and religion are far more complicated than often assumed. Many religious exemption claims in this area involve providers, patients, the public, health institutions, and the government. They don’t present as government versus believer. And religious beliefs exist on all sides. When a hospital claims a right to refuse to allow its facilities to be used for sterilization, that claim may clash with the religious and moral beliefs of patients, providers, and the community. The result is that no pro-religious-exemption or anti-religious-exemption position exists. Each contributor to the book supports some religious exemptions and opposes others, drawing different lines in these tough discussions.