Elizabeth Sepper

Law, Religion, and Health in the United States

Con una lista de 43 autores provenientes del Derecho Constitucional, administrativo, de estudios de la religión, y bioética, la colección titulada “Law, Religion, and Health in the United States” (2017) explora las distintas aristas de la libertad religiosa en el derecho sanitario. Se trata de un reciente estudio colectivo – cuyo lanzamiento se realizó a fines de septiembre de este año – y que fue fruto de un congreso académico organizado por el Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, perteneciente a la Facultad de Derecho de la Universidad de Harvard. El libro fue coordinado por los profesores Holly Fernandez Lynch (Harvard), I. Glenn Cohen (Harvard), y Elizabeth Sepper (Washington University), y analiza los desafíos jurídicos en relación con la libertad religiosa, asistencia sanitaria y bioética, cuya discusión se produjo en 2014 con la sentencia de la Corte Suprema de Estados Unidos Burwell v. Hobby Lobby Stores.

Religious Liberty, Health Care, and the Culture Wars

This was the keynote address at a Harvard conference on religious liberty issues with respect to health care. The conference was a response to the Supreme Court’s 2014 decision in Hobby Lobby (in volume 3 at 409), and while the conference organizers invited people from both sides, those hostile to religious liberty predominated. All the papers were collected in an edited volume. I briefly surveyed the field and argued that much of the reaction to Hobby Lobby was overblown. Part 1 mostly summarizes analysis presented in greater depth in The Campaign against Religious Liberty, in this volume at 785. Part 2 is new. In health care as elsewhere, it is usually possible to protect the liberty of both sides. But not always: I agree that Catholic hospitals should not be allowed to acquire local monopolies over women’s reproductive health care.

Reclaiming Biopolitics: Religion and Psychiatry in the Sexual Orientation Change Therapy Cases and the Establishment Clause Defense

In Pickup v. Brown, Welch v. Brown, and King v. Christie, plaintiffs challenged laws prohibiting mental health professionals from engaging in sexual orientation change efforts (SOCE) within the scope of their licenses. They argued (inter alia) that the laws violated their speech rights by prohibiting them from engaging in certain talk therapies, and interfered with their free exercise of religion. The Ninth and Third Circuits held that the behavior involved in these cases was either (a) not protected speech, or (b) speech subject to a lesser degree of protection, which the state had a sufficient interest in preventing.In future cases, however, these arguments may not prove enough. The limits of protected speech under the First Amendment have expanded in recent years. In several cases, courts have held that various kinds of speech in medical contexts receive constitutional protection. It is therefore possible that future courts may hold that talk therapy constitutes fully protected constitutional speech.To address that eventuality, I explore the pedigree of the therapies that undergird SOCE. I show that SOCE is best understood as a form of religious ministry. States can therefore argue that permitting SOCE within the scope of state issued medical licenses would endorse those practices and undermine the states’ compelling interest in preventing religious establishment. While this argument is not unassailable, I believe it would ultimately withstand scrutiny.