Bosses in the Bedroom: Religious Employers and the Future of Employer-Sponsored Health Care
This chapter uses the controversy over mandated contraceptive coverage in employer health plans as a jumping-off point to do two things: (1) evaluate the proper scope of religion in the workplace—not among employees, but rather employers; and (2) assess the implications for employers’ role in their employees’ health care more generally, via employer-sponsored health insurance. We argue that the federal Religious Freedom Restoration Act (RFRA), when properly construed, is capable of facilitating an appropriate balance between the religious beliefs of employers and their employees. However, what these conflicts over contraceptives coverage demonstrate is yet another reason to view the current system of relying heavily on employer-based health insurance as deeply flawed.
More specifically, even as strong supporters of women’s reproductive freedom, we maintain that employers legally need not—and ethically should not—always be required to check their religious beliefs at the door. Instead, we argue that society should support and even encourage “employers with a conscience” in a wide range of circumstances, although not without exception. The problem, in our view, is not the extension of statutory protections of religious freedom to for-profit employers or even extension of such protections to complicity rather than direct action. Instead, the unique contribution of this chapter, beyond contextualizing the reasons why it is often important to support religious employers in the secular sphere, is to highlight a heretofore overlooked problem that the contraceptive coverage cases have laid bare. These cases have been substantially debated in terms of religious freedom and reproductive rights, but on our view, one of their most important features is demonstration of a serious difficulty associated with relying on a system of employer-sponsored health insurance: namely, that the system, by its very nature, opens the door for bosses to enter their workers’ bedrooms, and other private decision-making spaces. Nonetheless, we recognize that the American system appears unwilling to abandon employer-sponsored health insurance altogether, and in fact, seems to be moving in the opposite direction.