Associate Professor of Law
B.A., 2002, Boston University
J.D., 2006, New York University School of Law
LL.M., 2007, New York University School of Law
Rachel Mance - (314) 935-3380
Phone / Email
Phone: (314) 935-3380
Anheuser-Busch Hall, Room 556
Health Law & Policy Seminar
Professor Elizabeth Sepper is a health law scholar whose work explores the interaction of morality, professional ethics, and law in health care and insurance. She has written extensively on conscientious refusals to provide reproductive and end-of-life healthcare and on conflicts over religious liberty and insurance coverage through the Affordable Care Act’s contraceptive coverage mandate. Her scholarship also examines the interaction of business religious exemptions and gay rights.
In an article forthcoming in the Columbia Law Review, Sepper argues that, in promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the courts’ widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Sepper identifies this phenomenon as “free exercise Lochnerism.”
The Article makes significant contributions to ongoing debates about religious liberty, same-sex marriage, and limits on the regulatory state. It shows that in resisting compliance with antidiscrimination laws, pharmacy regulations, and insurance mandates (most prominently, the Affordable Care Act’s contraceptive mandate), businesses make claims more reminiscent of market libertarianism than of religious freedom. Siding with these businesses, courts have begun to incorporate the premises of Lochner into religious liberty doctrine. The comparison to Lochner-era freedom of contract cases also lays bare the implications for the regulatory state, beyond contraception and same-sex marriage. While scholars have recognized a link between Lochner and the Free Speech Clause, Sepper is the first to establish that free exercise has taken on a similar role with potential to undermine the regulation of business more broadly.
Her previous articles have appeared in top journals, including the Virginia Law Review, Indiana Law Journal, Harvard Journal of Gender & Law, and Harvard Law Review Forum. Prior to joining the faculty, she was a fellow at the Center for Reproductive Rights and Columbia Law School. She also clerked for the Hon. Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit and practiced at Human Rights Watch and NYU School of Law’s Center for Human Rights and Global Justice.
- "Free Exercise Lochnerism" 115 Columbia Law Review _ (forthcoming 2015) [SSRN]
- An Unhealthy Precedent: Lessons from Healthcare for For-Profit Religious Liberty, in The Rise of Corporate Religious Liberty (Zoe Robinson, Chad Flanders & Micah Schwartzman, eds. Oxford University Press forthcoming 2015)
- "Conscientious Refusals of Care," in Oxford Handbook of American Health Law (Glenn Cohen, Allison Hoffman, & William Sage, eds. forthcoming 2015)
- "Gendering Corporate Conscience," 38 Harvard Journal of Law and Gender.193 (2015) [SSRN]
- "Reports of Accommodation’s Death Have Been Greatly Exaggerated," 128 Harvard Law Review 24 (2014) (invited response to Paul Horwitz, The Hobby Lobby Moment, 128Harvard Law Review 154 (2014)) [SSRN]
- Taking Conscience Seriously," 98 Virginia Law Review 1501 (2012) [SSRN]
- "Doctoring Discrimination in the Same-Sex Marriage Debates," 89 Indiana Law Journal 703 (2014) [SSRN]
- "Not Only the Doctor's Dilemma: The Complexity of Conscience in Medicine," 4 Faulkner Law Review 385 (2013) (invited symposium contribution) [SSRN]
- "Contraception and the Birth of Corporate Conscience," 22 American University Journal of Gender, Social Policy & the Law 303 (2014) (symposium) [SSRN]