Supreme Court

The Next Hobby Lobby: Get Ready to Hear So Much More About Birth Control Mandates


Eden Foods/Facebook

Eden Foods is an organic food business that's been operating out of Michigan since the 1960s. Eden's president and sole shareholder, Michael Potter, is anti-GMO, pro-macrobiotic diet, and believes in "full transparency–complete disclosure of ingredients and all handling" for Eden's products, which include things like mung beans, buckwheat noodles, plum vinegar, and dried sea vegetables. As a longtime Eden Foods consumer, I don't think it's unfair to describe the company as exactly what conservatives would dream up if they were parodying an organic foods brand. 

Well, except for one thing: Potter is a Roman Catholic who says certain forms of birth control are abortion. And his lawsuit challenging the Health and Human Services (HHS) contraception mandate is one of three that the U.S. Supreme Court has ordered to be reviewed in wake of its June 30 decision in Burwell v. Hobby Lobby, the controversial case concerning birth control and an employer's responsibility to provide health insurance that covers it. The Christian owners of corporate craft chain Hobby Lobby had said doing so violated their religious beliefs and the Supreme Court agreed, holding that requiring a closely-held company to provide the coverage was not "the least restrictive means" of accomplishing the government's goal (increasing insurance coverage for contraception) and therefore stood in violation of the Religious Freedom Restoration Act (RFRA) of 1993.

Following the Hobby Lobby ruling, the Court ordered reviews of three similar cases wherein lower courts had rejected companies' requests to be exempted from the mandate: Autocam Corp. v. BurwellEden Foods v. Burwell, and Gilardi v. Department of Health & Human Services

Autocam is a Michigan-based company that manufactures parts for cars and medical supplies. The Gilardi brothers operate two Ohio food distribution companies. In all three lawsuits, the companies objected to covering all forms of contraception (in the Hobby Lobby case, owners had merely objected to four specific types). The Gilardi case will now go back to the U.S. Court of Appeals for the District of Columbia; Eden and Autocam will bounce back to the 6th Circuit Court of Appeals. 

Of course, these three case are just the tip of the proverbial iceberg. More than four dozen lawsuits against the Obamacare contraception mandate are pending by faith-affiliated charities, colleges, and hospitals, according to the Associated Press. And 49 lawsuits—many of them stayed in anticipation of the Hobby Lobby ruling—are pending from for-profit corporations. (See a full list of them here.)

In October, when the U.S. Supreme Court begins its new term, it is expected to hear a challenge from the University of Notre Dame—a challenge very similar to one from Christian college Wheaton. Unlike Hobby Lobby, Wheaton was eligible for the accommodation for religious nonprofits that HHS had already worked out. Under this workaround, religious employers who object to covering contraception must simply alert the government of their objection and which insurance company they use. Thereafter, the government will make arrangements with insurers to provide birth control coverage for the company's employees (a move which insurance companies seem to have accepted because plans that include contraception coverage wind up less costly to them those that don't).

But Wheaton says that merely filling out the form violates religious beliefs, since doing so would indirectly end up facilitating birth control coverage for employees. Last week, the Supreme Court granted the college an injunction against enforcement of the contraception mandate pending appeal. 

The Court's decision in Wheaton doesn't resolve the merit of the school's claims (though for a clickbait-y mess of legal ignorance, check out this Dahlia Lithwick and Sonja West piece asserting that the court found the whole accommodation "unconstitutional"). Should Wheaton get its way, those who oppose the contraception mandate may be "close to the end of the line of what they can demand" under the RFRA, notes Jonathan H. Adler at The Volokh Conspiracy:

Wheaton and some religious employers claim that the form HHS requires them to fill out and sign (EBSA Form 700) substantially burdens their religious belief because it directly facilitates the provision of contraceptive coverage to which they object. Yet as the order notes, religious objectors are able to notify the government of their objections to contraception coverage without using the form, and that nothing in RFRA would prevent the government from using this information to facilitate contraception coverage for relevant employees. This would suggest that should a majority of the Court find the existing accommodation insufficient, a RFRA-compliant accommodation based on a different form or reporting procedure should be relatively easy to create.

Yes, some religious objectors might object to any form, but an objection to informing the government of one's objection, due to the knowledge that the government may use this information in an objectionable fashion, would seem to fail for the same reasons that religious objections to paying taxes fail.

A small tweak to the existing religious nonprofit accommodation seems harmless enough, but there are reasons some supporters of the Hobby Lobby decision may object to the court coming down in full favor of Wheaton College. Michael Austin at IVN news likens it to the difference between exceptions and accommodations in education: 

Accommodations include such things as providing sign-language interpreters, note takers, recorded textbooks, and extra time on tests. The guiding philosophy behind educational accommodations is that every student should have an equal opportunity to learn the material in a course and have that knowledge assessed by an instructor.

From time to time, educators are asked to forgo that philosophy and make exceptions for students who are having difficulty in a course—to require less reading, or fewer tests, or lower grades for some students than for others. Exceptions often look like accommodations, but they are actually very much the opposite. 

Austin thinks Hobby Lobby was looking for an accommodation, while Wheaton (and Notre Dame and the dozens of institutions involved in similar cases) is looking for an exception. "It will be tempting for the courts, and for Americans generally, to believe that religious exceptions proceed logically from religious accommodations," he writes. "But they do not. Accommodations and exceptions are fundamentally different kinds of things. One allows us to balance competing interests, while the other demands that we sacrifice one set of interests to another."

Under the RFRA, it really comes down to substantial burden—does it substantially burden a nonprofit's religious freedom to fill out a form objecting to covering birth control? I would say no. Though neither would it burden HHS substantially to change the reporting requirement in some way (say, by having employees at objecting companies fill out a form).

But all this implies we're actually arguing about what we say we're arguing about, and by this point it's clear we are most certainly not, at least not unilaterally. Both the federal government and some employers are using the contraception bit of HHS' essential benefits mandate as a way to protest or defend Obamacare, and what it stands for, at large.

One person who isn't afraid to admit this is Eden Foods' Potter. Though Potter's lawsuit against HHS is brought on First Amendment and RFRA violation grounds, Potter barely mentions his religious beliefs when he talks or writes about the case. In 2013, he told Salon's Irin Carmon that he didn't care about birth control per se but the "whole category of things that I don't think any company should be forced to be involved with." In a press release the same month, Potter called it "discriminatory" that not all employers have to comply with the HHS mandate ("individuals who practice certain faiths are exempt, while individuals who practice other faiths are not") and lamented the "overreach" of HHS:

Eden employee benefits include health, dental, vision, life, and a fifty percent 401k match. The benefits have not funded "lifestyle drugs," an insurance industry drug classification that includes contraceptives, Viagra, smoking cessation, weight-loss, infertility, impotency, etc. This entire plan is managed with a goal of long-term sustainability.

We believe in a woman's right to decide, and have access to, all aspects of their health care and reproductive management. This lawsuit does not block, or intend to block, anyone's access to health care or reproductive management. This lawsuit is about protecting religious freedom and stopping the government from forcing citizens to violate their conscience. We object to the HHS mandate and its government overreach. 

After the Supreme Court ordered Eden's case to be reviewed, Potter put out a short press release affirming that "we believe we did what we should have." Many progressives are now calling for a boycott of Eden Foods. Carmon and others have suggested that the real root of Potter's distaste for "lifestyle drugs" like contraception is not religion but his macrobiotic diet and beliefs.

Eden Foods/Facebook

But should that even matter? Deeply held beliefs are deeply held beliefs. Why is it okay to object to medications because of Jesus but not because of your construction of health and science? If both get you to the same place—a moral conviction against certain healthcare—than why should one be any more valid than the other as a talisman against government overreach?

"No one has a natural right to force other people to pay for her (or his) contraception or anything else (with or without the government's help), and by logical extension, everyone has a right to refuse to pay if asked," Sheldon Richman wrote recently.

Of course, the only legally available way to refuse to pay (at least without getting hit by steep fines) is by claiming a religious exemption, so that's what we're getting at the moment. However—as Jacob Sullum has noted here many times, and I tried to convey in this recent interview with Catholic magazine America—allowing for religious exemptions to generally applicable law can lead to a general questioning or rethinking of those laws. 

In any event, Hobby Lobby was only the beginning on contraception coverage front. We can expect to see a lot of similar cases coming before federal courts in the months and perhaps years to come. We can expect legislative action, too: The Obama administration is insisting that it will act to remedy the Court's Hobby Lobby decision. And Democratic Illinois Gov. Pat Quinn signed a law Sunday that will give voters the chance to enact a state law forcing business owners to offer prescription birth control coverage to employees. 

But this is a controversy that only exists because the Obama administration and Congress have made birth control, and all sorts of health services, an appropriate subject of state and corporate concern. More laws trying to compel business owners to run their companies in a certain way isn't going to get us anywhere but more court battles. 

"Accommodations support, while exceptions destroy, the integrity of the enterprise that creates them," Austin wrote about the Wheaton case. Perhaps that's actually a feature in this situation.

NEXT: A Rainbow Whopper Is Exactly What Gay Liberation Is, Actually

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. What if my religion states that I shouldn’t pay for others to get bizzay?

    1. Look if you’re not paying for Warty’s hookers, you’re denying him access to sex.

  2. Death by a thousand cuts would be good.

  3. ENB’s discussion of the Wheaton College case is not a model of clarity.

    The regulation requires them to send a specific form to their insurer which triggers the insurer’s obligation to provide “free” BC.

    Pending the resolution of the litigation, the Supreme Court (as with the case of the Little Sisters of the Poor) says that Wheaton need only send a letter *to HHS* specifying their conscientious objection.

    This is the usual procedure for conscientious objectors to follow. In the days of the draft, a Quaker conscientious objector would send a letter to his draft board. The HHS regulation is comparable to requiring the Quaker to send a letter to a substitute authorizing that substitute to be drafted in his place.

    The administration is going to the mat, going after nonprofits *even if they qualify for an exemption and send a letter to HHS specifically asking for the exemption.* To the administration, that’s not enough, and unless they use the *right form* and send the form to someone who’s authorized to act in their stead, they’re going to be slammed with crippling fines.

    Slapping down your enemies with fines over a paperwork matter!

  4. Yay… Now when I consider an employer I have to determine whether the CEO and BofD are conservative extremists and /or religious nutcase when evaluating whether my negotiated benefit package is going to be reneged on because jobz creatorz had a moment with Jesus. Ah well, a negotiated benefits package is really a subsidy anyway so why all the bitching? I should be happy to get paid at all and should never, ever start looking for my local SEIU office. The feeeliiings of my religious nutcase employer are more important than my well-being. Employees that get deliriously happy over the fact that they are going to have to pay $300/year more for reproductive health care because they hate Obama and love the Tea Party sure are intelligent.

    1. american socialist|7.8.14 @ 7:16PM|#
      “braindead lefty lies from one end to the other”

      With any luck, they’d interview you and toss your sorry ass out the door.

      1. You mean I won’t get that job stuffing boxes for my employer who likes to choose what kind of birth control I receive. Boohooboohooboohoo. How will I live?

        1. So why does your employer owe you birth control in kind? Do they owe you food and housing too?

          1. Careful, it’s AmSoc. It’ll answer in the affirmative. For god’s sake, don’t pay it to mow your lawn. It’ll think it’s doing you a favor and demand room and board for the year.

        2. Wait, I thought this was a life-changing issue for you. Now you don’t seem to care because any employer who would object to paying for your contraception is a slave driving asshole anyway. Which is it?

          1. Well, the price of specific forms of abortifacients are cheap at $300 a year for the capitalist pigs that have the gall to hire employees, but completely out of reach at less than $1/day for the proletariat who bravely labor for unappreciative business-owning scum.

          2. Doesn’t matter to me. My employer doesn’t pick and choose what health care choices I use based upon their political or religious values– and I wouldn’t work for one that made those choices for me.

            I’m just commenting on the intelligence of the Hobby Lobby employees who were cheering for their employer to mandate what birth control they choose and the higher health care costs they will incur if they choose the forms of birth control that makes the Baby Jesus cry.

            1. My employer doesn’t pick and choose what health care choices I use based upon their political or religious values

              Everybody’s company has a political or religious agenda except mine! Truly living up to your moniker; virtuous, unbiased, deluded, and clueless.

              You probably sit on the board and get to decide which ergonomic chair everyone in the company will sit on, right? Or did you go with standing desks because sitting in a chair all day is worse for your health than smoking?

            2. “…and I wouldn’t work for one that made those choices for me.”

              That statement alone shows how fucking stupid you are and that the lengths you will go to to lie, distort, and be a mendacious shithead altogether.

              The HL decision doesn’t allow them to make that choice for you. They make that choice for themselves and any of the contraceptives they object to are paid for by either the insurance company or the federal government, kind of like that icky single payer style system that progressives hate so much.

              Fucking kill yourself.

        3. american socialist|7.8.14 @ 7:36PM|#
          …”How will I live?”

          We can hope you die a slow painful death, asshole.

          1. …then I can be in Heaven with your new libertarian bffs in the religious right. I’ll be sure to wear my chastity belt.

    2. Its amazing how much this issue has brought the derp out.

    3. Just use one of those wonderful exchanges.

    4. Yay… Now when I consider an employer I have to determine whether the CEO and BofD are conservative extremists and /or religious nutcase

      Oh, THE HORROR.

    5. Yay… Now when I consider an employer I have to determine whether the CEO and BofD are conservative extremists and /or religious nutcase

      I wouldn’t worry too much about it. I don’t think Mickey D’s provides health benefits anyway.

    6. Well, first you’d have to consider employment…

    7. Yay… Now when I consider an employer I have to determine whether the CEO and BofD are conservative extremists and /or religious nutcase when evaluating whether my negotiated benefit package is going to be reneged on because jobz creatorz had a moment with Jesus.

      Damn right. You have to negotiate peacefully with other people in *society* to come to mutually agreeable ways of coexisting. As a socialist, shouldn’t that be desirable to you? Isn’t using government force to make others conform to your preferred way of living sort of, I dunno, antisocial?

    8. “ow when I consider an employer I have to determine whether the CEO and BofD are conservative extremists and /or religious nutcase ”

      Oh, the horror of having to think about who you want to engage in trade with and what the terms of your contract might be.

    9. Employees that get deliriously happy over the fact that they are going to have to pay $300/year more for reproductive health care because they hate Obama and love the Tea Party sure are intelligent.

      If you can’t swing $25 a month to keep from getting knocked up (or $25 a month to buy condoms)–your problems are a lot bigger than that.

      1. Well.. I don’t my employer should be in the business of disapproving of my form of birth control. It’s nice that you libertarians have found a new cause in supporting sex-shaming evangelicals.

        1. You’re not a socialist–you’re just a statist wanting the state to force others to give you your heart’s desire.

          That is, you’re a sniveling, pathetic, spoiled pantywaste. You should stay home where your mom can care for your every need because you obviously are not ready for adulthood. Adults (enlightened ones) take responsibility for their needs and their mistakes. You want to avoid responsibility for both. Therefore, you are still a child.

        2. I don’t my employer should be in the business of disapproving of my form of birth control.

          No, you’re just demanding that your employer cover the things you want them to cover. The childish mindset of the shitlib always emerges quickly.

        3. Your employer has nothing to do with your choice of birth control, buy whatever the fuck you want. What pisses us libertarians off is when you want to have guys with guns come and throw a guy in prison for refusing to violate his religious beliefs and buy you free shit. Your position is fascist.

  5. I wonder if ENB would call Potter “scum”?

    1. Nah, it’s all good. He’s not like one of those Catholic Catholics. His motivation comes from his bizarro dietary considerations, which is all new-agey and cool and shit.

      1. Given that ENB outs herself as a “long time Eden Foods consumer,” the source of her free-range derp is undoubtedly years of eating like a goddamn hippie.

  6. I’m straight, so no mandates for me.

  7. when evaluating whether my negotiated benefit package is going to be reneged on because jobz creatorz had a moment with Jesus

    How did no one pick up on this part yet? When the hell did any employer negotiate these benefits? The whole point of Obamacare is the employer no longer has the ability to negotiate minimum coverage with employees. It’s all been mandated by the government.

    More than that, when did YOU personally negotiate anything with regards to the Obamacare mandates?

    How is the employer reneging on a contract they never promised in the first place?

    1. …”How is the employer reneging on a contract they never promised in the first place?”

      Commie kid has proven to be a low-watt bulb, mostly spouting talking points; trolling.
      It’s not often worth it to engage the slimy bastard.

      1. Wait …. you only offer 16 types of contraception …. FUCK ME! THE TRAVESTY OF IT ALL.

        1. And they supported all of them, including iuds before the dreaded obamacare. You know a quality employer and the level of integrity in an individual when the boss is willing to place his politics before the interests of his employees.

          1. american socialist|7.9.14 @ 2:35AM|#

            …”More leftie lies from commy kid”…
            Buzz off, slimy ball.

          2. And a quality justice when they follow the law instead of injecting politics.

      2. What’s wrong with paying to have socialists spayed? I’d be glad to contribute to that.

        1. I will jay in to have them executed, piled in dump trucks, and deposited in landfills.

  8. Atheists have no religion at all — freedom from religion embodied. If everybody except Atheists are able to exempt themselves from a law, that would also be a form of religious discrimination.

    1. Atheists have no religion at all — freedom from religion embodied.

      Invertebrates have no religion at all. Even dogs feel love, fear natural phenomenon, have faith in people, appeal to higher powers, etc.

      Atheists have religion, one of the fundamental precepts is telling you that they don’t.

      1. “Atheists have religion, one of the fundamental precepts is telling you that they don’t.”


  9. Employer-funded health care hasn’t exactly been a success story, and expanding that burden is hardly helpful to job creation.

    Interestingly enough, most of the locals I know who are bothered by the Hobby Lobby ruling are employed by small businesses that don’t have to provide benefits at all, and they’re fully aware that they’re on their own if they want an IUD or whatever, yet they just aren’t making the connection.

    1. The whole thing is really a stupid hill to be defending, but it was inevitable when Obama tried to cater to the Free Shit Army and the Church of Perpetual Hysteria with the “free” birth control mandate.

      The real point, which I’ll make every time, is that an employer shouldn’t be forced by the government to cover what the government is demanding they cover, whether it’s everything under the sun for a $10 copay or 50% copays on a bottle of aspirin and nothing else. Personally, I still prefer a cash-based system, because most people don’t realize that putting in a third party inevitably increases the costs of the goods or services being sold–especially when the prices aren’t listed upfront.

  10. If the government really wants universal contraception, fund it out of tax dollars. I might even support such a movie. Compelling one third party to buy it (or anything else) for another third party is a gross overreach of government powers and responsibilities. Let every women upon reaching the age of 13 go to the post office and register for reproductive service and get a packet of pills mailed to her for free 4 times a year. Let all ERs, departments of community health, and or free clinics distribute the morning after pill free of charge, paid for by taxpayers. That would be constitutional, it wouldn’t force anything to do anything. You may or may not agree that it is a legitimate function of government and you may or may not want government spending the money, but those are debates that could at least be rationally had, and I’d rather have my tax dollars spent on pills than funding this sort of super powereful government that can more or less do anything to me it wants.

    1. I’ve expressed support for just such an idea myself, as a social investment to bring down incarceration and welfare costs, but it needs to come from the general fund, not just those companies over a certain size, when their money could be better spent by hiring more people.

Please to post comments

Comments are closed.