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.