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

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July 8, 2014

Eden Foods/FacebookEden 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. 

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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).

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