Faith Under Fire: An HHS Mandate Cautionary Tale

Of the dozens of private companies suing the government over the Department of Health and Human Services mandate for employers to provide sterilization and early stage abortifacients, Eden Food Corp. has been the most controversial.

Since filing suit, Eden Foods and its CEO, Michael Potter, have become the target of boycotts and have been profiled on popular websites and blogs. And while a lot of the infamy has purely spiteful — the sort of scorn and calumny increasingly reserved by political liberals for anyone who doesn’t check off every box of the politically liberal scorecard — one criticism in particular calls the suit into question.

Michael Potter, CEO of Eden Foods

Michael Potter, CEO of Eden Foods

Is Michael Potter an observant Catholic?

The suit, filed by the Thomas More Law Center on March 22 on behalf of Potter and the company, claims that Eden Foods has never covered contraception or abortion in its employee insurance packages because of Potter’s Catholic faith.

“For years, Michael Potter, a Roman Catholic and President and sole shareholder of Eden Food Corporation, for religious reasons had arranged that the Blue Cross/Blue Shield insurance coverage he designed for his 128 employees specifically excluded coverage for contraception and abortifacients,” the TMLC said in a press release announcing the suit.

“On February 21, 2013, Blue Cross presented Potter with a new contract that included coverage for contraception and abortifacients. Potter refused to sign. [On[ March 15, 2013, Potter learned that without his authorization or consent, Blue Cross inserted contraception and abortifacient coverage as part of his company’s plan.”

But unlike other companies protesting the HHS mandate, Eden Food Corp. is popular with political liberals. While they may have rolled their eyes atBible publishers, craft retailers, and heavy equipment manufacturers and their backward ways, the idea of an organic food company objecting to paying to temporarily or permanently sterilizing its female employees was apparently beyond the pale.

People boycotted, or threatened to boycott. People posted nasty posts on the Eden Foods Facebook page:

“Gee, I used to buy your line, but your stance on not paying for birth control for your female employees is patriarchal insanity….. See Yah…. There are so many other companies that will be so happy they will be getting my consumer dollar from now on. I will be spreading the word about your stupidity on my face book page and I have a lot of female feminist friends who are presently using your products.”

“So it violates your conscience to allow women to protect themselves from unwanted pregnancies in an affordable manner? I’m sorry, but it violates my conscience to give your company any money anymore.”

“I respect Eden Foods honesty about this. They have the right to do as they please & I have the right not to support a company who puts religious beliefs over basic humanity.” and several other web pages got into the act, interviewing Potter — who in their accounts comes across as stunned by attacks from former supporters, and whose less-than-clear answers to questions were pounced on by gleeful writers.

In a piece about his second interview with Potter, “Eden Foods CEO’s Bad Week Continues: Eden Foods’ Michael Potter may have just ruined his right-wing lawsuit and his business. And he’s still talking,” writer Irin Carmon said Potter failed to convince her that he opposed the mandate because of his religious beliefs:

Potter sounded angry when he called me back, but he did answer questions. (I asked him twice if anything had been inaccurate or misleading in my earlier reporting, and he didn’t point to anything.) Asked about macrobiotics, he said, “It didn’t come into play at all in any of the discussions we have.” So, I asked, it’s motivated by his belief as a Catholic?

“Not so much that as our denial of our rights to exercise our conscience,” he said, confusingly. “And the government overreach into that. They’re infringing the religious freedoms that are supposedly in the Constitution. I think those are more important than any particular religious dogma.”

Catholic blogger Frank Weathers wrote a moving piece about the “impossibility of compartmentalizing the Catholic faith” using the Eden Foods case as an example of how, to Catholics, faith can’t be separated from the secular world. For a Catholic, he says, faith informs all decision-making. And that’s true.

But it’s no less true that, when it comes to a court case based on one’s religious freedom, faith had better do more than “inform” decision-making. It had better be the rock-solid, incontrovertible reason for decision-making, at least for the particular decision in question.

Erin Mersino, the lead attorney for the case, says the Thomas More Law Center has that proof, including a sworn statement from Potter that he objects to the mandate on religious grounds.

“He is active in his parish, he goes to Mass, he sings in his choir,” she says, adding that Potter had wrestled with Blue Cross/Blue Shield every year to get a custom policy that excluded birth control and sterilization, which was routine in the insurance company’s policies.

Mersino, like most attorneys, recommends that her clients not talk to reporters during a suit. But Potter “is dedicated to transparency — he runs his business that way,” and wanted to explain his decision to his customers. He soon found himself talking to hostile reporters and, she says, trying to explain his decision in terms he thought they would understand and accept.

The danger with that is saying too much. There are plenty of good reasons to oppose the HHS rule that have nothing to do with religion. It’s perfectly reasonable to say, for instance, that contraception, sterilization and “morning after pills” are unnatural or unhealthy. It’s perfectly reasonable to say that, as they are elective for healthy women, they should not be considered healthcare. It is perfectly reasonable to say that they fall in a gray area and so ought to be an option for an employer to cover or not cover.

But none of these objections are covered by the First Amendment. In a piece for tellingly titled “How a Right-Wing CEO’s Big Mouth Could Kill His Attack on Birth Control,” writer Ian Millhiser rightly explained that:

There is nothing in federal law allowing someone to sue because they generally object to having the government tell them what to do… Instead, a federal law known as the Religious Freedom Restoration Act (RFRA) permits people to challenge federal laws only when those laws “substantially burden a person’s exercise of religion.”

Potter can’t get into federal court because he does not like the birth control law, he can only get into court if he has a religious objection to birth control. And yet, here he is telling a reporter that “the beginning and end” of his objection to the Obama Administration’s rules is that he does not think the federal government should have the power to tell him to provide certain benefits to his employees — not that he believes that such laws burden his faith.

If Potter does not actually object to the birth control rules on religious grounds, then that’s the end of his case. As a federal appeals court explained in a decision that is binding upon the judge hearing the Eden Foods case, a plaintiff may only invoke the protections of RFRA when a law burdens “a religious belief rather than a philosophy or way of life,” and when the plaintiff’s purported religious belief is “sincerely held.”

Potter’s media excoriation should serve as a cautionary tale to other CEOs and business owners protesting the mandate. The arguments against the HHS mandate that bolster the religious case in normal conversation work the opposite way in court, just as they do in the hands of a media opponent. After all, an activist writer is in the same business as opposing council: making the defendant look bad, with his own words if possible.

So if you’re suing, remember this: When it comes to a First Amendment suit, the judge isn’t interested in all the reasons you object to the mandate, he’s interested in one. Stick to that one.

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Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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