Hobby Lobby, the corporation suing the U.S. government on the grounds that providing its employees with health insurance violates its owners' religious beliefs by forcing them to cover the cost of contraception, has invested millions in the pharmaceutical firms that produce contraception and abortion drugs the company's owners consider to be abortifacients.
"If Hobby Lobby in fact invests a lot of money in employer 401(k) matches in companies that manufacture such drugs, that should significantly weaken Hobby Lobby's claim that the contraception mandate imposes a substantial burden," says Samuel Bagenstos, a former Obama administration Justice Department official and a law professor at the University of Michigan.
That breathtaking scoop was reported by Mother Jones earlier this week. The magazine found that Hobby Lobby's 401(k) employee retirement plans had invested at least $73 million dollars in drug companies that produce contraception and abortion drugs. Hobby Lobby could have turned to investment firms that specialize in "faith-based investing" and avoided capitalizing the companies they say create products they find morally objectionable, but they didn't.
Hobby Lobby, a craft store chain, and Conestega Wood, a custom kitchen cabinet manufacturer, are arguing before the Supreme Court that the Affordable Care Act, which compels insurance companies to include contraception in their health care plans, places a "substantial burden" on the owners' "sincerely held" religious beliefs, violating the Religious Freedom Restoration Act.
"The fact that Hobby Lobby retirement funds are heavily invested in companies that make Plan B and Ella does raise questions about the sincerity of their religious opposition to having insurance companies provide those same drugs," says Caroline Mala Corbin, a law professor at the University of Miami.
Unfortunately for supporters of Obama's healthcare law, the news likely comes too late to matter to the high court's deliberations, because Hobby Lobby's investments are not part of the factual record before the court.
Courts have also been reluctant to delve into the sincerity of religious beliefs, and even if the high court did ultimately come to the conclusion that Hobby Lobby wasn't sincere in its objections to paying for plans that their employees might use to obtain contraception, they could still rule that corporations have a right to free exercise of religion. The Mennonite-owned Conestoga Wood doesn't appear to have made similar investments.
Hobby Lobby didn't respond to Mother Jones' requests for comment. But even if the information had been part of the factual record before the court, the company might have simply argued that they weren't aware of the investments and said they were switching to "faith-based" funds.
David Gans of the Constitutional Accountability Center said Hobby Lobby's investments were "further illustration why it makes little sense to extend to secular, for-profit corporations rights of religious exercise – rights that at their core are concerned with conscience, conviction and human dignity," Gans said. "How can Hobby Lobby claim that it is exercising religion when it refuses to provide contraceptive coverage to its employees when it is investing, through its 401(k) plan, in companies that are responsible for manufacturing the contraceptives that allegedly offend the corporation’s conscience?"
This recent news probably won't sway the high court. But it raises interesting questions about the extent to which Hobby Lobby's opposition to contraception has to do with religious exercise, and how much it has to do with plain old political opposition to the Affordable Care Act.