Why An Anti-Birth Control CEO’s Big Mouth May Force His Lawyers To Toss Him Under The Bus

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"Why An Anti-Birth Control CEO’s Big Mouth May Force His Lawyers To Toss Him Under The Bus"

As ThinkProgress explained on Monday, the CEO of a company challenging the Obama Administration’s rules promoting access to birth control made statements to the press which could destroy the basis of this case. Since then, the CEO went even further in undercutting the basis of his case. Indeed, the CEO’s most recent statements are so damning they could require his own attorneys to scuttle his case.

Michael Potter is the owner and CEO of Eden Foods, one of several for-profit companies challenging federal rules expanding access to contraception on the grounds that he has a religious objection to complying with those rules. Earlier this week, however, he made several statements to Salon’s Irin Carmon suggesting that his true reason for opposing the birth control rules are libertarian objections to employer regulation, not the religious objections he claims to have in his legal complaint. This distinction is important because federal law protecting religious liberty only applies when someone has a religious objection to complying with the law — not when their objection is merely rooted in a “philosophy or way of life.” So if Potter does not actually hold religious objections to birth control, he loses his case.

In a second interview with Carmon, Potter fairly explicitly states that his objections are not religiously motivated:

[T]here were the allegations, made by two sources associated with the company, that it isn’t Catholicism but rather macrobiotics, extensively discussed on the company website, that motivates Potter’s opposition to birth control, which would also contradict the lawsuit’s claims.

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.”

I rephrased. “What particular belief leads you to oppose this regulation?

Well, there isn’t any one particular religious belief, Irin,” he said, sounding irritated. “I find it hard to get my head around the question.”

Potter makes several significant statements here, but the most significant is his direct denial that his objections to birth control are motivated by religious objections rooted in his Catholic beliefs. When Carmon asks whether his objections to the birth control regulations are motivated by his Catholicism, Potter responds “[n]ot so much that as our denial of our rights to exercise our conscience.” This statement directly conflicts with a sworn affidavit Potter’s attorneys filed in federal court. In that document, Potter claims that his company’s health plan does not cover birth control because “[a]s a practicing Catholic, I steadfastly make efforts to avoid practices that subvert the teaching of the Catholic Church.”

This contradiction also puts Potter’s lawyers in a serious bind. The lead counsel representing Potter is Erin Mersino, an attorney with the conservative Thomas More Law Center and a member of the Michigan Bar. Under the Michigan Rules of Professional Conduct, “[i]f a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.” Official commentary on this rule provides that “if necessary to rectify the situation, an advocate must disclose the existence of the client’s deception to the court or to the other party.” At the very least, this rule suggests that Ms. Mersino and her colleagues should conduct an investigation to determine whether or not Potter’s previous statements to the court are accurate. If Mr. Potter misled the court about the nature of his religious beliefs, Ms. Mersino has an obligation reveal that fact — despite the fact that it will likely destroy her client’s case.

To be absolutely clear, there is no evidence that Potter’s legal team knowingly deceived the court or that they violated any ethical obligation when they initially filed Potter’s affidavit with the court. Ms. Mersino is now aware of Potter’s statements to the media, however — I emailed them to her as part of a request for comment and received a terse response pointing me to Potter’s affidavit and other documents filed in this case.

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