Commentary Religion

Letter of Inquiry & Petition for Action: Students Take on Notre Dame Over the Birth Control Benefit

Kathryn Pogin

We, members of the Notre Dame community, wish to express our disagreement with the university’s decision to file a lawsuit contesting the Health and Human Services mandate that requires employee health insurance plans to provide no-cost birth control coverage to employees. 

Earlier this year, the University of Notre Dame, along with 42 other Catholic-affiliated institutions, filed 12 lawsuits against the Department of Health and Human Services, claiming the mandate that these institutions provide insurance coverage for contraception violated their First Amendment rights. In response, we drafted and circulated the petition below calling for the University to drop its legal complaint.

In our original letter, we argued that it is unclear whether providing contraceptives would violate the institution’s Catholic conscience, given a well-known principle in Catholic moral philosophy known as the Doctrine of Double Effect. Even if it did, the University, by refusing to provide insurance coverage for contraceptives, would be imposing an unreasonable burden on the consciences and resources of its non-Catholic students and employees and those Catholic students and employees who do not agree with the administration’s point of view. Since mid-summer we have collected some 180 signatures, and are still accepting more. President Jenkins responded to our questions with a kindly-worded letter reminding us that Notre Dame does not seek to deprive its employees of access to contraceptives. He did not, however, address our arguments, and so we continue to express our disagreement with the University of Notre Dame’s course of action, and continue to seek dialog with the administration.

August 20, 2012

Dear Fr. Jenkins,

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Thank you for taking the time to respond to our letter, and for including a copy of your letter of May 21, 2012 which provides your statement on the lawsuit. We can assure you that we did in fact read your letter, as well as the legal complaint itself, with great care before writing our own letter to you. While your explanation does make clear that your intention is not to prevent women from having access to contraceptives per se, we are concerned with effects not merely intentions.  

While your explanation also makes clear that the lawsuit is intended to defend freedom of religion, our letter stated unequivocally that we are questioning precisely the extent to which there is a genuine conflict between complying with the mandate and Catholic conscience. We discussed the doctrine of double effect, but of course, there is the principle of material cooperation as well.  Again, we hope the university administration gave due consideration to all the relevant Catholic teachings before going so far as to take legal action, but this has not yet been evidenced through public discourse, by the legal complaint itself, and now, nor by your letter to us.

Further, the university already provides access to medications that treat erectile dysfunction, without requiring the insured to justify their use of it (neither medically nor morally), as you require women to justify their use of contraceptives. If faculty, staff, or students are unmarried, providing access to such medications is also materially contributing to gravely immoral behavior. We must ask, then, why the difference? Determining if men are married is surely easier than determining if there are non-contraceptive medical reasons a woman might need contraceptives, so it cannot be a matter of difficulty. If the university can provide access to medications that treat erectile dysfunction without question because you trust the decision to use it wisely to the individual consciences of insured men, why not treat women likewise when it comes to contraceptives? Regardless of whether or not contraceptives themselves promote gender equity, pursuing this suit is an affront to gender equity at the University of Notre Dame. The university’s policies do not treat men and women as equally capable and trustworthy moral agents, and the university is going to court to defend that disparity.

While it is not yet clear to us that compliance with the mandate would violate Catholic conscience, it is clear to us that gender inequity is wrongful: legally, and morally. As it is written in Dignitatis Humanae, “[G]overnment is to see to it that equality of citizens before the law, which is itself an element of the common good, is never violated, whether openly or covertly, for religious reasons. Nor is there to be discrimination among citizens.”

Also, we can assure you there was no misunderstanding regarding the financial costs to the university. We were aware when we composed our letter to you that the suit was being handled pro bono by Jones Day. Our concern with the suit as it relates to serious deficiencies in university support for families was not one of financial resources; rather, our concern is that the suit represents an inappropriate ordering of priorities. The very families that are the desired outcome of university policy with respect to contraceptives will find themselves unable to afford university-sponsored healthcare, without access to affordable childcare, and quite possibly hindered in their own academic careers. This is disconcerting.

Thus, while we are appreciative that you took the time to read our letter and to respond, we will continue to collect signatures as we believe there are significant and substantive questions that remain unanswered. We do hope, however, that this discussion will continue. As Pope John XXIII wrote in his first encyclical, “In necessariis unitas, in dubiis libertas, in omnibus caritas.”

Sincerely,

Kathryn Pogin

Benjamin Cohen Rossi

 


Petition:

We, the undersigned members of the Notre Dame community, wish to express our disagreement with the university’s decision to file a lawsuit contesting the Health and Human Services mandate that requires employee health insurance plans to provide no-cost birth control coverage to employees. We understand that the university administration believes this lawsuit will advance its Catholic mission and promote freedom of conscience.  We too are fully committed to freedom of conscience. However, we believe the philosophical and legal arguments strongly favor compliance with the law. Further, we believe Notre Dame would better serve its Catholic mission by focusing on improving campus services for families rather than embroiling itself in a legal challenge.

Although we recognize concerns regarding religious freedom ought to be taken seriously, it remains unclear whether providing access to artificial contraceptives actually would conflict with Catholic belief, given the doctrine of double effect. According to Catholic teaching, it does not appear to be intrinsically wrong (as it is permissibly provided both for non-contraceptive medical purposes and to rape victims). The doctrine of double effect allows as morally permissible actions which are not intrinsically wrong, even if they have foreseen harmful effects, so long as:

1.      The foreseen evil is not intended. (Surely, those Catholics who believe artificial contraceptive use is wrong will not intend that any insured procure it for illicit purposes.)

2.      The good effects of the action must not be produced or caused by the foreseen harmful effects. (Complying with the law and providing healthcare to the community would not be caused by any individual’s use of contraceptives for illicit purposes.)

3.      The good effects must be sufficiently desirable. (Avoiding a costly lawsuit, avoiding fines, complying with the law, and providing healthcare to the community are certainly desirable.)

It is not yet clear, then, that providing healthcare coverage for artificial contraceptives actually is contrary to Catholic teaching. It is worth noting that several Catholic universities already provide such coverage.  Thus far, there has been no public explanation from the United States Conference of Catholic Bishops or the University of Notre Dame as to why the doctrine of double effect does not apply to this case. We hope the university administration has given due consideration to all the relevant Catholic teachings, but this has not yet been evidenced through public discourse, nor by the legal complaint itself.

Nonetheless, in its complaint, the university claims that the mandate is irreconcilable with the First Amendment and other federal statutes. However, U.S. law does not, and should not, treat religious freedom as an absolute right. The First Amendment does not exempt religious entities or individuals claiming a genuine religious objection from neutral laws of general applicability, a category the new contraception provisions plainly fits. Further, burdens placed on a person’s or group’s exercise of religion can be justified if they advance a compelling state interest. The contraceptive policy does that by promoting the health of women and their children.* Finally, the Supreme Court has ruled that when members of a particular sect enter into commercial activity by choice, the limits they accept on their own conduct as a matter of conscience cannot be superimposed on the statutory schemes that are binding on others in that activity.

In its concern for freedom of religion, the administration should remember that Dignitatis Humanae says not only that religious belief and practice should be protected, but also that “in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion.” This is particularly important, since, as a major educational institution and the largest employer in St. Joseph County, the University of Notre Dame employs people of all faiths and beliefs. Granting an exemption to Notre Dame would effectively impose Catholic sexual morality—a morality that most Americans, including the majority of U.S. Catholics themselves, do not share—on its students and employees. Catholic institutions that wish to play a genuinely active and engaged role in the life of the wider society should not do so in a way that is at odds with what the Supreme Court has called the “common community conscience.” It is partly for this reason, for example, that no adoption agency (secular or religious) can refuse to authorize a prospective adoption based on an objection to placement across ethnic or religious lines. By requiring its employees to purchase additional insurance or to pay out of pocket, thereby placing a not insignificant financial burden on them, Notre Dame is effectively utilizing indirect coercion and imposing its religious beliefs and practices on its employees. We should not forget the words of Supreme Court Justice Antonin Scalia, who in 1990 warned against making “the professed doctrines of religious belief superior to the law of the land.”

We have great respect for the Catholic intellectual tradition and the Catholic identity of Notre Dame. However, it is precisely that tradition and that identity which would be better served if the administration, rather than embroiling itself in a legal challenge, were to take action that would concretely advance its Catholic mission by promoting solidarity and advancing the common good. Many, if not all, graduate students at Notre Dame who have children insure them through the state of Indiana because they cannot afford the university-provided healthcare. The university’s childcare services on campus are only available for children aged two or older, and so are entirely unavailable to some who have children during their course of study.

Furthermore, such services are simply unaffordable for graduate students living on university stipends. Paid parental leave, for example, is not available to graduate students who are beyond their years of guaranteed funding, despite the fact that it is quite ordinary for graduate degrees to take longer to obtain than the period provided for by standard funding packages. These are matters of gender equity. These are matters of supporting families. These are matters of Notre Dame’s Catholic identity. Yet the university does not address them.

In light of these concerns, we strongly believe that there are far better ways for the university to honor its Catholic ideals. We respectfully request that Notre Dame reassess its decision and change its course of action.

Signed:

Ellie Adelman

Ruth Abbey

Juan Albarracin Dierolf
Lauren Assour
Elizabeth Baber
Mallory Ertel Baches
Evan Bauman
Sarah Baechle
Natalia Baeza
Andrew Bailey
Babak Bakhtiarynia
Joan Martel Ball
Jackson Bangs
Katrina Barron
James Benn
Renato Ghini Bettiol
Matteo Bianchetti
Stacey Sloan Blersch
Catherine Bolten
Sandra Botero
Eileen Hunt Botting
Ed Broderick
Amy Buchmann
Micah Burbanks-Ivey
Edward Burkard
Amber Carlson
Beatriz Carrillo
Luis-Antonio Castillo
Justin Christy
Ariel Clark-Semyck
Erin Cole
Colleen Coley
Kevin Conway
Thade Correa
Mary Coyne
Dustin Crummett
Mary Rose D’Angelo
Antonio Delgado
Michael Detlefsen
Claude Devaney
Josh Dinsman
Melissa Dinsman
Margaret Anne Doody
Gregory S. Downes
Mary Downes
Erin Drew
Elexis Ellis
Mazen El Makkouk
Patrick D. Ertel
Francis Fay
Anne L. Felteau
Leo R. Felteau
Mackenzie Ferber
Manuela Fernandez-Pinto
James Fetter
Peter Finocchiaro
Emily Flores
Thomas Foghino
Traig Foltz
Laura Fuderer
Karrie Fuller
Laura Gamboa
Patrick Gamez
William George
Karen B. Graubart
Lesley Gregoricka
Joel Griffith
Melinda Grimsley-Smith
Alexandra Guisinger
Sandra M. Gustafson
Robby Gustin
Kirsten Hagaman
Scott Hagaman
Martin Hagan
Doug Hall
Ryan Hammond
Erica Harmon
Kathleen Hays
Marc Hedahl
Amelia Hicks
Dan Hicks
Shari Hill
Joe Hostetler
Athena Hughes
Kent Hull
Edward E.Humphrey
Joy Hwang
Daniel Immerman
Zoe Jimenez
Paul Johnson
Claire Taylor Jones
Anna Kearney
David M. Klein
Jennifer A. Klein
Douglas Klostermann
Page Klug
Janet Kourany
Javier Lanao Camara
Irena Lanc
Marye Larme
Graham Leach-Krouse
François Ledrappier
Lynda Letona
Jimmy Long
Erica Machulak
Jeffrey Madsen
Annette Magjuka
John F. Manix
Roseanne Martyr
Angel D. Matos
Melissa McCoul
Christian McConnell
Abigail McCrary
William McMahon
Brendan McPhillips
Stephen Miller
Mousa Mohammadian
Christine Monteleon
Jackie Mirandola Mullen
Matt Mleczko
Mason Murphy
Connie B. Natvig
Maggie Nerio
RJ Nowling
Thomas Nye
William O’Rourke
Jorge M. Escobar Ortiz
Steve Owen
Leonard Paolillo
Ayan Paul
Cecilia Pe Lero
Amanda Peña
Charles Pence
Julia Philip
Callie Phillips
Kathryn Pogin
Jean Porter
Tracey Poston
Clark Power
Kathleen Pyne
Grant Ramsey
Kerry Regan
Bobby Reichle
Gretchen Reydams-Schils
Gina Riccardella
Kahleen Riojas
Jane Robinson
Jordan Rodgers
Jeanne Romero-Severson
Benjamin Cohen Rossi
Fr. Ed Ruetz
Pablo Ruiz de Olano
Valerie Sayers
W. Robert Scheidt
Diana Shepard
Kristin Shrader-Frechette
Allison Wishon Siegwarth
Mary Simons
Alex Skiles
William Smith
Dennis Snow
Peter Sobol
Monica Solomon
James Sterba
Alex Stern
Joy Tao
Lucas Taylor
Zacharias P. Thundy
Lucia Tiscornia
Jessica Velazquez
Belen Vicens
Sean Walsh
Torrey Wang
Christopher Weaver
Aaron Wells
Isabelle Williams
Samantha Williams
David Wood
Susan Youens
Richard Zaleskie
Hannah Zdansky
J.P. Zivalich



Note:

* Last year the Institute of Medicine, charged with identifying “critical gaps” in preventive services for women, recommended “a fuller range of contraceptive education, counseling, methods, and services” as part of a package of services that should be covered by health plans at no costs to patients under the Affordable Care Act. The Institute of Medicine is the independent, non-profit health arm of the National Academy of Sciences.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

Analysis Law and Policy

Oral Arguments in the Birth Control Benefit Case Show a Court Concerned With Appearances Over Facts

Jessica Mason Pieklo

As we’ve seen time and time again, for the conservatives on the Roberts Court, women’s autonomy is, at most, an afterthought.

It is hard to find better plaintiffs than the Little Sisters of the Poor. Not even the “plump grandmas” challenging abortion clinic buffer zones in 2014’s Coakley v. Maryland can hold a candle to an international congregation of Roman Catholic women founded in 1839 with a mission to “serve the elderly poor in over 30 countries around the world.” Now, they are the public face of the religious right’s crusade against the birth control benefit in the Affordable Care Act. And as their attorney Paul Clement explained Wednesday to the remaining eight members of the U.S. Supreme Court in Zubik v. Burwell, the second direct challenge to the Affordable Care Act’s birth control benefit, had the sisters simply “stuck to their knitting,” they wouldn’t have been forced, as Clement put it, into the position of taking on the Obama administration over its attempts to provide seamless, no-cost contraception to millions of American women.

From my seat in the press section, I couldn’t see how Clement’s knitting comment went over with his clients, but I have to imagine it may have stung. Maybe I’m wrong, but nuns are typically on the front lines of Catholic activism. Clement’s reductions of his own clients’ activism to something other-than-knitting was telling as to the amount of respect the religious right pays to women’s agency. Which is to say, no respect at all—even when it comes to women on their own side.

Of course, there are more interests at stake here than the dozens of nuns in their habits—along with representatives from six other religiously affiliated organizations—who packed into the Supreme Court stands on Wednesday. There are also the hundreds of students and employees whose access to birth control is being put in danger. Whose should drive the Court’s analysis?

But as we’ve seen time and time again, for the conservatives on the Roberts Court, women’s autonomy is, at most, an afterthought. If Wednesday’s oral arguments offered any clue, that is a formula not changing soon.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The activism of the Little Sisters, or the fact that religiously affiliated universities and colleges admit and employ folks of all religious orders, appeared to register very little to the conservative justices with an axe to grind with the administration, and especially the Affordable Care Act. As Chief Justice John Roberts quipped, for the Court, it’s not so much a question of facts as it is “really a question of who does the paperwork.”

The answer depends, of course, on whose interests the Court deems the most relevant.

In part, the fact that Roberts is even asking the question—who should bear the burden of paperwork—at all is a failure that reproductive rights advocates can hang on the Obama administration. Religious conservatives came out aggressively against the birth control benefit from the get-go. The administration has largely let those objections slide without response, presuming—as far as the Court is concerned—that a belief that contraception is an abortifacient is sincere, rather than drawing on the overwhelming scientific evidence to the contrary. The administration also has allowed, for the most part, religious conservatives’ beliefs that any act in the process of objecting to the birth control benefit substantially burdens their religion, even if that act relieves them of complying with the benefit entirely.

A framing like the one from Roberts should really concern activists, because it appears to remove the actual women affected by the benefit completely in favor of talk of logistics. Yet it is one the Court seemed ready to accept. When debating the myriad of “least restrictive” methods challengers presented as alternatives to the accommodation process, rarely, if ever, did the justices and attorneys engage in an honest exchange of realistic alternatives.

For example, both Clement and conservative justices like Alito suggested some alternative mechanism for providing contraception coverage that could meet the “least restrictive means” standard of determining whether the process was a violation of the Religious Freedom Restoration Act. That alternative mechanism was basically government-funded contraception, in the form of subsidized insurance policies available for consumers on the Obamacare exchange. “Let’s assume, for purposes of this case, that the government could provide contraception coverage directly,” posited Alito.

That setup—the hypothetical offered for argument’s sake—may work in law schools for student training, but it is a pretty crappy method for setting policy. That’s because it suggests that for this Court, and this case at least, the facts matter very little, and the political or popular culture appearances matter quite a bit. The fact that the Obama administration undertook multiple efforts to “seriously” accommodate religious objections to the benefit during the original passage is something that should be overlooked, claim the challengers. The only relevant question, according to Clement and the Little Sisters, is whether those efforts were sufficient from Clement’s perspective.

And they were not.

Let’s be clear here. The Supreme Court in issuing decisions is as much a director of policy as it is of law. For example, when it issues a decision like the one in Shelby County v. Holder where it gutted the Voting Rights Act without offering another alternative, it is as much instructing Congress how to act, or not act, as it is making a pronouncement on statutory law.

But let’s also be clear here that we have a hobbled bench— one comprised of eight justices more or less evenly split on ideological lines and held hostage to that current political composition until Congress decides to act in confirming another Supreme Court justice. And until we have a complete bench comprised of nine justices any opinion, even one that supports the government and its accommodation process to the birth control benefit, will be vulnerable to future scrutiny.

Should the Court split 4 to 4 along ideological lines, it would immediately mean the appellate court decisions supporting the accommodation process, with the exception of one, stand. That seems like good news for reproductive rights advocates. But the truth is it is half a win. It won’t be any kind of conclusion to the right’s war on contraception and contraception access. That’s because any opinion that leaves open further challenges to the accommodation is really no win at all.