If you weren’t eagerly checking the bishops’ blog for their feelings on your health insurance, you may not have known last week was Catholic Schools Week! I generally don’t participate in the bishops’ weeks (or fortnights), but I think this is an ideal moment to highlight the proud history of advocacy for contraceptive access at Catholic-affiliated Universities—which is relevant to all those lawsuits that won’t be going away now that His Eminence Timothy Cardinal Dolan has spoken.
We begin at Notre Dame in 1966. Faculty members formed a group to advocate for government funding of family planning programs and advertised a statement of support in Catholic publications. They received over 500 signatures in under a month from Catholic clergy, nuns, lawyers, doctors, and faculty members at Catholic universities, including the deans of Notre Dame and Santa Clara’s law schools. The Notre Dame professor chairing the committee told the New York Times the group wished to emphasize that “in a pluralistic society, some legislation may be desirable even though it may not be in accord with the moral principles of a minority of the society’s members.”
The chairman explained that the impetus for the group’s formation had been an address by the Rev. Dexter L. Hanley to the American Bar Association arguing for government family planning programs. Father Hanley was a law professor at Georgetown University. Yes, that Georgetown. The same Georgetown that trained a lawyer named Sandra Fluke. Father Hanley also testified before a congressional subcommittee in support of access to contraception. So when Sandra Fluke did the same thing, not only was she acting like a lawyer, which is presumably what one attends Georgetown Law to learn to do, she was following in the footsteps of a revered Georgetown professor and priest who had inspired Catholics across the country to take action.
Though Fluke is regularly accused of demanding government funding for contraception, what she actually testified about was the sub-par plan available to Georgetown students (who are required to have health insurance). Typically, student health plans involve students paying money to a third-party health insurance company; neither government nor university funds are involved in these transactions. Father Hanley, however, was indeed advocating for taxpayer-funded contraception and education. He acknowledged Catholic teaching against contraception but testified that he could firmly maintain his moral positions as a Catholic while supporting a government program that “permits each citizen a fully free moral choice in matters of family planning, and aids him in implementing this choice.”
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Today, rather than permitting its students a “fully free moral choice” as Father Hanley advocated, Georgetown has taken advantage of the safe harbor from the contraceptive coverage requirements, claiming it has a religious belief that bars providing insurance that covers contraception. This is hard to believe given that faculty members’ health plans have included contraceptive coverage for years. Also, Georgetown hosted an excellent conference on the Health and Human Services regulation where most scholars rejected the claim that providing coverage violated Catholic doctrine or that requiring it violated the law. The robust defenses of Sandra Fluke from the University President and the law school faculty were lovely, but fixing the problem she testified about is what’s needed.
Let’s return to Notre Dame. From 1963 to 1967 Notre Dame held an annual “Conference on Population.” The conference, organized with the help of the Planned Parenthood Federation of America, was intended from its inception to be a forum to develop a more liberal Catholic position on contraception. In 1965, thirty-seven scholars who attended the conference sent a statement to the Pope that declared “[t]here is dependable evidence that contraception is not intrinsically immoral, and that therefore there are certain circumstances in which it may be permitted or indeed even recommended.” Notre Dame’s President, Father Theodore Hesburgh, later got his friend John D. Rockefeller a secret meeting with the Pope to discuss the problem of overpopulation.
Despite this history, the University has now claimed in its lawsuit that Notre Dame, whoever that is, has a sincere religious belief that the Church’s “centuries’ old teachings” prohibit coverage. This is despite the fact that its own theology students and faculty can’t get their questions answered about what the theological claim for the prohibition of contraceptive coverage is and people like Cathleen Kaveny, a professor of both law and theology at Notre Dame, have argued the legality of the mandate in detail. A further troubling sign from an institution that was once the place for principled discussion of contraception, is that Notre Dame’s website refers students to what appears to be a “Crisis Pregnancy Center.” When I called up the “Women’s Care Center,” they told me they do not actually have doctors on staff or prescribe contraception.
Now we turn to the Catholic-affiliated University most important to me, my alma mater and employer, Fordham University. In 2012, the New York Times featured the first off-campus birth control clinic organized by Fordham law students in a front page article about the debate over the HHS rule. A 1967 Times article, “150 Fordham Women Petition for a Class on Birth Control” shows that Fordham students sharing their adventures in contraceptive access activism with the Gray Lady is nothing new. One of the Times’ follow-up articles on the topic, “Fordham to Give Seminars on Sex,” indicates that what has changed since 1967 is the responsiveness and boldness of the University administration.
The Fordham dean of students explained to the Times in 1967 that the sexual education program would “include frank discussions of methods of conception and contraception” and was permissible because “the morality of contraceptives does not enter into the discussion.” The University even agreed to the students’ request for a physician at the health center who could answer questions about birth control.
Today, unfortunately, Fordham health center policies are governed by the bishops’ health care directives, which prohibit medical professionals from “condon[ing]” contraception. Administrators recently censored posters advertising “Prescribe Fordham2!” the second off-campus clinic, though this raises academic freedom concerns given that the event is now sponsored by multiple academic departments. This is not a good situation, but Fordham students have it much better than those at the universities suing over the “contraception mandate” (at least the students with insurance do). Fordham students have had contraceptive coverage for years and thanks to the Affordable Care Act, they can now go see a real gynecologist off-campus without paying a co-payment.
In 1967, Fordham’s “very progressive and new and different” program was credited with being the first among Catholic universities to undertake a “frank discussion of sex.” Boston College students, however, refused to wait for more favorable conditions on their own campus to get the information they needed. According to the Catholic magazine Ramparts, when birth control activist and educator William R. Baird lectured at nearby Boston University that year, Boston College students “defied threats from the college’s dean and turned out in force.” The historic event led to Baird’s arrest for distributing contraceptives: his conviction was reversed in 1972 by the Supreme Court ruling in Eisenstadt v. Baird, which established the right of unmarried persons to possess contraception.
Finally, no discussion of Catholic colleges and contraception would be complete without recounting what went down at the Catholic University of America. Father Charles Curran joined CUA’s theology faculty in 1965. He was considered a theological moderate but argued for a change in the Church’s doctrine on contraception. The trustees voted to terminate Father Curran in 1966 though the theology faculty had voted unanimously to promote him. CUA’s theology faculty went on strike; theology faculties across the country joined them. This led the trustees to reconsider.
Despite nearly losing his job, Father Curran declined to toe the party line or even keep quiet. In 1968, the Pope rejected the recommendations of his papal commission on contraception and released Humanae Vitae to the surprise and dismay of the many Catholics who had expected a reform of the prohibition. Humanae Vitae was met with unprecedented, widespread, vocal dissent. The theology faculties of Fordham, Marquette, Boston College and other schools made public statements opposing it. Father Curran authored a statement criticizing it that 600 theologians signed.
He continued to publicly dissent from teachings on contraception, abortion, and homosexuality and the Vatican began investigating him in 1979. In 1986, he received a letter from Cardinal Joseph Ratzinger, now Pope Benedict, informing him he’d been found unfit to teach theology. That’s when Father Curran lost his job at the institution he’d served for two decades.
A supporter at Notre Dame explained to the Los Angeles Times at the time that CUA’s charter gives the Church control of the University, while at another school like Georgetown or Fordham, Father Curran could have been criticized but not fired. I doubt theologians are quiet so confident about their religious and academic freedom today (especially those who followed the debacle at The University of San Diego), but for the most part, academics are allowed to develop Catholic thought, in fact that is kind of the point. The ranks of the bishops, however, have essentially been purged of dissenters and progressives. As Leslie Woodcock Tentler documented in Catholics and Contraception: An American History, one’s response to Humanae Vitae became a litmus test for leadership positions in the Church.
Here’s why all this matters: the picture of Catholic-affiliated institutions dominant in the lawsuits and the discourse surrounding the HHS rule is not accurate. The sentiment of “it’s a Catholic school, go somewhere else if you don’t like it” is based on ignorance and stereotype. We employees and students did not waive the benefit of being protected by generally applicable laws and we weren’t asked to. We entered into contracts with our particular institutions, we didn’t consent to being governed by whoever is on top in the Catholic hierarchy at any given time. Obviously, I can’t speak to every institution. Maybe the Catholic University of America tells you on the tour that the school has been censured by the Association of American University Professors for academic freedom violations. But from professors who joined universities decades ago to students who just matriculated, I hear that they asked, just as I did, how the Catholic-affiliation would affect their work and experience. We received assurances that allowed us to enter these vibrant academic communities that don’t resemble the orthodoxy machines being portrayed at all. The assertions in so many of the cookie-cutter birth control lawsuits show a disdain for individual conscience, basic contract principles of notice and consent, academic freedom, and institutional autonomy from the Church. The histories of our institutions show that is not who we are and it is not what we signed up for.
CORRECTION: A previous version of this article misspelled Cathleen Kaveny’s first name. We regret the error.