News Law and Policy

University of Notre Dame Students Intervene in Contraception Fight

Jessica Mason Pieklo

At least three students are challenging the university's position that making contraception coverage available to students and staff violates the school's religious liberty.

On Tuesday night, the Seventh Circuit Court of Appeals ruled that Americans United for Separation of Church and State may intervene on behalf of students and staff from the University of Notre Dame in a federal lawsuit challenging the contraception mandate in the Affordable Care Act.

Attorneys for the university filed a lawsuit last month challenging the portion of the health-care reform law that permits religiously affiliated nonprofits from providing contraceptive coverage in insurance plans so long as those groups allow third-party insurance providers to make that coverage available independently to employees and students. Like the Little Sisters of the Poor, the University of Notre Dame claims that accommodation, and the requirement to self-certify that it does not wish to cover contraceptives, is a violation of the school’s religious liberty.

“In all of the talk about the so-called religious liberty rights of Notre Dame, something has been overlooked: the women who would be hurt,” said Americans United Executive Director Rev. Barry W. Lynn in a statement following the organization filing a motion to intervene. “The university’s leaders are free to preach against birth control, but they shouldn’t have the right to deny necessary medication to anyone.”

In December, a federal judge ruled against Notre Dame, holding the university must comply with the self-certification requirement. The university has done so, but it also has appealed the judge’s decision to the Seventh Circuit Court of Appeals. On February 12, the Seventh Circuit will hear oral arguments on that appeal.

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According to Americans United, its successful intervention in the case marks the first time affected women have been able to play a formal role in any of the hundreds of lawsuits challenging the birth control benefit. “This is not some abstract legal debate,” said Ayesha Khan, legal director for the church-state watchdog group, in a statement. “The lack of access to birth control—something that the vast majority of Americans use at some point in their lives—is a hardship that affects real people, every day. Americans United looks forward to giving them a voice in court.”

To date, a total of 102 lawsuits have been filed in federal court challenging the contraception mandate. In March, the Supreme Court will hear arguments in the first of the challenges to reach the nation’s highest court, when it considers whether or not secular, for-profit businesses have religious exercise rights.

Commentary Sexual Health

Parents, Educators Can Support Pediatricians in Providing Comprehensive Sexuality Education

Nicole Cushman

While medical systems will need to evolve to address the challenges preventing pediatricians from sharing medically accurate and age-appropriate information about sexuality with their patients, there are several things I recommend parents and educators do to reinforce AAP’s guidance.

Last week, the American Academy of Pediatrics (AAP) released a clinical report outlining guidance for pediatricians on providing sexuality education to the children and adolescents in their care. As one of the most influential medical associations in the country, AAP brings, with this report, added weight to longstanding calls for comprehensive sex education.

The report offers guidance for clinicians on incorporating conversations about sexual and reproductive health into routine medical visits and summarizes the research supporting comprehensive sexuality education. It acknowledges the crucial role pediatricians play in supporting their patients’ healthy development, making them key stakeholders in the promotion of young people’s sexual health. Ultimately, the report could bolster efforts by parents and educators to increase access to comprehensive sexuality education and better equip young people to grow into sexually healthy adults.

But, while the guidance provides persuasive, evidence-backed encouragement for pediatricians to speak with parents and children and normalize sexual development, the report does not acknowledge some of the practical challenges to implementing such recommendations—for pediatricians as well as parents and school staff. Articulating these real-world challenges (and strategies for overcoming them) is essential to ensuring the report does not wind up yet another publication collecting proverbial dust on bookshelves.

The AAP report does lay the groundwork for pediatricians to initiate conversations including medically accurate and age-appropriate information about sexuality, and there is plenty in the guidelines to be enthusiastic about. Specifically, the report acknowledges something sexuality educators have long known—that a simple anatomy lesson is not sufficient. According to the AAP, sexuality education should address interpersonal relationships, body image, sexual orientation, gender identity, and reproductive rights as part of a comprehensive conversation about sexual health.

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The report further acknowledges that young people with disabilities, chronic health conditions, and other special needs also need age- and developmentally appropriate sex education, and it suggests resources for providing care to LGBTQ young people. Importantly, the AAP rejects abstinence-only approaches as ineffective and endorses comprehensive sexuality education.

It is clear that such guidance is sorely needed. Previous studies have shown that pediatricians have not been successful at having conversations with their patients about sexuality. One study found that one in three adolescents did not receive any information about sexuality from their pediatrician during health maintenance visits, and those conversations that did occur lasted less than 40 seconds, on average. Another analysis showed that, among sexually experienced adolescents, only a quarter of girls and one-fifth of boys had received information from a health-care provider about sexually transmitted infections or HIV in the last year. 

There are a number of factors at play preventing pediatricians from having these conversations. Beyond parental pushback and anti-choice resistance to comprehensive sex education, which Martha Kempner has covered in depth for Rewire, doctor visits are often limited in time and are not usually scheduled to allow for the kind of discussion needed to build a doctor-patient relationship that would be conducive to providing sexuality education. Doctors also may not get needed in-depth training to initiate and sustain these important, ongoing conversations with patients and their families.

The report notes that children and adolescents prefer a pediatrician who is nonjudgmental and comfortable discussing sexuality, answering questions and addressing concerns, but these interpersonal skills must be developed and honed through clinical training and practice. In order to fully implement the AAP’s recommendations, medical school curricula and residency training programs would need to devote time to building new doctors’ comfort with issues surrounding sexuality, interpersonal skills for navigating tough conversations, and knowledge and skills necessary for providing LGBTQ-friendly care.

As AAP explains in the report, sex education should come from many sources—schools, communities, medical offices, and homes. It lays out what can be a powerful partnership between parents, doctors, and educators in providing the age-appropriate and truly comprehensive sexuality education that young people need and deserve. While medical systems will need to evolve to address the challenges outlined above, there are several things I recommend parents and educators do to reinforce AAP’s guidance.

Parents and Caregivers: 

  • When selecting a pediatrician for your child, ask potential doctors about their approach to sexuality education. Make sure your doctor knows that you want your child to receive comprehensive, medically accurate information about a range of issues pertaining to sexuality and sexual health.
  • Talk with your child at home about sex and sexuality. Before a doctor’s visit, help your child prepare by encouraging them to think about any questions they may have for the doctor about their body, sexual feelings, or personal safety. After the visit, check in with your child to make sure their questions were answered.
  • Find out how your child’s school approaches sexuality education. Make sure school administrators, teachers, and school board members know that you support age-appropriate, comprehensive sex education that will complement the information provided by you and your child’s pediatrician.

School Staff and Educators: 

  • Maintain a referral list of pediatricians for parents to consult. When screening doctors for inclusion on the list, ask them how they approach sexuality education with patients and their families.
  • Involve supportive pediatricians in sex education curriculum review committees. Medical professionals can provide important perspective on what constitutes medically accurate, age- and developmentally-appropriate content when selecting or adapting curriculum materials for sex education classes.
  • Adopt sex-education policies and curricula that are comprehensive and inclusive of all young people, regardless of sexual orientation or gender identity. Ensure that teachers receive the training and support they need to provide high-quality sex education to their students.

The AAP clinical report provides an important step toward ensuring that young people receive sexuality education that supports their healthy sexual development. If adopted widely by pediatricians—in partnership with parents and schools—the report’s recommendations could contribute to a sea change in providing young people with the care and support they need.

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.

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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.