Just four days ago, the University of Notre Dame announced it “would no longer provide birth control coverage to students and employees.” It fought long and hard for this right. Shortly after the Affordable Care Act became law back in 2012, Catholic organizations such as Notre Dame claimed that the law’s requiring them to provide contraception coverage violated their religious freedom. In response to these complaints, President Obama offered a compromise: religious institutions could offer their employees a health insurance package that does not cover contraception; their insurer would then automatically enroll employees in a plan that covers contraception alone.
But this accommodation left the University of Notre Dame grievously unsatisfied. Explaining his decision to sue the Obama administration, University President Fr. John Jenkins argued:
We have concluded, however, the government’s accommodations would require us to forfeit our rights, to facilitate and become entangled in a program inconsistent with Catholic teaching and to create the impression that the University cooperates with and condones activities incompatible with its mission. In these ways, we contend, the regulations compel us to violate our religious beliefs.
Although Notre Dame eventually lost this suit, President Trump recently granted Notre Dame and other like-minded institutions the right to deny its employees contraception coverage.
But, today, Notre Dame announced that it would not be exercising that right. As President Jenkins explained,
“The University of Notre Dame, as a Catholic institution, follows Catholic teaching about the use of contraceptives and engaged in the recent lawsuit to protect its freedom to act in accord with its principles. Recognizing, however, the plurality of religious and other convictions among its employees, it will not interfere with the provision of contraceptives that will be administered and funded independently of the University.”
How should we interpret this ethical about-face?
Regardless of one’s opinions about birth control or religious freedom, anyone remotely affiliated with the University should be deeply disturbed by today’s decision. This announcement admits one of the following: either Obama-era rules did not require the University to violate either its institutional conscience or church teaching, or the Obama-era rules did require the University to violate both its institutional conscience and church teaching but the University has no actual desire to follow the strictures of either conscience or magisterium.
Let’s consider the implications of the former interpretation first. If the former, then the University’s entire premise for waging an expensive, high-profile suit that cast former President Obama has been exposed as a farce. In other words, it’s not that the University was the President’s victim, but that it wanted to be.
The University in fact wanted to a be a certain type of victim. Obama, they charged, had taken away their freedom. We cannot underestimate the gravity of this charge: those who lack freedom, after all, are slaves. If you don’t believe me, just ask Patrick Henry. Or Peter Singer.
For this reason, freedom rhetoric also carries a typically unrecognized racial import. In this country, only black people have been denied real freedom; all other groups yearn for a merely metaphorical freedom. Thus, when non-black people declare themselves somehow un-free, they position themselves as analogous to black people. We do not need to do this consciously or deliberately: this sort of political blackface has been baked into our language. If you don’t believe me, just ask Elizabeth Cady Stanton.
What does this have to do with Notre Dame? Well, Notre Dame isn’t just one of the most Catholic universities in the country; it is also one of the least black. In invoking a particularly religious freedom, Notre Dame has gathered political debate around its self-consciously Catholic character. But perhaps we should consider Notre Dame’s not so conscious whiteness as well.
We then frame our narrative differently: one of the whitest universities in the country felt like the first black President of the United States was treating it like a slave. In perceiving itself this way, the University acts like many whites bodies before it: for many white people, black power has always felt like white slavery. Maybe Notre Dame just didn’t want to be told what to do by Obama.
But what about if we select the second option? Maybe the University’s suit wasn’t a farce. It would then hold that the University does not actually want to follow church teaching; it only wanted the right to. But this is perverse. Morally speaking, it is much worse to possess the ability to do the right thing but choose not to than it is to want to do the right thing but be denied the ability to actually do so.
In other words, according to the University’s own moral logic, when Obama was President, they were being forced to commit a sin. Now, during Trump’s presidency, they are voluntarily choosing to commit a sin.
And surely, sinning freely proves much more serious than sinning against one’s will.
So, Notre Dame, I must ask you, what were you fighting for?
WIT 
I suspect the university bought the “anti-freedom” argument because it had some considerable Catholic momentum behind it. But on further thought and reflection and listening to a wider spectrum of views they have decided on this. Essentially Vatican II’s view of religious freedom has won out over narrow views of sexual morality (which were never really fully Catholic as contraception is permitted by the Church in some cases and prophylactics may not be contraceptive in intent) and political partisanship. All in all a good result.
Many Blessings
Hi Chris, so good to hear from you! It’s been too long. Would you agree though that either Notre Dame wasn’t telling the truth when it said this compromise made them do something immoral or that it isn’t telling the truth now when it says the compromise is morally acceptable? Or do you think I’m wrong about that?
Katie,
See my reply to Jonathan.
I do not believe it was immoral to follow the Obama administrations directives. In addition to contraceptive being perfectly licit under Catholic doctrine in many cases, the nature of the cooperation was extremely remote.
Many Blessings
Chris, do have an official source to support your statement that the Church permits contraception in some cases? Humanae Vitae is the most recent official document that I’m aware of, and it explicitly forbids artificial contraception. If you could find something official allowing contraception, then you would make a lot of Catholics happy. Everyone knows NFP is difficult.
Regarding Notre Dame, I think most would acknowledge that there is a lot of dissent amongst the faithful regarding contraception. Probably one administrator was involved then, a different administrator is calling the shots now. I don’t think we should expect consistency from different people.
I think that explanation is unlikely given that Fr. John Jenkins has been the President of the University for over a decade now.
Jonathan,
See, for example the directives of the US Bishops to Catholic hospitals allowing contraception after rape, Pope Bendict’s interview with the German journalist seeing merit in a prostitute using condoms to limit disease, and New Zealand Bishop Cullinane’s editorial pointing out that Humane Vitae only applies to married couples (conjugal relations) not sex outside marriage (below).
There are a variety of sound reasons for which employees of a Catholic university may wish to use contraceptives which are not against Catholic doctrine. The idea that Catholic employers cannot provide access to contraceptives for employees is simply wrong.
Many Blessings
“More Catholic than the Pope”
2006 + P J Cullinane
I have held my pen back for long enough as I have read various reactions to Cardinal Martini’s comments on the prevention of HIV infection. Similar bewilderment has followed comments by other no less eminent theologians. Brendan Malone’s article (NZ Catholic, June 4, 2006) concerns the effectiveness or otherwise of condoms. That is a disputed matter about which I have no comment to make. Instead, I wish to comment on what Brendan calls “the theological and moral implications of a change in Catholic teaching”.
The idea that Cardinal Martini’s comments involve a change in the Church’s teaching comes about because people have inflated the Church’s teaching on contraception, equating it with a ban on condoms (and “the pill”). To inflate the Church’s teaching in that way is misleading and can bring the Church’s teaching into disrepute.
The question about whether in some circumstances it is permissible to use condoms is not a question about whether there can be “exceptions” to the Church’s teaching; not even exceptions in special circumstances. Rather, it is about circumstances that fall outside the Church’s teaching on contraception.
The Church’s teaching that contraception is wrong concerns sexual intercourse freely entered into between husband and wife. That is the context in which sexual activity finds its meaning, and in which every intended contraceptive action is wrong. .
The Church’s teaching on contraception never was about sexual activity outside of marriage. One only has to read Humanae Vitae properly to see that. The Church has no official teaching about contraception outside the context that gives sexual intercourse its meaning. Sexual intercourse outside that context is wrong for other reasons.
In some of those situations, contraception is not necessarily wrong at all; e.g. when contraceptive medication is taken by people in danger of being raped. In such cases, we are not dealing with exceptions to the Church’s teaching, but with situations that fall outside the Church’s teaching on contraception. Those who think this is wrong might ask themselves: how did the Holy Office, under Cardinal Ottaviani in the time of Pope Pius XII, get it so wrong when he confirmed that it was ethical for nuns living in fear of being raped (in the Congo) to take contraceptive measures.
In the case of consensual intercourse outside of marriage (for which the use of condoms is sometimes advocated), the ethical question is not about contraception but about whether the easier availability of condoms will result in greater promiscuity and greater risk of infection. That calls for a prudential judgement, which can vary from one situation to another. It has nothing to do with exceptions to the Church’s teaching; once again it falls outside the context in which contraception is wrong.
Finally, in the case of consensual intercourse inside of marriage: when the intention really is to prevent a serious infection, the contraceptive effect of a barrier is a side-effect, i.e. not the directly intended effect (which for a sufficiently serious reason can be allowed to happen). This is an application of traditional moral principles which are recognised as part of the Church’s teaching. It is not an exception to the Church’s teaching.
Only to those who thought the Church’s teaching on contraception was mainly about condoms will this appear to be a change in the Church’s teaching.
Hi Katie,
Thanks for the reply. I differ with your characterization of these very three specific exceptional cases as “many sound reasons” for the use of contraceptives. Nonetheless, I see your point that there may be some cases where contraceptive drugs may be used morally, (if we agree with these opinions) and the question is whether it is moral for an employer to facilitate these cases.
In the cases where contraception is allowed in the event of prostitution and fornication – by prescribing hormonal contraception, that would be a pause for concern, it would be very important to avoid facilitating these evils. Prudence might dictate not facilitating these cases (especially the use of contraceptives in the event of fornication) in a medical insurance plan.
Regarding the USCCB use of contraceptives after rape, I agree that emergency contraception could and should be covered for this grave situation. However, it is different from the other two cases because it is not in any way facilitating rape (since it is after the fact for one), but it is important to note that this is allowed only in cases where conception has not yet occurred.
Another point you didn’t mention is the use of hormonal contraceptive drugs for cases other than contraception (e.g. for a non-sexually active teen who is experiencing severe acne or periods). This is something that could be facilitated.
So I would agree a plan could cover hormonal contraceptive and emergency contraception for at least one reason for each case. But does the mandate allows a medical insurance plan to limit these medications for specific moral cases? I don’t believe the mandate currently allows that, but rather it mandates coverage specifically for immoral cases also.
I think this moral issue is complicated enough that a Catholic school administrator could change their mind in the course of deliberation over the likelihood and degree of cooperation with evil. I would not want to be in their position.
My own employer is a public company with a Catholic CEO. We also cover contraceptives in our plan. Whereas I (thankfully) didn’t have to make the decision, this issue is not far from home for me.
hey Jonathan! Thank you for the thoughtful comment. Just for clarification, you were responding to Chris. 😀
Interestingly, in the 1960’s the Vatican allowed nuns in the Congo to take the pill for fear of rape – a case of contraception before the fact. It would not violate Catholic teaching for a married woman being raped to use contraception or if one partner is not Catholic or not willing to cooperate with NFP. The idea that contraceptive use MUST ALWAYS be immoral is simply wrong and it involves a rush to judgement on people whose circumstances employers cannot possibly (and should not) know. Health insurance is part of wages as compensation for work done – employers ought not be allowed to dictate what employees do with that compensation; that is a matter for the conscience of the employee not an opening for the employer to stick their judgemental nose into the private affairs of workers.
Many Blessings