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,
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.”
Benjamin Cohen Rossi
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.
Juan Albarracin Dierolf
Mallory Ertel Baches
Joan Martel Ball
Renato Ghini Bettiol
Stacey Sloan Blersch
Eileen Hunt Botting
Mary Rose D’Angelo
Margaret Anne Doody
Gregory S. Downes
Mazen El Makkouk
Patrick D. Ertel
Anne L. Felteau
Leo R. Felteau
Karen B. Graubart
Sandra M. Gustafson
Claire Taylor Jones
David M. Klein
Jennifer A. Klein
Javier Lanao Camara
John F. Manix
Angel D. Matos
Jackie Mirandola Mullen
Connie B. Natvig
Jorge M. Escobar Ortiz
Cecilia Pe Lero
Benjamin Cohen Rossi
Fr. Ed Ruetz
Pablo Ruiz de Olano
W. Robert Scheidt
Allison Wishon Siegwarth
Zacharias P. Thundy
* 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.