As Notre Dame Appeals Birth Control Benefit, Costs to Catholic Universities of Discriminatory Health Plans Increase


On Friday, Notre Dame filed a notice of appeal in its lawsuit challenging the contraceptive coverage rule.  So, game on. It was not exactly a surprise when the bishops rejected the Obama administration’s latest overture to religiously-affiliated institutions. And it is now clear that no “compromise” short of freeing all health plans from any regulation whatsoever having to do with contraception will suffice. I didn’t expect all of these lawsuits to go away, but I was hoping, perhaps naively, that Notre Dame might accept the court’s dismissal of its lawsuit given the vocal disagreement with the legal and theological claims therein that has come from students and faculty at Notre Dame. (See hereherehere, and here. A dissent here.)

The lower court dismissed Notre Dame’s lawsuit for lack of standing and ripeness because Notre Dame is not currently required to provide contraception, having taken advantage of the one-year safe harbor period the Obama administration provided while the rule’s accommodation for objecting religiously-affiliated institutions is amended.  All but one of the courts to consider the issue have essentially said that no final rule means nothing to sue about. These cases are pre-mature. (Like I been sayin’!) The Obama administration released a new proposed rule on January 30th, but the rule still isn’t final yet.  Still, the closer we get to implementation of whatever the final rule is, the stronger the plaintiffs’ arguments become that it is time to reach the merits in these cases. (Though I believe Notre Dame lacks standing for other reasons that the government hasn’t argued.)

So why did I think Notre Dame might accept the court’s decision?  My general theory is that the administrators of these plaintiff universities would like to do what is in the best interest of their students and employees and understand that going out of their way to provide a substandard, discriminatory health plan is not the best route to doing so. But the administrators of these institutions are under significant pressure from bishops, donors, and other off-campus orthodoxy-enforcing bullies like the Cardinal Newman Society. The promoters of the litigation campaign against contraceptive coverage likely saw Notre Dame as the crown jewel of plaintiffs, given its place in the American Catholic imagination. Plus, there are few big name schools that could be plaintiffs since so many of them currently have health plans with contraceptive coverage: at least for employees that is, who have more legal protections and bargaining power than students. (I’m looking at you, Georgetown.)

Still in hot water over inviting President Obama to speak at Notre Dame, I doubt University President Rev. John Jenkins had much choice about the lawsuit. Once the suit was dismissed, I thought the Notre Dame administration, having done its part for the bishops’ campaign, might turn its energies to more pressing concerns. Or, if it wants to make sure its health plans are consistent with Catholic concern for access to healthcare, it could fix the inadequate maternity coverage in the student plan. Instead, it is doubling down on claims about contraception that are inconsistent with the legal and theological understandings of the majority of the Notre Dame professors and students who have weighed in on the issue.

This is especially unfortunate given the important role Notre Dame played in the development of Catholic thought on contraception historically. Adding to the history of Notre Dame faculty members’ advocacy for contraceptive access I recounted previously, Kathryn Pogin pointed me to the voice of Notre Dame students in the debate within Catholicism in the sixties. For example, in a 1965 letter (page six here), a Notre Dame student argued for a change in the Vatican’s position and noted Dr. John Rock, a devout Catholic who was integral to the development of modern contraceptives, had lectured on Notre Dame’s campus the year prior. 

Since that time, the number of Catholics who accept the Church’s teaching on contraception has dwindled to almost nothing.  Even those who do accept it must make a further leap to accept the claim that the Catholic ban on birth control translates to the impermissibility of compensating employees of varying beliefs with a normal health plan, or even allowing employees access to separate coverage provided by third-party plan administrators per the new rule proposal. In the case of students, they must accept the claim that Notre Dame has a sincere religious belief that requires interference in a money-for-health-insurance transaction between the student and a third-party insurer that involves no university funds at all. 

I believe these lawsuits are bad for Catholic education. How bad, only time will tell. Multiple professors at Catholic-affiliated schools have told me they don’t want their kid going to their own universities now that their student health policies have come to light. I’ve tried, with mixed success, to convince concerned students admitted to Fordham Law that the University’s health center policies are not reflective of the Fordham experience, we are working on the problem, and they should come here anyway. More generally, the uncritical acceptance of the idea, by the media and even the Obama administration, that Catholic-affiliated institutions are conservative places where women should have expected discrimination in their healthcare benefits (and who knows what else) is making prospective students and employees rightly wary.   

These cases have further implications for our academic reputations. Notre Dame claims to have a sincere religious beliefs that Plan B and Ella are abortifacients, when in fact science has proven otherwise. Are Notre Dame biologists expected to accept the authority of the bishops as to how a drug works? In what other disciplines should we expect Catholic doctrine to trump the knowledge of academics?

These lawsuits are a warning not to accept the assurances of recruiters that any given Catholic-affiliated school is a welcoming place for scholars of all faiths, genders, orientations, or academic persuasions.   They undermine the idea that Catholic-institutions are home to research and education equal to that of secular schools, painting them as places one should expect to be controlled and indoctrinated. And sadly, these lawsuits must be viewed in the context of an ongoing crackdown on Catholic nuns, scholars and scholar-nuns.

I’ve been to more Catholic school than most priests. (I stole that line from a Notre Dame grad, but I’ve been to more than him.)  I am extremely grateful for my education and experience, but the claims of Notre Dame and other plaintiff schools cause me to question whether I can continue to recommend it to anyone else.

**If you are an employee or student of a Catholic affiliated institution of any kind and would like information about potentially signing onto a comment to the proposed Health and Human Services rule, an amicus brief in one of the lawsuits challenging the rule, or other cross-campus organizing and advocacy, please send me your contact information via this link.

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