Why Notre Dame Reversed Course on Contraception

Notre Dame announced on Tuesday that faculty, students, and staff will be able to obtain coverage for contraceptives through their university-sponsored insurance plans. The surprise decision is a reversal of the school’s announcement last week that it would discontinue birth-control coverage in light of new religious-freedom protections put in place by the Trump administration.

The Catholic university was one of a handful of religious non-profits that sued the government over the birth-control mandate in the Affordable Care Act, citing moral objections to the opt-out procedure offered by the Obama administration. After a half decade of litigation and debate, ultimately leading to a victory for Notre Dame’s cause, the university has voluntarily chosen to embrace a status quo that seems to undermine its original legal position and interpretation of Catholic doctrine. Although the administration claims it reversed course out of respect for the diversity of its community, it’s not clear why it wouldn’t have taken faculty and student objections into account years ago. Meanwhile, religious-freedom advocates see the university’s move as a setback for their cause, because it potentially casts doubt on the sincerity and depth of moral objections to birth control.

From the start, Notre Dame was in a more difficult position than some of the other non-profits that sued the government over Obamacare. Unlike, say, the Little Sisters of the Poor, who largely employ elderly nuns, Notre Dame is a huge, diverse institution that provides insurance benefits to people from a range of religious and ideological backgrounds. While the school is Catholic, it doesn’t require faculty or students to be Catholic or sign a statement of faith—“what it means to be a Catholic institution is a little more contested,” said Bryan McGraw, an associate professor of politics at the evangelical Wheaton College. “This kind of ambivalence was reflected in its litigation.”

Notre Dame was less successful than some of the other religious non-profits that took on cases. The school argued that even signing a waiver of exemption from the birth-control mandate was a form of facilitating immoral conduct, causing a theological “scandal”—defined in the Catholic tradition, in their words, as encouraging others to engage in wrongdoing. The school lost at the Seventh Circuit and appealed all the way to the Supreme Court, but the case was eventually remanded and effectively dropped. In the end, the school decided to comply with the mandate rather than face significant financial penalties.

But the situation changed when President Trump got elected. In early October, after the Trump administration announced new moral and religious exemptions to the Affordable Care Act, Notre Dame’s president, Father John Jenkins, “[welcomed] this reversal.” Under President Obama, “the government decreed which institutions were sufficiently religious to be exempted and forced those who were not to sign the HHS waiver,” he said in a statement. Last week, a new policy was announced: All birth-control coverage in university-sponsored plans would end on December 31.

Over the past month, birth-control coverage “has been a huge focal point of discussion” on campus, said Katherine Bermingham, a member of the school’s independent Graduate Workers Collective. (I attended college with Bermingham.) The group staged a demonstration, and the student paper, The Observer, covered the issue closely. “Most of the audible voices are people who really think contraception is a matter of conscience,” Bermingham said, and who believe “the university should not be using economic and political power to coerce the decisions of its employees.” Other students supported the university: Alison O’Neil, a sophomore, recently wrote in a letter to the editor at The Observer that her peers should “stop criticizing a Catholic university for upholding its belief system.”

But then, on Tuesday, Notre Dame suddenly changed course. Although the university “follows Catholic teaching about the use of contraceptives,” which are prohibited, the administration “[recognized] … the plurality of religious and other convictions among its employees,” the university’s human resources office said in an email. Meritain Health and OptumRx, two of its medical-benefits providers, “advised that they will now continue to provide contraceptives,” and the school “will not interfere with the provision of contraceptives that will be administered and funded independently of the university.”* In other words: Now that the government isn’t demanding university officials sign any form having to do with contraception, the administration is prepared to  look the other way at what its health-insurance providers covered.

In an email, Paul J. Browne, the university’s vice president of communications, insisted that Notre Dame had not flip-flopped. After the Trump administration’s October announcement, “we believed that insurance companies would discontinue no-cost coverage for contraceptives for employees at the end of the year,” he said, and “since then, we learned that they would continue such coverage.” The real problem was not with third-party insurers, he said. The problem was the government. “In the previous administration, the federal government took it upon itself to determine which institutions were sufficiently Catholic (parishes, for example) and which were not (universities),” he wrote. “That was unacceptable.”

Jenkins restated this objection to government interference in his annual address to the faculty senate on Tuesday night. The birth-control mandate “was the result not of legislative process but administrative decree,” he said. If religious organizations can’t take exceptions to federal policies, he said, “then they have lost any meaningful religious freedom in the face of the imposition of governmental power.”

Religious-freedom advocates, however, saw the school’s stance as a reversal. “Notre Dame spent five years suing the federal government for the right to provide moral health insurance,” wrote Ryan Anderson, a senior research fellow at the Heritage Foundation, on Twitter. “They now have that right. And they’re choosing not to exercise it. They’re choosing to provide immoral health insurance. Shameful. Scandalous.” McGraw, the Wheaton professor, also observed that the university’s decision may give judges license to doubt the sincerity of other religious groups’ objections.

But the bigger concern, McGraw said, is cultural. “Institutions, when they make these kinds of religious-liberty claims, are almost always pushing back against popular sentiment,” he said. As religious bodies push back against cultural norms, particularly around sex and sexuality, Notre Dame’s lack of steadfastness makes it “much more difficult … to be willing to take the cultural pressure.”

Notre Dame claims it made its decision out of respect for the pluralism of its community, but it’s not clear how seriously administration officials engaged with concerns about the university’s birth-control policy. In general, there’s not much of a protest culture on campus, said Kristin Shrader-Frechette, a professor of philosophy and biological sciences, because “most students are afraid of sabotaging their recommendations or careers.” Those who do protest—especially on controversial issues like this—might be subject to disciplinary action, raising free-speech concerns, said Gretchen Reydams-Schils, a professor in the program of liberal studies.

The faculty has also been divided—and, in some cases, vocally opposed to Notre Dame’s actions. “None of the stories [have] captured just how much protest, complaint, and outrage was generated by faculty, students, and alums over that decision,” wrote Sarah McKibben, an associate professor of Irish language and literature, in an email. “Many of us have been very upset about this for a long time. Believe me, NO ONE tells you that you’ll be subject to conservative Catholic doctrine for your health care when you are being wooed for a job here.”

It’s not clear why the university made such an abrupt about-face on its policy in the course of less than a week, but several professors speculated that negative press attention scared the administration. “Bad publicity is about the only thing that forces Notre Dame to change,” said Shrader-Frechette. The faculty don’t have much power, she said, and its senate is “for the most part ... ignored.” Professors were not consulted as the university made its decisions, said Reydams-Schils. “The fact that I have no idea what really motivated this change shows you something about the lack of communication.”

In the end, the university seemed more focused on standing against government interference than against birth control. “If Notre Dame does not strongly assert its right to follow Catholic teachings free from government dictates,” Jenkins said to the faculty on Tuesday night, “it could lose its ability to assert those rights in matters that are far more grave from a Catholic perspective.” Separating out that principle of independence from moral objections is complicated, though, and Notre Dame’s choice may further muddy a controversial religious-freedom issue.

For Bermingham, though, this debate was about a very different set of principles. “This isn’t some academic debate—and I’m not trying to disparage academic debates, I love academic debates,” the doctoral student told me. The university’s decision “tangibly affects people.” She and others who protested are relieved that women at Notre Dame will continue to have access to contraception, and are glad the school has reversed itself. “Just as Father Jenkins welcomed and applauded Trump’s decision,” she said, “we welcome and applaud this decision.”

* This article original attributed the statement to Notre Dame President John Jenkins. In fact, it came from the university’s human resources office. We regret the error.