Notre Dame Switches Its Position on Birth-Control Coverage—Again

Updated on February 7 at 8:40 a.m. EST

Notre Dame has decided to ban “abortion-inducing drugs” from third-party-provided insurance plans. It will also begin providing coverage for “simple contraceptives” in the university plan.* The move was announced in a letter from its president, Father John Jenkins, to the university community on Wednesday.

It was not immediately clear which drugs the ban entails, such as the morning-after pill, IUDs, or other long-acting contraceptives. That list will be available in March, a spokesperson confirmed. The school’s arrangement will still allow access to contraceptives, but will discontinue coverage of any drugs that would “kill a fertilized egg,” according to the spokesperson. These drugs “are far more gravely objectionable in Catholic teaching,” Jenkins wrote in the letter.

This decision is Notre Dame’s latest attempt to balance its Catholic character with the demands of pluralism within its community. Over 17,000 people are covered by the university’s health plans, including faculty, staff, students, and their family members. “On one hand, there’s a danger of diluting any distinctiveness by accommodating everyone on everything,” Jenkins said in an interview on Tuesday. “You just become a generic university. On the other hand, there’s a danger of rigidity in adhering to certain tenets that make the institution more narrow.” The school’s controversial, zig-zagging search for the right policy on birth-control coverage shows how challenging it is for religious universities to navigate the competing demands of their missions. And the saga is likely not over yet.

In 2013, Notre Dame was one of a number of religious nonprofits that sued the Department of Health and Human Services over rules requiring birth-control coverage under the Affordable Care Act. It claimed the government had burdened its religious exercise, even with an accommodation allowing religious nonprofits to direct coverage through a third party. The Seventh Circuit Court ruled against the school, however, and since January 2014, contraception coverage has been available to students, faculty, and employees through a separate provider.

Then came President Trump. In October 2017, the administration announced that organizations with moral or religious objections to birth control would no longer be required to formally opt out of coverage; they could simply choose not to do anything about the rule. It seemed like a victory for institutions like Notre Dame, which announced it would discontinue coverage. But then, in a surprise move, it reversed course and decided to keep allowing birth-control access through a third party.

Many students and faculty were angry when Notre Dame indicated it would end coverage for birth control, arguing that it would create an enormous financial burden for them. Likewise, many conservative Catholic alumni and community members were outraged when the school agreed to continue coverage, pointing out that the use of birth control is against Church teachings; one advocacy group called it “a dark time for Notre Dame.” The latest decision likely won’t leave critics on either side happy, since it limits access to certain drugs but reaffirms the decision to allow coverage of birth control—and moves coverage under the authority of the university, rather a third party.

Notre Dame sees this latest move as a compromise. It will discontinue the government provision of drugs through a third-party administrator, and it will also provide funding for natural-planning options. While ending access to all contraception “would allow the university to be free of involvement with drugs that are morally objectionable in Catholic teaching,” Jenkins wrote in his letter, it would place a burden on many people who rely on the school for health-care benefits.

“It would be wrong to describe this decision as a mere splitting the difference,” with each side getting half of what it wanted, Jenkins told me. “The moral life is complex … It is an attempt to find the best policy given the various principles that are germane.”

In its lawsuit against the U.S. government, Notre Dame relied heavily on the theological concept of “scandal,” which suggests that even appearing to condone an immoral action can be morally harmful. Because of this, it argued, the government’s religious accommodation—which involved signing a form to opt out of birth-control coverage and direct employees to a government-funded, third-party provider—was insufficient.

When the school was granted relief this fall and continued providing coverage anyways, observers on both sides were quick to cry hypocrisy. Prior to 2014, it had not covered contraceptives at all, outside of those prescribed to treat medical conditions. “This decision unmasks what now appears to have been a pretend lawsuit and accordingly a serious abuse of the judicial process,” wrote Timothy Dempsey, the executive director of the Sycamore Trust, a group founded out of concern over Notre Dame’s allegedly declining Catholic identity. “It now appears that Notre Dame was perfectly willing right along to do what the government wanted it to … If that is so, the lawsuit was a sham.”

Jenkins argued that the moral issues at stake in this decision are not so clear cut. Catholic teachings, such as Pope Paul VI’s 1968 document Humanae Vitae, clearly indicate that birth control is counter to Catholic teachings.** In his letter, Jenkins wrote that the encyclical’s “prophetic quality is clear,” challenging cultural tendencies toward the objectification of women, the decline of marriage, government intervention in procreation, a lack of respect for “the natural processes of our bodies,” and the threat of technological manipulation.

But, Jenkins argued, the Catholic tradition also prizes the importance of individual religious conscience—including, potentially, those who choose to take birth control. “It’s wrong to think that we get orders from the pope and march in lockstep,” he told me. “To say simply, well, Humanae Vitae is against this, and therefore it can’t be provided—it does seem to me that this is a more complex decision, requiring consideration of a larger number of factors.”

In an email on Wednesday morning, one Notre Dame professor—who asked not to be named out of fear of retaliation—wrote that the new policy represents mainstream American Catholics’ views: Abortion and abortifacients are bad, but contraception is okay. “That is not what the Catholic Church teaches, of course, but the generation that now occupies positions of power at Notre Dame probably never really believed the Church’s teaching,” he wrote. “Those teachings require a level of commitment that Fr. Jenkins’s generation simply lacks.”

A professor of liberal studies, philosophy, and theology, Gretchen Reydams-Schils, offered tentative approval. “If at least the regular pill would be covered, then this is a very important concession.  In that case, I as a Catholic could endorse the president’s decision and respect his discernment process (which does not mean that I agree with all his points), and the careful weighing that has gone into it,” she wrote in an email. “The devil will be in the details, and once again women’s bodies will be on public display.”

Faculty and alumni have speculated that donor pressure influenced Notre Dame’s decisions on its birth-control policy, but Jenkins categorically denied that claim. “Benefactors … did not play a strong role in pressuring one way or the other,” he said. Although Church leaders “had an interest in what we do,” he said, he hasn’t heard directly from members of the Catholic hierarchy in the U.S. and Rome beyond his local bishop.

The university is also reviewing its policy on the tax-free, flexible-spending accounts available under its insurance plans. Currently, students, faculty, and staff can use this money for any medical procedure approved by the Internal Revenue Service except abortion. That list includes a number of procedures and drugs that ostensibly violate Catholic teachings, including in vitro fertilization, sterilization, and contraception. Jenkins said he would like to think about the university’s policy on FSA accounts in light of its newest statement.

In his letter to the Notre Dame community, Jenkins cited Pope Francis’s call to “discernment,” a Catholic spiritual tradition of carefully weighing decisions and asking for guidance from the Holy Spirit through prayer. “I do a lot of that in this job,” Jenkins said. “We live in such an angry and partisan world in our public life. It can be easy to take sides. What I tried to do is reach a decision that isn’t, ‘You win, you lose.’ … Prayer helps.”

* This article has been updated to clarify that Notre Dame will offer coverage of birth control through its university plan rather than through a third-party provider.

** This article originally stated that John Paul II was the author of Humanae Vitae. We regret the error.