(Don’t Look Now)


You thought at least Notre Dame would draw the line at surgical abortion? Wrong.

NOTRE DAME, IN — Last week we reported how Notre Dame has decided to do voluntarily precisely what it insisted to the courts repeatedly it could not do in good conscience — allow its health care contractors to provide free abortifacients and contraceptives to its students and employees. We return to this below. But first, we disclose a change that the university is making respecting abortion in its Flexible Spending Account (FSA) plan for employees that is even more serious.

Under the Notre Dame plan, an employee may contribute up to $2,600.00 a year to the FSA account and receive from it reimbursement for qualified medical expenses. Those contributions are not taxed as income to the employee, and “an employer may limit which expenses are allowable under their FSA plan offering.”

Notre Dame currently excludes abortion, oral contraceptives, contraceptive devices, contraceptive implants, and voluntary sterilization.”

But next year Notre Dame is including them all — abortions, sterilizations, and contraceptives.

It is not doing it so anyone would notice. The plan description simply says, in the midst of a mass of detail:

Starting January 1st 2018, IRS guidelines as outlined in Pub 502 ( will be used to dictate what is a qualified medical or dental expense for flex reimbursement.

Abortion, along with sterilization and prescription contraceptives, is specifically listed in Publication 502. Thus Notre Dame is, obviously quite deliberately, making available to employees cut-rate surgical abortions as well as sterilizations.

This seemed such an extraordinary departure from the university’s policy that Bill Dempsey wrote the university’s general counsel and assistant vice president for communications about it, inviting explanation or comment:

If I am mistaken in any respect, please let me know. We want to be certain to be accurate. And if I am correct, we would, as always, be happy to publish any explanation the university would like to offer for why it has reversed its position.

The university had nothing to say. We have plenty to say, but it is quite unnecessary.

We return now to the abortificient/contraceptive issue to offer a few additional comments and bring you an especially illuminating letter to Father Jenkins from an alumnus.

Father Jenkins’s action threatens broad iniquitous consequences. There is the degradation of morals on the campus, for example. The university already contradicts Church teaching by advising students who are “sexually active” to “use condoms that are labeled for STI protection,” and now the university’s complicity in providing  free contraceptives to students reinforces the impression that chastity is not one of the more highly prized virtues on the Notre Dame campus.

Indeed, in its Complaint the university told the courts that this would be the effect:

The Catholic moral tradition requires avoiding scandal. Scandal is particularly great when associated with those who by nature or office are obliged to teach and educate others [citing paragraph 2285 of the Catechism of the Catholic Church].

Then, too, the wave of national publicity over Notre Dame’s flip-flops has dealt another blow to the university’s reputation as a Catholic university. The image is one of a school ready to surrender Catholic teaching hastily if the tested waters prove rough. The result is likely to be more students and faculty who care nothing for Notre Dame as a Catholic school and fewer who care everything for it.

And what of Notre Dame’s credibility? Won’t the district judge and the appellate judges think “another pretend lawsuit” if Notre Dame shows up with another religious liberty claim?

More, Notre Dame has weakened the cause of religious liberty generally at a time when it is increasingly necessary to people and institutions of faith. Listen to Dr. Rachel Lu (ND ’02), an able commentator on matters Catholic:

Why should secular courts take religious freedom more seriously in the future, given that Notre Dame administrators have effectively admitted that their conscience claims were unserious? Secularists are already inclined to think that religious teachings are, just in general, an exercise in empty legalism. The Notre Dame administration seems to be working overtime to confirm this view.

And outside the courtroom there are only too many who rejoice over national news of a Notre Dame that looks both hapless and hypocritical.

The letter we reproduce now from Daniel Fritz (’88) to Father Jenkins is an admirable example of the sort of compelling protests that so many loyal alumni have lodged. Mr. Fritz is  a prominent Sioux Falls attorney, an experienced litigator, and counsel for his diocese in religious liberty matters. He foretells some especially malign consequences of this action from that perspective. Let us pause for a moment to thank all of you who write Father Jenkins and others in governance on issues involving Notre Dame’s Catholic identity.  We very much appreciate your sharing your letters with us, and we encourage everyone to speak up.

Father Jenkins,

Notre Dame publicly asks me every Saturday—“What would you fight for?” This week Notre Dame answered its own question with a resounding—“Not much.”

I am a 1988 graduate of the University of Notre Dame and still proud of that fact. However, it is getting increasingly more difficult to maintain my pride. I stood by Notre Dame as it took actions in the name of “academic freedom” that drew the criticism of Catholic bishops and other Church leaders.  I have waited patiently for the administration to take a stance in support of Catholic social teaching when doing so would subject it to public criticism.  The administration certainly has not been shy about taking stances that subject it to criticism from Catholic Church leaders. It seemed to me that it wouldn’t be asking too much of a Catholic university to take an occasional and meaningful stance in support of Catholic teaching when doing so would subject it to criticism from those who disagree with such teaching.

With that background, I was quite pleased to learn back in 2012 that Notre Dame had filed suit for relief from the Obamacare mandate. I was finally able to demonstrate to critics of my University a shining example of Notre Dame standing up to defend religious freedom and Catholic doctrine. Little did I know that this shining moment was to be short lived and, in fact, nothing more than a hypocritical ruse.

Notre Dame’s ultimate decision (after a confusing volley) to offer free contraceptive services to its faculty and students after “fighting” to be free from a mandate requiring the same is confusing at best and, more appropriately, offensive. This decision embarrasses me as an alumnus and offends me both as a Catholic and as a lawyer who represents my local diocese in a wide range of matters including attacks upon religious freedom within the diocese.

Putting aside Notre Dame’s failure once again to demonstrate to the world its professed Catholic identity, its decision to voluntarily offer free contraceptive services after filing suit to protect its right to not to have to do so is offensive to me as an attorney at law and a defender of religious freedom. Notre Dame, in my mind as well as many others, used the civil justice system not as means to remedy an injustice but rather to protect its own image.

I mistakenly believed that Notre Dame filed suit because it believed that it should not participate in providing health services that are contrary to Church teaching and that it should not be compelled to do so by legislative mandate. I was wrong. Notre Dame filed suit to portray the image of a defender of Church teaching while still avoiding public criticism for refusing to provide free contraceptive services during the pendency of the litigation.

Notre Dame obviously failed to think through what it might do if it actually prevailed in the litigation. Well, that possibility became a reality as the mandate was amended to allow Notre Dame to afford itself the exact relief it was seeking in our federal court system, and Notre Dame shockingly opted not to avail itself of the relief. As a licensed attorney and officer of the court, I find such conduct to be an abuse of the civil justice system.

As an active defender of our religious freedoms, I am also extremely dismayed by my University’s recent actions (or inactions as it may be). With the myriad of interest groups in our society today all trying to advance their cause in our courts, those same courts rightfully scrutinize whether parties are truly and legitimately advancing a right to exercise their faith. When a high profile litigant like Notre Dame uses the court system to purportedly defend its right to exercise its faith by refusing to provide health services which conflict with Catholic teaching but then voluntarily participates in providing those same services when the mandate has been lifted, it irreparably damages the efforts of individuals and entities who legitimately stand up for religious freedom.

I would caution Notre Dame from utilizing the court system to advance the purported cause of religious freedom any time soon. It would be entirely understandable if the court called into question its motives.

I am not a big donor to Notre Dame and, as such, this email will likely fall on deaf ears. But therein lies the problem. Notre Dame for too long has been answering the wrong call. It has set its sails to the winds of money and public perception rather than mooring itself to a true Catholic identity. In doing so, it will reap what it sows. It will continue to raise staggering amounts of money and will be able to keep its image “golden,” but all of that will come at the expense of losing Notre Dame’s soul.

“What would I fight for?” This is a question certainly worth asking. Unfortunately, I will not be looking to my alma mater for guidance on the answer.

My prayers continue for you and the University of Notre Dame.

Dan Fritz
Class of 1988


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