(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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21 Responses to “(Don’t Look Now)”

  1. To get a bit crass on the subject, it would seem that ND feels its endowment is at the desired level and has no need of further contributions. A shame that one has to descend from the spiritual on occasion to make a point but whatever works.

  2. Send Fr Jenkins his 30 pieces of silver. He’s earned it.

  3. On Monday November 20, the priest saying the 5:15 Mass spoke against the acceptance of contraceptives in the University’s health plan. He also wondered if anyone on campus would care enough to do anything about it. I thanked him afterwards. But there is at least one however lonely voice on campus willing to say something.

  4. If ND “clarifies” that it will not provide coverage of abortion in its FSA accounts, the question remains that I mentioned earlier below. How would it then justify its ongoing permissive attitude toward abortifacient contraceptives? This would be entirely inconsistent. So let’s not stop at trying to wrestle a public statement about the FSA’s from Notre Dame’s administration. Concerned persons should ask the administration the question just posed.

  5. Nick Bigelow '96 November 20, 2017 at 2:02 pm

    I just received a voice mail back from Dennis Brown, a media spokesperson for the University. He said that abortion IS not and WILL not be an allowable expense in Notre Dame employees’ FSA funds to pay abortion bills. I still recommend that people call him to confirm. He is at 574 631 8696.

    • We heard the same thing earlier today, though the ND spokesperson has not confirmed it to us yet. Nor has the notice on the ND website ( been altered. (If you do call Dennis Brown, ask him why the website advises employees that abortion, sterilization, and contraception will be covered if that is not so.) And the last few weeks have shown that on life issues not even an official notice from the administration can be trusted.

      Still, there is some reason to believe that the university may pull back in the wake of our bulletin. There is no reason to think it would have done so otherwise. What seems clearly enough to have happened is that the responsible university officers decided to include abortion, sterilization and contraception in the FSA plan in such a way that no one would notice, and now that someone has and has raised a fuss, they are reconsidering and may have decided to reverse their decision. Here are the key facts:

      First, the decision to include was deliberate. That’s obvious from the text, with the 2018 change described cheek by jowl with the abortion et al. current exclusion: “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. The following is a partial list of medically related expenses, which do not qualify for reimbursement through the Health Care Flexible Spending Account
      • Abortion, oral contraceptives, contraceptive devices, contraceptive implants, or voluntary sterilization……”

      Second, given its radioactive nature, almost surely the decision was made at a high level.

      Third, if it didn’t reach the highest level initially, it did when I emailed the General Counsel and an assistant vice president on November 6, quoting the language on the website and inviting an explanation for the radical change.

      I received no reply. There has been no indication of movement until now after our bulletin was published and has, we understand, received considerable attention on and off campus, including press inquiries of the university. We see now evidence of a hasty regrouping and possibly another decision to reverse positions, this time from bad to good rather than good to bad as with respect to free abortifcients and contraceptives to students and employees.

      Let us pray that it will be so, but with a suitable measure of skepticism until we see the change posted and its scope.

  6. Father Jenkins is a disgrace to the Catholic Church and to the priesthood. His actions bring scandal to many. It saddens me because I imagine there are many students at Notre Dame that practice their Catholic faith in spite of Father Jenkins scandalous actions. I am proud that my daughter and her husband graduated from Notre Dame and that they and their four children live their Catholic faith. James Kuehn Class of 1954

  7. The University & Jenkins have continued to test these waters by design. They have more money than God, close behind Soros, allowing & promoting ND arrogance. While the Land of Lakes Papers stayed off the radar till the electronics age gadgetry began to publicize this change in direction, ND is firmly entrenched in the following, just like our filthy corrupt DC politics:

    When “WHAT” we once condemned,
    we over time, just ignored,
    then eventually we tolerated or allowed,
    ………………………………………………….”THAT” will, in reasonable time, become accepted.

  8. In the September/2016 issue of The New Oxford Review (vol. 83, no. 7), there was a very interesting and rather novel proposal touching on the issue of the seeming total loss of true Catholic identity in our higher education institutions:

    Michael B. Ewbank, “Why We Need a New Model of Catholic Higher Education.”

    There was also a follow-up discussion about its implications in the “Letters to the Editor” in the November issue (vol. 83, no. 9) between him and Dean Emeritus of the School of Philosophy at Catholic University of America, Dr. Jude P. Dougherty, and Dr. Dennis Q. McInerny.

  9. “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.”

    Using Tax Law to coerce any person or group of persons into condoning the engaging in or affirmation of acts that violate one’s Faith and/or morals is unconstitutional, as is using financial reimbursement or a penalty to attempt to “influence the recipient” into violating a tenet of their Faith and/or morals.

    The idea that Private Morality and Public Morality can serve in opposition to one another, and are not complementary, has led to grievous errors in both Faith and reason, including within the hierarchy of Christ’s Church:

    This error, that it is possible for private morality and public morality to serve in opposition to one another has also led to the grievous error that one can be Faithful to our Catholic heritage while denying the Sanctity of the marital act and thus marriage and the family, and the Sanctity of human life from the moment of conception.

    This document is disturbing and heart-breaking:

    According to this document, the Sanctity of the marital act is not respected even within marriage. Our call to Holiness, has always been a call to be chaste in our thoughts, in our words, and in our deeds, including within the Sacrament of Marriage.

    “Faithful to its Catholic heritage and in strong support of contemporary Catholic teaching, the University of Notre Dame is dedicated to caring for students and their medical needs without compromise of what the Church upholds in its teachings concerning sexuality and sex.”

    “What You Can Do”

    “You can abstain from all sexual activity, including vaginal, oral, or anal sex, outside the context of a committed marital relationship.

    You can and should get vaccinated against HPV, which can be contracted by both young women and young men, often prior to their initiating wise decisions concerning sexual health.

    If you choose to be sexually active, you can reduce your risk of contracting STI’s in the following ways:

    Communicate openly and honestly with your sexual partner about STI testing and sexual history.
    Communicate openly and honestly with your health care provider.
    Consider getting a sexual health exam prior to initiating a sexual relationship.
    Form a committed relationship in which all partners agree to be sexually faithful.
    Refrain from using drugs and alcohol in potentially intimate situations. The use of drugs and alcohol decreases your motor skills, your communication skills, and your capacity for wise judgment, all of which are necessary for full and free consent to having sex and to exercising safer sex practices.
    Use condoms that are labeled for STI protection. Natural skin or animal membrane condoms are not effective for STI protection.
    Get evaluated at least once a year. Include STI testing as part of a regular medical check-up, especially if you have recently changed partners or have had more than one partner in the last year.
    Learn the common symptoms of STIs and seek medical help promptly if any suspicious symptoms develop or if your sexual partner suspects having an STI.”

    I find it hard to believe that those who have been entrusted with the Mission of Our Lady’s University, have read this document and believe this document is consistent with our Catholic heritage, which has always included our Call to Holiness.
    In fact, this document, which is a complete refutation of The Catholic Church’s teaching in regards to sexual morality, is a gross violation of our Catholic Heritage, because it denies the Sanctity of the marital act while promoting indecent sexual behavior even within The Sacrament of Holy Matrimony,

    I sincerely hope that if confronted with the actual document, which illuminates the blatant error of those who claim one can be personally opposed to offences against human Dignity in private, while condoning and affirming those same offences to human Dignity in public, Father Jenkins will do what is necessary, immediately, to remove those who are responsible for this document’s promotion, for the sake of not only the well being of our beloved sons and daughters of Notre Dame, but also for the sake of Christ, His Church, all those who will come to believe, and those prodigal sons and daughters who, hopefully, will soon return to The One Body of Christ.

    Pray for Holy Mother Church; Pray for Notre Dame.

  10. Richard T. Creedon '62 November 20, 2017 at 11:25 am

    I must be one of the “Deplorables” because my posts usually have a trailer added by Sycamore…”Your Comments awaiting Moderation”.
    There is nothing “moderate” at what the Administration at ND is doing so why expect me to be moderate?
    I believe in courtesy and respect but NOT political correctness.
    My wife and I have recently adopted Ave Maria University and Ave Maria Law School as favored places for our donations. They are truly Catholic and not ashamed to admit it.
    GO AVE MARIA !!!!!

  11. Bill Dotterweich November 20, 2017 at 8:13 am

    What most fail to realize is that the same miracle occurs day after day on the Notre Dame campus. The president of the University is able to walk across campus without the benefit of a spine. For a human to be able to walk upright without the benefit of a spine is an orthopedic miracle. Wonder of wonders !!!

  12. Give us your money, we will name something for you, and nothing else matters. Jenkins and the Board are modern day Pharisees.

  13. Robert Pasquarelli '67 November 20, 2017 at 7:30 am

    Jenkins must go! I hope no one who reads these bulletins from Sycamore continues to contribute to ND. It is now time to boycott the football program. Patriots across the Land are boycotting the NFL over the National Anthem protests. Why not boycott the football program until Jenkins is replaced by a genuine Catholic president? This Philistine Jenkins, starting with his adoring welcome of the Abortionist-in-Chief, Obama, has destroyed our University. I am ashamed to acknowledge that I am an alumnus of Notre Dame.

  14. Michael Abbatemarco November 20, 2017 at 6:31 am

    I have said this long ago during the Obama visit to ND,and the bestowing of an honorary degree. It was a slap in the face of Catholic believers to give such an award to the most pro abortion President
    we have ever had in the history of our country.
    Ask Jenkins who Margaret Sanger was.
    His candidate Hillary Clinton was awarded that honor in 2016 right before the election.
    Jenkins is a globalist, and his views of controlling population is a strong one, certainly contrary to our Catholic beliefs.
    He needs to be asked to step down before any more harm is done to Our Lady’s

  15. Wow! Has the hour arrived to seriously question Fr. Jenkins, the fellows, and the trustees as to why they keep up the pretenses and indeed urge that they acknowledge for all that they are NO LONGER a university in the Catholic tradition? That would at least clear the way for a totally legitimate discussion of the continued use of Our Lady’s name and the presence of her statue atop the Golden Dome.

  16. John McNamara '86 November 20, 2017 at 3:52 am

    I think this is a quietly implemented, but well thought out, “coup d’etat” within the Catholic Church. The sanctity of human life has been a core tenet of the Catholic faith since it’s beginning. When a Catholic priest, running a very well-known university and serving as the chief priest at a Catholic basilica, takes the position that birth control and abortion are acceptable, because he has calculated that the US Conference of Catholic Bishops will be too timid to fight and may have its own fair share of “the rules don’t apply to me/liberal/hippy generation/I know better than everyone else and millennial years of truth/knowledge/you can’t stop me” priests/bishops, he is making a break with all conventional Catholic theology and canon law, knowing that NO ONE, not US Catholic bishops and cardinals and not the uneducated Catholic laity will put up a fight. There were rumors about Fr. Hesburgh on campus in the 1980’s believing that the Church should have changed its position on contraceptives. Trace the progress of: 1) the Land of Lakes document; 2) Fr. Hesburgh allegedly supporting a change in Catholic dogma involving contraceptives; 3) Fr. Hesburgh having Governor Cuomo give his “I am a Catholic politician, but I can’t impose my views about abortion on others” speech on the television show “Nightline” on Notre Dame’s campus with Fr. Hesburgh sitting on the stage, in the mid-1980’s: 4) to Fr. Jenkins allowing homosexual student groups on campus in the last several years to now 5) Fr. Jenkins allowing abortion and contraceptive services and medications on Notre Dames campus, while the clergy and the laity apathetically sleep and take no action and make no public statements; What Notre Dame is willing to fight for, under quiet revolutionary Fr. Jenkins, is imposing a de facto change of Catholic canon law to allow abortion and contraceptives and homosexual behavior, knowing that many American Catholics and American courts support those practices, particularly the wealthy and the political, and NO ONE has the courage to try to stop it, by asking the Vatican to stop Fr. Jenkins: not the bishops, not the cardinals, not Pope Francis. This action will not only affect Notre Dame, Notre Dame’s/Fr. Jenkin’s’ actions will be cited as legal precedent by US and foreign courts that the U.S. Catholic bishops and cardinals accepted with NO PUBLIC PROTEST AND NO DISCIPLINE WITHIN THE CATHOLIC CHURCH. No pain or public debate for liberal priests like Fr. Jenkins, just a radical change of canon law/dogma, not unlike President Obama implementing transgender policy on public schools, which he knew he could not pass in Congress, by making administrative regulations in the middle of the night, without any messy debate or explanation. U.S. Courts have been doing this for years, whether by legalizing abortion or legalizing gay marriage, and now Fr. Jenkins is doing something similar and challenging any whistleblower who wants to fight him to take the time and years it will take to undo his actions. Simply writing letters saying “tisk, tisk” to Notre Dame officials won’t be enough. Public calls need to be made to cardinals and bishops, like Philadelphia’s Archbishop Chaput to sanction/punish Fr. Jenkins, otherwise other revolutionary priests from the 60’s/70’s hippy generation, similar to the Catholic University of America’s Fr. Charles Curran, will be emboldened to take Fr. Jenkins move and quietly, secretively push the abortion/contraceptive/homosexual envelope even further. Would it be hard to believe that many American and European Catholic priests want to make homosexuality acceptable in the Catholic Church? Can you quietly say, “Martin Luther”? What a disgrace that Notre Dame will implement a program for a woman to kill her baby, but won’t implement a program to help her carry the baby and give the baby up for adoption.

  17. Hopefully ND will publicly announce that employee flexible spending accounts cannot be used for abortion in the new benefit period. If it does so, then the pro-life community should press the university on why it is so permissive and cavalier about abortifacient contraceptives. A grotesque inconsistency. But much is already inconsistent at Notre Dame, starting with its false claim to be a university that respects and abides by the magisterium, generally.