We now have the fourth installment of Father Jenkins’s Policy-of-the-Month contraception misadventure. He has finally decided to claim an exemption from the Obamacare mandate and to have the University itself, rather than the insurance companies, provide contraceptives, but not abortificiants, to employees and students. Accordingly, Notre Dame will now, surely for the first time and against the strong objection of Bishop Kevin C. Rhodes, furnish students and employees with the means to commit acts the Church teaches are intrinsically immoral, knowing many will do so. Unless reversed by the Fellows or the Board or through the intervention of Father Jenkins’s religious superiors, this action will radically undermine the University’s claim to Catholic identity and underscore its evident abuse of the judicial system
Here are the details:
A Hapless Administration
Father Jenkins’s lurching from one position to another after the Trump administration enabled Notre Dame to be free of the mandate has been, shall we say, singular. First, the University said employees and students would continue to receive abortifacients and contraceptives from its insurance companies; then that they would not; then that that they would; and now that the University itself will provide contraceptives, but not abortifacients.
This fumbling would be discomfiting for any organization, but it is especially embarrassing for a Catholic university dealing with a moral issue. Instead of acting on principle rooted in Catholic teaching, as his bishop urged, Father Jenkins seems to be searching for a “compromise” that will draw the least criticism.
That this is so is confirmed by a closer look at what he’s done. His statement is here.
Catholic Identity – Abortifacients
Consider first Father Jenkins’s treatment of abortifacients. Because they are “most gravely objectionable in the Catholic tradition,” he says, the University will not cover them in its insurance programs. But they will be provided by the University’s insurers to employees until July 1 and to students until August.
Why the delay, if abortifacients are “most gravely objectionable”? “To provide time for all to prepare for this change,” Father Jenkins explains. Not, perhaps, because the cut-off is during summer vacation?
Will it really take Notre Dame five to six months to put an end to this and for students and employees to locate the nearest pharmacy? Anyway, why should the University make sure they can get a supply of “gravely objectionable” products?
And why didn’t Notre Dame act promptly after the October 13, 2017 settlement with the Government?
And, especially, why does the University continue to offer cut-rate abortifacients and sterilization under its Flexible Spending Account (FSA) program? Through this program, employees can use tax-free income for medical expenses. The employer designates the eligible expenses. Until this year, Notre Dame had excluded abortions, abortifacients, contraceptives, and sterilization. When we disclosed that all these expenses would be covered in 2018, the University hastily excluded abortions — but not abortifacients, sterilization, or contraceptives.
Father Jenkins declares, misleadingly, “The University’s insurance plans have never covered, and will never cover, abortion inducing drugs.” He should have added, “although, to be sure, the University’s FSA program does.”
“Most gravely objectionable” indeed!
Catholic Identity – Contraception
Father Jenkins’s break with Catholic teaching on contraception is so radical that what it really means may be hard to appreciate. Think of Father Jenkins in his office handing out checks to students and employees so they can purchase contraceptives. That is what this comes to.
Oh, yes, Father Jenkins promises that all will be given “a statement of the Catholic teaching,” so Father would be telling the students and employees the Church teaches that, if they actually use the contraceptives, they will be sinning gravely.
This is beyond parody.
No wonder Bishop Rhoades declared:
I strongly disagree with Notre Dame’s decision to provide funding for contraception in its health insurance plans, which involves it even more directly in contributing to immoral activity. The Catholic Church clearly teaches that contraception is an immoral action that contradicts the truth of marital love.
Until now, the University was fully in accord with Bishop Rhoades. Contraceptives were excluded from its insurance policies, and in his affidavit in Notre Dame’s lawsuit, Executive Vice President John Affleck-Graves explained why that was so. He declared that “Notre Dame’s religious beliefs” include the “core tenet” that contraception is a “serious moral wrong,” and that those beliefs therefore “prohibit [the University] from paying for, facilitating access to, and/or becoming entangled in the provision of contraception.”
The reasons Father Jenkins gives for repudiating this policy are weightless. They are “a respect for the conscientious decisions” of those who disagree with the Church’s teaching and the fact that “some have come to rely on access to contraceptives” through Notre Dame’s insurers.
Notre Dame does not impose Church teaching on contraception on its employees. It “respects their conscientious decisions.” But surely there is no Catholic principle that supports Notre Dame’s providing employees and students with “drugs objectionable in Catholic teaching” so they can engage in actions the Church teaches are intrinsically and seriously immoral.
More, Father Jenkins ignores an especially pernicious effect of his decision unrelated to views about contraception itself: scandal to students respecting fornication. Notre Dame stressed to the courts its special obligation to avoid giving scandal to students. The lesson to students here is not simply that Notre Dame evidently does not regard the use of contraceptives as seriously immoral, but that it does not regard what they are used for by unmarried students as seriously immoral.
And if it is a financial “burden” for an employee or student to afford contraceptives, it is bizarre to think it is Notre Dame’s obligation to help them out. There is no call for a Catholic institution to fill in for Planned Parenthood.
It is no secret that Notre Dame has never been a champion of Pope Paul VI’s Humana Vitae, but to its credit it has in the past officially stood by it. Indeed, one especially grotesque feature of Father Jenkins’s statement is his praising Humana Vitae even as he torpedoes it.
Catholic Identity — Contraception and Abortion
Describing how “contraception and abortion are often closely connected,” Saint John Paul II in Evangelium Vitae denounced the “contraceptive culture”:
[I]n very many instances such practices are rooted in a hedonistic mentality unwilling to accept responsibility in matters of sexuality, and they imply a self-centered concept of freedom, which regards procreation as an obstacle to personal fulfillment. The life which could result from a sexual encounter thus becomes an enemy to be avoided at all costs, and abortion becomes the only possible decisive response to failed contraception.
Catholic Identity — The Priest and His Bishop
This is the fourth time Father Jenkins has stiff-armed his bishop – Bishop John M. D’Arcy over the Vagina Monologues and the Queer Film Festival and the honoring of President Obama, and Bishop Rhoades over the honoring of Vice President Biden and now over contraceptives.
Bishops are “authentic teachers of the apostolic faith” (Catechism of the Catholic Church) who “should be seen as participants in the life of the Catholic University” with “a particular responsibility to assist in the preservation and strengthening of their Catholic identity,” a responsibility that “will be achieved more effectively if close personal and pastoral relationships exist between University and Church authorities, characterized by mutual trust, close and consistent cooperation and continuing dialogue.” (Saint John Paul II, Ex Corde Ecclesiae par. 28).
Unhappily, there is none of this reflected in Father Jenkins’s actions. He expresses no regret over the widening disjuncture between him and his bishop and, accordingly, between the University and the Church. Indeed, he does not mention the Bishop at all. He simply says that he came to his conclusion through “discernment” and “through the prompting of the Holy Spirit.”
It is this elevation by Father Jenkins of his private judgment over the teaching of his bishop that has so weakened the bond to the Church that is essential for an authentically Catholic institution.
Catholic Identity – Credibility
Notre Dame’s reputation for integrity has taken a beating during this mandate episode, and Father Jenkins’s last action doesn’t help one bit.
First, his action confirms we were right in challenging the University’s implausible story that it was its insurance carriers, not Notre Dame, who wanted to continue supplying abortifacients and contraceptives after Notre Dame was free to get out of the mandate. As we reported (“Just Who Do They Think They’re Fooling?”), the administration was concealing the fact that the University had not accepted the exemption and that accordingly the insurance companies were obliged to continue the coverage. It was, and is, Notre Dame’s call, not theirs.
Next, as we pointed out above, Father Jenkins professes in his statement that Notre Dame will have nothing to do with abortifacients even as it enables its employees to get them at cut rates.
And, again, he misleads in asserting that, prior to the mandate, “[W]e were among the relatively few Catholic universities that excluded from our health plans contraceptives.” He skips over the fact that 29 states require this coverage. Father Jenkins probably doesn’t know, nor do we, how many Catholic schools voluntarily provided coverage, but the fact that Georgetown did not suggests they were very few. During the famous Sandra Fluke episode in 2012, Georgetown’s president declared:
We do not intend to change Georgetown’s longstanding practice of excluding contraceptive coverage for the purposes of birth control from its student health insurance offerings unless explicitly required to do so by law.
Georgetown more Catholic than Notre Dame? Fancy that!
Finally and most important, Father Jenkins’s action, if not reversed, confirms that Notre Dame based its lawsuit on an array of gross misrepresentations. They are listed in the Open Letter to Father Jenkins from Notre Dame Alumni Attorneys, which now has well over 100 signatories and remains open for more. (Any lawyer with a Notre Dame undergraduate or graduate degree may simply send us his or her name, Notre Dame class year, and law school name and class year.)
One example from the affidavit of the University’s Executive Vice President upon which the lawsuit was based will serve:
Because of its religious beliefs, Notre Dame believes that it may not pay for, facilitate access to, and/or become entangled with the provision of contraception, sterilization, abortion, or related counseling.
That is precisely what Father Jenkins has decided Notre Dame should do. Notre Dame’s representations to the courts were evidently false. And Father Jenkins does not attempt to explain why they were not. To the contrary. He says that Notre Dame was suing simply to get the right to decide for itself what to do on these matters. That would have been a frivolous lawsuit. Understandably, that is not what Notre Dame told the courts.
The alumni lawyers call for a judicial inquiry if necessary. A ruling that Notre Dame lied to the courts would be ruinous. The Fellows or the Board can avoid this by affirming the Affleck-Graves affidavit as University policy and reversing Father Jenkins’s decision. We have asked the Fellows to do so and will shortly open a petition to the Board for signatures.
Meanwhile, Notre Dame will proceed in “unwavering fidelity to its Catholic mission” as Father Jenkins misperceives it. There is still more to be said about that. To be continued.
Among the many articles about Father Jenkins’s action, we commend especially an illuminating analysis by Elizabeth Kirk (ND Law ’96), former associate director of Notre Dame’s Center for Ethics and Culture and Adjunct Professor at Ave Maria University and, we are pleased to say, a member of the Sycamore Trust board of directors. It appears here.