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“Regulation of Birth” at Notre Dame?

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Notre Dame has not accepted the exemption from the Obamacare abortifcient/contraception mandate made available by the Trump administration but instead has notified its employees that they will continue receiving free abortifacients and contraceptives in 2018 from the administrator of the university’s health insurance plan. There is time for Notre Dame to change its mind and compelling reasons for it to do so.


NOTRE DAME, IN – We reproduce below a message that we have sent to Notre Dame’s top officers and the C.S.C. Fellows at the university urging reconsideration. Here’s the background:

Under the Obamacare mandate, employers with 50 or more employees had to provide health insurance for them and include free abortifacients and contraceptives. The Obama administration gave churches an exemption, but not religious organizations and schools like Notre Dame. Instead, the administration offered an “accommodation” under which the religious organization doesn’t pay for the abortifacients and contraceptives and doesn’t list them in its plan, but its insurance carrier (or third-party administrator for self-insured plans) provides the abortifacients and contraceptives free of charge.

The Obama administration hoped that religious organizations would go along with this on the notion that they hadn’t gotten their hands dirty, or at least not too dirty. But since the organizations pull the trigger that causes the insurer to provide the abortifacients and contraceptives, a host of them, including Notre Dame, went to court asserting this was against their institutional consciences and that their religious liberty was being infringed.

Almost all the organizations got court orders protecting them while the litigation went on, but Notre Dame didn’t. It was perhaps significant that the district judge was skeptical about Notre Dame’s sincerity. Notre Dame initially told its employees that it would comply with the mandate but then, just before the effective date of the mandate, it reversed its position and filed suit. (Father Jenkins had just attended a meeting of bishops.) The judge said it was “a little hard to swallow” Notre Dame’s explanation for its delay.

Accordingly, Notre Dame has been operating under the “accommodation” for the past several years, with the employees and students (mostly graduate students) under its two health plans receiving abortifacients and contraceptives free of charge.

President Trump had promised to give these religious organizations relief, and on October 6 his administration did so through a new regulation. Religious organizations and schools may now claim a complete exemption just like churches, but they may also choose the “accommodation” if they wish.

Father Jenkins thereupon issued a brief statement welcoming this broadening of the exemption that seemed to imply, but did not say, that Notre Dame would claim the exemption for which it had sued.

Then the Notre Dame communications office and Father Jenkins went silent. None of the dozens of inquiries from alumni have been answered. But employees have now been provided the answer on page 28 of the Open Enrollment Decision Guide:

Notre Dame has certified that its group health plan qualifies for an accommodation with respect to…contraceptive services for women…This means your Notre Dame medical plan will not contract, arrange, pay, or refer for contraceptive coverage. Instead, Meritain Health will provide separate payments for contraceptive services that you use.

If this decision by Notre Dame is not reversed for both the employee and the student plans, its lawsuit will be unmasked as fake litigation and the university will be complicit in the abortions and contraceptions that are caused by the drugs provided by Notre Dame’s plan administrator and insurer, as Notre Dame counsel explained to the court. Since the student plan runs until next fall, Notre Dame should claim the exemption immediately, as the regulation contemplates and as Notre Dame could and should do also for the current employee plan, which ends on December 31.

We deal with these issues as they relate specifically to the new employee plan in the following letter that Bill Dempsey sent to Notre Dame’s general counsel, which was copied to Father Jenkins and other top officers as well as to the resident C.S.C. Fellows. We urge you to join us in this effort by emailing Father Jenkins at: president@nd.edu.

Dear Ms. Corr:

I write in the hope that the university will reverse its decision to reject the Trump administration’s offer of a full exemption from the abortifacient/contraceptive mandate and to continue instead under the “accommodation” procedure whereby abortifacients and contraceptives are provided Notre Dame students and employees free of charge by its insurance carrier and third party plan administrator.

I need not dwell on the moral responsibility of the university for the resulting acts of abortion and contraception, for the facts are plain. In amending the regulation in response to the lawsuits by Notre Dame and many other religious organizations, the Trump administration left it to Notre Dame to decide whether or not abortifacients and contraceptives would be provided to its students and employees. Notre Dame has decided to have them provided, breaking with its long-standing policy prior to the Mandate. The university knows that some employees and students will use the abortifacients and contraceptives and that abortions will be caused and births prevented. The university itself has explained why it is morally complicit in these abortions and blocking of births in its representations to the courts, samples of which I reproduce below.

I write you specifically as the legal custodian of the university, for if this decision stands it will unmask what now appears to have been a pretend lawsuit and accordingly a serious abuse of the judicial process. These representations went to an essential element of the lawsuit, the question whether the “accommodation” imposed a” substantial burden” on Notre Dame’s “religious liberty.” If they were untrue, the lawsuit was a sham. To put it in our terms, there was no Article III case or controversy and Notre Dame had no right to be in court. Rule 11 of the Federal Rules of Civil Procedure, proscribing misrepresentations and prescribing sanctions, was violated. Four federal judges devoted many hours to a fiction.

Here are just a few of the pertinent representations by Notre Dame in its employee insurance Complaint attacking the “accommodation” that it now embraces. They are paralleled in the student insurance Complaint and were repeated one way or another countless times during the litigation by Notre Dame counsel on the university’s behalf.

The accommodation forces Notre Dame “to become entangled in the provision of products contrary to its sincerely held religious beliefs.” The program “is antithetical to Notre Dame’s faith.” It “requires Notre Dame to facilitate and appear to endorse practices that Catholic doctrine considers morally wrong.” Notre Dame’s Catholic mission “as an educator of youth in the Catholic tradition dictates that it avoid such facilitation.” The accommodation “would require Notre Dame to commit scandal.” The accommodation “improperly attempts to sever Notre Dame from the Roman Catholic Church” by “refusing to grant Notre Dame the exemption it grants the Church” — the exemption now offered but declined. Notre Dame is forced “to be part of the vehicle that encourages members of the Catholic community to use these products and procedures, in effect normalizing them.” “Notre Dame’s religious beliefs” include the prohibition of abortion and the “facilitation or appearance of endorsing abortion” and the giving of scandal. “Scandal is particularly great when associated with those who by nature or office are obliged to teach and educate others.” “It is Notre Dame’s sincerely held religious belief that it cannot become entangled with, or appear to facilitate, endorse, or accept that which it believes to be contrary to Catholic faith.”

It is a core tenet of Notre Dame’s religion that abortion, contraception, and sterilization are serious moral wrongs. Notre Dame’s Catholic beliefs, therefore, prohibit it from associating with, providing, paying for, or facilitating access to abortion-inducing products, contraception, or sterilization.”

Notre Dame’s religious beliefs are deeply and sincerely held. The mandate requires Notre Dame to do precisely what its sincerely held religious beliefs prohibit.”

Note the following in particular:

This so-called accommodation, which exists solely to avoid entities like Notre Dame’s rightful exemption, fails to address Notre Dame’s sincerely held religious beliefs. 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].” “Some have argued that the accommodation does not compel Notre Dame to act against its beliefs because third parties are purportedly arranging the payments. However what is germane is that Notre Dame’s decision to provide a group health plan triggers the provision of the objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. The provision of the objectionable products and services is directly tied to Notre Dame’s insurance policies.” “Moreover, the regulations compel Notre Dame to facilitate access to and become entangled in the provision of objectionable drugs and services in ways that will lead many to think Notre Dame condones the services and undermines the role of Notre Dame, a Catholic educational institution, to educate others on the matter of religious and moral significance.”

It is incumbent upon Notre Dame to extricate itself from any process that leads others to violate the faith. The accommodation does not extricate Notre Dame from the process”

But now the university, given the opportunity to “extricate itself” from a “process that leads others to violate the faith,” has announced that instead it will embrace it. In doing so it renounces its representations to the courts that this action is contrary to its “deeply and sincerely held religious beliefs” because it facilitates abortions and contraceptions and gives scandal to students, employees, and the public, and it puts itself at odds with the Church and the Church teachings that it cited to the courts.

I cannot say that the history of the litigation did not disclose some warnings of possible insincerity. The institution of the litigation at the last minute after the university had announced it would comply with the mandate just a couple of months earlier called for an explanation, and as you know the district judge said it was “a little hard to swallow” the one that was given. The visit by Father Jenkins to the USCCB meeting of bishops just before the change of position was suggestive. But Notre Dame representatives assured the court of the university’s sincerity and that carried the day. Until now.

I am certain I speak for all of my colleagues in Sycamore Trust and countless more members of the Notre Dame community in urging all involved in this decision to draw back from this startling break with Notre Dame’s heretofore long and faithful adherence to Catholic teaching on abortion and contraception. I submit that it will have calamitous consequences on the moral plane, that it may also result in very unwelcome trouble in the courts, and that it will do far more to tarnish Notre Dame’s reputation as a Catholic institution than episodes like the honoring of Obama and of Biden could ever do.

Sincerely,

Bill Dempsey

As we have said, there is time for the university to reverse its course. It did so before, the wrong way. Join us in urging the university to do the right thing this time. Write Father John I. Jenkins at president@nd.edu.


Update

We are pleased to report that Notre Dame has reversed its position respecting abortifacients and contraceptives, claimed the exemption, and advised employees they would not be receiving free abortifacients or contraceptives in 2018 after all.  No explanation has been provided for changing its mind so late in the day, but it seems reasonable to infer that opposition from some quarters, expressed and anticipated, was a factor. We thank all those who wrote Father Jenkins, beginning shortly after October 6. There remain serious objections, which we will discuss in another bulletin shortly.

Click on the image below to read Notre Dame’s notification to employees.

Jump to the top of the bulletin.


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Let us know what you think about the issues we’ve raised in this bulletin in the “Leave a Reply” section below.

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23 Responses to ““Regulation of Birth” at Notre Dame?”

  1. Richard T. Creedon, '62 October 28, 2017 at 11:01 pm

    And I was starting to think that Fr. Jenkins was finally “getting religion”. I was even contemplating shaking his hand after the Blue Mass but it got too busy. Thank you Sycamore etal for clueing us in. It seems that Fr. J. will answer a voice command only if he has a leash on……. so…….please keep it firmly attached.

  2. Mr. William O’Connor,

    Your mention of “donative revolt” somehow brought to mind the Donatists. But that was a schismatic group and their issue from long ago was much different. (Maybe we need theologians to take up an aspect of their theological cause, albeit in a much different and non-schismatic mutation.)

    I would however aver that the issue with which Sycamore grapples in this bulletin is just one epiphenomenon of a much larger drama now transpiring in the Church, a drama whose resolution my in part depend on what happens at the next papal conclave. Sober people now plausibly use the same “s” word. Depending on what happens on that front, it’s clear–given the statements Mr. Brown made, recorded elsewhere in this com box and that reflect the official ND attitude–that ND may emerge as one center in this emerging dramag. It has all the signs of already having done so, in certain ways. But no one can predict the future.

  3. William J. O'Connor October 27, 2017 at 11:24 pm

    Jenkins and The Trustees. The only thing they will ever understand is donative revolt.

  4. William J. O'Connor October 27, 2017 at 11:15 pm

    2018? 2018! Father Jenkins, stop this policy now. We want our Mother back. Her Son, too.

  5. Brian Simboli, you are exactly right.

    “Conflict of the future will be between a God religion and a state religion, between Christ and anti-Christ in political disguise.” Ven. Bishop Fulton J. Sheen
    “The greatest obstacle to the apostolate of the Church is the timidity or rather the cowardice of the faithful.” Pope St. Pius X
    “The final battle between the Lord and the reign of satan will be about marriage and the family. Do not be afraid . . this is the decisive issue.” St. Lucia of Fatima.

    Consider the messages of Our Lady of the Rosary of San Nicholas.

    Bill Dempsey’s request to contact those in charge at Notre Dame should be taken seriously and we should not be timid. This is a time to stand and be counted.

  6. Charles Smith ND; class 60’ October 26, 2017 at 10:10 pm

    Support the position taken by Sycamore Trust. This action taken by Notre Dame unmasks the bad faith of the administration and Board by advertising to the world that ND is a Catholic University. What a sham.

  7. Hopefully the Catholic church is not following the path that Notre Dame is blazing. It is amazing how the truth is being trampled upon at Notre Dame today. Is an abortion clinic on campus the next step??

  8. Richard Rust '56 ND October 26, 2017 at 8:11 pm

    Father Jenkins: Without further delay Notre Dame should claim exemption from the abortifacient/contraceptive mandate!

  9. One source of ND’s dithering about the HHS mandate is the morally relativistic overtone of the University’s stance, reflected in the comments below from its spokesman, at http://ndsmcobserver.com/2017/10/students-march-reproductive-rights/

    Consider this comment:

    “The University is committed to the health and well-being of our students, faculty and staff,” Brown said. “We understand that many of them have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs.”

    “Conscientious decisions to use contraceptives”? No one talks in this relativistic vein who takes seriously the Catholic view that persons are responsible not just for forming conscience, but forming it properly. (ND is obviously, and predictably, taking sides on a view of conscience that may well lead to a schism in the Church.)

    Consider too the university’s peculiar position that the problem really is about religious freedom and not about contraceptives, which include abortifacients.

    “…,University spokesman Dennis Brown said the University has tried to make clear that its position on the matter is not about contraception, but rather about religious freedom.”

    Why go to the trouble of invoking religious freedom to protect a view that is not at all taken seriously by the university? Pressure from the USCCB? An attempt to maintain the university’s pretense of Catholicity? A commitment to some sort of Rawlsian concept of procedural justice, unconcerned about the underlying intrinsic goods?

  10. It is such a shame that such a prestigious Catholic University has decided to forgo its principles as a Catholic University and has succumbed to the principles of a secular world. What are they afraid of.? Will they not get the money from donors if they do not adhere to what the world thinks is the way to go. Father Jenkins should be ashamed of himself for not standing up for what we, as Catholics. stand for. My son went to Notre Dame many years ago when Notre Dame stood for Catholicism and if he wanted to go now, I would not in any way pay for him to go.

  11. If I were a federal judge and I had a Catholic priest lying to me in federal court, I would cite the bum priest with contempt of court and refer the bum priest to prosecution by the U.S. Attorney for perjury for any dishonest written statements in court pleadings or verbal statements made in court and I would send a notice to the federal government to prepare a Rule 11 pleading requesting attorney’s fees.. I would also let every state and federal judge that I know in the Seventh Circuit, know that Notre Dame lies and to not let those smug bums think they can get away with being above the law. Bums is the nice family-friendly word I am using, the judges would certainly use more caustic terms in their chambers, while laughing at the chance to smack smug Notre Dame around in this case and in many future cases. I would also contemplate filing an ethics complaint against Notre Dame’s attorneys and seeking to have them suspended or disbarred for filing a “full of baloney” case in federal court.

    If I was a liberal, anti-Catholic judge, I would use Father Jenkins’ liberal inaction as a sign that the entire Catholic Church is hypocritical and lying, when it says it stands on moral/religious principle in opposing abortion. I would tell my friends not only in the Seventh Circuit, but also the First, Second, DC and Ninth Circuits and my liberal friends at the US Supreme Court about the Catholic Church’s evolving and changing stance on abortion as evidenced by the high ranking Catholic priest who is the president of the University of Notre Dame allowing birth control and abortion drugs to be provided to students and employees. Further evidence of the Catholic Church’s changing position would be the Catholic Bishops and the Holy Cross order sitting on their hands and not removing Fr. Jenkins from the priesthood and presidency of Notre Dame.. As a liberal judge, I would rejoice in finally stomping on and squashing the conservative Catholic Church on the issue of abortion, Planned Parenthood’s biggest foe on abortion. I would leak or feed federal court documents to any friendly reporter at MSNBC, CNN, NBC, CBS and ABC. I would give private thanks that Fr. Jenkins’ stance was making the chance of Roe v. Wade being overturned nearly impossible and for many more chances to smack the Catholic Church around in court on a variety of issues and embarrass the Church in the media, because liberals hate the Catholic Church..

    If I was a pro-life marcher and saw Fr. Jenkins at the March for Life in 2018 in Washington, DC, I would be strongly tempted to spit on him. As a pro-life marcher, with Catholic values, I would resist the temptation and not let Fr. Jenkins suck me closer to sin, even though he is doing just that to the students and employees at Notre Dame and the Catholic Church as a whole. Fr. Jenkins will be complicit in the murder of hundreds of unborn children as his philosophy spreads to other Catholic universities and colleges and to ignorant young Catholics who have never been taught the Catholic Church’s true position on abortion, by their parents, and their Jesuit and Holy Cross priests and teachers. Stop thinking about liberal Catholic donors to the University, Father Jenkins, you’re not a young man and you are starting to travel a far distance down the road to perdition in exchange for money to a university, not God’s will. There is absolutely nothing more sacred than the life of an innocent baby, including millions of dollars to a university or humanity’s strong craving for sexual gratification. Let’s pray that Fr. Jenkins’ heart will change, his ego will be put aside, and that he will commit himself to be a tool of the Sacred Heart, rather than wealthy liberal donors and liberal beliefs. This is a very serious situation that could ruin Notre Dame’s, and the Catholic Church’s, reputation for a long time-decades.

  12. By not seeking the exemption, Notre Dame’ s administration takes a position directly contrary to the position of the Catholic Church and cannot in all honesty continue to claim to be a Catholic Institution. I am ashamed to be an alumnus. Patrick J. Riley, Class of 1953.

  13. William C. Burtis, Jr. '59 October 26, 2017 at 3:08 pm

    I am in complete agreement with your unassailable position.

  14. ND Board members need to repent and obey God’s law.

  15. Cindy A. Robertson October 26, 2017 at 2:38 pm

    Could you please have a ready-made letter with a link so we can quickly agree with you and have it go directly to Fr. Jenkins and the board members? You will surely get very many more responses this way.

  16. Martha and William Dodd October 26, 2017 at 1:19 pm

    Dear Father Jenkins,

    Please do the Catholic thing in this matter – follow your conscience not your political inclinations.

    Sincerely,

    Martha and Bill Dodd ’62

  17. Jenkins is not fooling us with his cover-up law suites. For Jenkins to support both employee and student abortion facilitation drug distribution through 2018 at Notre Dame, even though he effectively won his exemption law suite via Executive ruling on Oct. 6, 2017, is a crime against God and mankind. Thanks to William Dempsey and Sycamore Trust for keeping the public aware and for keeping the pressure on Notre Dame Administration to do the right Catholic thing

  18. ” It was perhaps significant that the district judge was skeptical about Notre Dame’s sincerity.”

    No doubt, what is significant, is the fact that the majority of those particular district judges based their erroneous judgement on the erroneous notion that private and public morality are not complementary, a grievous error in both Faith and reason, that has reached even into the Magisterium of Christ’s One, Holy, Catholic, and Apostolic Church.

    “The idea that reality is whatever we want it to be, is for C.S. Lewis, not just soul killing, but Life killing; it is the error beneath every other error.” – David Whalen, Hillsdale College.

    To be a Catholic University, a University must be “in communion with the correct and true teachings of The Catholic Church”, and thus The Deposit of Faith, The Word of God as He Has Revealed Himself to His Church in the trinitarian relationship of Sacred Tradition, Sacred Scripture, and the teaching of The Magisterium

    “Notre Dame has certified that its group health plan qualifies for an accommodation with respect to…contraceptive services for women…This means your Notre Dame medical plan will not contract, arrange, pay, or refer for contraceptive coverage. Instead, Meritain Health will provide separate payments for contraceptive services that you use.”

    In fact, The University of Notre Dame qualifies for an exemption, which means in no way, shape, or form, can they be coerced into condoning the engaging in or affirmation of services that violate a tenet of The Catholic Faith.

    http://archphila.org/HHS/pdf/CoopEvilChart.pdf

  19. To be a Catholic University, a University must be “in communion with the correct and true teachings of The Catholic Church”, and thus The Word of God as He Has Revealed Himself to His Church in the trinitarian relationship of Sacred Tradition, Sacred Scripture, and the teaching of The Magisterium.

    http://archphila.org/HHS/pdf/CoopEvilChart.pdf

  20. Thank you, Bill and board. The University continually faces choices – to be a faithful Catholic institution, or not. To take a principled stand, embracing Catholic teaching, or embrace the values of “this world” like its secular peer institutions. I thought, based on the very public and principled stand the University (at least initially) took on the Administration’s contraceptive mandate, that this would be one area in which we could count on Father Jenkins, the fellows and the board to fully embrace Catholic teaching. It appears that I was (again) wrong. As you state in your email, by its own written admission, these individuals “will be complicit in the abortions and contraceptions that are caused by the drugs provided by Notre Dame’s plan administrator and insurer.

  21. Robert E.Griffin ‘57 October 26, 2017 at 11:48 am

    I agree 100% with Sycamore Trust’s position. Notre Dame should immediately take steps to eliminate providing contraceptives and abortificants to students and faculty and employees

  22. Jackcan1021@aol.com October 26, 2017 at 11:04 am

    Sent to Fox and Friends, The Five and to various Diocese’s (Birth article)

  23. John Fremont Fisher October 26, 2017 at 10:45 am

    Beautifully articulated, Bill. All the best–John Fisher

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