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: email@example.com.
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.
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 firstname.lastname@example.org.
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.
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