A Petition to the Fellows and Trustees

Objecting to Father Jenkins’s “Contraceptive Culture”

We, the undersigned alumni, students, family, faculty, and friends of Notre Dame, join Bishop Kevin C. Rhoades in his “strong objection” to Father Jenkins’s decision to include contraceptives in the University’s health insurance plans. The University will thereby furnish students and employees with the means to commit acts the Church teaches are intrinsically and seriously immoral while knowing many will do so. This illicit facilitation of contraception will promote the “contraceptive culture” that, as St. John Paul II and Pope Paul VI warned, will be a seedbed for abortions and illicit sex.

In addition, the University continues to promote abortion directly by offering employees cut-rate abortifacients, as well as sterilization, through its Flexible Savings Account program and also by continuing the provision of abortifacients to employees and students by Notre Dame’s insurers until next July and next August, respectively,

Finally, if Father Jenkins’s decision is permitted to stand, a judicial inquiry as to whether Notre Dame lied to the courts in the mandate litigation will be appropriate, since Notre Dame will be doing precisely what Dr. John Affleck-Graves, the University’s Executive Vice President, and Notre Dame’s attorneys swore to the courts it could not do in good conscience. The likelihood that Notre Dame “abused the judicial process” has reached even the readers of the Wall Street Journal (“Notre Dame Becomes a Bit Less Catholic”).

For these reasons, which we describe more fully below, we urge the Fellows and Trustees to confirm as University policy the representations made to the courts by Dr. Affleck-Graves and Notre Dame’s attorneys and to direct that the administration:

1. Immediately halt the provision of abortifacients and contraceptives to students and employees by the University’s insurers by accepting the exemption proffered by the Government and withdrawing from the mandate’s “accommodation” program.
2. Immediately exclude abortifacients, contraceptives, and sterilization from the University’s Flexible Spending Account program.
3. Continue the exclusion of contraceptives from the University’s health insurance programs.

In more detail, the reasons for our petition are these:

• The policies described by Dr. Affleck-Graves in his affidavit in support of the University’s lawsuit challenging the Obamacare contraception mandate are those appropriate for a Catholic university. In brief, Dr. Affleck-Graves avowed that, for multiple reasons, “Notre Dame’s Catholic beliefs prohibit it from paying for, facilitating access to, and/or becoming entangled in the provision of abortion-producing products, contraceptives, or sterilization.” (The pertinent portions of the affidavit are set forth in the Open Letter to Father Jenkins from over 100 Notre Dame alumni attorneys “out of deep concern over what appears to be abuse by the University of the judicial process.”)
• Father Jenkins’s action respecting contraceptives overturns these policies and is incompatible with Notre Dame’s Catholic identity. He will have the University, through its insurance plans, provide employees and students with the means to commit acts the Church teaches are intrinsically and seriously immoral, knowing many will do so. There is no principle of Catholic moral theology that can justify this voluntary and direct facilitation of moral evil. Certainly the reasons cited by Father Jenkins — that a number of employees and students disagree with Church teaching and that some “have come to rely” on getting free contraceptives — will not serve.
• The University’s bishop, the Most Rev. Kevin C. Rhoades, has confirmed the illicitness of this plan:

This is the fourth time Father Jenkins has publicly rejected the strongly held views of his and the University’s bishop, further widening the disjuncture between Church and University.

• Father Jenkins’s action undermines Notre Dame’s Catholic identity also because it gives scandal, especially to its students to whom it has a special obligation. Students and others are likely to infer that the University does not regard either contraception or the fornication and infidelity it fosters as seriously immoral, if immoral at all. Dr. Affleck-Graves asserted that even the provision of contraceptives by Notre Dame’s insurers outside the University’s insurance programs “will lead many to think that Notre Dame condones these services and hence undermines the role of Notre Dame to educate others on a matter of religious and moral significance.” How much plainer the message when Notre Dame itself provides the contraceptives.
• The scandal will extend beyond the campus. Notre Dame is an iconic Catholic institution and the nation’s leading Catholic university. People will take note of Notre Dame’s disregard of its bishop’s, that is to say the Church’s, counsel, and other Catholic institutions are likely to follow its lead and decline the opportunity to claim an exemption from the mandate when and if the Trump administration’s revised regulations become effective.

(In asserting that, prior to the mandate, “[W]e were among the relatively few Catholic universities that excluded from our health plans contraceptives,” Father Jenkins skips over the fact that 29 states require this coverage. That Georgetown refused to provide it suggests very few Catholic schools did so voluntarily. 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.”)

• In his statement, Father Jenkins describes abortifacients and sterilization as “gravely objectionable” and says the University’s insurance programs “have never covered, and will not cover,” either of them. Still, he has permitted Notre Dame insurers to cover them since last year’s settlement with the government and until July 1 for employees and August 15 for students. Predictably, a significant, if indeterminate, number of abortions have been and will be the result.
• Moreover, the University this year for the first time offers its employees cut-rate abortifacients and sterilization through its Flexible Spending Account program. Under this program, employees may make tax-free contributions and draw upon them to pay for medical care and supplies approved by the employer. (See Sycamore Trust’s account of how, when it disclosed this development, the University backed off covering surgical abortions but not abortifacients, sterilization, and contraceptives.)
• Finally, the actions of Father Jenkins, if permitted to stand, will invite a judicial inquiry into whether Notre Dame based its lawsuit upon multiple misrepresentations and a determination that in fact Notre Dame lied to the courts. As we have noted, Dr. Affleck-Graves and Notre Dame’s attorneys explained in detail and in the strongest possible language how “Notre Dame’s Catholic beliefs prohibit it from paying for, facilitating access to, and/or becoming entangled in the provision of abortion-inducing products, contraception, [or] sterilization” to its employees and students. We draw your attention to the detailed analysis of the misrepresentation issue by over 100 alumni attorneys “deeply concerned over what appears to be abuse by the University of the judicial process.” It is worth noting that the readers of the Wall Street Journal have been alerted to this evident stain on Notre Dame’s reputation. In a March 9 op-ed decrying Father Jenkins’s decision (“Notre Dame Becomes a Bit Less Catholic”), Alexandra DeSanctis, a William D. Buckley, Jr. Fellow at the National Review Institute and a Notre Dame alumna, observed:

Rule 11 of the Federal Rules of Civil Procedure provides for a judicial inquiry into questions of misrepresentation. The Notre Dame alumni attorneys say such an inquiry should be held if necessary “to restore a proper relationship between Notre Dame and the courts.” Sycamore Trust could suggest such an inquiry to the courts, or the Justice Department or Americans United for the Separation of Church and State, as parties to the litigation, could file a Rule 11 motion.

It is the fiduciary duty of the Fellows under the Statutes of the University to “maintain at all times” the “essential character of the University as a Catholic institution of higher learning” and of the Trustees to see that the University’s actions are compatible with its Mission Statement commitment to Catholic identity. To permit Father Jenkins’s actions to stand would be to default on these fiduciary duties.

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Sycamore Trust is a grassroots effort and relies on the personal networks of our supporters to help spread the word. Please let others, who you think might be interested in standing tall for the truth of Catholicism, know about our petition objecting to Fr. Jenkins’s contraceptive culture at Notre Dame.