SOUTH BEND, Ind. — In an unexpected policy reversal, the University of Notre Dame has said that it will continue to provide free contraceptive services to its faculty and staff.

The university has sought to downplay the move as a decision made by its health care insurance providers rather than a backtrack by Notre Dame’s administration, but critics characterize it as a “stunning” failure to uphold Catholic identity on campus.

Just over a week ago, the university notified its employees that the cost-free coverage, which was initially introduced through the Health and Human Services’ contraceptive mandate, would end Jan.1. But Nov. 7, the university said it would provide the coverage.

“Notre Dame, as a Catholic institution, follows Catholic teaching about the use of contraceptives and engaged in the recent lawsuit to protect its freedom to act in accord with its principles,” the university informed its employees in a Nov. 7 email.

“Recognizing, however, the plurality of religious and other convictions among its employees, it will not interfere with the provision of contraceptives that will be administered and funded independently of the university.”

In an email message responding to the Register’s request for further clarification, Paul Browne, Notre Dame’s vice president of public affairs and communications, explained that the university changed its policy after it received updated information from Meritain Health/OptumRx, the insurance provider that manages health benefits for Notre Dame’s employees.

“After the U.S. Health and Human Services’ announcement in October, we believed that insurance companies would discontinue no-cost coverage for contraceptives for employees at the end of the year,” said Browne. “Since then, we learned that they would continue such coverage. We don’t interfere with the provision of contraceptives administered and funded independently of the university, which is the case now.”

“Notre Dame recognizes the plurality of religious and other convictions among its employees. That’s not new,” Browne said.

In a separate notification, Notre Dame students had been informed that their cost-free coverage provided through Aetna would continue until mid-August. That policy has not yet been modified, and Browne  said that "plan changes are not finalized until late spring."

Some faculty and alumni reacted with shock to the policy change, which follows a resolution of the university’s legal challenge to the Health and Human Services’ contraceptive mandate.

“Notre Dame’s announcement today that the company it hired to administer the university’s self-funded health benefits program is going to make contraceptives and abortifacients available free to everyone on the plan is stunning,” Gerard Bradley, a professor at the university’s law school, told the Register Nov. 7.

“It effectively reverses the university’s notice less than two weeks ago that it would no longer participate in the ‘contraceptive’ giveaway, due to legal changes introduced by the Trump administration.”

“Today’s action — again — makes Notre Dame morally complicit in an immoral program,” Bradley said, “and this time it has not even a fig leaf of legal cover for doing so.”

William Dempsey, who leads the Sycamore Trust, an alumni organization that has pressed the university to strengthen its Catholic identity, expressed equal surprise and disappointment at the news.

“I have been examining all the facets of Notre Dame’s Catholic identity — pro and con — for over 10 years,” Dempsey told the Register. “This episode is the darkest in that entire 10-year experience.”

 

The Legal Background

Back in 2012, after Notre Dame announced that it had filed a legal challenge to the HHS mandate, Holy Cross Father John Jenkins, its president, explained the decision in a letter that attacked the federal rule as a violation of the university’s religious freedom.

“If the government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the government’s power,” said Father Jenkins in his May 2012 letter.

At that time, Notre Dame joined a slew of Catholic institutions that filed lawsuits against the mandate. The law firm Jones Day has provided extensive pro bono legal representation for the university and for many other Catholic organizations that challenged the mandate.

But while the Little Sisters of the Poor and many other Catholic groups involved in mandate lawsuits obtained injunctions that allowed them to delay compliance with the law until their cases were resolved, Notre Dame failed to secure a stay and finally opted to provide cost-free contraceptive coverage as its own case moved through the courts.

Meanwhile, the Obama administration issued a series of updated accommodations that were deemed unacceptable by the U.S. bishops. The sticking point was that the government’s final accommodation for objecting religious nonprofits still required that they provide written documents that effectively triggered free contraception coverage from their insurance providers or — in the case of self-insured religious employers — from a third-party administrator.

The Little Sisters of the Poor and other Catholic groups said this accommodation would make them complicit in the provision of services that the Church strongly opposes on moral grounds. The U.S. Supreme Court, in a unanimous May 16, 2016, ruling that directed the Little Sisters and the government to come to an agreement, largely accepted the Little Sisters’ objections and encouraged a workaround that did not involve any notification from them.

But the Little Sisters and Church leaders were holding out for a broad exemption to the mandate that severed any connection between Catholic institutions and the provision of contraceptive services.

And last month, after the Trump administration issued a sweeping religious and moral exemption from the mandate that addresses the ongoing concerns of the U.S. bishops, Father Jenkins applauded the move in an Oct. 6 statement.

Said Father Jenkins, “[W]e welcome this reversal and applaud the attorney general’s statement that ‘except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.’”

 

Voluntary Decision

But just over a month later, with no threat of legal action remaining and only days after announcing it would cease coverage, the university decided to voluntarily provide contraceptive services.

Browne, in his Nov. 8 message to the Register, framed the lawsuit as a threat to religious freedom and did not consider whether the university might be complicit in the provision of services that violate Church teaching by choosing to do so now that it’s no longer legally compelled to do so.

“Notre Dame engaged in the lawsuit to protect its freedom to act in accord with its principles,” read the message.

“When we sued, the federal government had taken it upon itself to determine which institutions were sufficiently Catholic (parishes, for example) and which were not (universities). That was unacceptable. It would have opened the door for the government to interfere with religion in a multiplicity of ways, and we were determined to slam shut the door.”

But Dempsey is still disappointed with his alma mater and confused by the news.

“Why would they have changed their mind? Is it the combined pressure of the faculty and students? I don’t know,” Dempsey told the Register.

“It is true that many in the community of Notre Dame do not enthusiastically support the Church’s teaching on contraception. If this were surgical abortion, I used to say, it would be different, but this shakes my conviction about that.”

Indeed, the university’s initial decision to withdraw contraceptive coverage provoked pushback from faculty, strong criticism from some students and a demonstration by an activist group.

The Atlantic, in its coverage of Notre Dame's decision to reverse course, published an email from Sarah McKibben, an associate professor of Irish language and literature, who told the reporter: “Many of us have been very upset about this for a long time.

"Believe me, no one tells you that you’ll be subject to conservative Catholic doctrine for your health care when you are being wooed for a job here.” 

At the same time, the student paper, The Observer, also heard from those who backed the initial decision to drop the coverage.

“Expecting a Catholic university to subsidize birth control requires the same level of naivety as walking into Brigham Young and demanding free Irish coffee would,” read a letter from sophomore Alison O’Neil, posted on the Observer’s website.

“Demanding that an institution defy its religious beliefs to support your sex life — something for which you, and nobody else, should be held responsible, speaks to a sense of entitlement.”

Joan Frawley Desmond is a Register senior editor.