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Speaking Out Against HHS Mandate

President John Garvey of The Catholic University of America Throws His Support Behind the U.S. Bishops

BY Joan Frawley Desmond

Register Senior Editor

March 11-24, 2012 Issue | Posted 3/5/12 at 11:58 AM

 

WASHINGTON — These are challenging times for a Catholic university president with expertise in constitutional law and a penchant for standing his ground.

In the wake of his 2010 appointment as president of The Catholic University of America, John Garvey made headlines — and even provoked a lawsuit — when he called for a return to single-sex dorms on the Washington campus.

Now Garvey is making waves as he takes an increasingly public role in the fight to repeal President Obama’s contraception mandate.

While the U.S. bishops spearhead an escalating national campaign to rescind a new federal law requiring virtually all private employers to provide contraception — including abortion-inducing drugs — in their health-care coverage, the effort has received a ready assist from the soft-spoken Garvey. He has employed both his high-profile position and intellectual firepower as a constitutional scholar to bolster and inform the bishops’ public stance.

“He brings many strengths, including his own legal knowledge, experience, personal wisdom and goodness. He also has great credibility in the academy,” said Bishop William Lori of Bridgeport, Conn., the chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee on Religious Liberty, who invited Garvey to join the committee as a consultant.

“His work on this issue offers a wonderful example to the young people being formed at the university. He is bringing his professional ability and love of country to bear on this issue,” added Bishop Lori, who previously served as the chairman of the board of CUA.

Indeed, Garvey’s increasingly assertive role in the public debate is of a piece with his steady efforts, over his first year at CUA, to strengthen the university’s Catholic identity and provide a stronger philosophical framework for the transmission of knowledge and skills to the next generation of American students, Catholics and non-Catholics alike. A father of five children, he already has firsthand experience with the strengths and weaknesses of mainstream college culture.

“The Catholic University of America is a university, a community of scholars united in a common effort to find goodness, truth and beauty,” stated Garvey in a January 2011 address, “Intellect and Virtue: The Idea of a Catholic University,” which probed the role of Christian virtue in the intellectual life.

“Not only did Garvey follow a much-admired president who greatly strengthened CUA’s Catholic identity [current Trenton, N.J., Bishop David O’Connell], but there were serious concerns about his past association with Boston College. I think he was aware that he needed to convince a lot of people, including the Cardinal Newman Society, that he wasn’t going to reverse course at CUA,” observed Patrick Reilly, president of the Cardinal Newman Society, an organization that seeks to strengthen the religious mission of Catholic institutions of higher education.

“To the contrary, President Garvey has exceeded nearly everyone’s expectations. We regard him today as one of the most admirable and influential leaders in Catholic higher education because of his courageous rejection of co-ed dorms, his leadership in the fight for religious liberty, and his efforts to continue to strengthen CUA’s Catholic identity.”

“He is the sort of intelligent, balanced and generous Catholic gentleman that Blessed John Henry Newman wanted college students to admire,” Reilly added. “ He is a delight to work with.” 

Ask CUA’s president to explain why he has ventured beyond the ivory tower, and he won’t mince words.

If the HHS mandate stands, he said, a “Catholic institution, so far as I can see right now, will have one of four choices: The first is to secularize itself, breaking its connection to the Church, her moral and social teachings and the oversight of its ministry by the local bishop. This is a form of theft. It means the Church will not be permitted to have an institutional voice in public life.

“Second, pay exorbitant, annual fines to avoid paying for insurance policies that cover abortifacient drugs, artificial contraception and sterilization. This is not economically sustainable.

“Third, sell the institution to a non-Catholic group or to a local government. Fourth, close down,” he concluded.

Clearly, Garvey isn’t prepared to accommodate any of these choices. Thus, it’s a happy coincidence that his particular academic expertise is constitutional law.

Opponents of the mandate argue that the regulation violates the Free Exercise Clause, Establishment Clause and the Free Speech Clause. Legal scholars and GOP opponents on Capitol Hill also contend that the mandate violates the Religious Freedom Restoration Act, passed in 1993.

The Becket Fund for Religious Liberty, a public interest group, is representing a growing number of plaintiffs, including Eternal Word Television Network (EWTN), who seek to have the mandate overturned. Bishop Lori noted that the USCCB is still weighing a legal challenge.

“The whole question of litigation is in flux right now. It is being studied closely,” said Bishop Lori.  

The Register is a service of EWTN.

The Supreme Court is scheduled this year to rule on both broad and limited challenges to the constitutionality of the bill, and critics of the mandate hope that the high court will decide against Obamacare and thus remove an unacceptable mandate.

Garvey has written a book on religious liberty and taught constitutional law at a number of law schools, including the University of Notre Dame, where he still has many admirers. Notre Dame’s leading constitutional scholar, Richard Garnett, describes his former colleague as “a mentor, role model and friend.”

After Notre Dame, he served as the dean of Boston College Law School before heading to CUA.

“I can make a contribution on many of the issues we are faced with. If it were zoning issues, it would be different,” Garvey wryly observed during a telephone interview.

Though his public opposition to the HHS mandate has raised some eyebrows in the academic world, the reaction of CUA’s faculty and alumni has been generally positive, he reported. Meanwhile, undergraduate and graduate students express “a range of opinion,” and he continues to address questions on the issue in a variety of CUA forums.

He witnessed the partisan effort to reframe the controversy as an attempt to bar access to contraception when he was invited to the Feb. 16 House hearing. In his testimony, he disputed the value of the Obama administration’s “accommodation.”

During the hearing, Democrats on the House committee continued to ask witnesses whether they sought to make contraception illegal. The witnesses, including Bishop Lori and representatives from Lutheran, Baptist and Jewish communities, repeatedly stated that they did not seek to bar access to contraception. Rather, they opposed a federal rule that required them to pay for services that violated their moral precepts.

Critics of the mandate assert that Obama’s Feb. 10 “accommodation” did not resolve the problems posed by the HHS mandate because insurance companies will simply pass on costs for co-pay-free contraceptive services in new premiums paid for by religious employers. Further, many U.S. dioceses and church-affiliated institutions self-insure and thus would be required to directly cover contraception services.

Garvey carefully reviewed these objections in his testimony before the House committee. But he also contended that “HHS is acting on a political agenda about how women should live their sex lives.” 

Using strong language, CUA’s president told the House committee that while “HHS might wish to increase the rate of abortions, sterilizations and contraceptive use by students and employees at The Catholic University of America, it is our religious belief that these activities are wrong. A decent respect for the principle of religious liberty should leave us free to act on our belief.”

At the hearing, Maryland Rep. Elijah Cummings, the ranking Democrat on the committee, challenged Garvey’s stance that the HHS mandate violated the religious beliefs of Catholic universities. Cummings reported that he had a list of 20 Catholic universities and colleges that provide contraception in their health plans.

During his interview with the Register, Garvey acknowledged that “a number of Catholic schools do provide contraception services.” But he added that state law required some institutions to provide it, while other institutions only covered contraception for medical reasons.