LAWSUIT FILED: Notre Dame v. Sebelius

May 21, 2012

A Message from Father John Jenkins, C.S.C.,

President, University of Notre Dame

Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS).  That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching.  The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties.

Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  Many of our faculty, staff and students -- both Catholic and non-Catholic -- have made conscientious decisions to use contraceptives.  As we assert the right to follow our conscience, we respect their right to follow theirs.  And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.  We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so.

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives.  For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.  For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements.  If that happens, it will be the end of genuinely religious organizations in all but name. 

The details of the process that led to the mandate are publicly known.  In an Interim Final Ruling issued August 3, 2011, the federal government required employers to provide the objectionable services. A narrow exemption was given to religious institutions that serve and employ primarily members of their own faith, but, departing from a long tradition in federal law, organizations like Notre Dame—schools, universities, hospitals and charitable organizations that serve and employ people of all faiths and none—were granted no exemption, but instead were made subject to the law to the same extent as any secular organization.  On September 28, I submitted a formal comment encouraging the Administration to follow precedent and adopt a broader exemption.

Despite some positive indications, the Administration announced on January 20, 2012, that its interim rule would be adopted as final without change.  After an outcry from across the political spectrum, President Obama announced on February 10 that his Administration would attempt to accommodate the concerns of religious organizations.  We were encouraged by this announcement and have engaged in conversations with Administration officials to find an acceptable resolution.  Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution.   Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines. We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

It is for these reasons that we have filed this lawsuit neither lightly nor gladly, but with sober determination. 

_____________________________________________________________________________________________________________________________________________________________________________

The lawsuit is available online at http://opac.nd.edu/public-information/hhs-complaint

Unacceptable Compromise

Unacceptable

Today the Obama administration has offered what it has styled as an “accommodation” for religious institutions in the dispute over the HHS mandate for coverage (without cost sharing) of abortion-inducing drugs, sterilization, and contraception. The administration will now require that all insurance plans cover (“cost free”) these same products and services.  Once a religiously-affiliated (or believing individual) employer purchases insurance (as it must, by law), the insurance company will then contact the insured employees to advise them that the terms of the policy include coverage for these objectionable things.

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust.  Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization.  This is a grave violation of religious freedom and cannot stand.  It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept as assault on their religious liberty if only it is covered up by a cheap accounting trick.

Finally, it bears noting that by sustaining the original narrow exemptions for churches, auxiliaries, and religious orders, the administration has effectively admitted that the new policy (like the old one) amounts to a grave infringement on religious liberty.  The administration still fails to understand that institutions that employ and serve others of different or no faith are still engaged in a religious mission and, as such, enjoy the protections of the First Amendment.

Signed:

John Garvey

President, The Catholic University of America

Mary Ann Glendon

Learned Hand Professor of Law, Harvard University

Robert P. George

McCormick Professor of Jurisprudence, Princeton University

O. Carter Snead

Professor of Law, University of Notre Dame

Yuval Levin

Hertog Fellow, Ethics and Public Policy Center

EWTN Files Suite to Block Contraception Mandate

EWTN filed a law suite today in U.S. District Court in Birmingham, AL seeking to declare the federal government's contraception mandate as unconstitutional.   EWTN is the first lay Catholic organization to challenge the HHS mandate.  

"'We had no other option but to take this to the courts,' said [Michael]Warsaw, [EWTN's president]. 'Under the HHS mandate, EWTN is being forced by the government to make a choice: Either we provide employees coverage for contraception, sterilization and abortion-inducing drugs and violate our conscience or offer our employees and their families no health-insurance coverage at all. Neither of those choices is acceptable.'"

Read more in the National Catholic Register

Carter Snead in WSJ

Future Director of the Center for Ethics and Culture Carter Snead, of Notre Dame's Law School, and Princeton University Professor Robert P. George have written an article that was published in today's Wall Street Journal. They analyze last week's struggle over funding between the Komen foundation and Planned Parenthood. An excerpt:

"The reality is that Planned Parenthood—with annual revenues exceeding $1 billion—does little in the way of screening for breast cancer. But the organization is very much in the business of selling abortions—more than 300,000 in 2010, according to Planned Parenthood. At an average cost of $500, according to various sources including Planned Parenthood's website, that translates to about $164 million of revenue per year.

So how did Planned Parenthood and its loyal allies in politics and the media react to Komen's efforts to be neutral in the controversy over abortion?

Faced with even the tiniest depletion in the massive river of funds Planned Parenthood receives yearly, the behemoth mobilized its enormous cultural, media, financial and political apparatus to attack the Komen Foundation in the press, on TV and through social media.

The organization's allies demonized the charity, attempting to depict the nation's most prominent anti-breast cancer organization as a bedfellow of religious extremists. A Facebook page was set up to "Defund the Komen Foundation." In short, Planned Parenthood took breast-cancer victims as hostages."

Read the full article here.

Contraception debate rages on campus

Notre Dame's official student newspaper, the Observer, has been printing a series of Viewpoint letters to the editor concerning the HHS mandate that will force Notre Dame and other Catholic institutions to provide coverage of contraceptives, sterilization, and abortion-inducing drugs through its health insurance. Today we are proud to feature a letter written by one of the students in our Integritas undergraduate formation program. It was published in the February 6 edition of the Observer:

I would like to reply to Notre Dame Right to Life officers' Jan. 31 letter, "Contraception and Dignity," touched off when it sternly condemned the use of artificial contraception. I am going to argue on behalf of the original letter's position by responding to some of the arguments made by "Contraception and Dignity," Feb. 3.

Emily Bienek, Joel Moore and John Galeziewski argued contraception can mitigate the harmful consequences of domestic violence, rape and drunken hook-ups. This argument fails because these problems cannot be solved by contraception. If women are really so afraid of being assaulted by friends, boyfriends, husbands and strangers they feel they must be taking contraception at all times to prevent unplanned pregnancies, our society suffers from a far greater problem than a lack of reproductive choice.

I would rather make the world safe from violence against women than hand out birth control pills to potential rape victims. Similarly, the fact that many Notre Dame students regularly get so drunk that they cannot control their behavior contributes to a host of problems of which unplanned pregnancies are only one. We can better resolve that issue by helping students drink responsibly than by constantly struggling to reduce the harm they do to themselves and others when they are drunk.

Bienek, Moore, Galeziewski and Anne Reser all made the point artificial contraception helps women by allowing them to regulate how many children they have and when they have them. This allows women to pursue other goals before starting a family and to responsibly regulate the size of their families once they have them. Abstinence before marriage and NFP during marriage can do the same things. Researchers at the University of Heidelberg in Germany found NFP is as effective as "the pill" at preventing conception, and (forgive the cliché) abstinence remains the only 100 percent effective means of preventing pregnancy and STDs.

John Galeziewski suggests NFP, even when properly used, is no different than other forms of contraception. On the contrary, NFP does not upset the delicate chemical balance within a woman's body in ways that could damage her health, as hormonal contraceptives do.

It also does not fundamentally change the nature of the sexual act by chemically or mechanically eliminating one of its key functions, something all forms of artificial birth control do as well. Finally, NFP makes sex more intimate for couples that use it by giving them a greater understanding of the natural reproductive process and how to work within it to plan their families.

Anne Reser deplores the fact "there are still people who believe that a woman's dignity is somehow tied to her ability and desire to have children." I believe she has misunderstood "Contraception and Dignity" on this issue. At the risk of putting words in the authors' mouths, I believe the people behind "Contraception and Dignity" would not call a woman's reproductive ability the sole source of her worth. Rather, they would assert that a woman derives her dignity from all of the various and wonderful gifts God has bestowed on her by making her in His image, and that her ability to create and nurture life within her own body is merely one of these gifts, though it is an awe-inspiring and very important one.

Women do not need artificial birth control to protect themselves, plan their families or affirm their dignity. They can avoid unplanned pregnancies and STDs by abstaining from sex before marriage and regulate the births of their children within marriage by using NFP. They can better respect themselves by embracing their ability to bear children as an important part of their nature than they can by denying the beauty and significance of one of the greatest abilities of any human person, which they alone happen to possess. The only thing women (and men) "need" artificial contraception for is to have sex whenever they want and with whomever they want. Modern society thinks sex should be like television: entertainment on demand. Those of us who believe that sex is a total, loving and fruitful gift from one person of incommensurable dignity to another believe sex was meant for something more.

Elliott Pearce
junior
Knott Hall
Feb. 3

Komen Foundation caves; restores PP funding

We are disappointed to report that the Susan G. Komen for the Cure foundation has caved into pressure from Planned Parenthood supporters and restored their funding to Planned Parenthood. They have amended their grant policy to allow funding of organizations that are under congressional investigation as long as that investigation is not criminal in nature. Read their press release here.

The Best Thing in Life Was Unplanned

This Friday Ryan Bomberger will be giving a talk at Notre Dame on life issues in the black community at 4 p.m. in the Geddes Hall auditorium.  Ryan Bomberger is a pro-life activist who founded the Radiance Foundation to spread the light and beauty of life.  This Christmas season, Bomberger used the celebration of the birth of Jesus Christ to honor the joy of all life.  As he so aptly puts its, the circumstances in which Jesus was born reflected the difficulties many experience in facing unplanned pregnancies:  "An unplanned pregnancy. A courageous teenage mother. A father who chose adoption over abandonment. This is Christmas. Without this scenario, we wouldn’t be honoring the most history-altering moment for humanity."

Even though Christmas is long past, the Holy Family and their decisions in light of less than ideal circumstances stands as a true testament to the wonderful gift of life.

To read more of Bomberger's article on Life News, click here.

MLK's legacy

A few weeks ago America celebrated the legacy of one of its greatest heroes, Dr. Martin Luther King, Jr., a champion for civil rights.  As the nation remembers this great historical figures, various political thinkers claim his legacy in support of their cause.  Unfortunately, many have distorted the true philosophical and theological foundations of King's worldviews.  According to University of Missouri's political science professor Justin Dyer, "Those who praise the modern civil rights movement, but who also want to keep morality and theology absent from public discourse, seldom mention King’s reliance on natural law in his justly famous letter".

Visit the Witherspoon Institute's Public Discourse discussion to read more about the true roots of King's political thoughts.

Responses to Sebelius' decision on contraception

Catholic leaders nationwide have vocally responded to HHS secretary Kathleen Sebelius' decision that religious institutions will have to provide contraception coverage in health plans for employees, a decision which violates the rights of conscience of many religious institutions and especially affects the Catholic Church. Here are some of their notable responses:

Cardinal-designate Archbishop Timothy Dolan, president of the USCCB, said “In effect, the president is saying we have a year to figure out how to violate our consciences.”

Cardinal Daniel DiNardo, chairmen of the USCCB committee on pro-life activities said, “Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers. For example, under the new rule our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics. Could the federal government possibly intend to pressure Catholic institutions to cease providing health care, education and charitable services to the general public?Health care reform should expand access to basic health care for all, not undermine that goal.”

Notre Dame President John I. Jenkins, CSC, said  “I am deeply disappointed in a decision by the administration that will place many religious organizations of all faiths in an untenable position. This unnecessary intervention by the government into religion disregards our nation’s commitment to the rights of conscience and the longstanding work of religious groups to help build a more compassionate society and vibrant democracy. I find that profoundly troubling on many levels. Moving forward, we call for a national dialogue among religious groups, government and the American people to reaffirm our country’s historic respect for freedom of conscience and defense of religious liberty.”


Robbie George, law professor at Princeton, said, "The Obama administration's abortifacient and contraception mandate is appalling, but I cannot claim to be surprised by it. In fact, I would have been surprised---indeed stunned---had the administration done anything significant to honor or protect the rights of Catholics and others on whose consciences the mandate will impose. In every area touching the sanctity of human life and issues of sexual morality, the Obama administration is aggressively prosecuting the agenda its critics predicted and its most ardent left-wing supporters hoped for. Those who are driving the train, including key administration officials who self-identify as members of the Catholic Church, have no regard for the ethical beliefs of Catholics and others when they are in conflict with left-liberal orthodoxy.  Their task, as they perceive it, is to fortify and expand the "right to abortion" and "sexual freedom" wherever they can.  They pursue this agenda with a religious zeal because, in fact, the ideology in which abortion is a "right" and "sexual freedom" is a core value is their religion. These beliefs are integral to their worldview. If, like Kathleen Sebelius, they happen to be Catholics, you can be assured that it won't be Catholic teaching, or the Judaeo-Christian ethic, that shapes their policies on issues of life and death and marriage and sexual morality; it will be liberal ideology---pure and simple---that does the shaping."