Column: Ending birth control coverage, Notre Dame abandons its progressive legacy on women’s rights

The University of Notre Dame, which once reigned as a beacon of liberal Catholic thought, has announced that it will cancel all birth-control coverage for students and employees next year. That includes contraception provided to those recipients for free, under government auspices and at government expense.

Notre Dame thus becomes the first and most important employer publicly to take advantage of the Trump administration’s Oct. 6 rollback of contraceptive coverage under the Affordable Care Act. The act requires insurance plans to provide contraceptive services without charging a deduction or co-pay. Trump expanded an exemption aimed at religious institutions and widened by the Supreme Court to cover privately held companies claiming religious scruples, to almost any employers claiming religious or “moral” objections to birth control.

The Trump policy also made a workaround developed by the Obama administration for employees of exempt employers optional. That workaround allows those employees to obtain birth control from a third-party insurance provider, with the cost covered by the government instead of the employer. Under the Trump rules, employers no longer have to notify their insurer or the government of their objection, and the third-party coverage is no longer mandatory.

Women and familities covered by employers who claim the exemption and reject the accommodation will henceforth have to pay for contraceptives out of their own pockets. That will be the case for Notre Dame’s employees and students covered by university insurance plans. Notre Dame has said that it won’t accept the accommodation—in fact, it sued in federal court to overturn it, albeit unsuccessfully. The university says it has about 12,400 students, of whom 3,000 are covered by its health plan, and 5,800 employees.

Notre Dame has been in the forefront of the war against the contraception mandate, though the university has been consistently slapped down in federal court. Before we get into the procedural details, the university’s position is worth placing in historical context — Notre Dame’s history, that is.

The university’s prestige as an academic institution dates only as far back as the presidency of the Rev. Theodore Hesburgh, who led Notre Dame from 1952 to 1987. Hesburgh not only moved Notre Dame into the forefront of American academia; he and his university became identified with progressive Catholic thought, largely by establishing that the Catholic university must operate with “true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself.”

That phrase comes from the 1967 Land O’Lakes statement, which was issued over the signatures of leaders of numerous Catholic institutions, including Georgetown University and Boston College, but which Hesburgh masterminded as a sort of manifesto for Catholic higher education. Its purpose was to balance the university’s responsibility to modern society with devotion to religious ideals: “The Catholic university of the future will be a true modern university but specifically Catholic in profound and creative ways,” the statement read.

Hesburgh’s progressive approach extended beyond academia and the Catholic hierarchy. He was a prominent liberal figure throughout the civil rights era — a famous photo shows him linking arms with Martin Luther King Jr. and singing “We Shall Overcome” at a 1964 rally in Chicago — and was known for his work opposing nuclear proliferation and fighting poverty at home and abroad.

But he also was a controversial figure for Catholic conservatives, not least for his stance on contraception and women’s role in the church — he was once quoted saying he had “no problem with females or married people as priests” — and he turned Notre Dame from an all-male into a co-educational university.

Although he was a staunch opponent of abortion, he supported a liberalized view of human sexuality and population control policies generally, and he supported dissenters on his own faculty from Pope Paul VI’s 1968 encyclical Humanae Vitae, which reinforced the church’s opposition to contraception and abortion.

It’s hard to know what Hesburgh, who died in 2015 at the age of 97, might have thought about Notre Dame’s stance on the Affordable Care Act contraception mandate. But the university has been an especially aggressive challenger of the mandate. The university sued to block the mandate in December 2013, only days before the rules were to go into effect, and demanded an emergency injunction.

That irritated Judge Philip P. Simon of U.S. District Court in Indiana, who observed that the rules governing the contraceptive mandate had been published the previous July. “Notre Dame has in many ways created its own emergency,” he wrote, “and I am left to wonder why.”

Simon denied the injunction request, noting that Notre Dame could take advantage of the Obama accommodation by merely signing a statement that it objected to providing contraceptive coverage. He gave short shrift to Notre Dame’s claim that it would be tainted with sin by signing a form that allowed another entity to provide the coverage to its own workers and students, since the opt-out notice would leave the university with “nothing to do with providing contraception.”

Notre Dame’s goal was not only to avoid paying for its charges’ contraception, Simon wrote, but to stop anyone else from paying for it either. “Notre Dame wants to eat its cake, and have it still,” he wrote, “at the expense of Congress, administrative agencies, and the employees who will be affected.” Notre Dame signed the opt-out form on Dec. 31, the last day it could have done so, and then appealed the denial of the injunction. It was again turned down by the 7th Circuit Court of Appeals in Chicago.

Trump’s Oct. 6 order, however, absolved the university and all other objecting employers from the requirement that they opt out from the birth control mandate in writing, and eliminating the third-party work-around. The university’s president, the Rev. John I. Jenkins, said after the rule change that “critical issues of religious freedom were at stake” in the contraceptive mandate. “For that reason, we welcome this reversal.” Notre Dame’s contraceptive coverage will end with the start of the next insurance plan year, Jan. 1 for employees and Aug. 15 for students.

Jenkins got some pushback from one of Notre Dame’s own law students, Kate Rochat. “No woman should ever be denied health care because her employer or university’s religious views are prioritized over her serious medical needs,” Rochat said. She was speaking in connection with a a lawsuit to overturn the Trump rulemaking filed by American Civil Liberties Union on behalf of its 1.6 million members and members of the Service Employees International Union, whose contraceptive coverage is at risk of being canceled. As an ACLU member, Rochat is implicitly a plaintiff in the lawsuit.

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UPDATES:

2:04 p.m.: This post has been updated with more details of the effect of the Trump Oct. 6 order on the Obama-era accommodation for contraceptive coverage.