The Notre Dame Compromise

Basilica of the Sacred Heart on the University of Notre Dame campus (Photo: Joseph Maas/Dreamstime)
By agreeing to provide contraceptive coverage, the university has violated its Catholic mission and revealed the emptiness of its lawsuit.

In the tradition of the Land O’Lakes Statement and the “Cuomo Doctrine,” the University of Notre Dame continues to lead the way in compromising the moral traditions of the Catholic Church in order to accommodate modern attitudes about truth and the human person.

In 2015, Notre Dame lost its legal challenge to the Obama administration’s mandate that it provide contraception, sterilization, and abortificacient drugs through its health-care plans. When the current presidential administration offered relief from the mandate, many believed Notre Dame would claim the exemption it had fought so hard to win in court.

However, after “prayerful attention to God’s guidance” through the process of discernment — and out of respect for the “religious traditions and the conscientious decisions” of all of the members of its diverse community — Notre Dame president Father John Jenkins, CSC, announced his compromise: The university will provide coverage through its own insurance plans for “simple contraceptives.” It will not cover abortion-inducing drugs or sterilization procedures done “for the purpose of preventing conception.” The university will fund natural family-planning options and will provide a statement of the Catholic teaching on contraceptives to all plan enrollees.

In an interview with The Atlantic, Father Jenkins explained further his thoughts in crafting the compromise. Against the danger of diluting the university’s Catholic identity, he said, “There’s a danger of rigidity in adhering to certain tenets that make the institution more narrow.”

And, while acknowledging the “prophetic quality” of the Church’s teaching on contraception, as articulated in Pope Paul VI’s encyclical Humanae Vitae, Father Jenkins also stressed the importance of individual conscience: “To say simply, well, Humanae Vitae is against this, and therefore it can’t be provided — it does seem to me that this is a more complex decision, requiring consideration of a larger number of factors.” The compromise acknowledges, he says, that the “moral life is complex. . . . It is an attempt to find the best policy given the various principles that are germane.”

Indeed, living a moral life is difficult. Pope Francis has done well to remind us of the importance of discerning an effective pastoral response to the particular circumstances of individuals, especially in responding to past conduct that is objectively sinful but for which there might be circumstances that mitigate culpability. But to conflate these realities with the obligation of every Christian to speak the truth prospectively – about both the objective moral law and the reality of the human person — violates common sense. Discernment and accompaniment of the sinner (i.e., each one of us) is not diminished by a robust apologia of the good that the sinner is called to pursue.

Regarding the importance of the individual conscience, a basic principle is that conscience ought to be well formed. As a Catholic institution, Notre Dame has the obligation to form properly the consciences of those it purports to educate — through its teaching, its scholarship, and its public witness. This doesn’t make Notre Dame rigid — it makes her alma mater, a nourishing mother.

Notre Dame made this very point in its lawsuit against the Obama administration, noting that its compliance with the mandate would involve the grave scandal associated with those who encourage others to commit a wrongdoing and “who by nature or office are obliged to teach and educate others.” Moreover, as Bishop Kevin Rhoades — who oversees the diocese of Fort Wayne–South Bend, where Notre Dame is located — said in his statement asking Notre Dame to reconsider its decision: “Members of the community who decide to use contraceptives, however, should not expect the university to act contrary to its Catholic beliefs by funding these contraceptives.”

In crafting his compromise, Father Jenkins notes that, in the few years since the university was ordered to comply with the mandate, those enrolled in the university’s health plans (employees, their dependents, and some students) “have come to rely on access to contraceptives through enrollment in our plans.”

One might marvel at the moral reasoning involved in the “years steeped in sin justifies continued sin” doctrine. Rather than telling the woman caught in adultery, “Go and sin no more,” Jesus could have simply said, “Continue on your path.”

A similar argument was employed by the Supreme Court in Planned Parenthood v. Casey (1992), when the Court declined to overturn Roe v. Wade, writing in its decision: “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”

One wonders why, applying Father Jenkins’s reasoning, contraception is deemed a matter of personal conscience, but abortion is not. The two are inextricably linked, as Pope Paul VI warned presciently in Humanae Vitae and the Supreme Court acknowledged frankly in Casey. And yet, in its compromise, Notre Dame seeks to wash its hands of responsibility for the need for abortions created by its provision of free contraception.

Father Jenkins states that Notre Dame’s lawsuit against the government mandate was simply about the university’s “right to decide.” Straightforward religious-liberty principles require a litigant to establish that the policy in question involves a substantial burden on its sincerely held religious beliefs, not simply that the litigant doesn’t like to be told what to do. Notre Dame, through the affidavits of its executive vice president John Affleck-Graves, repeatedly affirmed in the strongest terms that its beliefs “prohibit it from paying for, facilitating access to, and/or becoming entangled in the provision of abortion-inducing products, contraception, sterilization, or related counseling (the ‘objectionable products and services’).”

Nowhere in any of its representations in court does the university distinguish between its sincerely held religious beliefs regarding contraception and those regarding abortifacients. Yet now Notre Dame, in direct contradiction of its sworn legal statements, freely chooses to pay for such contraceptives — not only to participate indirectly in an accommodation provided through a third-party insurer, but to pay for them with its own funds. Over 100 Notre Dame alumni lawyers have written to express their concern that the university misused the judicial process by misrepresenting its religious objection to the mandate.

Almost a century ago, the Anglican bishops at the Lambeth Conference struck a Jenkinsian compromise, becoming the first Christian denomination to approve of contraception, while holding fast to the teaching that abortion remained sinful. G. K. Chesterton criticized the churchmen’s decision to succumb to the modern view regarding “the problem of sex,” writing: “My concern is . . . with those to whom I might once have looked to defend the country of Christian altars. They ought surely to know that the foe now on the frontiers offers no terms of compromise: but threatens a complete destruction. And they have sold the pass.”

Elizabeth Kirk is a lawyer, writer, and consultant who has a special interest in adoption law and policy.

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