Under intense pressure from the Catholic bishops and a host of other religious and political parties including Notre Dame, President Obama said he would modify the regulation. The bishops rejected the compromise, declaring that it “does not meet our standard respecting … religious liberty ….” Father Jenkins’s reaction was notably more generous to Obama and his proposal. Both judicial and legislative remedies are being pursued. The future is uncertain and the potential consequences grave.
We focus on the highlights of this fast-breaking situation and in particular on the effect it is having on Notre Dame’s reputation as a Catholic institution. Notre Dame’s participation began in a promising way but has followed a wavering path to an unsatisfactory pause. The wound of the Obama episode has been reopened. But it is not too late for Father Jenkins to recapture lost ground.
In a previous bulletin, we described events up to Secretary of Health and Human Services (“HHS”) Kathleen Sebelius’s decision to reject all protests. We summarize those events and then recount what has happened since. The bulletin is longer than usual because the subject is important and complex. We ask your indulgence.
The Original Mandate
The regulation issued last August required employers with over 50 employees to provide, as of August 1, 2012, health insurance coverage for all FDA-approved sterilization procedures and contraceptive measures, including the abortifacient “Ella.”
“Religious employers” were exempt, but were defined so narrowly that only churches qualified.
There followed a tsunami of objections across the religious and political landscape. The United States Conference of Catholic Bishops (“USCCB”) was sided by Notre Dame and Catholic University among the major universities and by a number of smaller Catholic schools.
The Obama Feint and the Rejection of Protests
Cardinal Timothy M. Dolan, the President of the USCCB, then received an unwelcome lesson in Realpolitik. After an “extraordinarily friendly” meeting with President Obama, Cardinal Dolan felt “a little buoyant.” Obama had declared he held “the protection of conscience sacred” and “didn’t want anything … to impede the work of the church that he claimed he held in high regard.”
But the President thereupon directed Secretary Sebelius to reject the protests. The only concession was a one-year grace period for compliance.
So much for the President’s “high regard” for the Catholic Church.
This triggered a storm of protests. Some 180 bishops representing 100% of the country’s dioceses condemned the decision, often in terms seldom seen in episcopal statements.
From Notre Dame’s Bishop Kevin C. Rhoades, for example: “We will not comply with this.” And from Bishop Daniel Jenky, C.S.C., a member of Notre Dame’s governing Fellows: “I am horrified … [at] this hateful and bigoted step.”
To quell the uproar, President Obama announced on February 10th that he will make two changes to “accommodate” religious freedom claims while still requiring the employers to provide the free insurance coverage.
•He will require the unsuspecting insurance carriers, rather than employers, to cover the cost.
•He will require that the insurance carriers, rather than the employers, notify the employees that the insurance is available.
The unchanged regulation was thereupon made final. The Administration promises a later rule-making — presumably after the election — to incorporate the President’s plan and whatever goes with it.
The fatal and irremediable flaws in the Obama plan
It is unnecessary to pause over the many unknowns about the plan. It is corrupt at its core for two obvious and independent reasons:
First, Obama intends to use parties like Notre Dame as the instrumentalities for promoting abortifacients, sterilization, and contraception. There would be no insurance coverage if Notre Dame did not provide the vehicle. This is material cooperation with evil no matter who pays for it.
As the USCCB’s point man on this issue, Bishop William Lori, explained:
- It comes down to this: If we provide the means for another to act against the moral law, we ourselves become morally culpable as well. We simply cannot and will not do that.
Second, the costs are bound to be passed along to the employer by the insurer.
(The President’s assertion that the insurance companies would actually save money elicited endless derision. In the Obama scenario, the insurance executives, dumb as stumps, have been blind to the fact that they should be force-feeding free contraceptives.)
These fatal defects are described in a compelling analysis by a distinguished group of Catholic scholars that has been endorsed by an imposing and growing list of over 300 religious leaders and college and university professors.
Professor Carter Snead of the Notre Dame Law School is a principal author. His co-authors are Dr. John Garvey, the President of The Catholic University of America; Dr. Robert George of Princeton University; the Hon. Mary Ann Glendon of Harvard Law School and Yuval Levin of the Ethics and Public Policy Center.
Some 60 Notre Dame faculty have joined so far, together with prominent scholars from other Catholic and secular schools as well as Baylor, Brigham Young, Yeshiva, Wheaton, and the Southern Baptist Theological Seminary. So, too, Archbishop Joseph Kurtz, the Vice President of the USCCB, Archbishop Charles Chaput, and notable Protestant and Jewish leaders.
The bishops’ response
The Administration told the bishops nothing prior to the President’s statement, and Cardinal Dolan’s quick response was wobbly. He spoke of an “initial step in the right direction,” though having “concerns” and “reserving judgment.”
The Administration was surprised, for they expected a firm rejection. Their purpose was simply to pick off some pro-Obama Catholics and organizations.
They got what they expected within a few hours in a USCCB statement (“unacceptable”) and quickly thereafter in an uncompromising letter from Cardinal Dolan and his key associates to their fellow bishops. The USCCB shortly further documented the plan’s multiple failings.
The prism through which Notre Dame’s actions in this controversy have been viewed by many is the calamitous 2009 decision to honor President Obama. The event has been recalled in news accounts, editorials, columns, blogs, and even photos of the Commencement.
A Wall Street Journal editorial, for example, lists Father Jenkins as one of Obama’s “allies among Catholic liberals,” and even the Bishops’ Conference includes Father Jenkins with Sister Carol Keehan, Mark Shields, and E. J. Dionne, Jr. among prominent “Catholics who have long supported this Administration and its healthcare policies.”
Notre Dame, commentators say, got “duped”or “snookered.” Or, more politely, Obama’s decision has “created an awkward situation” for Father Jenkins.
It is more accurate, as we explained in our earlier bulletin, to say that Father Jenkins and his allies duped themselves.
Lulled by the melody and heedless of the lyrics, they applauded Obama’s call to unite in increasing the use of birth control (“let’s reduce unintended pregnancies”) and his patently meaningless endorsement of a “sensible conscience clause.”
But this misses the larger point: This event’s disclosure of major fault lines in Notre Dame’s Catholic identity. The honoring of Obama brought down on Notre Dame the condemnation of 83 Cardinals, Archbishops, and Bishops — when has this ever happened before? — divided the alumni, and gravely damaged the University’s reputation as a Catholic school.
Notre Dame’s participation in the Current affair – what it is has been and how it is perceived
Father Jenkins’s praiseworthy decision to protest the mandate put him in a position to try to disentangle Notre Dame from Obama, the Church’s most formidable adversary on life issues and religious freedom. But so far he has not capitalized on that opportunity.
His reaffirmation in his letter to Sebelius of the decision to honor Obama — “I stand by that decision” – was lamentable.
And while Father’s statement of “deep disappointment” in the Secretary’s decision was firm, if low decibel, his last word — his reaction to the President’s “accommodation” — was regrettable.
While Cardinal Dolan’s initial response was indecisive, he at least did not praise the Administration, as did Father Jenkins.
But more importantly, Father Jenkins’s statement bears little resemblance to the position Cardinal Dolan and his associates took later that same day. Instead of the bishops’ “grave moral concerns” and a list of compelling reasons for rejecting the plan, we have Father Jenkins’s lauding a “welcome step” and his “applau[se]” for the “willingness of the administration to work with religious organizations.”
(An administration spokesman has made it clear they have no intention of altering the President’s “accommodation.”)
What is especially mystifying is that Obama’s plan obviously does not involve even a cosmetic change for Notre Dame or the countless other Catholic parties that are self-insured. Notre Dame will bear the cost and will tell its employees of the new benefits through its agents.
To be sure, Notre Dame did not sign on to the Obama “accommodation,” as did Sister Carol Keehan and the Catholic Hospital Association.
And Cardinal Dolan has praised Father Jenkins— as do we — for alerting him when the White House called about the “accommodation” and for telling the White House, “You need to be speaking to Cardinal Dolan.”
(We note as an aside that Cardinal Dolan is downright reckless with his praise. Coupled with his remarks about Father Jenkins are his expressions of “high regard” for Sister Keehan and of his being “thrilled” that she’s “making the Catholic voice heard” in the White House. The Catholic voice?)
But what draws attention is Father Jenkins’s public statement, which has been linked with the near-fawning release of The Association of Jesuit Colleges and Universities.
And so it is unsurprising to see the mistaken Wall Street Journal report, “The change did win over some, including the head of the Catholic Health Association and the president of the University of Notre Dame.” (George Weigel, who also mischaracterized Father Jenkins’s statement, later retracted.)
The short of it is that Father Jenkins has made the least out of a good thing.
But there is time. Father Jenkins has recently returned from leading the large Notre Dame contingent in the March for Life for the third year. He has done a good thing by involving Notre Dame in this preeminently important religious liberty contest. It would not take much to manage the affair in a way that would materially strengthen Notre Dame’s claim to Catholic identity.
Father could join the Snead et al. letter. He could publicly endorse the bishops’ rejection of the “accommodation.” Most importantly, he could vigorously support the remedial legislation and, when possible, testify, as Dr. Garvey of CUA already has. (Bishop Lori’s “parable of the kosher deli” testimony is a “must read.”) ND alumnus Congressman Mike Kelly, for one, distressed by the Obama episode, hopes and waits.
And Father Jenkins could offer some word of regret for the honoring of Obama. Surely it is blindingly clear now, if it was not before, that this was a catastrophic misstep.
A final word about Notre Dame
What does the Snead et al. statement tell us about the Catholic identity of Notre Dame?
•It is of course gratifying that some 60 faculty members so far have signed. Doubtless the list will grow.
•Still, there are around 1,000 faculty members.
•Only two members of the C.S.C. have joined. Father Wilson Miscamble, the president of ND Faculty for Life and Father William Dailey of the Law School (whose dispatch of his antic adversaries on MSNBC is well worth watching).
•Not only has Father Jenkins not signed but, so far, neither have any members of the Administration or any deans or, save one, any department chairs.
The political and judicial fronts
We return briefly to the overall situation.
Four lawsuits have been filed so far — by Belmont Abbey, a small Benedictine college; Colorado Christian University, a non-denominational Christian college; EWTN and Priests for Life.
No doubt more suits will be launched. There is no indication whether Notre Dame will sue.
It is not our place to venture legal opinions. It is safe to say, however, that one cannot confidently predict the outcome of these lawsuits.
Neither will we try to say much about the fast-breaking political developments. Here are just a few significant items:
•Two bills have been introduced to reverse this decision, the “Respect for Rights of Conscience Act” (H.R 1179, S.1467) and the “Religious Freedom Restoration Act” (S.2043, H.R. 3897) just introduced by Sen. Rubio. Visit the USCCB web site for instructions on how to support this legislation. Both bills extend protection to individual employers with conscientious objections, a key goal of the bishops.
•Two of three post-Obama plan public opinion surveys favor a broad conscience clause. Pew Research reports that the general public favors exempting faith-based organizations by 48% to 44%, Catholics by 55% to 39%, and evangelicals and Republicans by even larger margins. A CNN poll shows 50% favor exempting “religious organizations,” 44% oppose. In contrast, the New York Times/CBS poll reports that a “majority” (unspecified) of Catholics oppose an exemption as does 59% of the general public — though a majority of evangelicals disagree. The CBS question is suspect.
•It is an awkward fact that a number of Catholic schools and organizations — and even one diocese – comply with state laws requiring coverage of contraceptives without, so far as appears, episcopal criticism. The institutions include Fordham in Cardinal Dolan’s archdiocese, Boston College, Georgetown, Depaul, the University of San Francisco, and the University of Scranton.
The consequences if the regulation stands
A vast array of Catholic institutions, including Notre Dame and almost all, if not all, Catholic colleges and universities and social service organizations, would be obliged to comply, or pay a $2,000 per employee annual penalty, or defy the law altogether, or close.
Precisely when that choice will have to be made will vary with respect to existing plans, for they are “grandfathered” until materially changed. Insurance companies frequently make changes, but since Notre Dame is self-insured it might be significantly better off in that respect.
For Notre Dame, the penalty would be almost $10.5 million. If in addition the University were to increase compensation so as to hold employees harmless, the cost would be greatly increased.
This would be a major burden for Notre Dame. The impact on organizations with slender resources could be crippling — an impact they would suffer because they serve without discrimination and therefore cannot qualify for an exemption.
As retired Cardinal Theodore McCarrick put it: “Are workers in soup kitchens supposed to ask, not ‘Are you hungry?’ but ‘Are you Catholic?’”
Sycamore Trust is an association of alumni of Notre Dame University.