President Trump’s latest executive order titled “Promoting Free Speech and Religious Liberty,” potentially ends the enforcement of the Obama administration’s Health and Human Services (HHS) contraception mandate requiring all employers — including religious institutions — to provide health insurance that covers contraception. While the executive order itself does not change the law, the president wrote in the order that: “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom” and he invited the secretaries of Treasury, Labor, and Health and Human Services to “consider issuing amended regulations, consistent with applicable law, to address conscience based objections to the preventive care mandate.”
The executive order is clear in its promised relief from the contraception mandate for religious institutions. So why are so many Catholic colleges and universities continuing to provide insurance coverage for free contraception — including abortion-inducing drugs and devices?
Originally enforced under President Obama’s Affordable Care Act, the contraception mandate has divided Catholic colleges and universities since its start in 2012. Franciscan University of Steubenville, Ohio — a school that proudly describes itself in its promotional materials as “Passionately Catholic” — was the first Catholic college to file a lawsuit against the federal government. Franciscan not only filed a lawsuit, it also promptly dropped the student health plan to avoid what the university saw as “cooperating with evil.” By the end of 2012, more than 100 institutions and individuals — including 20 Catholic colleges and universities — filed lawsuits against the Obama administration. Yet, several other Catholic universities, including Jesuit institutions like Georgetown, Gonzaga and Xavier Universities were quick to comply with the demands of the mandate, publicly pronouncing that they had no choice.
In an interview with a reporter for the Cincinnati Enquirer, Xavier University’s president, the Rev. Michael J. Graham, said that although he disagreed with the mandate, “he believes universities should set a moderate example for the nation.”
Xavier — like dozens of other Catholic colleges and universities — had been providing contraception to employees even before the mandate. Likewise, in a memo released to faculty, staff and students on the Gonzaga campus, the university’s president, Thyane McCulloh, wrote that “we are compelled by the federal government to fulfill our legal obligation under the mandate.”
Now that Mr. Trump’s executive order has been signed, most universities have been silent. In contrast, Catholic University President John Garvey told a reporter for the National Catholic Register that although he would like the Trump administration to “amend the HHS mandate’s narrow exemption that sparked the litigation, and replace it with a broad exemption for religious nonprofits,” he concluded that he was “content” with the executive order.
There has been no response from the University of Notre Dame. Notre Dame filed a legal challenge to the HHS mandate in May 2012. But when the courts refused to issue a temporary injunction or emergency relief from the mandate, Notre Dame began providing free contraception and other mandated provisions of the federal law. Adding that employees’ access to the mandated provisions could be reversed at a later date, Vice President for Public Affairs and Communications Paul Browne left the door open to the possibility of retaining free access to contraceptive care by the Notre Dame community by stating, “The program may be terminated once the university’s lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.”
Some at Notre Dame are not surprised by this equivocation. In December, 2013, Notre Dame law professor Gerard Bradley published a National Review essay criticizing the university for authorizing their insurance administrator to provide the mandated contraceptive services. Mr. Bradley told a reporter for the National Catholic Register that Notre Dame could have self-insured the students. “If they self-insure they would be free to exclude the contraceptive coverage.” For Mr. Bradley, triggering the coverage was “tantamount to facilitating abortions in violation of the university’s Catholic beliefs.” Likewise, Holy Cross Father Bill Miscamble, a professor of history at Notre Dame, told a reporter for the National Catholic Register that he was disappointed “with the tepid way in which Notre Dame has acquiesced with the Obamacare provisions.” Father Miscamble suggested that Notre Dame’s president, Father John Jenkins, “should be a national leader in the fight for a broad religious exemption to the federal law.”
In some ways, Notre Dame had indeed played an unfortunate leadership role among Catholic institutions — by “giving permission” to other Catholic colleges and universities to comply with the mandate. Had the university publicly declared that it would not comply, it is possible that the government might have backed down rather than risk alienating all Catholics. Now that the executive order has been signed, it is time for Catholic colleges to end their complicity in violating Catholic teachings on life.
• Anne Hendershott is professor of sociology and director of the Veritas Center for Ethics in Public Life at Franciscan University. Brian Simboli received his doctorate in philosophy from the University of Notre Dame.
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