Notre Dame swallows the pill
February 20, 2018 (The Public Discourse) – As we approach the fiftieth anniversary of Pope Paul VI's prophetic affirmation (in Humanae vitae) of the Church's perennial teaching that contraception is always morally wrong, it is perhaps fitting that contraception, notwithstanding its widespread acceptance even among Catholics, is much in the news. The news has mainly had to do with the Trump administration's courageous decision to nullify the Obamacare "contraception" mandate, at least for those employers who conscientiously object to being made providers of drugs and devices including abortifacients, as well as the Pill, IUDs, and other simple contraceptives.
The administration's new regulations provide a total exemption from any legal duty to pay for these drugs and devices or even to facilitate their use in a remote way. My employer, the University of Notre Dame, is eligible to take that exemption. In fact, along with many other religious institutions, Notre Dame sued the United States several years ago to secure precisely that relief. And note well: these institutions sued for total exemption, even though they were already beneficiaries of an Obama-era "accommodation" that relieved them of any duty to directly fund or distribute contraception or abortifacients.
In its lawsuit, Notre Dame cited chapter and verse of Church teaching. Its pleadings and supporting papers amounted to a sound, and at times moving, argument that it would betray the faith if it were to accept even the watered-down involvement of the "accommodation." The University said, basically, that, to remain faithful to its beliefs, it could not be involved in any way whatsoever with a process designed to provide contraceptives to its employees, its students, or their dependents. Just so.
Yet, in spite of its sworn declarations that Catholic faith precludes doing so, the University announced in late 2017 that it would decline the proffered exemption and instead stay the course prescribed to it by the Obama administration. This decision surprised many observers (though, truth be told, not this one). Notre Dame's choice came under withering public criticism, on and off campus, from (among others) the University Faculty for Life and the Sycamore Trust, an alumni group dedicated chiefly to encouraging Our Lady's University to live up to its stated Catholic mission.
On February 7, the University changed course yet again. In a letter to the entire campus community, President John Jenkins, CSC, announced new "steps based on Catholic principles that nevertheless provide access to some of the coverage that members of our community seek." In one "step" Notre Dame rightly repudiated any role in providing abortifacients (such as Plan B and ella) for, as Fr. Jenkins wrote, these things destroy "an innocent human life."
Sadly, however, Fr. Jenkins chose to go all-in on contraceptives. He wrote: "the University will provide coverage in the University's own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception)." This "step" is really a giant leap into immorality. Under the Obama administration's "accommodation," Notre Dame did not directly fund contraception and was only peripherally involved in providing access to it. Now the University is to be sole funder and proprietor of a contraception giveaway, with only the logistics of it delegated by Notre Dame to its plan administrators. What it solemnly declared for years to be morally impossible is, suddenly, the substance of Notre Dame's free choice.
Many on campus will congratulate Fr. Jenkins for a wise and even Solomonic decision. Many others will disagree, in silence. But there can be no doubt that Notre Dame, according to its own sworn declarations, has betrayed the Catholic faith. Fr. Jenkins and all others involved in making this fateful, gravely wrong choice should be rebuked. One expects that, now, the local bishop will have no choice but to publicly do so. Leave aside the prospect that anything Bishop Rhoades could do or say would cause Notre Dame yet again to change course. His duty to protect all the faithful in his care from this grave scandal will compel him to speak out.
Fr. Jenkins's announcement is, however, worse than all that. The harm to so many persons' minds, bodies, and souls unleashed by Notre Dame's embrace of contraception is great, and perhaps incalculable. But, in the course of rationalizing his decision, Fr. Jenkins supplied a primer about how Catholics should make all sorts of morally important decisions that is not only mistaken, but catastrophic for the moral life.
Here is the relevant part of Fr. Jenkins's announcement. First, he affirmed that contraception is "contrary to Catholic teaching." But then he observed that "many [people on campus] conscientiously disagree with this particular teaching." Fr. Jenkins wrote that Notre Dame "must be unwavering in our fidelity to our Catholic mission at Notre Dame, while we recognize that among the values in our Catholic tradition is a respect for other religious traditions and the conscientious decisions of members of our community." He stated that a "tension exists between establishing policies in accord with Catholic teaching and respecting the religious traditions and decisions of the many members of our community." This "tension" is particularly acute when it comes to healthcare. Fr. Jenkins also noted that, several years after submitting to the Obama accommodation, "some of those enrolled in our health plans – an increasingly diverse group – have come to rely on access to contraceptives through enrollment in our plans." Ergo, according to the university president, Notre Dame will become a contraceptives distributor.
The grave and potentially disastrous error in Fr. Jenkins's reasoning is that nothing in it has the slightest tendency to morally justify helping others – even people we respect deeply – to do what is morally wrong, even if they happen to believe otherwise. Our moral duty to respect others' choices does not have anything to do with giving them the means to do evil. If the person working next to you shares his plan to, say, patronize a prostitute, it would be wrong to give him the cash to pay for it. There may be nothing you can do to stop a friend whom you generally respect from entering an adulterous relationship or from cooking the books of his small business. But surely one is morally bound not to give him the keys to one's apartment for his assignations or to file a false tax return for him. Indeed, everything that Fr. Jenkins says about the campus community's attitudes toward contraception would apply almost equally to abortifacients. Yet even he recognizes that paying for Plan B or ella would be wrong, no matter how much we might respect those who would take those drugs. The only reason Fr. Jenkins reversed course on February 7 was to eliminate the modest role Notre Dame played, per the Obamacare "accommodation," in facilitating access to abortifacients. By that same measure of how much complicity in others' immoral choices is too much, Notre Dame is much more obviously guilty of contraception than ever before.
In truth, one should not respect another's specific immoral choice at all. Everyone's immoral choices should be regretted, and their repetition discouraged, and their occurrences criticized appropriately. The word "respect" hardly leaps to mind to describe that complex of morally required responses. One can and should in general nonetheless respect the person whose immoral choice it is. Beyond that, speaking of "respecting" others' immoral choices has to do with the moral and prudential limits on what one may, and may not, do to stop, or just to interfere in, their wrongdoing. Your adult brother might regularly use his laptop to access pornography. Anyone who respects him should remonstrate with him about his bad habit and dissuade him as best one can. It would be wrong, of course, out of "respect" to give him the web addresses where the sordid stuff he fancies can easily be found. But it would ordinarily be wrong, too, to take his laptop and throw it away. It would surely be wrong to lock him in his bedroom until he promised to stop.
As a matter of fact, Notre Dame's practice until just a few years ago exhibited all the "respect" possibly due to those who want to contracept. Notre Dame rightly did nothing to make that immoral practice easier or cheaper. At the same time, Notre Dame did not discriminate in the workplace against those who chose to contracept. The University left everyone alone, if you will, to do as he or she wished in private.
The crucial mistake in Fr. Jenkins's rationalization is to use the hazy fog generated by a sonorous phrase – "respecting" others – to cover up what he is really doing, which is to violate in and by his own deed the moral truth that he seems to affirm (that contraception is immoral). The central truth of the moral life is that everyone is invariably morally responsible for his or her own actions, no matter what others are doing or not doing. Neither Fr. Jenkins (nor I nor you) is permitted, much less obliged, by "respect" for any other persons to choose to aid their immoral plans, because doing so makes Fr. Jenkins (or me or you) guilty of that same immorality – just as Notre Dame itself alleged under oath in its lawsuit over the course of several years. Thus Fr. Jenkins has most regrettably muddied what it means to say that any norm of morality is, simply, true.
That Fr. Jenkins chose the other day to wrap his gross disservice to all who read his words in expressly Catholic refinements is especially scandalous. He wrote, earnestly, that this situation is one that demands discernment – something to which Pope Francis has called the Church in his various writings and addresses. Discernment, which has a long history in the Catholic spiritual tradition, is, of course, a process of weighing thoughtfully considerations for and against various courses of action. Yet it also demands prayerful attention to God's guidance through the prompting of the Holy Spirit.
But the Holy Spirit is not a consequentialist. God does not want us to weigh up pros and cons of adhering to the moral truth. And the greatest respect we can show others is to bear faithful witness to that truth.
Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a Senior Fellow of the Witherspoon Institute, where he is Chair of the Academic Committee of the Simon Center on Religion and the Constitution.
Published with permission from The Public Discourse.