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What does Notre Dame want?

Last month, the University of Notre Dame announced that it would comply with Obamacare's contraception mandate, after the school's legal challenges failed. "Pursuant to the Affordable Care Act," a university statement explained, "our third-party administrator is required to notify plan participants of coverage provided under its contraceptives payment program." In other words, university employees would receive contraceptive coverage at no cost to them. But the statement warned that “the program may be terminated once the university's lawsuit on religious-liberty grounds...has worked its way through the courts."

That dismayed some of the university's more conservative critics. Notre Dame law professor Gerard V. Bradley, for example, argued that the university's compliance with the mandate amounted to "facilitating abortions." And Notre Dame historian Wilson Miscamble, CSC, worried that the university's heart wasn't really in the fight. But after listening to Notre Dame counsel's oral arguments last week at the 7th U.S. Court of Appeals, they may have something else to worry about.

The trouble began early in the proceedings, when Judge Richard Posner asked Notre Dame's attorney Matthew Kairis what his client wants. Kairis struggled to provide a clear answer. "We would like to return to the district court," Kairis began, when Posner stopped him. "No, no," the judge said. "What do you want in the way of relief? You’ve complied fully with the statute. So what’s left?"

Posner was referring to the fact that Notre Dame has already notified the administrator of its employee health plan that it will not pay for contraceptive services. In turn, the administrator has told employees that they will receive such coverage for free. (Notre Dame is a self-insured organization, so it does not pay premiums to an insurer. Rather, the university pays a third-party adminstrator [TPA] much lower fees to handle employee health claims, which it then pays out of its own funds, according to a fee schedule it negotiates with the TPA.)

Kairis began to reply to Posner's question—"The fact that Notre Dame was forced to buckle by this mandate..."—but the judge stopped him again: "Whatever it was. You’ve complied fully.... What do you want the District Court to do? You never explain." Kairis tried again: "If we went back to the district court we would seek an injunction to prevent the enforcement of this mandate." And again, Posner wanted more: "Given that you have fully complied with the law, and you have no further obligations under the law...what can you enjoin?" Kairis kept repeating that Notre Dame wants to be able to revoke the self-certification form it already sent to its TPA (a company called Meritain, now part of Aetna).

After several minutes of wrangling, Judge David Hamilton stepped in: "You want an injunction against the third-party administrator?" No, Kairis replied, they want an injunction against enforcement of the mandate. "You want an injunction against the federal government," Hamilton asked, "so that it would be prohibited from requiring a third-party administrator to provide the coverage, right?" Nope. What Notre Dame wants, Kairis tried to explain, is an injunction against the mandate "that requires Notre Dame to maintain a contractual relationship with a third-party administrator who provides" contraception coverage because it "requires" Notre Dame act as a "vehicle for the provision of these services."

That led the conversation in another direction. Posner reminded Kairis that Notre Dame has already indicated it would not object to the government's providing contraception services directly. "Why wouldn't that have the identical effect?" Posner asked. Kairis replied that it would, but that what Notre Dame wants is to be left out of the process. So Posner offered a hypothetical: If Notre Dame just had to send a one-sentence letter to the government stating that it is a Catholic organization and would not make any financial contribution to contraception coverage, could Notre Dame accept that?

“It depends on the consequences and the context," Kairis answered. That didn't satisfy the judges. Eventually Judge Hamilton had to intervene again:

Hamilton: Is it your position that if you sent such a letter to the federal government, the federal government then informed Maritain that its obligation had kicked in, and so the services would be provided, would that be a problem for you?

Kairis: My sense is yes, your honor.

But Judge Joel Flaum wanted to get straight on Kairis's claim:

Flaum: Mr. Kairis, isn’t it your position that you can’t participate in the process in even the most minimal way? Why don’t we just confront that as a framework? Isn’t that the position of the university—that, whether it’s the sending of the letter or applying for the exemption, it involves itself in a process that violates its religious tenets?

Kairis: It is.

Posner: And you can’t even send a letter to the government?

Kairis: If the consequences were such that the services were provided, no.

But of course, as Posner points out, there is no way for an employer to obtain an accommodation without notifying someone of its objection. So how is the government supposed to know which organizations qualify for the accommodation? Read minds?

So if Notre Dame rejects the very idea of seeking an accommodation that would result in its employees receiving contraception coverage, why is Kairis so hung up on the language of the self-cerification form? According to Kairis, "The federal law is that Notre Dame sign a piece of paper that on its face states: This is a document under which the plan is operated. You hereby amend your plan to appoint the third-party administrator to do this." He's quoting (not very accurately) the second page of the self-certification form, which is for the TPAs. It clarifies that the objecting employer will not be considered the admininistrator for the contraceptive coverage. That language is intended to morally insulate the objecting employer.

Kairis goes on: "In the Federal Register it states that the Deptartment of Labor has determined that it is that form that amends Notre Dame’s plan that Notre Dame signs to relinquish its sole discretion as plan administrator." In other words, Notre Dame objects to being told that it does not have discretion to bar its TPA from providing contraception to its employees. Even if the government tells the TPA it must?

At the end of oral arguments, Kairis offered an impassioned plea to leave Notre Dame alone.

Notre Dame has made the religious determination that those acts—the contract, the form, and the continued relationship—are complicit in such a way to violate its faith. And everything I heard from the government was: They don’t really have to do much. They’re just getting out of the way. The accommodation provides them an exit. Notre Dame has determined under Catholic moral doctrine that that’s not true. The government says that it has washed Notre Dame’s hands and fixed its problem. It didn’t. And it’s not the first time a government hasn’t understood matters of faith…. Notre Dame must be taken for its word in its religious determination, the same determination by the U.S. Conference of Catholic Bishops, and Pope Francis’s edict to Notre Dame last month that Notre Dame bear consistent and unambiguous witness to Catholic moral doctrine and defend its religious freedom. The government can’t trump all of that.

Having disingenuously described a brief talk the pope gave to representatives of Notre Dame as an "edict," Kairis finally told the court what Notre Dame would settle for: a situation in which employees and students were the ones responsible for registering their objection—"it would not involve Notre Dame." It's nice to see the plaintiff in one of these cases acknowledging the moral agency of its employees, but it's hard to see how Kairis's proposed solution changes the moral equation for Notre Dame. Either way, its students and employees will be getting contraceptive coverage from the TPA Notre Dame pays to administer its health insurance.

Consider again what Notre Dame is seeking relief from. As a self-insured institution, it has collected lots of cash that is uses to pay for its employees' medical claims. It doesn't pay insurance premiums that are pooled with other monies that may or may not come from premiums for plans that cover, say, abortion. It pays a relatively small fee to a third-party administrator to deal with the claims paperwork. All the payments to health-care providers come out of Notre Dame's coffers. The Obama administration's contraception-mandate accommodation requires third-party-administartors of such plans to pay for contraception coverage out of its own pockets—not out of fees it collects from the self-insured employer. So what kind of cooperation is this? Financially, it's minimial.

But what about the issue of the plan? Is Notre Dame culpably proximate to the decision of its employees to use contraception coverage? As the government's lawyer explained, the letter Meritain sends to Notre Dame's employees explicitly says that the university is not providing contraceptive coverage. It even says that employees must get a separate I.D. in order to obtain these services. That puts even more distance between Notre Dame and the coverage it objects to.

None (or almost none) of Notre Dame's money will fund contraception coverage. Its TPA offers employees that coverage only as a separate plan. And the whole world knows that Notre Dame has chosen to exempt itself from covering contraceptives because of Catholic teaching against contraception. So what, exactly, is the problem? The Catholic tradition includes a moral theology that accounts for the fact that in a fallen world morally pure acts are quite rare. That's why it developed categories of cooperation with evil. The university and its lawyers could engage that tradition to decide that complying with the contraception mandate is licit remote material cooperation with evil.

They might even consider it a religious determination.

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It is very clear "what Notre Dame wants." It wants to have no part whatsoever in a law which prohibits

the free expression of religion. If Mr. Gallichco has trouble understanding that, he might consider

attempting to understand the law itself, and the motivation behind it. 

 

I read the closing of this article to be intentionally sarcastic. Sarcasm, even when skillfully accomplished,

has no place in this debate, which should be carried out on the highest planes of morality and sincerity.

the highest planes of morality and sincerity.

I'm just gonna let this little nugget sit here and admire it from afar.

Isn't the complaint that the law prohibits, not the free expression of religion, but the free non-expression of religion ?

This is why the demands for further accomodation frustrate me. I don't think any accomodation is required on religious freedom grounds because the mandate is essentially a tax and being able to object to any tax that could fund something that we object to would lead to chaos. However, since it was relatively simple to find an accomodation that distances religious institutions from the provision of contraception, I think it is good that the administration is offering an accomodation.

At this point, it is clear that those who continue to object are just resisting the policy for the sake of resisting it. While this isn't bad in principle, it does change the standards by which I evaluate it.

Claire,

They want to prohibit anyone from responding to their religious expression.

Notre Dame: "We don't want to provide contraception."

Government: "Okay. We'll handle it."

Notre Dame: "You're making us participate in your actions!"

So what, exactly, is the problem?

The problem is that the contraception mandate, the religious exemption to the contraception mandate, and the accommodation to the religious exemption to the contraception mandate, all burden some religious employers with violating their religious beliefs. 

As things stand under Obamacare, the government imposes the burden on someone else, and then the government decides whether the burden it imposed on the other guy is burdensome for the other guy.

We may analyze the burden and offer opinions as to how heavy the burden really is, but the guy actually carrying the load should have some say in the matter.

If the federal government in its sublime wisdom believes that everyone, even one-percenters, must have contraception for free, let the federal government pay for it directly as an entitlement.  Get employers completely out of the loop.  Then this whole topic goes away.  

 

It seems to me that any possible accomodation for religious freedom requires some kind of notification to the government that says "I am invoking my religion to be exempt from this rule" - otherwise you have anarchy. 

Would the government have to engage in mind-reading to figure out who was objecting to the contraceptive coverage?  No, if Notre Dame wins,  the de facto result was that any employer could opt out of the contraceptive coverage without notification or scrutiny- the contraceptive coverage would be a dead letter. 

I'm worried about Notre Dame's counsel's suggestion that employees/students could be the ones initiating the notification.  That opens the door to all kinds of pressure on students or employees to (for example) sign a promise never to trigger that notification, on pain of firing/expulsion.  Does that seem paranoid?  Cardinal Dolan has demanded that there be an "opt-out" form from the contraceptive mandate for employees of Catholic institutions- sign it, and you no longer have contraceptive coverage.  Of course, if that form existed, supervisors in (for example) Catholic hospitals could demand that employees sign, and the employee would not have a lot of choice.

My perception- and I really, really hope that I'm wrong- is that the bishops think it's a good idea to use their economic power to deprive less powerful women of the ability to contracept, regardless of whether the woman is Catholic and regardless of whether those women believe in the Theology of the Body.  If that is what they are doing, I think it's a serious mistake.  The experience of Romania under communism, and of El Salvador today, shows that if you take away the option to contracept you get a lot of abortion (El Salvador) or other grave evils (child abandonment in communist Romania).  Plus, the employee, as well as the employer, should have religious freedom.

 

Jim Pauwels,

The guy actually carrying the burden had his say in 2008, 2010, and 2012. If it is merely a matter of poor policy or poor design, it isn't a matter for the courts to decide. Furthermore, from financial perspective, the contraception mandate is fairly small compared to other federal regulations for employers.

" If the federal government in its sublime wisdom believes that everyone, even one-percenters, must have contraception for free, let the federal government pay for it directly as an entitlement.  Get employers completely out of the loop.  Then this whole topic goes away.  "

I don't think employers should make the decisions of conscience for their employees.

If they do get to decide what happens when an employer has strong moral feelings about 'useless' and expensive extension of life that they believe has no quality, or when the employer decides they cannot in good conscience subsidize a large family and make the family (or the government directly) pay a larger share of costs for the birth of additional children.  What about moral opposition to transplants? 

Provide consistent health care, available for all, without employers deciding based on their morality - let's not have the first question in an employment interview be, "What parts of the health insurance do you morally object to?"

An alternative would be to have govenment-funding single-payer insurance, but that couldn't be passed in Congress.  Then employers wouldn't have to make these decisions.

Jim Pauwels writes: "If the federal government in its sublime wisdom believes that everyone, even one-percenters, must have contraception for free, let the federal government pay for it directly as an entitlement.  Get employers completely out of the loop.  Then this whole topic goes away."

Does it? Couldn't someone argue, using the same moral rationale, that they should be exempt from paying taxes that cover the cost of contraceptives? As it happens, I agree with Jim that it would have been simpler and wiser to provide free contraceptives through some kind of direct government subsidy, though that would not have fit so neatly within the general framework of the Affordable Care Act. (There are other medical expenses, arguably more basic than contraception, that the HHS rules don't require insurers to cover.) But if it's true that Catholic institutions have a good theological argument against the kind of remote material cooperation with artificial contraception that the accommodation may still require, why wouldn't the same theological arguments apply to the remote material cooperation of Catholic taxpayers whose money is used to pay for contraception. Legally, the two arrangements may be very different, but morally I'm not sure they're as different as Jim's comment suggests they are.

But, Jim, if you do think that direct government funding for contraception is such an elegant solution to the problem, you have yet another reason to favor a single-payer health-care system.

I very much doubt that the people now complaining about Obamacare's effects on religious liberty would be complaining any less if, miraculously, our lawmakers had chosen a single-payer system that relieved Catholic employers of this burden. I suspect that most of them would still be decrying the tyranny of the HHS for making Catholic taxpayers foot the bill for contraception. But for now they're content to say they'd have no problem with something that they know to be all but impossible. 

Contraception is a topic that makes Catholics behave insanely, notably in the Philippines. Can anyong diagnose the roots of the madness?

Notre Dame is, quite properly and very clearly, dealing with a genuinely religious issue. Neither Barack Obama nor the ACA recognize religion as anything other than a term for human institutions engaging in social works. There is no acknowledgement that the spiritual dimension even exists. It is no wonder that the judges and the spokesman for ND are talking past each other, nor is it surprising that the writer of this blog doesn't get it. Obama is simply, and perversely, attempting to subvert genuine spiritual activity for his own political purposes. He sees a weak point, a division in attitudes among voters, and works on it, as he has in other areas. If this is not stopped in its tracks, this country will be forever changed; there will be no going back. Would that the writer of this rather silly piece had taken the issue with the seriousness required.

Begin with the noton of the shibboleth, the idolatrous badge of exclusive identity.

Yes, it's a genuinely religious issue, like human sacrifice, truly genuine spiritual activity. It's our fat Catholic Golden Calf!

Next time that the evil genius Obama rules that parents cannot stop their kids being treated for life-threatening diseases on religious grounds, let's be ready to tell him he fails to recognize the spiritual dimension, and that killing children is a genuinely religious activity about which genuinely religious people feel deeply.

These are thy gods, O Israel!

the de facto result was that any employer could opt out of the contraceptive coverage without notification or scrutiny- the contraceptive coverage would be a dead letter. 

of course, health care has been delivered for over 200 years without notifying the federal government of this particular issue nor receiving its scrutiny.  It's completely unclear why it needs to be involved now.

 

I'd like to mix a few oranges in with all these fine apples...

This wonderful and excruciatingly detailed conversation reminds me of how little of such conversation has permeated our discussion of our defense spending - especially nuclear weapons and drones.

More often Catholic institutions have bee party to ROTC and other programs that at least implicitly support those whose decsiion making could include ordering the development readineess and -God forbid - use of such weapons...

Meanwhile, we have te witness of an 84 yedar old nun, Sr. Megan Rice, who "trepassed" into the nuclear heartland and now faces 35 months in prison.

Her witness, whetrher agreed with or not, is much more compelling gthat well heeled lawyers and those supporters of "Touchdown Jesus." (Admittedly, snarky!)

So, oranges (maybe bicycles!) mixed in, but I'm just so tired of these arguments while we rather blithely adjust to the US role in armaments and sanctioned , extrra-judicial killing.

Has Notre Dame made any formal protests about that?

Joseph O'Leary:

"evil genius Obama"  - a cheap shot - unnecessay - contributes nothing to a civi discussion of the topic at hand.

Matthew, replying to me, wrote,

Couldn't someone argue, using the same moral rationale, that they should be exempt from paying taxes that cover the cost of contraceptives?

Yes.  The difference is that under a direct federal contraception entitlement those would be individual citizens rather than employers with religious convictions making those arguments.  The dynamic of religious employers with employees who, for whatever motives, want free contraction, goes away.  Let citizens work it out directly with the government by applying the levers of democracy including, as appropriate, the courts.  David Pasinski, a few comments above this one, listed some other morally objectionable things that the government does with our tax dollars.  We could make the list longer.  

But if it's true that Catholic institutions have a good theological argument against the kind of remote material cooperation with artificial contraception that the accommodation may still require, why wouldn't the same theological arguments apply to the remote material cooperation of Catholic taxpayers whose money is used to pay for contraception. Legally, the two arrangements may be very different, but morally I'm not sure they're as different as Jim's comment suggests they are.

I agree the arguments would be similar but Notre Dame wouldn't be making them on its own behalf anymore.  I assume Notre Dame is tax-exempt and presumably doesn't fund any government activities, good, bad or indifferent.  It becomes a bystander to whatever fight would ensue (which, as things would transpire under a direct federal entitlement, wouldn't be much of a fight).

But, Jim, if you do think that direct government funding for contraception is such an elegant solution to the problem, you have yet another reason to favor a single-payer health-care system.

If I thought that, you'd be right :-).  In fact, regardless of what my views are on free contraception, I do think that the Obamacare experience has brought into sharper relief the advantages of single payer.  I  believe that we'll have Medicare For All during our lifetimes.  I give us 20 years.

 

Helen - I think he was being tongue-in-cheek.

The guy actually carrying the burden had his say in 2008, 2010, and 2012.

Ryan - did she, though?  In what precinct does the University of Notre Dame vote?  

I like my idea of a direct federal subsidy better.  Your argument which I've quoted here would then be applicable, too.

 

The real issue here is that the church's teaching on birth control is ignored and will continue to be ignored.  Notre Dame and the other opponents of the birth control "mandate" maybe ought to look at that and teach in an effective way why families ought not use the pill regardless of its availablility.  Clearly, since the vast majority of Catholics use some form of birth control, and I'd imagine that applies t the vast majority of Notre Dame faculty, staff and such students who are sexually active, the University and the Church in general has failed dismally in making its case in this matter.  Its a pretty thin  arguement to say something violates our religious tenants without making much effort to convince our own believers that is the case.  

As to the original question, most Notre Dame Alumni I know want to be #1 in football.  The rest is just window dressing!

An attorney arguing from the moral high ground.  That's a good one.

The issue of contraceptives has largely been settled by common sense.  I hardly think bringing in yet another gun for higher will do more than increase the value of the that person's material worth.

It sure seems like U.S. v. Lee (1982) dealt with almost all of this already.  The main difference is that Social Security is a comprehensive program that would collapse if Lee-type objections were allowed, whereas the HHS mandate is one part of a comprehensive program. Still I think Cathy's presentation (among others) helped me to understand the legal precedents and what might happen next month in the Supreme Court.

Just ot restate my earlier post slightly differently, if the Church made a reasonable and effective case against use of birth control at least to its members, doesn't the whole issue go away?  If the Church made such an argument and did so effectively, it would not matter whether Notre Dame handed out the pill after all Masses. They wouldn't be used.  But that isn't the case.  The Church hasn't made an effective case against birth control.It didn't in 1968.  John Paul II didn't in his  Theology of the Body, It doesn't make such a case today.  Indeed, one could argue that it has largely ceased trying.   So regardless of who pays for it, it is unlikely to prevent anyone from using it. 

Neither Barack Obama nor the ACA recognize religion as anything other than a term for human institutions engaging in social works.

Really, McDonald?  I think that takes the cake for this week's symptom for right-wing Obama derangement syndrome.

NDU has its panties in a twist [especially its lawyer Kairis who obviously failed to impress the justices of the 7th Circuit] because NDU wants to be able to continue to placate for political reasons both its internal and external "conservative critics" by not complying with the ACA - AND at the same time continue to suck $millions from American taxpayers to support its financial bottom line for which it must be compliant with the law and the US Constitution. 

I believe that my sainted sixth grade teacher, Sister Mary Adelaide, would call that:  "You [NDU] want to have your cake and eat it too!"

The problem here for the McDonald's of the world is that the operative Amendment of the US Constitution is not the 1st, but the 14th.  Just for the record, Section 1 reads:  

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Obama Administration is only being true to all of the constitutional requirements.  All the Obama Administration is doing is trying to find an constitutional accommodation under the ACA for Catholic institutions, like NDU, for their feckless adherence to discriminatory anti-feminine ideologies which their church espouses.

I am usually very hard on Grant Gallicho.  But on this issue, I have to say that he is right-on.

David Pasinski at 8:01 a.m. -- Yes!

I am becoming somewhat annoyed that the only Catholic doctrine that seems to count in this country is doctrine related to what really gets the goat of important bishops. The bulk of Catholic doctrine, meanwhile, is, um, prudential.

Jim, you write: The difference is that under a direct federal contraception entitlement those would be individual citizens rather than employers with religious convictions making those arguments.  The dynamic of religious employers with employees who, for whatever motives, want free contraction, goes away.  Let citizens work it out directly with the government by applying the levers of democracy including, as appropriate, the courts.

I acknowledge that you've put your finger on a difference; I'm just not sure whether it's a morally important one—at least not as Catholic moral theology has traditionally reckoned these things. I could be wrong. Remote material cooperation with evil on the part of an employer is not obviously worse than such cooperation on the part of a fellow citizen. Moreover, in this country, everyone in the category of employer is also a voter who can apply the levers of democracy to change the generally applicable laws about what insurers must cover.

I wrote, "employees who, for whatever motives, want free contraction"

... when what I meant to write, was "employees who, for whatever motives, want free contraception."  My typing was even more inept than usual that time, and I really wasn't making some bizarre point about giving birth.

 

 

Moreover, in this country, everyone in the category of employer is also a voter who can apply the levers of democracy to change the generally applicable laws about what insurers must cover.

Not really.  Fr. Jenkins is eligible to vote but Notre Dame is not.  On the other hand, as a legal person of substantial resources, Notre Dame could operate some of the wonderful democratic levers we've developed more recently, such as spinning off and funding a super PAC.

 

 

I wrote: "Fr. Jenkins is eligible to vote but Notre Dame is not."

Let me just briefly elaborate on the point to make it clear how it relates to my previous comments.  Fr. Jenkins does not bear the moral burden that I referred to in my previous comments, or at least not to the same degree.  Notre Dame does.  They are not the same.  Whoever's money it is that either is or is not materially contributing to the TPA's contraception subsidy, we're pretty certain it's not Fr. Jenkins' money.  It might be Fr. Jenkins' name that gets signed on the piece of paper that is the bone of contention in this case, but if it is his name, he is doing so, not as an individual citizen, but in his office as an executive of the university.  Conceivably, Notre Dame may be taking its stance on the contraception mandate against Fr. Jenkins' personal advice or wishes; it depends on the university's governing model.

Does whatever moral agency or culpability is borne by this entity called Notre Dame somehow transfer to its executives, trustees, governors, deans, bursars, provosts and whatever other strangely- titled leaders a university has?  Sounds like a complicated question with a complicated answer.  But it's clean and valid to just think of Notre Dame as its own autonomous entity - one that, in this case, believes it is bearing a moral burden.

 

I endorse Grant Gallicho’s views and I have my own view about Notre Dame’s lawsuit —

Notre Dame’s lawsuit espouses a claim for religious freedom that bestows on every employer a religious right to deny its employees all benefits under the contraception mandate of Obamacare. It is a view shared by many Catholic entities, including the U.S. Conference of Catholic Bishops.

See the USCCB’s Fortnight of Freedom postings on its web page:

http://www.usccb.org/issues-and-action/religious-liberty/fortnight-for-freedom/articles/index.cfm

Or if one is patient enough to read the Bishops’ legal brief filed with the Supreme Court, read it here:

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-354-13-356_amcu_usccb.authcheckdam.pdf

In my view, there will be utter confusion in every aspect of employment law if the Supreme Court endorses Notre Dame’s legal views and the shared views of non-religious business entities. 

Thanks Grant for your incisive work exposing the stupidity of all this.

I agree with the "licit remote material cooperation with evil", but we don't even need to go that far.

Catholic doctrine is only opposed to contracepting conjugal acts in marriage.  That's what the papal documents teach against.  Not acts outside marriage, coerced acts inside marriage, to prevent disease transfer, to control hormonal imbalances or heavy periods etc.  Our NZ Catholic Bishops in Aotearoa New Zealand have been very clear on this.

Many of the uses of contraception fall into those categories, and therefore we ought to have no objection to providing contraception.

Not to mention the right of conscience of those who choose to use contraceptives and our obligation not to judge people who use contraception.

We ought to be putting our efforts into real issues central to the gospel like poverty and low wages.

God Bless

Maybe it's legally valid to think of Notre Dame as "its own autonomous entity," but that doesn't necessarily mean it can bear a "moral burden" apart the burden borne by the individual human beings who constitute it. Institutions don't have souls. There are no institutions in heaven or hell (though some would argue that our experience of bureaucratic institutions comes as close to purgatory as anything we'll know in this life). There is personal guilty and there is collective guilty, but that guilt, too, involves real persons, not legal fictions. So if we are going to talk about the contraception mandate in terms of remote cooperation with evil, we cannot say more about the institution than we are willing to say about the people who make it up. Only a person can sin.

Chris Sullivan

Thanks for your input! It seems odd to me that your bishops would accept contraception for non-marital sex or to prevent HIV transmission. Can you lead us to that documnet?

 

Maybe it's legally valid to think of Notre Dame as "its own autonomous entity," but that doesn't necessarily mean it can bear a "moral burden" apart the burden borne by the individual human beings who constitute it.

In this case, the legal validity of "Notre Dame" (whatever "Notre Dame" really is) seems to confer a moral burden on Notre Dame.  It seems that legal incorporation isn't simply a legal fiction; it creates something real: some combination of persons, property, money, history, guiding principles, and whatever else animates a university.

If Fr. Jenkins resigns tomorrow, he will no longer bear whatever moral burden comes with complying with the contraception mandate.  But his successor will.  If Fr. Jenkins is culpable in cooperating with evil somehow by virtue of his high office, that culpability is contingent upon his holding that office.  The culpability is passed to him through the office - and that because the office belongs to the university.

Maybe its that these social structures, like corporations, are catalysts or conduits for culpability.  You say there is collective guilty.  Maybe that's how it is that collective guilt comes about: mediated by these social institutions.

I find it difficult to sort these issues out.  I've argued strenuously in the past exactly what you are arguing here: that the moral culpability of a social institution is reducible to the individual members of the institution, especially those who make decisions on its behalf.  I've argued that individual priests and bishops, not the Catholic Church, are culpable for abusing children, and objected to large settlements and awards on that basis.

 

A excellant argument for a single payer system.

David,

 

See http://www.catholic.org.nz/nzcbc/fx-view-article.cfm?ctype=BSART&loadref...

 

"(It is a different matter when it is intercourse between people who do not owe each other the complete gift of themselves because they are not married. It is also a different matter when the purpose of using a protective device is to prevent the transmission of disease, not to prevent conception, which is then a side-effect.)"

And Bp Cullinane's incisive document

http://www.pn.catholic.org.nz/dox/Bishops/More%20Catholic%20than%20the%2...

 

God Bless

 

Institutions, like Notre Dame, will have souls when the institution that gave corporations their personhood gives them souls. That institution is the Most(ly) Catholic High Court of the United States.

The reasoning behind this future decision is foreshadowed by Jim Pauwels at 12:31 p.m. and again at 3:27, where he argues that the people who make decisions for corporations can walk away from their decisions -- whether it is to sign off on third party contraception or let the London Whale splash happily -- and leave culpability with the articles of incorporation. We shouldn't really want to spin this line of reasoning out too far, but the Supreme Court seems prepared to do just that. Then we will see the utter confusion Harold T. Hartinger forecast at 1:34.

 

of course, health care has been delivered for over 200 years without notifying the federal government of this particular issue nor receiving its scrutiny.  It's completely unclear why it needs to be involved now.

 

Bruce, I'm not sure why it is unclear.  The federal government has established a minimum standard for health care that is to be provided. There were no such standards 5 years ago, never mind 200 years ago.   There is a provision which says certain entites can claim an exemption to some of those standards.  But in order to claim that exemption you need to notify the Government that you are doing so. Mainly because even though the exemption is available to all religious employers, not all will or even want to take advantage of the exemption. Wittenberg University might have a very different view than Notre Dame. These sorts of things happen all the time at every level of government.  There are lots of exceptions to the general rules out there,  To take advantage of them, you often need to notify the the appropriate agency. A different example of the principal happened recently near us where one city owned land that extended into an ajoining city.  City B got a tax bill from City A for property tax, which it ignored on the grounds that Cities are tax exempt.  City A then brought legal action to force payment.  City B was required to pay the taxes because under state law, they needed to notify City A that they were claiming the exemption each year.  It isn't a big deal. Someone just needs to do it.    I'm not sure how this is different.  Notre Dame wants to claim an exception to the law. It is entitled to do so. But to do so it must file a form saying in effect "Notre Dame is exempt from this requirement." 

Catholic doctrine is only opposed to contracepting conjugal acts in marriage

Chris Sullivan. my recollection is is that I have read that this issue (does the use of the terms "marital act," "marriage act"*, etc in Humanae Vitae mean that it applies only to sex acts within marriage and not to sex acts between unmarried persons) has been brought up with the Vatican over the years and it has always avoided giving an answer. 

Therefore, I don't think it can be presented as an official teaching of the Church (yet, at least).  In other words, Catholic schools don't teach  "don't have sex outside of marriage, but if you do, be sure you use contraceptives or a condom." - as you may find taught in a public school. 

 

 

Chris S and John H: Humanae Vitae addresses the use of contraception within marital sex.  Contraception (according to that document) distorts and reduces the full meaning of marital sex by suppressing its procreative meaning.

The church doesn't claim that it is God's will that extramarital sex has an intrinsic procreative meaning that contraception inhibits.  The church's claim about extramarital sex is that the act itself - the sex - is sinful.  That's true whether or not contraception is utilized.  

It's reasonable for a Catholic entity to oppose subsidizing contraception, both for married couples (because its use distorts and reduces the meaning of marital sex) and for unmarried couples (because consensual sex between unmarried couples is sinful; to the extent that contraception enables extramarital sex, it is enabling sinful behavior).

 

(because consensual sex between unmarried couples is sinful; to the extent that contraception enables extramarital sex, it is enabling sinful behavior).

I've never been convinced by the attitude of parents who won't allow their daughters to get the HPV vaccine against cervical cancer because they imagine that the absence of consequences will allow their daughters to be promiscuous.

Could an employer who felt that HPV vaccine enabled sinful behavior exclude it from a health plan? 

Jim P - don't want to refight Humanae Vitae but you say:  "Contraception (according to that document) distorts and reduces the full meaning of marital sex by suppressing its procreative meaning."

As I am sure you know, both the Papal Commission on Birth Control and many experts since have argued that this is one slanted viewpoint.  Many theologians have argued that the *full meaning* of marital sex is about what is best for the couple and the common good which involves wisdom about discerning how many children; size of families; how best to support each other and the family, etc. and that birth control (in that framework) could have been a tool to aid responsible marital relationships, decisions, etc.  The fathers of  VII actually developed and approved documents that defined marriage as both loving support and procreation.  It is always a balancing act........and to artifically distinguish between methods such as birth control and the Billings Method (especially in terms of human decisions, morality, etc.) becomes hypocritical.

Let's face it - the people in the pews have already decided this issue - so, what is Notre Dame really trying to accomplish?

don't want to refight Humanae Vitae

Me either.  Like Obamacare, it is what it is.

I've never been convinced by the attitude of parents who won't allow their daughters to get the HPV vaccine against cervical cancer because they imagine that the absence of consequences will allow their daughters to be promiscuous.

I guess I don't find that very convincing, either.  (Fwiw, we have our kids vaccinated, boys and girls.) For one thing, unless HPV is a *really* clever virus that also happens to agree with church teaching, it can infect married as well as unmarried persons.

In the polyglot of groups, mostly religious, that sorta, more-or-less agree with the Catholic church on the complex of issues that includes contraception and abortion, and with which Catholic groups make common cause from time to time, I find the anti-vaccination arguments I've run across, like the one you recapped here, to be not particularly Catholic arguments. For people who are interested, here is a statement from the Texas Catholic Conference; the Texas bishops don't find the Gardasil objections morally problematic, but they do object to the state mandating vaccinations.

 

Andrew Sullivan publishes a letter from a reader. Interesting how low a threshold this woman (not necessarily a Catholic) drew on collaboration in evil:

 

A little story from my own life. Many years ago, I met a young man at a showing of the Rocky Horror Picture Show. I managed, despite my fear of rejection, to ask him out on a date and, miracle of miracles, he said yes. Just before our date, I stopped in a little neighborhood florist shop and bought him a single yellow rose. He loved it. From then on, we bought each other roses from this shop for every occasion, however little – we’re having hot dogs together! – or important – will you move in with me?

 

Finally the day came when I asked him to marry me and I went to buy him a single red rose from “our” florist.

 

In those days, we couldn’t legally marry, but my church, the Religious Society of Friends, would marry us anyway. When I told the florist how special and important this rose was, that I was asking my great love, a man, to marry me, she pulled back the rose and told me she was a good Christian and wouldn’t sell me the rose or roses ever again, not for something sick like that. We had been buying from this florist for five years and never happened to mention what they were for.

 

The place was always busy, we were in a hurry, so it never came up, but I was so bursting with pride and joy that I was asking the man I loved more than life itself to marry me, to be with me until death, I said something that day. I left empty-handed and broken-hearted. The joy in what I was about to do had a cold pail of hate thrown on it. I asked him to marry me without a rose from “our” shop. He said yes anyway and he was with me until he died from a fire in 1981.

 

I still bring a rose to his grave every year, but not from our florist.

 

http://dish.andrewsullivan.com/2014/02/19/the-christianist-florist/

(Fwiw, we have our kids vaccinated, boys and girls.) 

Good for you!  It's important for boys, too. 

DId you get that I was parodying the rightists?

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