Contraception: 1; Notre Dame: 0

Why are some U.S. courts bending over backwards worrying about whether a generous exemption from the contraception mandate, which should never have been granted in the first place, is enough of an exemption from a rule that’s been essentially voided by Catholics themselves?  

I’ll get back to this question below, but first: the latest news from the fight against contraception. A federal appeals court has ruled that Notre Dame, one of the most recognizably “Catholic” of Catholic universities, must provide free contraception under its health plan. Apparently requiring the Fighting Irish to provide birth control doesn’t have the same resonance as asking cute elderly nuns in habits to do so.  

That’s good news for employees and students who get their insurance through the university, less good news for the Catholic bishops, as the Notre Dame suit was one of the most high-profile against the contraception mandate in ObamaCare. 

Most importantly, in his opinion Judge Richard Posner delved into the question at the heart of lawsuits against the mandate by Catholic nonprofits: Is requiring them to sign a form opting out of the contraceptive mandate a “trigger” that would make them complicit in the provision of birth control and thereby violate their religious freedom? “[W]e have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to ‘trigger’ the provision of female contraceptives,” he wrote. 

But, as noted above, other courts have found just the opposite. A federal district court judge in New York granted the Archdiocese of New York an injunction from the mandate because he said that signing the form violated the dioceses’ religious freedom. And the Little Sisters of the Poor, who made the same argument, were granted a temporary stay by Supreme Court Justice Sonia Sotomayor from providing contraception while their case is decided. 

The latest ruling comes just as the first U.S. results are in from the survey of family life that the Vatican is undertaking in preparation for this fall’s big bishops’ summit. Bishop Robert Lynch of St. Petersburg, FL, got responses from nearly 7,000 parishioners whom he characterized as regular churchgoers. He wrote on his blog that:

on the matter of artificial contraception the responses might be characterized by the saying, ‘that train left the station long ago.’ Catholics have made up their minds and the sensus fidelium [sense of the faithful] suggests the rejection of Church teaching on this subject.

Many progressive theologians hold that a teaching which has been consistently rejected by the vast majority of Catholics is essentially invalidated.

Lynch was one of the few U.S. bishops who seriously sought input from parishioners, according to the National Catholic Reporter. That’s probably because most bishops already know what Lynch confirmed: that Catholics don’t take the teaching on birth control seriously.

Patricia Miller is the author of Good Catholics: The Battle over Abortion in the Catholic Church. Her work on the intersection of sex, religion, and politics has appeared in The Nation, Ms., and Huffington Post. She was the editor of Conscience magazine and the editor-in-chief of the National Journal’s health care briefings.

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