Its been one of the epic culture-war battles of the last decade. It spawned the entire “religious liberty” meme that animates the rapidly rotting corpse of the GOP. When the Obama administration said that health insurance should include no-cost contraceptives as a basic preventive health benefit the Catholic bishops declared it an insult to Catholics and a violation of religious liberty. Cardinal Timothy Dolan, who was head of the U.S. Conference of Catholic Bishops at the time charged it was part of a “drive to neuter religion.”
The bishops declared that the exemption for churches—and directly related entities like diocesan offices—was far too narrow, even though that framework had been codified in two widely watched state Supreme Court decisions in New York and California. In those cases, the courts sanctioned exemptions only for entities that were directly involved in the inculcation of religion and that primary employ and serve people of their own faith—who presumably share their religious beliefs.
Nonetheless, spooked by the specter of a Catholic electoral backlash and Dolan’s foot-stomping at the White House, the Obama administration backed down and gave church-adjacent entities like Catholic hospitals and universities a special “accommodation” to the law. Under that accommodation, hospitals and universities merely had to inform the Department of Health and Human Services, via a form, that they did not wish to provide contraceptive coverage in their health plans. HHS would then inform the insurer, who would arrange for seamless coverage of contraceptives via their own administrative mechanism without involvement of the university.
But this wasn’t good enough for the bishops. They claimed that filling out a form would be a gross violation of religious liberty because it would “trigger” contraceptive coverage, shamelessly collapsing nuanced degrees of moral cooperation with evil under Catholic theology into one big bucket.
Again the Obama administration gave in and agreed that they wouldn’t have to fill out the offending form—they just had to send a letter to HHS stating their intention to not participate in contraceptive coverage. But still this wasn’t good enough for the bishops, who at this point had been joined by evangelicals in pronouncing the mandate a symptom of a secular mindset looking to cow religious believers.
The Becket Fund for Religious Liberty got involved and made the brilliant strategic move of recruiting the self-sacrificing Little Sisters of the Poor as the poster children of opposition to the mandate. Forcing nuns to provide “abortion inducing drugs” because the mandate would cover emergency contraceptives became the rallying cry of everyone from Dolan to Donald Trump, who immediately realized the culture war potency of the issue and promised to roll back the mandate.
And, finally, in mid-October, that’s what opponents of the mandate got from Trump, what the bishops had wanted all along: a get-out-of-jail-free card that essentially allows any non-profit or business entity to opt out of the mandate for any religious or moral objection they cared to cook up without any mechanism in place to ensure that women in the plans receive contraception.
Just days later, Notre Dame University announced that it would end contraceptive coverage for students and employees as soon as possible—in January for employees and next summer for students. It wasn’t a surprising move. Despite its relatively liberal reputation, Notre Dame was one of several Catholic universities that sued HHS over the mandate but lost its case and was required to continue the coverage. As Judge Richard Posner noted at the time:
[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.
But then this week, in one of the more head-spinning moves of the entire convoluted contraception debate, Notre Dame announced that it was restoring contraception coverage because its insurers, Meritain Health and OptumRx, “advised that they will now continue to provide contraceptives” and, therefore, the university “will not interfere with the provision of contraceptives that will be administered and funded independently of the University.”
So basically Notre Dame just signed on to what the “accommodation” would have done in the first place—their insurer will administer and fund contraceptive coverage after being informed by the university that it no longer planned to do do. And presumably this information was transmitted to their insurers by some administrative means, be it a phone call, email or letter. So after years of fighting the mandate, and accusing women’s health advocates and public health official of not understanding why it was a violation of their faith for their insurer to provide birth control that they neither arranged nor paid for, Notre Dame basically turned around and said “never mind.”
What happened to cause this astounding turn-about? In The Atlantic, Emma Green reports that some suspect bad PR:
…several professors speculated that negative press attention scared the administration. “Bad publicity is about the only thing that forces Notre Dame to change,” said Shrader-Frechette. The faculty don’t have much power, she said.
That may be so, but the whole situation seems parallel to what happened with sentiment over the ACA as a whole, where Republican efforts to dismantle the law resulted in a public that’s much better educated about what the law actually does and is therefore much more supportive of it.
When Notre Dame was finally able to come down off its culture-war high horse and look at the facts, they realized that there was a perfectly acceptable compromise that would, in its words, recognize “the plurality of religious and other convictions among its employees” while allowing the university to officially state that it’s not providing contraceptives.
Notre Dame and other Catholic organizations were herded into this pointless culture-war battle by the Catholic bishops and were largely powerless to avoid it given the weight the bishops put on the issue. But much like conservative objections to the ACA, the battle against the contraceptive mandate dealt more in falsehoods and hysteria than facts or the nuances of Catholic moral theology. Ironically, it took freeing Notre Dame from the mandate for it to realize it had been free all along.
