Does “use it or lose it” apply to religious freedom?

Does “use it or lose it” apply to religious freedom? June 27, 2018

In today’s Chicago Tribune:  “Notre Dame, feds are sued in contraception complaint” (or “Students sue Notre Dame and Trump administration over contraceptive coverage” in the online version).

Students at the University of Notre Dame are challenging a months-old settlement between the school and the Trump administration that has led the Roman Catholic university to reconsider covering certain kinds of birth control for students, employees and their dependents starting Sunday.

This comes after the university initially complied with an Obama-era requirement to provide contraception (with some concessions to doing so in a more arm’s length manner via third-party providers – concessions which the Little Sisters deemed insufficient to fully protect their religious freedom), a requirement which the Trump administration removed, giving the university the freedom to make its own decision without requiring a lawsuit.  As a result:

In February, the university took a middle-of-the-road approach. [University president Rev. John] Jenkins announced that Notre Dame’s insurance plan would cover drugs designed to prevent conception. However, Notre Dame would no longer contract with a third-party provider to cover what the university considered to be “abortion-inducing” contraception, including intrauterine devices or emergency contraception, which Jenkins called “far more gravely objectionable in Catholic teaching.”

In the February letter, Jenkins said the latest shift was in line with the goals of the original lawsuit filed in 2013 and struck a reasonable balance between Catholic principles and the needs of the university’s diverse community.

“Having been required to provide access to contraceptives for several years, we now take account of the fact that 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,” Jenkins wrote. He added: “It is our best effort to respect the many considerations at stake in a manner consistent with Catholic principles. The purpose of our lawsuit was to win the right to make that effort.”

However, what’s striking to me is the statements of the students in the lawsuit, and those quoted in the news report.

Students do not sign a profession of faith when they enter Notre Dame, so they should be able to make health care decisions without interference from their employer or university, they say. . . .

Others say they chose Notre Dame because it’s a prominent research institution with a track record in their chosen fields. While they knew Notre Dame was a Catholic institution, that either didn’t factor into their decisions to attend there, or they were given assurances that it wouldn’t interfere with their studies.

To a certain extent, this reminds me of the perpetual complaints in the student newspaper, back when I was a graduate student there, that it was unfair that the university’s dining halls served all-meatless meals on Fridays in Lent.  Some complained that they were not Catholic, others that “of course” they would refrain from eating meat, but that it was unjust of the university to deny them the spiritual benefit of making this decision for themselves.

But of course, with respect to contraception, from the complaining student’s point of view, they are being directly harmed by the university’s failure to provide health plans which include this full range of contraceptive coverage (though graduate students should at least be honest and admit that since, unless there’s been a change since I was a student, health insurance is paid for by the student, there is no benefit lost to the student body as a whole, only the lack of compelled cost-sharing among students).

But the claim the students are making is essentially that the university and its faculty made a promise to them which they are now failing to keep:  “we promise to you that this ‘Catholic’ stuff is just to make the undergraduates and their parents happy, but won’t affect you in any way.”  Sure, it wasn’t a contractual promise, and it was a promise made through recruiting and through the university’s efforts to build up a reputation, with respect to research and graduate studies, of “nothing to see here, folks” regarding its heavily Catholic student body.

Use-it-or-lose-it.  The students are saying that the university can’t “rediscover” its Catholic teachings after minimizing them in the past; they abandoned that right.

And, while I think that a lawsuit to force the university to cover IUDs is mistaken and wouldn’t succeed anyway, the university is not without fault for having created this situation.


Image:; By Adawson8 (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons

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