University President Fr. John Jenkins wrote to the Department of Health and Human Services (HHS) on Wednesday, asking that the University be exempt from a condition of the new health care act that requires employers to provide contraceptive services in their minimum health insurance packages.
"This would compel Notre Dame to either pay for contraception and sterilization in violation of the Church's moral teaching, or to discontinue our employee and student health care plans in violation of the Church's social teaching," Jenkins wrote in his open letter to the HHS. "It's an impossible position."
The Institute of Medicine (IOM), an arm of the National Academy of Science that operates outside the government to provide unbiased advice on medical matters, reviewed preventive services important to women's health and released its findings in July 2011. The organization recommended the full range of FDA-approved contraceptives and sterilization services be included in the minimum health insurance package, according to the IOM website.
Under the law that becomes effective in August 2012, only "religious employers," which includes houses of worship such as churches but not religious universities, are exempt from providing services that go against their consciences.
Law Professor Carter Snead said the decision to include contraceptives in the minimum health insurance package was expected, but the narrow definition of religious employers who are exempt was surprising.
"They had a very, very narrow religious conscience exemption," Snead said. "You wouldn't require the Holy Cross priests to cover contraception for the brothers [but] any entity that is not a church itself is not exempt from the mandate."
Jenkins asked HHS Secretary Kathleen Sebelius in his letter to change the definition of "religious employer" to include Catholic universities, such as Notre Dame.
"I am writing to urge you to broaden the proposed definition of ‘religious employer' to ensure conscience protections that will allow this university to continue its work as ‘a Catholic academic community of higher learning' — words taken directly from our mission statement," he wrote.
Jenkins suggested the law be changed to use the tax code's definition of religious employers, which is broader and would include organizations that share "common religious bonds and convictions with a church."
Under the University's current health insurance plan, oral contraceptives and contraceptive devices are not covered unless a physician requests them based on medical needs or for purposes other than contraception, according to its 2011 Medical, Dental and Vision Plan.
The law will not require Notre Dame to provide contraceptives on campus as part of its health services at Saint Liam Hall, University Spokesman Dennis Brown said.
Brown said presidents of other Catholic universities are also writing to HHS. Today is the final day HHS will receive open comments on the law.
After today, Snead said it will be "a waiting game" to see if the Obama administration chooses to change the law.
If the government does not accommodate Jenkins' request, the law will go into effect in August 2012. If Notre Dame does not comply with the law, Snead said the University would be fined $100 a day per person per infraction.
Snead added that the law has prompted a rare glimpse of agreement among Catholics on both sides of the political spectrum. He said most seem to agree that Catholic institutions, such as universities and hospitals, should not be legally required to provide contraceptives as part of its insurance plan and should be included in those exempt under the conscience clause.
"It's about religious freedom, it's not about contraception," he said.
Jenkins posted a copy of the letter on his website, which can be found at http://president.nd.edu/assets/50056/comments_from_rev_john_i_jenkins_notre_dame_3_.pdf
