Professor panel discusses lawsuit
Christian Myers | Monday, September 24, 2012
The Professors for Lunch series hosted a panel discussion of religious liberty and the University’s lawsuit in response to the Obama administration’s healthcare mandate Friday afternoon in North Dining Hall.
Theology professor Ann Astell, theology professor Mary D’Angelo, law professor Gerard Bradley and history professor Mark Noll participated in the panel titled, “Why is Notre Dame suing the Obama administration to protect religious freedom? And should it be doing so?”
Astell said the proper way to approach the issue is to weigh the benefits of the provision requiring employers to provide free contraceptives in their health plans against the cost of compliance.
“The supposed good to be gained from giving free contraceptives as preventative care in this particular way, when other methods are available, has to be weighed against the resulting loss of religious freedom,” Astell said. “The issue is not about the right of individuals to use contraceptives, but rather about Notre Dame’s right to stand on Church teaching.”
Astell said Martin Luther King Jr. requested that his aids bring him to a Catholic hospital if anything ever happened to him and they did so on the day of his assassination.
Astell said this difference between a Catholic and public hospital applies to all Catholic institutions. She said the difference is threatened by the new health care regulations.
The United States of America has a long history of protecting religious freedom and that this tradition is now at risk, she said.
“If one presidential administration can infringe on this aspect of religious freedom, what stops another administration from further infringing on this First Amendment right?” she said.
Astell said she agreed with the University’s decision to file a suit in defense of religious freedom.
“When the University filed its suit, it acted courageously and prophetically on its own behalf and on behalf of other religious institutions,” she said.
D’Angelo said it is important to acknowledge that Notre Dame and the other Catholic institutions that have joined the suit are in the minority of all Catholic institutions in the country.
She said the difference between formal and material cooperation is important in this case. Formal cooperation is remote and indirect, while material cooperation is direct and purposeful, she said.
Institutions will still be remote from the use of contraceptives if they comply with the provision, D’Angelo said. The effect of the provision is simply to move the cost of contraceptives from one part of an employee’s compensation to another – from salary to benefits.
D’Angelo said making the cost of contraceptives part of an employee’s benefits as opposed to the money coming from the employee’s salary makes a difference for some employees.
“Paying for contraceptives can be problematic for those at the bottom of the pay scale,” she said.
She said conscience takes precedence over Church teaching and Catholics must accept the Church’s position for it to truly become doctrine. But many individual Catholics have not accepted the prohibition on contraceptives.
She said no matter what the result of the lawsuit is, Catholics will continue to decide for themselves whether or not to use contraceptives.
“Catholics must and will continue to follow the dictates of their conscience,” she said.
Bradley said Notre Dame’s legal position rests on the belief that the new health care law imposes a burden on the University and results in a moral dilemma. The issue might be simpler if it was just a matter of contraceptives, he said, but some of the approved treatments have been found to act as abortifacients.
“The law provides for all FDA-approved contraceptives and some of these can act as abortifacients,” Bradley said. “The University can’t just accept the purely contraceptive treatments. The contraceptives and abortifacients are a package.”
The University is not legally required to prove that the Catholic position against contraceptives is objectively or definitively true, he said.
Notre Dame has a greater responsibility than an individual Catholic in terms of abiding by Church teaching, since many look to it as a model of Catholic values, he said.
“Among Notre Dame’s responsibilities as a prominent Catholic institution is to bear itself as a conspicuous model of Catholic morality,” Bradley said.
Bradley said there are two problems with the way the government has viewed religious freedom in this case.
“Looking at this case, this body of law, there are two alarming understandings of religious liberty: that Catholic businesses cannot have religious practices and that to be a religious institution, the purpose of an institution must be the inculcation of religious values,” he said.
He said a company, which petitioned for an exemption because it incorporates Catholic values into its business practices, was told that it is a secular business and thus its practices are not considered religious.
He said the exemption to the contraceptive provision granted to churches does not extend to Catholic schools or hospitals because there purpose is not the inculcation of religious values.
Bradley said the government must recognize that maintaining the religious freedom of Notre Dame and other Catholic institutions affects more than just those institutions.
“Religious liberty is a common good,” he said.
Noll said it is difficult to determine this issue based on the constitution because the constitution’s framers had no way of anticipating our modern society.
“The constitutional framework is murky,” he said. “Starting in the 1920s and ’30s the reach of government went beyond anything conceived of at the time of the Constitution’s drafting.”
A more general healthcare system is needed in America instead of employers providing health insurance, Noll said. This would prevent issues of religious liberty from arising.
Noll said the fact that we have not moved to such a system is a failure of our government to provide for the health of its citizens.
The United States should adopt a universal health care system modeled after either that of Germany or Canada, Noll said, as this would eliminate religious liberty concerns.
“With either type of health care system, religious liberty would no longer be an issue,” he said.
Noll said Notre Dame and other Catholic institutions would be helped by their history of defending religious liberty in general.
“Litigants with a history of helping other groups maintain religious liberty have a better chance of success in this case,” Noll said.