Sometimes, the smallest details can raise the biggest questions.
Fr. Jenkins wrote an open letter to Kathleen Sebelius, secretary of the Department of Health and Human Services (HHS) on Wednesday. Jenkins' request was simple, but requires some background.
The Affordable Care Act signed by President Obama in 2010 to reform the American healthcare system placed a number of regulations on insurance companies, including a requirement that every plan cover a minimum package of basic benefits with no additional cost beyond the monthly premium. As is standard practice in lawmaking, the broad brushstrokes of the package were outlined in the bill, but the specific details were delegated to Sebelius and HHS.
Sebelius asked the Institute of Medicine (IOM), a nongovernmental organization that works to provide unbiased advice on biomedical issues, to review the issue of women's health based on existing research. After one year, the IOM recommended that contraceptives be included in the "basic benefits package." HHS accepted the recommendation and it became a regulation with an exception for religious employers — but the exception on religious grounds was too narrowly defined to include Notre Dame, and, for that matter, Saint Mary's.
As it stands now, Notre Dame will be required to provide insurance plans to students and faculty that pay for contraceptives as of August 2012, a position Jenkins finds untenable. He therefore asked Sebelius to redefine the religious exemption to broaden the requirements and move it in line with the tax code's more expansive definition of "religious employer" before the final version of the rule is released.
Jenkins is right. Notre Dame should not be legally required to pay for insurance plans that contain contraceptives if it feels that to do so would be immoral.
But this is not about the morality of contraception.
This issue strikes at a balancing act Notre Dame has been trying to manage for years. What does it mean to be a "Catholic university"? Are Notre Dame and Saint Mary's educational institutions that happen to be Catholic, or are they Catholic institutions that happen to teach? Recent trends suggest education takes precedence over religion. Though Notre Dame continues, in the words of its mission statement, to be informed by the Catholic faith, it has established itself as first and foremost a university. No statement of faith is required to attend or teach here. There is no doctrinal control over what is taught in the classroom. Faculty, staff and students are encouraged to seek the truth in whatever form it takes, including that of scientific research.
Yet despite its insistence on being a research university, Notre Dame clings to its Catholic identity in inconsistent ways. In this case, the Jenkins administration that has vociferously supported scientific research has now asked to be exempt from a rule based on the recommendation of America's premier scientific researchers. This inconsistency in identity is at the heart of the matter.
This issue is even more salient for Saint Mary's as a women's college. This regulation was designed to improve women's health across the nation — the reason the religious exemption is defined so narrowly is so as many women as possible can benefit from the scientific consensus on women's health.
Notre Dame and Saint Mary's must make a choice. Either they must commit to being modern universities and accept all that entails, or they must commit to being primarily Catholic. They cannot split the difference forever. To do so is inconsistent and smacks of political opportunism.
So while on the surface, this may be a technical question about a small paragraph in one rule drawn from a 2,000 page bill, it is far more than that. It is an issue that forces all of us in the Notre Dame community to ask one question: when the rubber meets the road, who are we?