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Notre Dame, contraception and a better conversation about sex

In a surprising reversal, Notre Dame decided last week that allowing its health insurer to provide free contraceptives to female students and workers does not, after all, impinge on its religious liberty. So how sincere was the legal argument to begin with?

Main building of the University of Notre Dame

(RNS) — After years of litigation in federal courts, the University of Notre Dame was among several dozen religious employers that received a robust exemption from the Affordable Care Act’s requirement that group health insurance plans offer contraceptive coverage at no cost to the insured.

In a surprising reversal, Notre Dame decided last week that allowing its health insurer to provide free contraceptives to female students and workers does not, after all, impinge on its religious liberty.

So how sincere was the legal argument to begin with?

In the end, Notre Dame caved to constituency dynamics. A university spokesman cited “the plurality of religious and other convictions among its employees.”

As a longtime graduate student and employee of Georgetown University, I understand the tension quite well. Being a non-Catholic in a Catholic institution has heightened my appreciation for how public-facing religious institutions uphold their faith commitments.

My instinct is to defend schools’ and nonprofits’ rights to act in accordance with their religious beliefs. People who agree to study at or work for Catholic institutions know what they are getting into. The church’s teachings are not mysterious or surprising. They’ve been there all along.

Like a lot of men my age, I recently called my hospital urology department for a consultation about a vasectomy. “We don’t do that here,” the Georgetown University Hospital employee politely told me.

I could have protested. I could have sued. But I really have no legally compelling reason to demand a medically unnecessary procedure that Georgetown cannot in good conscience provide.

The Notre Dame dust-up, coming at the end of almost six years of frantic litigation, raises two important questions about where we go from here. One concerns religious liberty. The other is about sexual ethics more broadly.

On the religious-freedom front, it seems that employers seeking religious exemptions to the contraceptive mandate have prevailed.

But with an institution as prominent as Notre Dame fighting for its exemption, winning and then choosing not to exercise it, we now have to seriously consider that the Obama administration’s compromise — which some religious employers fought in federal court — is sufficient, after all.

While local parishes and congregations have always had an exemption under the ACA, many church-sponsored nonprofits did not.

Rather than having these employers directly pay for the objectionable drugs through their insurance premiums, it was determined that the insurers would provide them free of cost, independently of the employer.

Insurers had no problem with this — it’s much cheaper to pay for contraceptives than hospital labor and delivery bills!

And all the employers had to do was fill out a form notifying the government of their objection.

Yet, to others, even this was deemed to be an unacceptable violation of religious liberty. Plaintiffs argued that by merely filling out the form, they were being compelled against their conscience to promote and enable grave sin.

In the end, the nation’s most famous Catholic university has no problem with this arrangement.

Does Notre Dame’s capitulation call into question the sincerity and urgency of other employers’ religious-liberty claims?

It seems unlikely that other religious employers will go this route. The Little Sisters of the Poor, for instance, do not have constituency concerns like Notre Dame’s.

And evangelical institutions that clamored for the exemption in order to avoid paying for contraceptive drugs they consider to be abortifacient have much more ideologically monolithic cultures than Notre Dame.

As for the birth control debate more broadly, it’s time to acknowledge the plain fact before us: Some Americans have sincerely held objections to artificial contraception.

While birth control attitudes evolved rapidly in the 20th century, especially in the developed world, doubt remains. This conviction deserves conscience protections.

People who think sex should be dissociated from procreation should consider the arguments of those who do not. We need not adopt each other’s beliefs, but a robust civic pluralism demands that we at least understand them.

Surveys show that the overwhelming majority of American Catholic women have used artificial contraception at some point in their lives. But many Americans across gender and religious lines contend that birth control has badly distorted how men and women relate to each other, to their children and to the state.

What if birth control opponents invested as much energy in persuasion as they do in law and politics? Could they fight contraception on the demand side?

I believe it is possible. And while religious liberty is worth fighting for, that fight can distract us from enjoying a benefit of democratic society: the exchange and contestation of ideas and values among free men and women.

In promoting its views on contraception, Notre Dame has considerably greater resources than judicial relief from a bureaucratic rule that, by its own admission, does not restrict its religious liberty after all.

It has the 1968 encyclical “Humanae Vitae,” in which Pope Paul VI meditates on life and love, advocating for chastity and openness to life at a time when it was unfashionable in the extreme to do so.

It has the biological fact that sexual intercourse between men and women is, by nature, ordered to procreation.

And it has a growing body of medical and social-scientific evidence to advance arguments that contraceptive steroid hormones have done more harm than good.

America is saturated with sexual scandal and hypocrisy. We have debates about identity, rights and consent. But we are overdue for a meaningful dialogue about the purposes of sex and what they mean for society as a whole.

Let’s compromise on the religious liberty issue and spend our energy on more worthwhile and consequential debates about sex.

(Jacob Lupfer is a doctoral candidate in political science at Georgetown University. His website is Follow him on Twitter at @jlupf. The views expressed in this opinion piece do not necessarily represent those of Religion News Service.)