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Footprints: Notre Dame Right to Life

FOOTPRINTS What is the Mandate?

Issue 1, 20 June 2012

Some basic facts on the controversial HHS Mandate. •

• •

• •

In March 2010, the Affordable Care Act is enacted by Congress. The interim final rules are first issued in July 2010 and amended in August 2011. This mandate is now current law. Under this mandate, almost all employer health plans must provide free contraceptives, sterilizations, and abortion-inducing drugs. A very narrow “religious exemption” clause exempts some employers from this mandate. This clause defines “religious employer” in a fashion more narrowly defined than any other federal statute. Under this mandate The University of Notre Dame, as well as most Catholic schools, hospitals, and charities, do not qualify as “religious employers,” and thus do not qualify for the exemption. Religious employers who have conscientious religious exemptions to this mandate have until August 2013 to comply. Employers who fail to comply with the mandate may be subject to substantial monetary fines. Notre Dame, along with 43 other Catholic institutions, is currently suing the U.S. Government over this mandate. See:

Go to page 7 for the text of ND President John I. Jenkins’ message regarding ND’s HHS lawsuit

7 For basic facts on Notre Dame’s lawsuit, go to page 9.

9 For a full list of Notre Dame professors who have deemed the HHS Mandate “unacceptable,” go to page 12.


Law Professor Richard Garnett discusses the “religious liberty” question on page 16.


“Don’t ever underestimate the beauty and power of the witness you give in your pro-life work.” Archbishop Chaput of Philadelphia

A Timeline on Notre Dame and the Mandate let’s reduce unintended pregnancies. Let’s make adoption more available. Let’s provide care and support for women who do carry their children to May 17, 2009. President Barack Obama delivers term. Let’s honor the conscience of those who the 2009 commencement address at Notre Dame, disagree with abortion, and draft a sensible during which he states: “Let us work together to conscience clause, reduce the number of women seeking abortions, and make sure that Continued on the next page The following is a timeline on Notre Dame’s relationship and response to the HHS Mandate.

Footprints: Notre Dame Right to Life all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women.” February 22, 2010. President Obama releases a proposal for healthcare reform. March 23, 2010. The Patient Protection and Affordable Care Act (PPACA) is enacted by Congress and signed by President Obama. August 1, 2011. Following recommendations by an Institute of Medicine panel, HHS Secretary Kathleen Sebelius announces that among the reforms, the PPACA will require employers’ group health plans to cover certain women’s “preventative care,” including all FDA “approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” The University of Notre Dame is among the countless institutions that will be required to provide such care under the new mandate. August 2, 2011. In an article by Catholic News Agency, Notre Dame Law School Professors O. Carter Snead and Richard Garnett are among several scholars who strongly criticize the new healthcare mandate. Professor Snead calls the new regulations a “watershed moment” and states, “Being an employee of a Catholic university that takes seriously its Catholic identity, I worry very much about what we’re being asked to do at this point. We’re being directly asked to act contrary to our deeply held religious beliefs.” August 3, 2011. HHS issues amendments to the interim final rules of the Affordable Care Act, including an exemption for “religious employers.” Ignoring all previous definitions of “religious employer” in current and previous federal law, it redefines a “religious employer” as one that meets the four following criteria: •


“The inculcation of religious values is the purpose of the organization.”

vol. 6, issue 1 “The organization primarily employs persons who share the religious tenets of the organization.” • “The organization serves primarily persons who share the religious tenets of the organization.” • “The organization is a nonprofit organization as described in… the Internal Revenue Code of 1986, as amended.” The University of Notre Dame does not qualify for this exemption. •

September 28, 2011. Notre Dame President, Rev. John I. Jenkins, C.S.C., sends an open letter to HHS Secretary Kathleen Sebelius. In the letter he writes, “In their current form, these regulations would require us to offer our students sterilization procedures and prescription contraceptives, including pills that act after fertilization to induce

“I worry very much about what we’re being asked to do at this point. We’re being directly asked to act contrary to our deeply held religious beliefs.” -ND Law Professor Carter Snead abortions, and to offer such services in our employee health plans. This would compel Notre Dame either to 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. It is an impossible position.” October 5, 2011. Responding to an alumni criticizing President Jenkins’ letter to Sebelius, The Observer, a student paper at Notre Dame, publishes “Contraception and Conscience,” a letter by the Officers of Notre Dame Right to Life. “We would like to praise Fr. Jenkins’ many continued efforts to promote the dignity of the human person, and we Continued on the next page

Footprints: Notre Dame Right to Life especially commend his letter to Secretary Sebelius. As violations of human nature, contraceptive services are contrary to what is just, and forcing Notre Dame to offer such services is unjust.” October 5, 2011. Claire Gillen, ND ’12, publishes and editorial in The Irish Rover, a student paper at Notre Dame titled: Dialogue between Notre Dame and President Obama on religious freedom? She praises Fr. Jenkins’ letter to Kathleen Sebelius, stating, “while Obama’s dictate flies in the face of any meaningful conception of religious liberty, Fr. Jenkins’ conduct gives us hope that Notre Dame may take up its proper role as the nation’s leading Catholic university.” October 10, 2011. At a NARAL Pro-Choice America luncheon, HHS Secretary Sebelius gives a speech in which she states, “We are at war,” regarding debate over the “pregnancy prevention” issue.

vol. 6, issue 1 lawyers, as law students and professors, and also those who serve in public office, to join us in the defense of our religious freedom and our rights of conscience.” October 27, 2011. Notre Dame Law Professor Richard Garnett publishes a column in USA Today, arguing that the Healthcare Mandate makes “the radical privatization of faith the price of acting consistently with that faith” and it “should be scrapped.” November 29, 2011. Notre Dame Law Professor O. Carter Snead gives a lecture at Notre Dame, “Understanding the PPACA ‘Contraceptive Mandate.’” He discusses the Mandate’s narrow exemption clause and how they misconstrue the role of religion in society. He said, “Supporters [of the Mandate] believe that contraception is a matter of public health, but religious conscientious objections are a private matter.”

January 19, 2012. At an address before U.S. bishops in Rome, Pope Benedict XVI expresses concerns October 10, 2011. Bishop Kevin C. Rhoades of the that “some current cultural trends [in the United Fort Wayne-South Bend diocese delivers the Red States] contain elements that would curtail the proclamation of these [unchanging moral] truths Mass homily at Notre Dame, arguing that, [of the Gospel], whether constricting it within the “Assaults on our religious freedom [in the limits of a merely scientific rationality, or United States] appear to be growing in ways that perhaps we may never have imagined even suppressing it in the name of political power or majority rule” and that “they represent a threat not a few years ago,” and calling upon the present just to Christian faith, but also to humanity itself “members of the legal profession, as judges, and to the deepest truth about our being and “We must resist efforts to force ultimate vocation, our relationship to God.”

our Catholic ministries – in health care, education, and social services – to violate their consciences or stop serving those in need. Inspired by our faith in God, let us be united in our defense of religious liberty!” -Bishop Kevin C. Rhoades of the Fort Wayne-South Bend Diocese

January 20, 2012. HHS Secretary Sebelius announces that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” January 20, 2012. Notre Dame President Rev. John I. Jenkins releases a statement responding to Secretary Sebelius’ announcement: “I am deeply disappointed in a decision by the administration Continued on the next page


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that will place many religious organizations of all faiths in an untenable position. This unnecessary intervention by the government into religion disregards our nation’s commitment to the rights of conscience and the longstanding work of religious groups to help build a more compassionate society and vibrant democracy. I find that profoundly troubling on many levels. Moving forward, we call for a national dialogue among religious groups, government, and the American people to reaffirm our country’s historic respect for freedom of conscience and defense of religious liberty.”

HHS announces a "compromise," in which certain employers will be given one year to comply with the mandate.

May 21, 2012

ND President Rev. Jenkins writes to Secretary Sebelius about the "impossible position" created by the mandate.

January 20, 2012

HHS issues amendments to the intereim final rule, including its narrow exemption for "religious employers."

September 28, 2011

HHS Secretary Sebelius announces that health plans will have to cover contraception and sterilizations.

August 3, 2011

The Patient Protection and Affordable Care Act is Signed into law.

August 1, 2011

May 23, 2010

Notre Dame and the Mandate: Major Dates Notre Dame announces its lawsuit against the HHS mandate.

defending contraception as necessary health care for women, arguing “that anything short of providing comprehensive health care for women… is ‘literally unconscionable’” and calling “upon Notre Dame and Saint Mary’s women (and all the men, to) to disregard disregarding the mandate.”

January 31, 2012. Notre Dame Right to Life publishes a letter in the Observer to “articulate and defend the Catholic Church’s clear and unchanging rejection of artificial contraception, arguing that “institutions that seek to promote the good of humanity have a responsibility to January 21, 2012. Dr. Carolyn Woo, former Dean condemn and oppose sexual activity [such as the of Notre Dame’s Mendoza College of Business use of artificial contraception] that is contrary to and current President and CEO of Catholic Relief the dignity of the human person.” Services, announces her opposition to the February 5, 2012. The Observer publishes a letter by healthcare mandate, stating that it “would Notre Dame Junior Elliott Pearce, in which Pearce compel Catholic institutions to acquiesce to argues, “Women do not need artificial birth practices that run counter to our deeply held control to protect themselves, plan their families religious teaching… This is clearly at odds with or affirm their dignity. They can avoid unplanned our long-held American tradition of religious pregnancies and STDs by abstaining from sex liberty.” before marriage and regulate the births of their January 24, 2012. More than a dozen Notre Dame children within marriage by using NFP. They can alumni publish a letter in The Observer, calling better respect themselves by embracing their upon Fr. Jenkins “to clearly announce Notre ability to bear children as an important part of Dame’s intention to disregard the HHS their nature than they can by denying the beauty regulation as an infringement of the freedom of and significance of one of the greatest abilities of religious exercise and to state in succinct terms any human person, which they alone happen to that there can be no compromise on this possess. The only thing women (and men) ‘need’ particular issue. artificial contraception for is to have sex whenever they want and with whomever they want… Those January 26, 2012. Notre Dame Junior Collier of us who believe sex is a total, loving and fruitful O’Connor publishes a letter in The Observer Continued on the next page 4

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gift from one person of incommensurable dignity to another believe sex was meant for something more.” February 10, 2012. President Obama announces a “compromise” on the mandate, announcing that religious organizations will not have to pay directly for contraception, sterilizations, or abortions, but that their insurance providers will finance this “preventative care.” Notre Dame informs the White House that, as a selfinsured institution, this “compromise” fails to protect its religious liberty. February 10, 2012. More than ninety faculty and staff members from the University of Notre Dame join “over 300 leading scholars, university presidents and other administrators, activists, and religious leaders from a multitude of faiths… in a statement rejecting the HHS mandate requiring employers to provide, directly or indirectly, insurance coverage for abortion-inducing drugs, sterilizations, and contraceptives, and also rejecting President Obama’s so-called ‘accommodation’ of religious liberty as a mere ‘accounting trick’ that changes nothing of moral substance.” February 16, 2012. In an Irish Rover article, various members of the Notre Dame community provide their perspectives on how Notre Dame should respond to the HHS Mandate. Rev. William R. Dailey, C.S.C. of the Law School suggests that “at this point we should be behaving in such a way as to signal the importance of this teaching [regarding contraception] to us as an institution, and our grave reservations about being forced to behave in a way that compromises our deep moral commitments.” Gerard Bradley of the Law School calls upon the university to “live out its call to be a witness to the Gospel, and refuse to cooperate with the Obama administration’s oppressive policy.” Lauren Rasch, a senior in the Program of Liberal Studies, states, “the new law is problematic because it seeks to define what is or isn’t a primarily religious organization or ministry not only be the demographic that the institution employs but also by the demographic that it serves… I think that we might benefit from a broadening of the health care exemption.” She is also concerned Continued on the next page Watch Right to Life’s Panel Discussion on the HHS Mandate! Visit the Right to Life YouTube channel at to watch this video and more!

Notre Dame right to life Mission Statement The purpose of our organization is to promote and uphold the sanctity of all human life from conception to natural death through prayer, service, and education, and to help women in crisis pregnancies find alternatives to abortion through service and support, in the spirit of the Catholic Church

Contact Us Notre Dame Right to Life University of Notre Dame 305 LaFortune Notre Dame, IN 46556


Footprints: Notre Dame Right to Life about this rule putting the Affordable Care Act in danger. “I think losing the Affordable Care Act all together would be a tragedy.” Mazen El Makkouk, a PhD Candidate in Literature, calls upon Notre Dame “to dissociate itself from protests that have narrow and hypocritical political ends. If it wants to be a witness to truth, let it be to larger truths.” March 2, 2012. Notre Dame Law Professor gives the opening lecture for a medical ethics conference sponsored by the Notre Dame Alumni Association and the Notre Dame Center for Ethics and Culture. At the lecture, Snead

“We didn’t ask for the fight, but we’re not going to back away from it.” -Cardinal Timothy Dolan

vol. 6, issue 1 David Clairmont discusses the HHS Mandate at an event to raise awareness of the Mandate, sponsored by Notre Dame Campus Ministry, the Center for Ethics and Culture, the Center for Social Concerns, the Gender Relations Center, the Institute for Church Life, and University Life Initiatives. May 21, 2012. The University of Notre Dame joins forty-three dioceses and Catholic organizations in lawsuits against HHS Secretary Kathleen Sebelius, U.S. Department of Labor Secretary Hilda Solis, U.S. Department of Treasury Secretary Timothy Geithner, the U.S. Department of Health and Human Services, the U.S. Department of Labor, and the U.S. Department of Treasury.

August 1, 2012. Under current law, the HHS Mandate goes into effect for new and significantly changing healthcare plans that do not qualify for the religious exemption. Those qualifying for discussed the HHS Mandate and the importance exemption have a one-year “temporary enforcement safe harbor.” of religious liberty. August 1, 2013. Under current law, the “temporary March 23, 2012. South Bend joins 140 U.S. cities in the “Stand Up for Religious Freedom Rallies.” enforcement safe harbor” period ends. Many Notre Dame students and staff participated in the South Bend Rally, including Right to Life President Samantha Stempky. Quoted in an Irish Rover article discussing the event, Stempky stated, “Young people especially need to resist this mandate, because we are fighting for the future of the nation and society in which we will (or will not) be free to live out our Catholic faith.” March 27, 2012. Notre Dame Right to Life hosts a panel discussion on the HHS Mandate in which Carter Snead of the Notre Dame Law School, Richard Garnett of the Notre Dame Law School, Lisa Everett of the Office of Family Life of the Diocese of Fort Wayne-South Bend, and Notre Dame Senior Gabby Speech discussed dangers of, concerns about, and disagreements with the legislation. April 2, 2012. Notre Dame Theology Professor 6

For this timeline with more dates, as well as links to all the referenced articles, letters, and statements, visit: 012/06/nd-and-mandatetimeline.html

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A Message from Fr. Jenkins on the HHS Lawsuit The following is the text of a message from Notre Dame President Rev. John I. Jenkins, regarding the announcement of Notre Dame’s lawsuit against the HHS mandate: A Message from Father John Jenkins, C.S.C., President, University of Notre Dame May 21, 2012 Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS). That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching. The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties. Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents. We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so. This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can

decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name. The details of the process that led to the mandate are publicly known. In an Interim Final Ruling issued August 3, 2011, the federal government required employers to provide the objectionable services. A narrow exemption was given to religious institutions that serve and employ primarily members of their own faith, but, departing from a long tradition in federal law, organizations like Notre Dame—schools, universities, Continued on the next page


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hospitals and charitable organizations that serve and employ people of all faiths and none—were granted no exemption, but instead were made subject to the law to the same extent as any secular organization. On September 28, I submitted a formal comment encouraging the Administration to follow precedent and adopt a broader exemption. Despite some positive indications, the Administration announced on January 20, 2012, that its interim rule would be adopted as final without change. After an outcry from across the political spectrum, President Obama announced on February 10 that his Administration would attempt to accommodate the concerns of religious organizations. We were encouraged by this announcement and have engaged in conversations with Administration officials to find an acceptable resolution. Although I do not question the good intentions and sincerity of all involved in these

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discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the governmentmandated deadlines. We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom. It is for these reasons that we have filed this lawsuit neither lightly nor gladly, but with sober determination.

Order new Right to Life apparel! For a Right to Life hoodie or t-shirt, visit

From the Catechism of the Catholic Church: 2271: Since the first century the Church has affirmed the moral evil of every procured abortion. 2272: Formal cooperation in an abortion constitutes a grave offense. The Church attaches the canonical penalty of excommunication to this crime against human life. 2370: “Every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible� is intrinsically evil. 2399: The regulation of births represents one of the aspects of responsible fatherhood and motherhood. Legitimate intentions on the part of the spouses do not justify recourse to morally unacceptable means (for example, direct sterilization or contraception). 8

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Notre Dame’s Lawsuit University of Notre Dame

• Plaintiff

HHS Secretary Kathleen Sebelius; Department of Treasury Secretery Hilda Solis; Department of Treasury Secretery Timoth Geithner; U.S. Dept. of Health and Human Services,;U.S. Dept. of Labor; U.S. Dept. of Treasury

• Defendants

In the U.S. District Court for the Northern District of Indiana

“The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate against Catholic religious institutions.”

“Notre Dame cannot, without violating its sincerely held religious beliefs, subsidize, facilitate, and/or sponsor coverage for abortifacients, sterilization services, contraceptives and related counseling services, which are inconsistent with the teachings of the Catholic Church.”

The Exemption Clause The law says: (B) For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id. At 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).

Possible fines if Notre Dame does not comply:

$2000 per year per full-time employee under the Internal Revenue Code • $100 per day per individual under the Internal Revenue Code • $100 per day per individual under the Public Health Service Act • additional fines from ERISA • additional fines from the Secretary of Labor *approximately 12,715 individuals are covered by Notre Dame health plans •

These fines could total to more than $10 billion per year

For the full text of the lawsuit, visit 013/hhs_complaint.pdf 9

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“We are in a war” –HHS Secretary Kathleen Sebelius at a pro-choice NARAL event in October

“We believe that an institution inspired by faith to serve beyond the limits of its religious denomination should not be judged less religious, and hence less worthy of exemption.” –ND President Rev. John I Jenkins

“In effect, the president is saying we have a year to figure out how to violate our consciences.” –Cardinal Timothy M. Dolan

“The… Mandate targets Notre Dame precisely because of its religious opposition to abortifacients, sterilization and contraception.” –The Lawsuit, paragraph 191

“The religious employer exemption targets Notre Dame precisely because of its commitment to educate, serve, and employ people of all faiths.” –The Lawsuit, paragraph 192


Causes of Action: Count I

• Substantial Burden on Religious Exercise in Violation of RFRA

Count II

• Substantial Burden on Religious Exercise in Violation of the Free Exercise Clause of the First Amendment

Count III

• Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment

Count IV

• Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment

Count V

• Excessive Interference in Matters of Internal Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment

Count VI

• Compelled Speech in Violation of the Free Speech Clause of the First Amendment

Count VII

• Failure to Conduct Notice-And-Comment Rulemaking and Improper Delegation in Violation of APA

Count VIII

• Arbitrary and Capricious Action in Violation of the APA

Count IX

• Acting Illegally in Violation of the APA

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FAQ Why sue now? Why not just wait? “With the regulatory landscape so unsettled, it is impossible for Notre Dame to develop its future health plans” (the lawsuit, 127). “By the time any new rule is finalized, if ever, it will be too late for Notre Dame to bring its health plans into compliance with the law” (the lawsuit, 134). If Notre Dame loses, will it simply “disregard the mandate”? Maybe. The lawsuit says: “In addition, if Notre Dame does not comply with the U.S. Government Mandate, Notre Dame may be subject to huge annual government fines and penalties. Notre Dame’s fiscal year starts in July and budgeting for major expenses starts approximately one year in advance. Notre Dame thus needs to understand the potential cost of the U.S. Government Mandate by the Fall of 2012” (135). Can those insured by Notre Dame receive contraceptives for non-contraceptive medical reasons? “Consistent with Church teachings, Notre Dame’s employee and student health plans cover drugs commonly used as contraceptives only when prescribed with the intent of treating another medical condition, not with the intent to prevent pregnancy” (the lawsuit, 145). What about the ‘accommodation’ to have insurance companies, not employers, pay for this ‘preventative care’? “As Notre Dame’s employee health plans are self-insured, Notre Dame would be paying directly for contraception and sterilization in direct conflict with its religious beliefs” (the lawsuit, 151). Why does the lawsuit accuse the mandate’s exemption clause of excessively entangling the government in religion? “In order to determine whether Notre Dame—or any other religious organization—qualified for the exemption, the Government would have to decide Notre Dame’s ‘religious tenets’ and determine whether ‘the purpose’ of the organization is to ‘inculcate’ people into those tenets” (the lawsuit, 180). “The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that Notre Dame ultimately employs and educates” (181). “The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are ‘share[d]’” (182).


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90+ ND Faculty Deem HHS Mandate “Unacceptable” In February, more than ninety faculty and staff members from the University of Notre Dame joined “over 300 leading scholars, university presidents and other academic administrators, activists, and religious leaders from a multitude of faiths… in a statement rejecting the HHS mandate requiring employers to provide, directly or indirectly, insurance coverage for abortion-inducing drugs, sterilizations, and contraceptives, and also rejecting President Obama’s so-called “accommodation” of religious liberty as a mere “accounting trick” that changes nothing of moral substance.” Below is a list of the Notre Dame signers: Architecture Philip Bess Director of Graduate Studies and Professor of Architecture

Jim A Seida Viola D. Hank Associate Professor of Accountancy Economics Dr. Kirk Doran Assistant Professor of Economics William N. Evans Keough-Hesburgh Professor of Economics Thomas A. Gresik Department of Economics Joseph Kaboski David F. and Erin M. Seng Associate Professor of Economics

Thomas Gordon Smith Professor of Architecture

Mike Pries Associate Professor of Economics

Duncan G. Stroik Associate Professor of Architecture

Eric Sims Assistant Professor of Economics



Jeffrey J. Burks Assistant Professor of Accountancy

Daniel Costello Bettex Chair Professor Emeritus College of Engineering

John F. Gaski Associate Professor of Marketing Tonia Hap Murphy Mendoza Pre-Law Advisor Associate Teaching Professor James O'Brien Associate Teaching Professor Joseph S. O'Hannigan Senior Associate Director of Executive Programs Angela M. Pfister, J.D. Associate Director, Notre Dame Center for Ethics and Culture Concurrent Instructor


Daniel J. Costello, Jr. Bettex Prof. of Elec. Engr., Emeritus Harindra Joseph F. Fernando Wayne and Diana Murdy Endowed Professor of Engineering and Geosciences Peter M. Kogge Ted McCourtney Prof. of Computer Science & Engineering Concurrent Professor of Electrical Engineering Edward Maginn Professor of Chemical and Biomolecular Engineering Associate Dean for Academic Programs, The Graduate School Continued on the next page

Footprints: Notre Dame Right to Life Tom Pratt Dept of EE, College of Engineering John Uhran Emeritus Professor, Computer Science and Engineering History Patrick Griffin Department Chair and Madden-Hennebry Professor of History

vol. 6, issue 1 Professor Emeritus Stephen F. Smith Professor of Law O. Carter Snead Professor of Law Political Science Mary M . Keys Associate Professor of Political Science

Rev. Wilson D. Miscamble, C.S.C. Professor of History

Don P. Kommers Robbie Professor of Political Science Emeritus


Vincent Phillip Muñoz Tocqueville Associate Professor of Political Science Concurrent Associate Professor of Law Department of Political Science

Amy Barrett Professor of Law Matthew J. Barrett Professor of Law Gerard V. Bradley Professor of Law Margaret F. Brinig Fritz Duda Family Chair in Law Paolo Carozza Professor of Law and Director, Center for Civil and Human Rights

Daniel Philpott Associate Professor of Political Science Philosophy John O’Callaghan Director, Jacques Maritain Center & Associate Professor of Philosophy

Rev. William R. Dailey, CSC Visiting Associate Professor

Trent Dougherty Department of Philosophy Baylor University Visiting Research Professor

Nicole Stelle Garnett Professor of Law

Thomas P. Flint Professor of Philosophy

Richard W. Garnett Associate Dean and Professor of Law William K. Kelley Associate Professor of Law

Alfred J. Freddoso John and Jean Oesterle Professor of Thomistic Studies Concurrent Professor of Law Philosophy Department

Joseph A. Reimers Technology Support Assistant III Kresge Law Library

Sean Kelsey Director of Graduate Studies and Associate Professor of Philosophy

Charles E. Rice

David O’Connor

Continued on the next page


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Associate Professor of Philosophy and Concurrent John Cavadini Associate Professor of Classics Director, Institute for Church Life and Associate Professor of Theology Adrian J. Reimers Adjunct Assistant Professor David W. Fagerberg Associate Professor W. David Solomon Department of Theology Associate Professor of Philosophy Robert M. Gimello Program of Liberal Studies Research Professor of Theology and of East Asian Languages and Cultures Marian E. Crowe Adjunct Assistant Professor Visiting Scholar, Program of Liberal Studies Michael J. Crowe Cavanaugh Professor Emeritus Program of Liberal Studies Walter Nicgorski Professor, Program of Liberal Studies Phillip R. Sloan Professor Emeritus, Program of Liberal Studies and Graduate Program in History and Philosophy of Science Thomas A. Stapleford Associate Professor, Program of Liberal Studies M. Katherine Tillman Professor Emerita, Program of Liberal Studies Sociology Richard A. Lamanna Emeritus Professor of Sociology Christian Smith William R. Kenan Professor of Sociology & Director Center for the Study of Religion and Society Theology Gary Anderson Hesburgh Professor of Theology Ann W. Astell Professor of Theology

Msgr Michael Heintz, PhD Director, Master of Divinity Program Department of Theology Gabriel Said Reynolds Tisch Family Associate Professor of Islamic Studies and Theology Other Beth Bubik Life Initiatives Program Coordinator Notre Dame Alumni Association Al Bucci Director of Regional Development Bartley Burk Social Sciences/Hispanic Cataloger Hesburgh Libraries Luke Conway Associate Regional Director of Development Mary K. Daly Program Coordinator, University Life Initiatives Institute for Church Life William E. Dotterweich Chairman of the Advisory Board Notre Dame Center for Ethics and Culture Diane C. Freeby, SMC '88 Editor/PrayND, Notre Dame Alumni Association Kenneth Garcia, Ph.D. Associate Director,

Continued on the next page


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ND “Unacceptable” signers, by the numbers • 15+ academic departments • 20+ centers and institutes • Most-represented center/institute: The Notre Dame Center for Ethics and Culture • One dorm: Morrissey Manor

Most-Represented Departments 12 10 8 6 4 2 0

Institute for Scholarship in the Liberal Arts Greer Hannan Program Coordinator Notre Dame Center for Ethics and Culture Dr. Dan Hubert The Rooney Center for the Study of American Democracy Lynn M. Hubert Director of Regional Development Judy Hutchinson Assistant Director Office of International Studies

Major Undergraduate Departments not represented: • Africana Studies • American Studies • Anthropology • Arabic Studies • Art, Art History, and Design • English • Film, Television, and Theatre • Gender Studies • Hesburgh Program in Public Service • Irish Language and Literature • Medieval Studies • Music • Peace Studies • Psychology • The College of Science

Anthony Monta Associate Director, Nanovic Institute for European Studies Michael A. Mogavero Ph.D Director of Undergraduate Studies William G. Schmitt Communications/Media Specialist Institute for Educational Initiatives (IEI) Alliance for Catholic Education (ACE) Kelley M. Shrock Operations Specialist University of Notre Dame Investment Office

Donald L. Stelluto, Ph.D. Elizabeth Kirk Associate Director, University of Notre Dame Fund to Protect Human Notre Dame Institute for Advanced Study Life Craig Tiller, RA, LEED®AP Richard F. Klee Jr. CPA Senior Director, Project Management University Tax Director Facilities Design and Operations Judy Madden, M.A.

Continued on the next page


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Fr. Ronald M. Vierling Rector, Morrissey Manor

Other Pro-Life Initiatives at Notre Dame

David S. Younger Assistant Director Italian, Classics, German, and Russian Programs Office of International Studies

Michael A. Zenk Director, Post Award Financial Management Office of Research For the full letter, visit:

The Notre Dame Fund to Protect Human Life

University Faculty for Life

Initiative on Adult Stem Cell Research & Ethics

The “Religious Liberty” Question On March 27, Professor Richard Garnett of the Notre Dame Law School participated in a panel discussion on the HHS healthcare mandate, in which he discussed the "religious freedom" question. The following are his notes from the discussion:

Republicans agree – liberals and conservatives agree – that America’s commitment to religious freedom is foundational, and fundamental.

Second, I am not talking about the merits of the Church’s teachings on sexual ethics, or about the Because I am a lawyer, I cannot resist splitting social and other effects of contraception. These hairs. And so, I want to distinguish my question are also – obviously – important questions, and – the “religious freedom” question – from three others can speak more usefully about them than I others. can. My point is, it should not matter, for purposes of the religious-freedom question, First, I am not talking about whether we think whether or not you are a Catholic, or whether or the “Affordable Care Act” is good policy, or not you embrace the Church’s vision of human whether the insurance-coverage mandate is sexuality. Remember: It is always the case, in constitutional, or whether we prefer the religious-freedom cases, that we are talking Democrats' health-care-related proposals to the about the protection of minority views. The Republicans'. These are perfectly good questions, whole point of constitutional protections for but they are different from the question whether religious freedom, and of “accommodations” and religious employers should be exempt from the “exceptions,” is to protect and preventive-services mandate. This question is not respect minority and unpopular views. After all, – it should not be – a “liberal” or a the views of the Continued on the next page “conservative” issue. Democrats and 16

vol. 6, issue 1

Footprints: Notre Dame Right to Life majority, and popular views, do not need special protection.

Restoration Act? I say . . .probably.

Third, is the mandate inconsistent with our Third, I am not talking about the traditions, and with our longstanding important, technical questions about whether it commitment to pluralism and religious would constitute “cooperation with evil” for Notre freedom? Here, I say . . . yes. Even if we assume Dame or other religious employers to comply with that the mandate is constitutional under current the mandate. Smart people disagree about this doctrine, and that it does not violate RFRA, this question. But, this question is different from the does not mean that it respects religious liberty, or religious-freedom question. The “religious that it is consistent with our traditions of freedom” of institutions like Notre Dame is not accommodating minority views and valuing just the freedom to avoid being coerced into doing pluralism. Sometimes, a democracy like ours, wrong. It also includes the freedom of Catholic with ideals like ours, accommodates religious institutions to bear witness to the truth of the freedom even when it does not have to. In this case, Faith, to act with integrity, and to act coherently, the better policy – the policy that better implements in accord with their Catholic character. our commitments – is to provide a broader religious-liberty exemption to the preventiveSo, all that said, I want to (very briefly) mention services mandate. . . . three aspects of my question, the “religious A video of the panel, with Professor Garnett's full freedom” question. remarks can be accessed on the Notre Dame Right to First, is the mandate unconstitutional? Does it Life YouTube channel, at These violate the First Amendment? My answer to this notes were taken directly from Professor Garnett's blog question is . . . possibly. on the development of Catholic legal theory, Mirror of Justice. It can be accessed at Second, is the mandate illegal? That is, does it violate a federal statute, the Religious Freedom “As our nation continues to struggle with the morality and legality of abortion, embryonic stem cell research, and related issues, we must seek steps to witness to the sanctity of life.” Rev. John I. Jenkins, September 2009

Footprints Editor: Christopher Damian Notre Dame Right to Life University of Notre Dame 305 LaFortune Notre Dame, IN 46556

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Footprints VI_01  

The official newsletter of Notre Dame Right to Life

Footprints VI_01  

The official newsletter of Notre Dame Right to Life

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