“Why”, my neighbour asked me, tapping my chest with an inquisitorial finger, “are you suing the government of the United States?” I was taken aback. Litigation horrifies me and I fear the gypsy’s curse: “May you have lawsuits, even if you win.” But I realised almost at once that the question was not about me personally, but about my university. Notre Dame is among a handful of organisations and individuals that have brought cases against the US Secretary of Health, Kathleen Sebelius, arising from so-called Obamacare - the president’s attempt to widen health insurance coverage by making it compulsory. The disputed clause obliges employers to pay for health plans that include contraceptives, abortifacients (intended as emergency contraceptives) and sterilisation among the services that insurers provide.
It is tempting to give my neighbour the simple answer that everyone assumes is right: Notre Dame is a Catholic university and contraception, abortion and sterilisation are Catholic taboos. Conspiracy theorists accuse the university of subscribing to a right-wing plot to undermine the president, or of deference to dogma. But the university is too steeped in Catholic social tradition, and too wary of political devilry, to ally with anti-Obama campaigners. We are formally unshackled from the magisterium of the Church, so as to be free to pursue every kind of scientific and scholarly quest for truth, wherever it leads. We uphold employees’ freedom to make their own decisions about the propriety or morality of contraception. The real issues in the impending court case are highly complex and, as always in the esoteric world of jurisprudence, dauntingly technical. But four reasons stand out, which, to my mind, make it impossible for the university to leave the government unchallenged.
First is religious liberty. Good laws - whether they are about oath-taking or military service or blood transfusions or classroom headgear or countless other infringements of the susceptibilities of tender consciences - exempt citizens with sincere scruples. The trustees and officials of the university could conscientiously provide an employee with means to spend on products they revile. But they should not be compelled to buy those products themselves. Notre Dame pays staff health bills directly and so might literally be forced to buy abortifacients if the prospective law remains unamended. The government could achieve its objectives, without injuring Catholic consciences, by allowing the university to supplement insurance cover with a further, equally tax-efficient scheme, or - better still - by establishing a genuine national health service. But it refuses to do so.
Second, in bringing the case, Notre Dame is fighting for a proper understanding of what religion means. The law explicitly allows exceptions on grounds of religion, but only for places exclusively of worship. Religion, however, is more than what you do in a church or temple. For religious people, it is the whole trend and tenor of their lives and informs everything they do. It includes teaching and pastoral care in a university such as Notre Dame, and outreach and evangelisation by example, and every effort we make to mobilise for good, to relieve suffering and challenge cruelty and unkindness. Freedom must include freedom to practise religion openly in one’s life, not just to worship with the like-minded behind closed doors.
Third, it seems to be a fundamental abuse of language to class child-bearing as a sickness to be prevented as part of a health plan. Pregnancy is not a condition to be remedied but a privilege to be celebrated. Notre Dame already supports an insurance system that allows contraceptives to be prescribed for wider medical reasons. But sterilisation, contraceptives or abortifacients, if prescribed chiefly or solely to stop a woman from being pregnant, or to stop a baby from being born, are not genuinely medical measures. Medical complications in pregnancy may include a pregnant woman’s mental stress, revulsion or despair in the face of an unwanted pregnancy. But we should not confuse those sad side-effects - which demand compassionate treatment - with pregnancy itself. Unwanted babies are socially problematic, and we must do everything we can to help them and their parents, but to classify them as ailments is wickedly misleading.
Finally, and compellingly for almost every reasonable person, irrespective of ideology or faith, is the argument that seals the case for arraigning the US Secretary of Health. The basic issue is one of democracy. The regulation Notre Dame seeks to overturn was not made by the representatives of the people in Congress, but by an unelected agency of political nominees. Congress determined only that employers should pay for “preventive” treatments - preventive, by implication, of disease, but not necessarily of pregnancy. The Act as passed devolved the details of the drafting to an executive agency, the Department of Health, which in turn handed it over to a quango, a committee of the Institute of Medicine (a public health education organisation of great eminence but with no authority to make law). The subversion of precious traditional freedoms is too important a matter to be undemocratically delegated.
At a recent meeting of Notre Dame students and staff to debate the case, one of my colleagues asked what we would do if we lost in law. “Submit,” said one of the expert panellists. “I don’t know,” said another. “Resist,” said a third, “and pay the threatened fines of $10 million a year.” The applause was thunderous.