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University Of Notre Dame Students Petition Administration To Drop Birth Control Mandate Lawsuit Against Feds

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BIRTH CONTROL HEALTH CARE
Some time after the passage of the Affordable Care Act, also referred to as "Obamacare," the Department of Health and Human services announced a new requirement for coverage of birth control and contraception. | Alamy

At first, Kathryn Pogin was simply writing a personal letter to the Rev. John Jenkins, C.S.C., the president of the University of Notre Dame.

It was a response to his announcement the school would sue the federal government over the requirement that health insurance plans, including those provided by Notre Dame to faculty, staff and students, cover birth control and contraception without co-pays. The university claimed that the mandate would require it to violate Catholic teachings.

But when Pogin, a Notre Dame Ph.D. student in philosophy, showed the letter to Benjamin Rossi and a couple of other friends, they decided to make it the basis for a petition. Now Pogin and Rossi have gathered at least 122 signatures urging the university to drop its lawsuit against the U.S. Department of Health and Human Services.

"Catholic doctrine has a couple of principles that address when it’s morally permissible to engage in action that has morally problematic effects," Pogin said. "In the petition, we discuss the doctrine of double effect and note that it’s not clear why the principle shouldn't apply to this case. It's worth mentioning that several Catholic institutions already provide access to contraceptives. For better or worse, the Catholic Church is not a democracy. If some Catholics can do it without contradicting church teaching, then Notre Dame can too."

According to the petition's argument:

The doctrine of double effect allows as morally permissible actions which are not intrinsically wrong, even if they have foreseen harmful effects, so long as:
1. The foreseen evil is not intended. (Surely, those Catholics who believe artificial contraceptive use is wrong will not intend that any insured procure it for illicit purposes.)
2. The good effects of the action must not be produced or caused by the foreseen harmful effects. (Complying with the law and providing healthcare to the community would not be caused by any individual’s use of contraceptives for illicit purposes.)
3. The good effects must be sufficiently desirable. (Avoiding a costly lawsuit, avoiding fines, complying with the law, and providing healthcare to the community are certainly desirable.)

It also argues that since the university is the largest employer in St. Joseph County, an exemption for Notre Dame would mean coercing non-Catholics to follow Catholic rules and teachings. It cites conservative U.S. Supreme Court Justice Antonin Scalia's 1990 warning against making "the professed doctrines of religious belief superior to the law of the land."

The petition is available on the Internet, but is not accepting signatures online. The group wants to ensure the people signing are from the Notre Dame community.

The regulation from the Affordable Care Act, or "Obamacare," cited in the lawsuit guarantees coverage of preventive services for women without co-pays starting Wednesday. The Obama administration announced a compromise in February shifting the responsibility for contraception costs to health insurance companies, rather than religious employers. Some Catholic institutions and organizations approved of the compromise, but others, like Notre Dame, continued to react with lawsuits.

Jenkins announced the university was filing a lawsuit against the HHS on May 21, but acknowledged the university's lawsuit wouldn't be universally accepted. He conceded that faculty, staff and students of various faiths have made "conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs."

He also insisted the lawsuit wasn't about preventing access to contraceptives.

"This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives," Jenkins said in anouncement to the campus. "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."

Contraception is frequently prescribed for potentially lifesaving treatments, like preventing cervical cancer or disorders such as polycystic ovary syndrome.

Pogin said she showed the petition to Jenkins but has not yet submitted it. Jenkins conceded to Pogin that there were things they agree on, but referred to his original letter to explain the university's position. Pogin wasn't satisfied by his original explanation.

"In his original email, Father Jenkins explained that the suit is about religious freedom, not about preventing access to contraceptives. In our petition, though, what we are questioning is precisely the extent to which there’s a genuine conflict between Catholic conscience, and complying with the mandate," Pogin told HuffPost. "We also noted that regardless of intentions, if the suit were successful, it would prevent women from having access to contraceptives."

"Father Jenkins’ letter of May 21 to the campus community offers a clear articulation of the University’s position," said university spokesperson Dennis Brown when reached for comment by HuffPost. "Any communication regarding specifics will be between the university and the students, not through the media."

Notre Dame covers birth control for non-contraceptive medical purposes, and Pogin also raised the issue of Viagra coverage, the brand name medicine that treats erectile dysfunction. She doesn't discuss this in the petition, but argued that Notre Dame provides coverage for Viagra without requiring the insured to justify their use.

So presumably, if faculty, staff, or students are unmarried, "providing access to Viagra is also materially contributing to gravely immoral behavior," she said. Brown confirmed the University of Notre Dame currently does not require "a documented medical need for a Viagra (or other similar) prescription."

Including Notre Dame, NPR reports a total of 43 Catholic educational, charitable and other entities have filed a dozen lawsuits in federal courts nationwide.

Notre Dame also isn't the first to have students organize and push back against their university over the birth control mandate.

Georgetown University, the nation's oldest Jesuit university, had students petitioning for birth control coverage in student health plans years before Sandra Fluke sparked a national debate after her testimony before Congress.

Xavier University alumnus Cameron Tolle started an online petition within hours of learning his former school was dropping coverage of birth control and contraception.

Pogin doubts the suit will be dropped, but is optimistic for a dialog with the university. In the meantime, she's frustrated to see so many lawsuits going forward. "From a moral and theological perspective," Pogin said. "I fail to see how health insurance -- as a form of compensation for employment -- is so radically different from a salary that institutions feel they are capable of providing ... in a morally permissible way."

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