Abortion Coverage Mandates at Nominally Catholic Colleges

It seems only yesterday that the Supreme Court, in the Hobby Lobby case, held that the federal government cannot force Christian owners of closely held corporations to pay for employee health insurance coverage for abortion inducing drugs. After that case, some commentators predicted greater government respect for the rights of religious believers to refuse their support to contraceptive and abortion “services.” This always was a false hope because the Hobby Lobby decision was based, not on the Constitution, but on a particular statute (the Religious Freedom Restoration Act or RFRA) and the protections it provides individuals (not churches or even corporations) to “express” their religious “opinions.” That is, the Court only purported to defend the rights of some religious believers to express their religious beliefs through their control of policies that clearly could be traced back to themselves, for example in closely held corporations. There was no pretense of respecting the rights of corporate groups (churches in particular) to govern themselves according to the tenets of their religions. Nor was there any finding of a Constitutional right to religious “expression” in this area that might protect people and communities from other laws less friendly than RFRA.

The limits of the Hobby Lobby decision are now being made abundantly clear in California. Interpreting a state healthcare law, California Governor Brown’s Administration has decreed that Catholic universities (specifically Loyola Marymount and Santa Clara) must, repeat must, provide coverage for abortions in their medical insurance plans. Both schools had included such coverage in their previous plans, but had sought to remove it.

Though few seem to care, California has now made clear its contempt for the spiritual diversity its people and government long claimed to value. If your religion forbids the killing of unborn children, tough, you will violate that central tenet of your faith, or face the wrath of the state, period. The thuggish nature of this dictate will only become clear down the road, when some few people actually offer real resistance. And by then, sadly, there will be few left to publicly support them as our “Catholic” institutions cave in further to the culture of death and to its master, the omni-competent therapeutic state.

Appropriately, given the Chronicle of Higher Education’s extreme and consistent political bias, the story reporting on California’s latest anti-religious decree was titled “Defending Abortion Rights.” That story also noted that Loyola Marymount and Santa Clara had decided to drop the abortion coverage because they “were trying to adhere to Catholic teachings.” Refreshing as it is to hear even a hint of concern at a Jesuit school with “Catholic teachings,” there never was any real chance of this hint turning into anything concrete.

So far, the schools’ gesture has produced only a slap down from the state of California. Oh, and one other thing: in the case of Santa Clara University there has been a very public rebuke from the faculty Senate. Professors there complained that they were not “consulted” in making the only decision not clearly and squarely opposed to the teachings of the Church supposedly at the center of the school’s mission. The faculty managed to take some time away from teaching on “LGBTQ” (that’s “lesbian, gay, bisexual, transgender, and ‘questioning’”) issues to stand up for their right to dissent, yet again, from the Church few of them belong to in any event. Very brave.

Earlier this year, Pope Francis repeated the Church’s call for “the uncompromising witness of Catholic universities to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors.” The question for many years, now, has been what to do when universities utterly and even intentionally fail in that calling. So far the answer has been to do nothing as supposedly Catholic institutions squander our heritage in self-indulgent pursuit of secular respect and political “relevance.”

Even a superficial glance at Santa Clara University’s website shows a determination to challenge the Church’s moral teaching on sexual issues in particular and more generally to reject the inheritance of our learned tradition. At a Jesuit institution one might expect at least a modicum of commitment to the study of the deep roots (and languages) of higher learning. Of course, one would be disappointed. Out of a faculty of almost 600, there are 9 full time teachers of classics. Meanwhile, those teaching courses in Women’s and Gender Studies number 43. And, to emphasize the concern with LGBTQ identity, the officially “out” (publicly self-identified as lesbian, gay, etc.) community of faculty and staff holding themselves forth as resources on sexuality and related issues for students numbers 36.

The standard (certainly the Jesuit) response to these numbers would be “so what?” That is, most associated with “Catholic” schools like Santa Clara would see nothing troubling and much to admire about the de-emphasis of “dead” languages and the emphasis on LGBTQ issues, along with courses on “eco-feminism” and various other topics associated with social justice in the contemporary sense, meaning social democracy, environmentalism, and the rest of the leftist ideological agenda. Santa Clara, after all, claims to be “Jesuit and Catholic,” and the “Catholic” part clearly is an ideologically crafted after-thought.

Harsh? Narrow-minded? By contemporary standards, perhaps. But then, those contemporary standards also hold that there is nothing special about Santa Clara. This should be obvious to everyone (though, sadly, it isn’t) by the very fact that the State of California feels no compunction about forcing the school to openly violate a central tenet of the Catholic faith. And the state has a point, of sorts. The “fundamental values” listed as central to Santa Clara’s “vision” are, in the order listed on the website, Academic Excellence, Engaged Learning, Commitment to Students, Service to Others, Community and Diversity, and, last, “Jesuit Distinctiveness.”

All simply wonderful values, of course. But only at the end does something vaguely religious appear. And how religious, let alone Catholic, is “Jesuit Distinctiveness?” Let’s take a glance at the boilerplate posted, here, in its entirety:

We treasure our Jesuit heritage and tradition, which incorporates all of these [earlier-listed] core values. This tradition gives expression to our Jesuit educational mission and Catholic identity while also welcoming and respecting other religious and philosophical traditions, promoting the dialogue between faith and culture, and valuing opportunities to deepen religious beliefs.

Amid the repetition of previous “values” and the emphasis on “welcoming” everything else, there is barely a glance toward Catholic “identity” and “religious beliefs”—of what kind it is distinctly unclear. So, what is distinctively Catholic about Santa Clara’s public view of its own mission? Not much.

Few people, in government or out, see anything Catholic, in any religious sense, about Santa Clara University. The school describes itself as “committed to faith-inspired values and educating leaders of competence, conscience, and compassion who will help fashion a more just, humane, and sustainable world.” That is, faith is fine for “inspiring” values that help provide leaders to make the world more “just, humane, and sustainable.” Far be it from me to be against increasing justice, humanity, or even “sustainability,” but the program clearly is political, not religious. Take out the word “faith” and make it “conscience” inspired, or “reason” inspired, or even “self-love” inspired and nothing would be appreciably different about Santa Clara University’s focus; nothing would differentiate it from a typical university of any kind. As to the faith, it is not put forward as something to be valued in and of itself, and is not even identified as Catholic in any meaningful sense, beyond, of course, commitment to the agenda of the “progressive” left on social and gender issues.

If all that makes a university “Jesuit and Catholic” is a particular “take” on values, there is nothing worthy of preserving and protecting against general political trends or state requirements. Why exempt from one specific political dictate (abortion funding) of the political left an institution that does its best to further all the other dictates of that ideological position? Particularly when the institution itself shows no particular attachment to the “faith tradition” on which its opposition to abortion rests, along with its putative reason for existence?

There have been a number of attempts in recent years to renew the commitment of Catholic universities to the Catholic tradition and to the institutions, beliefs, and practices of our faith. Sadly, these attempts have largely failed. Some few traditional Catholic institutions have grown up in recent decades, but more have had false, even embarrassing starts and met failure. As to existing universities, there has been little recognition by their leadership of their duty to witness to the Church’s moral teachings, to uphold that teaching, to defend the rights of the Church, or for that matter to hire Catholics.

The problem, of course, as faculty at a number of “new” Catholic institutions have found to their dismay (and the resulting dismay of students trapped in failing institutions) is that those who paint themselves as Catholic may merely be contemptuous of academic freedom and the idea of a University. Nonetheless, the pursuit of a faithful academic endeavor need not be fruitless. All that is necessary, all that was necessary for centuries, was a policy of favoring the members of one’s own faith for teaching positions and maintenance of the primacy of a mission statement dedicated to the basic principles of the Catholic faith. To go no further, one does not give up one’s academic freedom when one agrees to be bound by the articles of faith of one’s Church and, through it, one’s university. Calvinists, evangelicals, LDS (Mormon) and other faiths maintain universities of vibrant intellectual life within their traditions in this way. Catholics used to do the same, and should do so again.

Until and unless Catholic institutions approach their missions with and through faith in the Church and its mission, we cannot expect secular institutions to respect our “eccentric” positions on issues like the sanctity of unborn life. It now is clear that institutions refusing to take these basic steps, which one would think even common decency, let alone faithfulness toward one’s Church would require, invite the state to strip from all of us the protections even a minority religion might claim. It is time, then, for institutions like Santa Clara University to forfeit their status as Catholic universities. Unless those in positions of authority in the Church develop the fortitude to insist that there are minimal levels of faithfulness and catholicity below which an institution cannot hold itself out as connected with our faith, all of our institutions will lose their ability to witness to our tradition, our values, and our faith. If the result is that we “lose” most of “our” universities, we in truth will have lost nothing save illusions, some of them maintained in very bad faith. At least then there will be the possibility of renewal on solid, faithful ground.

Editor’s note: This column first appeared September 5, 2014 on the Imaginative Conservative website and is reprinted with permission.

Bruce Frohnen

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Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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