Birth control was not the first thing on Tracey L. Poston’s mind when she arrived at the University of Notre Dame as director of research compliance. But when she needed to replace her IUD the next year, she was shocked to discover that contraception was not included in her insurance. The cost had been covered by her previous employer, a Jesuit university, yet Notre Dame said it ran contrary to Roman Catholic doctrine.
Ms. Poston, who’s not Catholic herself, felt that Notre Dame should not be intruding on her personal life.
“We have a right to do what we want with our bodies,” says Ms. Poston, who now works at Missouri State University. “It’s nobody’s business, especially where we work.”
Ms. Poston’s experience, which led her to spend $1,500 out of pocket in 2009, predated the Affordable Care Act, which requires all private health insurers to cover contraception free of charge. Some religious colleges, including Notre Dame, have been fighting for the right to once again deny such coverage to their employees and students, as a matter of religious freedom. They say that the government could provide contraceptives in other ways, such as through health centers. But critics say these alternatives create unnecessary and unfair hardships for women. The Supreme Court is scheduled to take up the issue this week in a case, Zubik v. Burwell, that includes seven evangelical Christian colleges along with several nonprofit groups.
The government allows religious colleges and others to seek an accommodation to the Affordable Care Act’s contraception mandate, which took effect three years ago. Employers with religious objections do not have to pay for contraception coverage or offer it directly. But the plaintiffs want to be exempt from the coverage requirement altogether, arguing that the accommodation still makes them morally complicit because it triggers another way through which women can get contraception.
The government argues that providing women access to free contraception enables them to live healthy and productive lives and should be considered preventive care.
Ms. Poston’s story is an example of what’s at stake for women in the legal battle. If the Supreme Court rules for the colleges, potentially thousands of women could lose contraception coverage through their insurance. Beyond the seven colleges involved in Zubik v. Burwell — which include Geneva College, Southern Nazarene University, and East Texas Baptist University — 30 other religiously affiliated colleges and seminaries, including Notre Dame, have sued the government.
Women’s Concerns
The institutions say their cases are not about whether people have the right to contraception, but about whether the government can force employers to provide services that are contrary to their religious beliefs. Yet some of the women who work and study at the colleges say that, even though the outcome will affect their lives, their opinions and experiences are not always considered on their campuses or in the courts.
To inject more discussion of women’s concerns into the debate, Americans United for Separation of Church and State filed a brief last month on behalf of 240 students, staff members, and professors at religiously affiliated colleges, who describe why contraception coverage is important to them.
Some talk about health problems, like chronic migraines and painful periods, that oral contraceptives help. Others describe the security they feel in knowing that they won’t get pregnant while in college. “In the future I would like to have a family,” writes one law student. “But right now I am working toward a degree and am not in a financial position to raise a child.”
Colleges and other religiously affiliated organizations have argued that the government could create contraception-only insurance plans, provide contraception through health centers, or offer tax credits. But Americans United argues that those options would involve upfront out-of-pocket costs, logistical hurdles, or both. The high cost of some contraception — the IUD and other forms can run more than $1,000 per year — is a considerable hardship for many women. And studies show that when cost and other barriers to access increase, contraceptive use falls significantly.
The brief also notes that, according to the U.S. Department of Health and Human Services, nearly all Catholic and Protestant women who have had heterosexual intercourse have used some form of contraception (with more than three-quarters of both groups having used the pill). That suggests starkly different views between the religious colleges challenging the law and the people who may study or work there. Most of the people who signed the brief work or study at large Catholic universities that have not challenged the law, including DePaul, Fordham, and Georgetown Universities.
Sara Purvin, a law student at Fordham who helps run an off-campus health fair on contraception and sexual health, says she signed on to the brief because she worries that a Supreme Court ruling in favor of the plaintiffs could lead other religiously affiliated colleges to stop covering contraception.
If schools want to decrease the amount of unintended pregnancies, decrease the number of abortions, they’re going to need to provide sexual education and contraceptive access.
Studies show the majority of 18- to 24-year-olds are sexually active, Ms. Purvin says. “If schools want to decrease the amount of unintended pregnancies, decrease the number of abortions, they’re going to need to provide sexual education and contraceptive access.”
Absent from the brief are women from any of the evangelical colleges that are part of the Supreme Court case. Gregory M. Lipper, a lawyer for Americans United, says that most of those colleges are small and very conservative, making it difficult for opponents to speak out. Some require faculty to sign faith statements or community covenants to ensure that they hew to certain theological beliefs or lifestyle choices. “I’m sure there are professors and staff that object,” he says. “It’s just very hard to speak up. Maybe if you’re a tenured professor, but otherwise, I don’t know, I probably wouldn’t.”
‘Pretty Much a Consensus’
Dani Fitzgerald is editor in chief of the student newspaper at Geneva College, one of the seven evangelical Christian institutions before the Supreme Court this week. “It’s not really a topic of conversation,” she says. “From what I can tell there’s pretty much a consensus that Geneva is doing the right thing in fighting this.”
She checked what types of contraception the college covers and was surprised to learn that, of the 20 forms approved by the U.S. Food and Drug Administration and included in the Affordable Care Act’s mandate, Geneva wanted to opt out of only a few, including the IUD and forms of emergency contraception, like Plan B and Ella. “It’s pretty taboo if someone here is taking birth control,” she says of her classmates. “It’s kind of interesting that we allow that.”
At Wheaton College, in Illinois, by contrast, there has been a lot of discussion among the faculty over the contraception provision. The college is among those that have challenged the health-care law in court, and, last summer, it stopped offering student health insurance rather than sign a waiver that would allow students to get contraception elsewhere.
Leah S. Anderson, chair of Wheaton’s political science department, said she and other faculty members were upset that the administration did not widely consult the faculty before it decided to sue. Nor was there any debate, she said, before Wheaton stopped offering students insurance, putting some of them in a bind. But that decision triggered a number of meetings among faculty, administrators, and staff.
Wheaton’s employee health plan covers most contraception except types it considers to be “abortifacients": drugs or devices that prevent the implantation of a fertilized egg in the uterus. The IUD and so-called morning-after pills are in this group, although the idea that such forms of contraception are akin to abortion is medically debatable.
How we think about birth control in contrast with abortion has not been discussed.
“Clearly we promote life as opposed to abortion,” says Ms. Anderson. “But how we think about birth control in contrast with abortion has not been discussed at Wheaton and in the evangelical community broadly.”
Wheaton’s lack of consultation with faculty and students, she says, “doesn’t acknowledge a concern for women and doesn’t communicate respect for its female employees, who would clearly take these issues seriously.”
In a written response to questions from The Chronicle, Wheaton said that, as its court case proceeded, it consulted with a committee of faculty, staff, alumni, and trustees that met to discuss the “ethical implications of the healthcare mandate.” While the case for Wheaton is “primarily about religious liberty,” the response also said, students, faculty, and staff “are responsible for their own actions” in abiding by the community covenant that they agree to when joining Wheaton.
Notre Dame’s fight against the contraception mandate has also angered some of its students, staff, and faculty. The university sued in 2012 for an exemption from the mandate, and that case is still working its way through the courts.
Kathryn Pogin, a doctoral student, was a co-author of a petition in 2012 that warned against imposing a Catholic sexual morality on people who do not share that view. More than 200 Notre Dame faculty, staff, students, and alumni signed the petition.
“I signed it because I believe the Notre Dame lawsuit is legally and ethically questionable, supports discrimination against female employees, and at least partly misrepresents Catholic teaching,” Kristin Shrader-Frechette, a professor of philosophy and biological sciences, and director of the Notre Dame Center for Environmental Justice and Children’s Health, wrote in an email. “Although Notre Dame claims it does not want to deny women’s rights to freedom of conscience, many female faculty members and graduate students say the opposite. They say they have faced overwhelming difficulties trying to obtain contraceptive coverage at the university.”
Dennis K. Brown, Notre Dame’s spokesman, said in an email that the university understands that many faculty, staff, and students use contraceptives. “As we assert the right to follow our conscience, we respect their right to follow theirs.
We’ve tried to make clear our lawsuit is not about contraception, but rather about religious freedom.
“We’ve tried to make clear our lawsuit is not about contraception, but rather about religious freedom,” he continued. “We are not trying to stop anyone from using contraceptives. If they want to, that’s their right. But we do think that it is a direct encroachment on the 1st Amendment right to religious liberty when the government requires organizations that oppose contraception on religious grounds to act as an agent in the distribution of contraception.”
Alexis Doyle, a junior who plans to become a doctor, says Notre Dame’s lawsuit reflects a larger stigma around sex. Plenty of undergraduates are sexually active, she says. But because unmarried sex is against the student code of conduct, students don’t want to openly discuss birth control. “The dialogue is far behind our peer institutions,” she says.
Attacked for Speaking Out
Some people who have spoken out in favor of contraception coverage have faced a backlash. In 2014, Katie Washington, a Notre Dame graduate who was recently appointed to the Board of Trustees, came under attack by conservatives, with some calling for her removal, after she and classmates at Johns Hopkins’s medical school signed an editorial in support of contraception coverage.
Ms. Pogin, who transferred to Northwestern University in 2014 to complete her doctorate in philosophy, sees a double standard. Before the Affordable Care Act mandate, women at Notre Dame could get birth-control pills only if a doctor certified that they were for noncontraceptive medical use. Yet, she says, the university covers Viagra but does not ask men whether they are married. Why police women’s sexuality only? she asks.
“It’s really frustrating,” says Ms. Pogin, “that institutions like Notre Dame don’t trust women to make those decisions in a morally reflective way.”
Correction (3/23/2016, 4:54 p.m.): This article originally provided an incorrect tally of religiously affiliated colleges and seminaries that have sued the government over the Affordable Care Act. A total of 37 institutions have sued. The text has been corrected.
