Gonzaga and the HHS Mandate

by Dr. David DeWolf
August 18, 2013

Did Gonzaga Surrender Religious Freedom?

Why was Gonzaga University one of the first colleges in the country to reverse its longstanding policy of excluding coverage for contraception and sterilization from its health care policy?  On November 20, 2012, President Thayne McCulloh sent a memo to Gonzaga faculty and staff informing them of this policy change.  It was explained as being compelled by the HHS mandate issued by the Obama Administration, which requires employers, even those with long-held beliefs objecting to such coverage, to pay for contraceptive and abortifacient drugs as part of the Affordable Care Act (commonly referred to as Obamacare).  Gonzaga made this choice at the same time that many other Catholic institutions, including EWTN and Notre Dame, filed suit to have the regulations issued by the Administration struck down as violating either the Religious Freedom Restoration Act, the 1st amendment to the U.S. Constitution, or both.

Meanwhile, Cardinal Timothy Dolan, archbishop of New York City and president of the United States Conference of Catholic Bishops said this about the mandate: “Critics charge that this is an attack on the cornerstone First Amendment freedom that is the very foundation of our democracy. It is. Others assert that it threatens a violation of conscience for millions of Americans. It does. And still others insist it will force an unprecedented choice for many employers to either subsidize what they believe to be immoral, or withdraw health care coverage for their own families and those of their employees. It will.”

In harmony with his brother bishops, Bishop Cupich wrote a letter to the Spokane Diocese on February 7, 2012, in which he identified the three options open to Catholic schools, hospitals and charitable organizations in response to the HHS mandate:  “1) violate our beliefs by providing insurance coverage for medications and procedures we believe are immoral, 2) withdraw insurance coverage for all of our employees and face fines that will put our operations at risk of shutting down altogether, or 3) hire and serve only Catholics in the hope that then we will qualify for the exemption.” Gonzaga continues to offer insurance coverage to its employees, and it continues to hire and serve non-Catholics.  So it has apparently chosen option #1 – to violate its beliefs.  Why did Gonzaga University choose to do so?  Let us examine the actions of Gonzaga University and the reasons given for those actions. 

Gonzaga’s statement on the policy change says that “it is incumbent upon us as a Catholic Jesuit institution to ensure that the position of the Roman Catholic Church on the specific issue of contraception is clearly communicated, even as we are compelled by the federal government to fulfill our legal obligation under the mandate.”  What is the “position of the Catholic Church” that Gonzaga University is “clearly communicating”?
One of the premier responsibilities of an educational institution like Gonzaga is to provide leadership on ethical issues so that other Catholics, faced with similar ethical dilemmas, will have an example to follow. To do the opposite – to set a poor example – is to become a stumbling block for others.  Hence the etymology of the word “scandal” – to hinder rather than help others in their spiritual journey. 

In his letter President McCulloh states that Gonzaga was “compelled” to change its policy.  Was it any more compelled than the dozen or more institutions that sought relief in the courts from this unjust mandate?  Was it unable to seek the safe harbor provision that delayed implementation of the mandate? And even if the day had arrived when the University no longer had any legal option, and could only avoid compliance with the mandate by ceasing to operate (or at least operating in far different manner from the way it is currently structured), some explanation is required for why compliance was morally justified.  After all, the  fact that there is a legal mandate to do something immoral, or a steep price to be paid for refusing to do so, does not make it any less immoral? Or does Gonzaga really believe that paying for contraception and sterilization is immoral? In his letter President McCulloh stated, “The University recognizes that the decisions for all individuals, including Catholics, regarding reproductive health, are intensely personal and private.” He assures us that Gonzaga will “clearly communicate []” the “position of the Roman Catholic Church.”  But it makes it appear that the teaching of the Catholic Church on this subject is more like the dietary restrictions during Lent, rather than the fundamental moral law that derives from our nature as human beings. Even in this document, the Church and its teachings are held at arm’s length.

Sadly, this conforms to what has become the culture at Gonzaga University. Instead of the Church’s teaching on sexuality at the forefront, with dissenting views tolerated in the spirit of academic freedom—but clearly and authoritatively refuted—it is common for dissenting views to be treated as normative, and those who support the Church’s teaching to be regarded as aberrational. So when President McCulloh assures us that the “position of the Roman Catholic Church” will be clearly communicated, we should remember that actions speak louder than words.  Whatever might be said in defense of the Church’s teachings, the decision to capitulate, with barely a shrug of the shoulders, to unjust and immoral threats by the Obama Administration, communicates volumes about what Gonzaga really stands for.  Instead of complying only when forced to, and with an explanation of why such surrender was morally justified, Gonzaga’s early compliance created the impression that they were eager to comply, at a time when other universities were fighting the good fight. True, Gonzaga’s Board of Trustees did commission the Legal Committee of the Trustees to evaluate options regarding the issue of a “friend of the court (amicus curiae) brief” in support of one of the cases pending in federal court opposing the HHS mandate. But if this really is a serious intrusion upon the religious liberty of all Americans, should not a Catholic university make a more vigorous stand to defend religious liberty, especially the freedom of conscience?

The decision of the Obama Administration to impose an unjust mandate admittedly forced Gonzaga, along with other Catholic institutions, to make tough choices.  If it simply flinched in the face of pressure, out of cowardice, it would be understandable, if regrettable.  But let us not deceive ourselves as to what this decision really says about Gonzaga University.

David K. DeWolf is a Professor of Law at the Gonzaga University School of Law. The views expressed here are his own. 

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