On May 2, 2022, Politico leaked the Supreme Court’s draft of its decision in the historic case of Dobbs v. Jackson Women’s Health Organization.
Two days later, Notre Dame professors Tamara Kay and Susan L. Ostermann, responded with an op-ed in Salon just two days later, titled “Forced pregnancy and childbirth are violence against women — and also terrible health policy.” On May 6, Kay, Ostermann and their colleague Tricia C. Bruce published a second piece in the Los Angeles Times: “Pregnancy is risky. Losing access to abortion puts women’s lives at stake.”
ND News (@nd_news) tweeted links to both articles, as well as a piece by Notre Dame Law School Professor O. Carter Snead, “The leak shows why abortion policy should be returned to the states” and links to Snead’s other pro-life publications.
Almost a year before, on Aug. 3, 2021, the Notre Dame Law School also promoted three amicus briefs authored by faculty members — Snead, Richard Garnett and John Finnis — for the Dobbs v. Jackson case, all of which claimed, “Mississippi’s law is constitutional, and Roe v. Wade and Planned Parenthood v. Casey should be overturned.”
On May 31, 2022, the National Review Online published the opinions of Sean Tehan, Francine Shaft and Merlot Fogarty in their piece “Notre Dame Should Not Promote Pro-Abortion Views,” which was penned specifically in response to ND News sharing Kay’s articles. Tehan and Shaft, recent graduates of Notre Dame, and Fogarty, a junior at the university and president of Notre Dame Right to Life, argued that “even though ND News posted pro-life commentary, Notre Dame should not hide behind a veil of supposed ‘neutrality.’ Abortion is a direct, intentional attack on the dignity of human life, and we cannot tolerate it under any circumstances.” Their piece was published under the same title in the Irish Rover on June 7, 2022.
Even at one of the nation’s foremost Catholic institutions, views over abortion access are diverse and hotly contested. Kay said she’s glad her and her colleagues’ work has sparked discussion on campus.
“I think it’s done exactly what we wanted our op-eds to do,” Kay told Scholastic, “which is to change the perception of Notre Dame as a place where the majority of people accept the Catholic Church’s position on these issues. I believe most of us do not.”
The situation intensified on Friday, June 24, 2022, when the Supreme Court’s 6-3 ruling in Dobbs v. Jackson overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, stating that “The Constitution does not confer a right to abortion … and the authority to regulate abortion is returned to the people and their elected representatives.”
Associate Justice Samuel A. Alito, Jr. delivered the Court’s opinion on this landmark legal decision, joined by Associate Justices Clarence Thomas, Brett M. Kavanaugh, Neil M. Gorsuch and Amy Coney Barrett, a class of 1997 Notre Dame Law School graduate and university law professor from 2002-2020.
Justices Thomas and Kavanaugh filed concurring opinions and Associate Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor filed dissenting opinions. Chief Justice John G. Roberts concurred with the judgment, meaning he agreed with the Court’s opinion to uphold the Mississippi abortion prohibition in the case of Dobbs v. Jackson; however, he disagreed with the overturning of Roe v. Wade and Planned Parenthood v. Casey. Therefore, the vote to overturn Roe and Casey came down to a 5-4 decision with the newest justice, Notre Dame alumna Coney Barrett, playing a pivotal role.
Former president Donald Trump appointed Coney Barrett in October 2020, just one month after the death of her predecessor, Associate Justice Ruth Bader Ginsburg, which cemented the Court’s conservative majority. Trump had fulfilled a promise made in the final presidential debate in 2016, when he said, “I am putting pro-life justices on the court.”
Coney Barrett , a self-proclaimed originalist like her mentor Antonin Scalia, was a member of the University Faculty for Life and the Notre Dame Fund to Protect Human Life during her tenure at Notre Dame. Originalism is the legal theory that contends “the constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative,” as defined by Coney Barrett in her 2017 Notre Dame Law Review article, “Originalism and Stare Decisis.”
Many constitutional scholars appear to disagree with the originalist position: “Originalism is the big lie of American legal theory,” said Sotirios Barber, professor of constitutional studies in the political science department at Notre Dame since 1986. “[Originalism] rejects the heart and soul of the American constitution and the American constitutional project,” “Thirty to thirty-five years ago, you could’ve said originalism was an honest mistake, but after 35 years of scholarly analysis, it has been proved that originalism is false historically; originalism is false semantically, and originalism is false morally. Scholars on the left and the right know this.”
Ultimately, Barber called the Dobbs decision a “disaster,” fundamentally based on religious doctrine and not the Constitution. “What is so disastrously wrong about the Dobbs decision is not so much what it says about abortion, but what it says and what it implies about the nature of the U.S. Constitution and the possibility of constitutional truth,” he said.
On the other hand, Snead, a friend of Coney Barrett’s, professor of law and director of the de Nicola Center for Ethics and Culture at Notre Dame, defended the originalist position of his amicus brief in an email to Scholastic: “Our primary position was that neither the text, history nor American legal tradition supports the view set forth in Roe and Casey that the U.S. Constitution includes an unwritten right to abortion.”
Snead maintained, “These were, of course, legal arguments rather than religious ones.”
Shortly after the Dobbs decision was announced, President Rev. John I. Jenkins, C.S.C., released a statement to the Notre Dame community. “As a Catholic university, Notre Dame is committed to the sanctity of all human life, and I have for many years joined with others in advocating for the protection of unborn life,” he said. … “I hope that today’s Supreme Court decision, which returns the question of abortion to voters and their elected representatives, will provide an occasion for sober deliberation and respectful dialogue.”
Jenkins concluded his statement by urging people to engage in these discussions with a “generous spirit” and to “above all, strive to establish laws, policies, and programs that ensure equality for women and support for mothers and their children.” Though in line with the Catholic Church’s views, Kay told Scholastic that the choice to publicly endorse Dobbs shocked and “horrified” faculty she spoke to. Kay believes the university’s public endorsement of Dobbs was unnecessary and will have major consequences. “As Notre Dame aspires to be a great research institution, unfortunately, one of the impacts I believe will be a lot of difficulty hiring women. We already have a lot of difficulty hiring and retaining people of color, especially African-American women, and we have a really hard time recruiting LGBTQ people, so now you have entered women into the picture here,” she said.
According to Notre Dame’s Task Force Report on Diversity, Equity, and Inclusion, published in June 2021, “Recruitment of diverse faculty is a top University priority, as is retention of those who are already part of the Notre Dame community.”
Kay, who has served on a hiring committee for the Keough School of Global Affairs, said female candidates consistently have concerns. “Whenever we have women candidates, behind the scenes, women candidates are saying, ‘It’s a Catholic institution, how sexist is it? How problematic will it be for us as women? What about contraception? What about abortion? What about IVF?’ So [when we recruit women], the women faculty do all this behind-the-scenes work to convince women faculty to come here. They always have these questions. Always.”
In addition to getting women candidates to campus, Kay says, the university will also face an issue of retaining the female faculty already employed. “I am sure we will have great scholars who will leave,” she said. “We have already lost great staff over Dobbs. And if the Supreme Court reverses gay marriage, protections for contraceptive use, and other LGBTQ rights, and the university publicly endorses those decisions, I believe that will create an enormous problem for hiring.”
The Supreme Court’s decision did not automatically ban abortion; instead, it left the choice up to the states. On July 25, 2022, the Indiana General Assembly convened for a special session to discuss the implications of the Court’s decision on state legislation. On Aug. 5, Gov. Eric Holcomb signed Indiana Senate Bill 1, which “terminates the licensure of abortion clinics.” It also restricts when an abortion can be performed, including when: “(1) the abortion is necessary to prevent any serious health risk of the pregnant woman or to save the pregnant woman’s life; (2) the fetus is diagnosed with a lethal fetal anomaly; or (3) the pregnancy is a result of rape or incest.”
However, there are salient time restrictions. One may only receive an abortion during the first 10 weeks post-fertilization in cases of rape or incest. If the fetus is diagnosed with a “lethal fetal anomaly,” one may receive an abortion so long as it “occurs prior to viability or 20 post-fertilization weeks of pregnancy, whichever is earlier.” If there is a need for termination of the pregnancy “past viability,” the law states the “the proper medical procedure would be to induce labor, not perform an abortion.”
This law also requires the state’s “Maternal Mortality Review Committee” to analyze how the changing abortion laws impact Indiana’s maternal mortality rate. Several estimates claim that Indiana has the third highest maternal mortality rate in the country.
Kay, who studies abortion policies and their impacts, cites numerous studies that find maternal and infant mortality rates increase following abortion bans. “Even if you do not agree with abortion, criminalizing it is very bad policy. … I know these bans will have tragic results,” she said. “It is going to make pregnancy more dangerous for everyone.”
Merlot Fogarty, president of Notre Dame’s Right to Life Club, disagreed. “I think Indiana was very prepared for this decision. … Notre Dame also has always had these networks of support, and these pregnant and parenting resources available to students, it just has never been super prominently marketed before. So I don’t think there is going to be a negative effect in any way other than the discourse,” she said.
So, what networks of support for students does Notre Dame have?
HEALTH CARE AT NOTRE DAME
“The Dobbs decision affects everybody somehow, so it should cause conversation on campuses such as this [one],” said Dr. Ed Junkins, director of University Health Services (UHS). “But, University Health Services is very much aligned with the Catholic mission and the mission of the university, and we have always been, so it doesn’t necessarily affect what we do [at UHS].”
That being said, there has been confusion across campus about what UHS actually can and cannot do. Discourse and confusion increased particularly following the June 2018 lawsuit on behalf of Irish 4 Reproductive Health and unnamed women against Notre Dame’s health care coverage plan for contraceptives.
In an interview with Scholastic, Junkins clarified that the university can prescribe pharmaceutical birth control, such as the birth control pill, for students with a medical diagnosis such as “dysmenorrhea” (menstrual irregularities) or other menstrual abnormalities that can be best managed with hormonal regulation. Without a prescription from the university clarifying this diagnosis, or a note contending similar needs from another doctor, Junkins says, the pharmacy cannot give students oral contraceptives as a means of birth control, unless that student is married.
As a policy, the UHS and the Walgreens pharmacy at St. Liam’s do not provide or sell condoms or other forms of contraceptives, including emergency contraceptives such as “Plan B” (the morning after pill) even in cases of sexual assault. According to du Lac, “Students who engage in sexual union outside of marriage may be subject to referral to the University Conduct Process.”
Irish 4 Reproductive Health is a local non-profit, run entirely for students by students advocating for reproductive justice on campus and in the greater South Bend community. “I think we like to ignore the fact that Notre Dame is a sexually active campus with not a lot of sexual education,” said Olivia Schatz, a senior I4RH board member. I4RH’s website elaborates, “As a group, we distribute condoms, lube, pregnancy tests and Plan B. We also host events with scientists and professionals to give access to information on sexual health.”
Junkins, meanwhile, says UHS regularly treats sexually transmitted infections. “We are a Catholic clinic, and Catholic clinics see STIs, and there are questions about sexual health and overall health, so we are trained to take care of all those things,” he said. ... “Regardless of our personal beliefs, our medical staff is trained to support students in a caring, nonjudgmental way.”
The UHS does officially encourage abstinence, Junkins clarified. But in situations where students think they might have acquired an STI, UHS offers testing, treatments and necessary preventative care, such as medications recommended by the CDC for the prevention and treatment of HIV.
“For a student that believes that they’re pregnant, we will test them, we will talk to them, we will offer them resources, we will refer them to counseling, we will refer them to resources that support life and like any other student who chooses a different level of care, that care is available in the area. Maybe it’s harder to get, but it’s available,” added Junkins.
In addition to offering free, confidential pregnancy testing, the UHS also refers students to the University Counseling Center, local providers in town that “support life” and Notre Dame’s Family Resource Center.
Established in 2018, the Family Resource Center provides married, parenting and/or pregnant students at Notre Dame with yearround educational and social programming with the aim to build a community for these students, which is very important because “any ND student that is parenting and/or married lives off-campus in either apartments or houses,” Peggy Hnatusko, the Center’s program director, wrote in an email to Scholastic.
The Center’s longest-standing program, “Expectant Parent Support Lunches,” open to both male and female students, as well as student-spouses, is one of its most popular event, Hnatusko said. The Center is also home to an infant and maternity closet; a free diaper and formula bank; and Childbirth Education and Newborn Education classes and programming.
With regards to providing resources in the case that students want an abortion, Junkins reiterated, “It’s a Catholic university, and as such, the Catholic mission is no different than the University Health Services mission, which is ‘we support life,’ and we provide resources to support life for students. … Students can make the decision they want to make and we will take care of their medical needs.”
Students looking for abortion information can, however, turn to Irish 4 Reproductive Health for resources. “We are not medical professionals or healthcare professionals, but we are going to help connect [students] with resources that will give them the full range of options and make them aware of the limitations of other resources that may have been presented, and support them emotionally 100%,” said organization copresident Matt Heilman. “We are trying to give agency and autonomy to people to make decisions about their healthcare and their body.”
Although S.B. 1 went into effect on Sept. 15, 2022, Special Judge Kelsey B. Hanlon granted a preliminary injunction against the ban seven days later, temporarily allowing abortions to resume in Indiana. The injunction remained in place when this article went to print.