Misplaced criticisms of Fr. John Jenkins and Pres. John Garvey

Both Stephen White and Matthew Franck have posts up at First Things in which they lodge objections to certain features of John Garvey's recent opinion piece in The Washington Post and of the recent letter that Notre Dame's President, and my colleague, Fr. John Jenkins, sent to HHS Secretary Kathleen Sebelius, urging her to improve the dramatically inadequate religious-employer exemption to the new health-care law's contraception-coverage mandate.  I say it with great respect, but these posts strike me as unfairly critical and as insufficiently appreciative of the specific context in which Fr. Jenkins's letter was submitted (i.e., commentary to an administrative agency's proposed interim rule) and of his letter's specific goal.

First, it seems wrong to fault Fr. Jenkins for (entirely sensibly) attempting to move Sec. Sebelius to the right decision by saying nice things about her connections to Notre Dame and its mission and by reminding her that Pres. Obama did call publicly (even if we might reasonably suspect that he didn't really mean it) at Notre Dame for a more religious-freedom-friendly approach than the one he and his Administration seem (unfortunately) to be taking now (on several fronts). 

Fr. Jenkins, in his letter, is trying to effect a better outcome than the one proposed in the relevant interim rule.  He is not writing as a scholar (though he is one) or making a general intervention as a public intellectual.  He is the representative of a large institution that would be seriously and negatively affected by the proposed interim rule.  It makes little sense, in my view, to fault him for not using this particular occasion to denounce the immorality of the mandate itself.

Second, Mr. White seems to impute to Fr. Jenkins the claim or view that there is a moral equivalence between dropping employee health coverage and paying for abortion-causing contraceptives and sterilization.  I don't think Fr. Jenkins said that, even if he did say that he thinks it would violate Catholic Social Teaching to fail to provide employees and students with insurance.

Next, Matt Franck, in his post, finds much to praise in Fr. Jenkins' letter, and correctly reminds us all that abortion is wrong, not "wrong for Catholics."  He writes:

Father Jenkins and President Garvey admirably defend the institutional conscience rights of their universities, and that is rightly their foremost concern. But by not going on the offensive against the basic immorality of the Obama administration’s rule, they backed into a purely defensive stance. The Obama administration may not budge from its rule as proposed. But one danger is that it will accept a “Jenkins-Garvey” solution, expanding the “religious employer” exemption in the HHS rule and then trumpeting the administration’s “reasonableness.”

Franck and I agree entirely about the basic immorality of the administration's rule.  (I am sure that Fr. Jenkins also joins us in agreement.)  But, with all due respect, I think it is entirely reasonable (and not cause for criticism) for Fr. Jenkins and Pres. Garvey to proceed on the basis of the (sound) assumptions that the mandate itself is not going to be dislodged unless the next election dislodges it and that this Administration is not open, at all -- it should be, but it is not -- to a conscience-exemption to the mandate for those (in Franck's apt words) "marooned outside the ambit of the rule’s exemption, as insurers, employers, and employees."  Yes, given the givens, Fr. Jenkins and Pres. Garvey are in a "defensive stance," but sometimes events and facts-on-the-ground make such a stance the only feasible one.  

As I see it, response by the folks at the Notre Dame Center for Ethics and Culture to Fr. Jennkins's letter is a better one:

We commend the President for speaking out for Catholic institutions across the country who refuse to pit the Church's moral teaching against the Church's social teaching. His is a voice which needs to be heard in this debate, and we hope other university presidents and directors of Catholic hospitals will follow his lead in proclaiming the truth.

To be sure, I agree entirely with Matt Franck that the Hyde Amendment was and remains a great success, and will be very happy if the Administration is moved by the powerful arguments set out in the response to the proposed rule of the Witherspoon Institute’s Task Force on Conscience Protection.  I see no need, though, to focus on or complain about what else could have been in Fr. Jenkins' and Pres. Garvey's interventions when (i) there is so much in them that is good and (ii) they reflect (what seem to to me to be) sound conclusions about strategy-and-tactics.