The FDA has approved the following medicines and devices for birth
control:[6]
2) Cardinal Burke responding
to interlocutor
Thomas McKenna: “So a Catholic employer, really getting down to
it, he does not, or she does not provide this because that way they would be,
in a sense, cooperating with the sin…the sin of contraception or the sin of
providing a contraceptive that would abort a child, is this correct?”
Cardinal Burke: “This is correct. It is not
only a matter of what we call “material
cooperation” in the
sense that the employer by giving this insurance benefit is materially
providing for the
contraception but it is also “formal
cooperation” because
he is knowingly
and deliberatelydoing this, making this available to
people. There is no way to justify it. It is simply wrong.”
Responding to the comments, Giroux says,
“This comment by a high ranking Cardinal is the clearest explanation to date on
the issue of an employer’s culpability when providing contraception,
sterilization, and abortion inducing drug options in the insurance plans for
employees.” [Steven
Ertelt]
Summary: Yes.
Explanation:Catholics have a moral obligation to protest
against the HHS mandate since it is a serious violation of religious
liberty. Those who have filed lawsuits are providing tremendous witness
and service. Nonetheless, once the HHS mandate goes into effect, since compliance with it would
be material cooperation with evil done
under duress and accompanied by serious harm to innocent persons, Catholic
employers and individuals may morally comply with the HHS mandate that requires
them to pay for health care plans that pay for abortion-inducing drugs,
sterilization and contraception.
Blogger comment: No. The question transcends the morality of
individual actions. The contraceptive question involves the totality of the
human person anthropologically as image and likeness of the Trinitarian God.
Its moral import transcends the question of formal or material co-operation. We
cannot absent ourselves from this question by rationalizing to so-called “material
cooperation” and sink it institutionally, legally and economically into the
human fabric of the country and, therefore, the world. The ontological reality
and the psychic scandal becomes an endemic horror.
Morality, in the light of Vatican II (Gaudium et Spes #24: "man... finds himself only by the sincere gift of himself"), is not reducible to conceptual, abstractive knowing and principles. It's guidance is "something like an original memory of the good and true (they are identical) has been implanted in us, that there is an inner ontological tendency within man, who is created in the likeness of God, toward the divine. From its origin, man's being resonates with some things and clashes with others. This anamnesis of the origin, which results from the god-like constitution of our being, is not a conceptually articulated knowing, a store of retrievable contents. It is, so to speak, an inner sense, a capacity to recall, so that the one whom it addresses, if he is not turned in on himself,hears its echo from within. He sees: That's it! That is what my nature points to and seeks" [J. Ratzinger, "On Conscience," Ignatius (2006) 32].
(Smith cont’d):
The Question:
In July a Colorado judge granted an injunction
that temporarily freed Hercules Industries, an HVAC company owned by a Catholic
family, from paying for health care plans that cover abortion-inducing drugs,
sterilization, and contraception (hereafter AID-S-C), as required by the HHS
mandate. The Newlands, owners of Hercules Industry, admirably and heroically
chose to resist the HHS mandate by suing the government.
Do all Catholic employers need to do the
same? There are two types of Catholic employers affected by the mandate.
There are apostolic institutions that generally bear the name “Catholic” or
something equivalent (such as Catholic universities and hospitals) whose reason
for being is to give witness to the faith. I will not take up the
question of the morality compliance with the HHS mandate of such
organizations. Rather I will focus on those Catholics who own business
that are not established to bear witness to the faith, businesses such as
manufacturing companies or law firms. I will call these “non-faith based” employers or NFB employers. The question
here is: would it be immoral for NFB employers to cooperate with the mandate?
Catholic individuals face a similar
quandary. Is it moral for them to pay into health care plans that pay for
AID-S-C (abortion-inducing drugs, sterilization, and contraception)?
Certainly if they approved of paying for
AID-S-C, their compliance would be immoral but what of those who do not
approve? Suppose they have done every reasonable thing to overturn the
mandate and to protest the mandate and have failed to find suitable
alternatives? Would it be morally permissible for NFB (non-faith based) employers
to comply since they are likely to suffer severe consequences for noncompliance
such as huge fines and possibly even going out of business, losing their own
means of livelihood and endangering that of many others as well? (Several
things may drive them out of business among them, a refusal to pay for
healthcare may mean they would not be able to employ suitable individuals, or
they may not be able to afford the penalties they would incur for
non-compliance.) And there may be further harms, such as the employees needing
to buy their own heath care and not being able to get the same quality they
received with a group plan.
A Spectrum of Views:
Various Catholic
theologians have posted essays on the internet registering their understanding
of the morality of complying with the mandate for those NFB employers who
accept the Church’s teaching on contraception. I doubt that I have
located all of the pieces but the following are, I believe, representative of
the spectrum of views. All of the listed authors have some nuances to their
positions but I hope I have represented them fairly: Jenn Giroux reports on Cardinal Burke’s assessment
that formal cooperation would be involved, Michael Pakaluk and Steve Long argue that any cooperation with the mandate would be
formal cooperation; William Marshner also argues that it would be formal cooperation but
proposes that the principle of double effect might justify some
cooperation; Colin Donovan argues against any cooperation by
employers; Robert George and Sherif Girgis argue that the cooperation is material
but seem to think the evil consequences that would result do not justify the
material cooperation; Rev. Thomas Joseph White, O.P. and R.R. Reno argue that the cooperation is material
but nonetheless seem to argue against it (it is not one of the options of
response that they consider); Christian Brugger, Christopher Tollefsen and Jeff Mirus (separately) argue that the cooperation would be material
and that the cooperation is remote enough to make it morally permissible;
a group of bioethicists at the National
Catholic Bioethics Center argues
that cooperation is material and that for a temporary period, employers may
cooperate with it.
My Position (Dr. Janet
Smith following the lead of the “National Catholic Bioethics Center”):
Here I am going to argue that NFB Catholic
employers and Catholic individuals as well have a responsibility to give
reasonable resistance to the mandate as a violation of religious liberty, both
before and after the mandate goes into effect. Nonetheless, I am also going to argue that if required by law, Catholic
employers and Catholic individuals may morally pay for health care plans that
pay for AID-S-C. Let me take up the second point first.
(There is a fair amount of disagreement about
the meaning of the term “material cooperation with evil”, and a large amount of
disagreement about its proper application. I hope my use of the term is
at least intelligible and consistent and that it captures rightly the true
moral evaluation of various situations.)
The Act Performed:
Fist let us get a clear sense of the act being
performed. The employer is not going up to the counter of a pharmacy and
purchasing an abortion-inducing drug for an employee. He is not keeping a
storeroom of contraceptives to which employees have ready access. He is
not keeping a surgeon on staff who will do sterilizations. He is paying for a
health care plan that will pay for AID-S-C should the employee receive a
prescription for such. While often employers may have certainty that some
employees will make use of such options, other employers may have full
confidence that none of their employees will make use of them. Since the
employer does not intend that any of his employees use the services and since
he does not directly make them available, I am confident that the cooperation
is not formal but is justifiable material cooperation. (In a future column I
will respond to Pakaluk’s and Long’s arguments that the cooperation is formal.)
Material Assistance
vs. Cooperation with Evil:
Let us note that if a person who provides
material assistance to wrong doers is cooperating with evil then God would be
the biggest cooperator of all. After all, God gives human beings
everything we have and He has certain knowledge that we will use it for evil,
even knowledge of how each particular individual will use things to do evil.
Parents would be cooperators with evil since they supply their children
with everything they have; yet who would say that parents are materially
cooperating in all the wrongdoing their children may do? If someone
rescues a known criminal from drowning, one he knows will go on engaging in
criminal activity once rescued, the rescuer is not guilty of material
cooperation in the future wrong doing of the criminal.
Indeed, all of us are in a position where we
provide material assistance to wrongdoers. Employers pay employees a
salary and they know that some of them are going to use that money for immoral
purposes, such as paying for abortions. They may even know who is going
to use the funds for abortion. Employers should try to hire moral people
and educate people to be moral, but the choices of how money is spent are not
always under the moral purview of those who supply the money. Providing the
material wherewithal that wrongdoers need is not always cooperation with
evil. People are responsible for their own choices.
Definition of Material
Cooperation with Evil:
I am not prepared to make all the fine
distinctions that should be made between simply providing material assistance
that one owes another and engaging in material cooperation but it certainly
seems there is a difference. Often paying taxes that go to pay for immoral
actions is cited as an example of justifiable material cooperation with evil
because it is so remote from the evil done. I wonder if it is cooperation
with evil at all when one is giving to others what is owed to them (and we do
have a moral obligation to pay taxes). Employees certainly often use
their wages for immoral purposes but is the employer who paid the wages truly
involved in cooperating with any of the evil done? For
again, if so, God and parents and someone rescuing a drowning criminal would
all seem involved in cooperation with evil and it seems strange to say that God
and those performing their duties are cooperating with the evil that might
result from their deeds.
Alphonsus Liguori defined material cooperation
as “that cooperation which concurs only with the bad action of the other,
outside the intention of the cooperator.” Again, I don’t know if that
applies to the taxpayer or the employer paying wages for I don’t know if they
are truly cooperating with the bad action of another.
It would seem to me that the transactions that
more properly qualify as material cooperation are those in which the agent
supplying the assistance does not owe the wrong-doer what is supplied. For
instance, one who owns a lumberyard does not owe lumber to all those who come
to purchase it from him. Were he to discover that someone purchasing supplies
were going to use them to build an abortion clinic, his selling the supplies to
the builder would seem to be material cooperation with evil. Many factors
would need to be taken into account to assess whether or not continued selling
would be moral but the selling of supplies is material cooperation.
Whether or not I am correct about the
distinctions between providing material assistance as a result of giving what
is owed to another and providing material that one does not owe, may not make a
great deal of difference in the analysis below but I believe we should work at
getting a clearer understanding of precisely what constitutes material
cooperation.
In general, we should take reasonable measures
to avoid cooperation with evil; we should try to avoid situations that entail
material cooperation and should resist cooperating when possible. We
should refuse to take any employment at abortion clinics, for instance.
Permissible or
Justifiable Material Cooperation:
Nonetheless, material cooperation with evil is
sometimes permitted.
Remoteness: For instance, we cannot possibly research
the business practices of all those businesses we patronize and thus it is
moral for us in general to shop without much worrying about whether companies
pay unfair wages, treat their employees poorly, or donate to unworthy causes.
Sometimes, of course, we may chose to investigate such matters or follow the
lead of others who have investigated such matters, but in general our
responsibility for cooperating with evil through our purchases is minimal.
Unreasonable burdens: It is also permissible when the burden
involved in not cooperating is unreasonable. For instance, one may not
wish to purchase groceries from a grocery store owned by an abortionist since
some of his profits may go to promoting his abortion business. But if the
grocery store is the only one in reasonable driving distance, it would be moral
to shop there.
Duress: We are permitted to cooperate materially with
evil even when the evil is serious if we or other innocent people would
experience serious harm by refusing to cooperate. These are said to be
situations of duress. Although one is physically and morally able to
refuse to act, the duress can be sufficient to render one’s choice not fully
free and justifiable. Aristotle speaks about someone throwing goods over
the side of a sinking ship. The choice of the one throwing goods
overboard is a mixture of freedom and duress, for he would not otherwise do
so. Another example would be the person being pressed to drive the getaway
car for a bank robbery. If one could do so without experiencing great
harm, one should resist doing. But one threatened with serious harm could
morally drive a getaway car. The driver would be more an additional
victim of the crime rather than an accomplice.
Bundled Evil:
We should also note there is less culpability
or none at all in cooperation with evil when the evil is “bundled” into some
other act the cooperating agent must necessarily perform. The example of buying
groceries from a grocery store owned by an abortionist serves here as well.
Some of the money we paid for cheerios might go to pay for advertising
the abortion clinic but since we do not intend at all to fund abortions and
since the amount of the money that goes to abortion is negligible, our shopping
at the store is morally permissible. Nonetheless, it would be good to
attempt to attract another grocer to town; even better, it would be good to try
to convert the owner away from doing abortions by persuasion, pray, sacrifice, and
organized protests.
Again, I am not inclined to think that those
who pay for taxes that pay for immoral practices are guilty of cooperation with
evil, but if they were, it would be morally justifiable cooperation. It
is just and moral that we pay taxes. It is the legislators who decide how tax
money is to be spent. Our paying taxes that pay for immoral actions is
not in itself immoral; rather the moral acts we exercise are in respect to the
legislators who are elected. Nonetheless, some will conclude that in some
instances they should refuse to pay taxes, not because the payment of taxes is
immoral, but as a way of signaling their disapproval with how tax revenue is
being allocated.
The Position of the
National Catholic Bioethics Center Bioethicists:
As a basis for explaining my position I will
comment on the statement of the bioethicists at the National Catholic Bioethics
Center since it has a certain elevated status coming from a rightly very
trusted and influential institution.
The NCBC bioethicists hold that there are
three moral options open to employers. One they consider not very feasible
since it involves not complying with the mandate but still supplying health
care. That would involve crippling penalties and thus it is unrealistic to
believe that any employer could continue to operate under the burdens of
penalties and lawsuits.
The NCBC bioethicists believe the best option
would be for employers to cease to offer health insurance but to provide
employees with just compensation for them to purchase their own insurance
plans. They acknowledge that it would be difficult to pay the employees
enough to find comparable benefits (since discounts are available for the group
plan paid for by the employer). This option shifts the moral burden to the
employees. The NCBC bioethicists think the employers would only be
involved in remote material cooperation with evil through these payments to
employees that will go to health care plans that pay for AID-S-C. They do not
address the question of the degree of cooperation engaged in by the employees
who must now purchase health care plans that pay for AID-S-C.
The NCBC bioethicists also allow that it would
be moral for Catholic employers to comply temporarily with the mandate, until
January 2014 when individuals will be able to purchase health care from
insurance exchanges. They hold that the cooperation would be “licit
mediate material cooperation” and they find that “To avoid putting underinsured
employees at substantial risk when fair compensation is not feasible is a
sufficiently weighty reason to tolerate cooperation through January
2014.” At that point the question of the morality of cooperation with
evil would pass to individuals who would need to purchase a health care plan,
and all of those would involve paying for AID-S-C.
I agree that all the above options are moral
though I would like to argue that compliance past January 2014 is morally
permissible primarily because I think the cooperation is sufficiently remote
and that the harms that come from compliance are outweighed by the
benefits. Refusing to engage in that remote cooperation amounts to
passing on the moral dilemma to one’s employees and also of likely
increasing health care costs for one’s employers.
The NCBC bioethicists make no argument to
justify their claim that complying with the mandate is mediate material
cooperation. They distinguish it from “remote” material
cooperation. I believe that remote cooperation is a kind of mediate
cooperation and that it might be better to distinguish various kinds of mediate
cooperation, such as proximate and remote cooperation. Both may be
justified on occasion. Whether the cooperation with the HHS mandate is labeled
“mediate” or “remote”, it is of sufficient distance from the evil done to be tolerable
in pursuit of other goods.
I will also argue that private individuals may
purchase health care plans that pay for AID-S-C. Their cooperation, like
that of employers, is also of sufficient distance from the evil to be done to
be tolerable for the reason of having health care.
Mediate Cooperation:
Let me further discuss what mediate
cooperation is. The word “mediate” indicates that the number of “steps”
or “acts of the will” between what the cooperating agent supplies and what the
primary agent does is very determinative of whether or not the
cooperation is justifiable. The morally good person would take reasonable
steps to avoid cooperating with evil at almost any distance but there are many
occasions in life where the distance between one’s material action and the
action of the primary agent is great enough that one does not share culpability
in the action. The reason mediate material moral cooperation is sometimes
permissible is that there are additional acts of the will that need to take
place between what the cooperating agent does and the primary agent does.
Thus the cooperating agent cannot be said to will what the primary
agent wills. The more inessential and remote one’s action is from
what the primary agent wills and the greater duress there is, the more
permissible the cooperation is.
Yet, simply because cooperation with evil is
material and remote enough to justify participating in an activity does not
mean that individuals should be indifferent about engaging in action that is
associated with evil action. For instance, someone who delivers pizza to
employees at an abortion clinic is far removed from the action of the
abortionist. The work of the cleaning crew of an abortion clinic is
far removed from the abortion but more connected to the abortion than the pizza
delivery person. Someone who schedules abortions at an abortion clinic is
not directly and immediately involved in performing abortions but is obviously
much more a part of the chain of activities that lead to the abortion.
Prolife individuals would not want to be involved in any of the above
activities, especially being the scheduler, in great part because of the
scandal/hypocrisy/inauthenticity involved and for those reasons it may be
immoral for them to do such jobs. But the wrong that the pizza delivery
person and the cleaning crew are doing is not morally culpable cooperation with
evil; it is more properly giving scandal. The scheduler is quite “close” to the
abortion and thus the cooperation would rarely be justifiable.
Applying the
Principles to the Mandate:
The above discussion should help us answer the
question of the morality of employers paying for health care plans that pay for
abortion inducing drugs, sterilization, and contraception.
First, it seems to me that the payment for
health care can legitimately be understood to be part of an employee’s salary
or compensation. The employer is paying a sum of money, earned by the
employee, for a health care plan that will pay for AID-S-C. Just as
an employee who is free to do what he or she wishes with money earned, so an
employee is free to do with the health care plan what he or she wishes.
The employer is acting as a “conduit” for the employee’s money. He is not
using his own money to pay for AID-S-C; he is simply making it possible for the
employee to use his or her money for AID-S-C.
Second, any cooperation with evil involved is
mediate and of considerable distance from the evil deed itself. As
mentioned above, the employer is not going to the pharmacy to purchase
abortion-inducing drugs or going to the hospital to pay for a sterilization for
someone; he is not keeping a storeroom of contraceptives or a doctor in his
employ who will do sterilizations. Indeed, there are many “acts of
the will” that must take place before the evil is performed. The primary
agent must go to a doctor; the doctor must prescribe the abortion–inducing drug
or order the procedure of sterilization; the primary agent must go to a
pharmacy and purchase the abortion-inducing drug; the primary agent must use
what has been purchased or show up for the procedure. This seems to me to
be material cooperation that is quite distant from the evil that is being done.
Third, mediate cooperation with evil is
justified if there is sufficient duress and harm threatened. There is a
sense in which the HHS mandate is an act of holding a gun to the head of
employers or it can be seen as a kind of tax; they are being forced or coerced
into paying for something that they object to, at the threat of considerable
harm. I think for the purposes of supplying their employees with
affordable health care it is permissible for them to pay for the health care
plans that pay for AID-S-C. Moreover, I think the same arguments make it
permissible for private individuals to purchase health care plans that pay for
AID-S-C.
There are also some goods that should be
factored into the equation. Those NFB Catholic employers who are being
pressured into paying for health care insurance that pays for immoral
procedures now have a good motivation for trying to educate their employees
about those procedures. It would be wise for them to hold seminars and
distribute materials that explain both the physical harms of such procedures
and why the employer has moral objections to them and why he is continuing to
seek to have the mandate overturned. Since virtually everyone who would
take advantage of the services provided for by the mandate, would have had recourse
to them anyway, the fact that the employer pays for a health care plan that
pays for them is unlikely to increase the incidence of the procedures.
What is the Fuss
About?
So some might ask, what is all the fuss about
if it is moral for Catholic employers to pay for health care plans that pay for
AID-S-C? There are several reasons Catholics should resist:
1) in general we should resist cooperating with evil 2) we should
certainly resist when serious scandal is involved; that is when we are pressured
to engage in activity that compromises our ability to give witness to our
beliefs, and 3) we should resist when other great goods, such as religious
liberty, are involved. In this instance, the mandate is a part of a
pattern of increasing suppression of religion in this country and thus it
deserves zealous opposition. Our bishops have been marvelous leaders in
this regard.
First, Catholics are being pressured to
support something they believe to be wrong – use of abortion-inducing drugs,
sterilizations, contraception. Even if it is moral for Catholics to do so
under duress, that does not mean we should not resist. Just as the
individual who is forced to drive a bank robber to the bank, should resist if
he can, so should we all resist cooperating with evil when we can.
Secondly, our failure to offer reasonable
resistance to cooperating with evil when we can causes scandal. Even if
it is only remote cooperation with evil to pay for AID-S-C, to do so without
protesting would suggest to others that we think AID-S-C are moral. If we
cooperate without protest to what we oppose that will undercut our witness to
the truths we believe. We would be guilty of causing scandal or
leading others into sin.
Thirdly, the fuss, as the bishops have said
all along, is primarily about the violation of religious liberty. That is
why such employers as the owners of Hobby Lobby have filed a lawsuit against
the mandate. The mandate not only requires Catholic employers to pay for
AID-S-C, it defines who can exercise their freedom of religion in respect to
practices a religion finds immoral. Only employers who employ members of
their own faith and serve members of their own faith would have the freedom to
refuse to support practices they find immoral. Already Catholics have
been prevented from helping rescue women and children from sexual trafficking
and from providing adoption services because the state refuses to recognize
freedom of conscience. The reason so many non-Catholics have joined the
bishops in their resistance to the mandate is that they see the mandate as a
violation of religious liberty. In our country today it is necessary that we
offer very strong resistance to any violation of religious liberty. The
forces trying to impose a very secular agenda on religious people are extremely
powerful.
Resist Anyway?
Sometimes individuals will refuse to engage in
actions that involve even very remote cooperation with evil because it is
strategically wise to do so. Witness the behavior of many who refuse to
purchase products from an establishment that endorses immoral causes; while purchasing
a product may involve very remote cooperation with evil, they want to use their
refusal to patronize such an establishment as a way of getting the
establishment to change its practices and even more importantly to lead the
culture to cease endorsing immoral causes. When such individuals ban
together in their protest or boycott, they can often bring about favorable
change.
Sometimes we may want to refuse to cooperate
with evil even when such cooperation would not be sinful because we want to
call attention to a certain evil or when other goods would also be compromised
were we to cooperate. The violation of religious liberty involved in
cooperating with the mandate is a very serious evil. Many Catholics may
find that they have the means to challenge the mandate and relieve themselves
and others of the burden of cooperating with it. Catholics, such as the
Newlands, may decide to go to great expense to fight the mandate because they
want to give powerful witness to the evils it allows and they want to protect
religious liberty.
For my part, I hope that that those Catholic
employers who cannot find a suitable alternative to the mandate will find an
effective way to protest. Those effective ways may involve not complying
with the mandate. How to best overturn the mandate is a matter of
prudential judgment. I believe, however, that the choice to comply with
the mandate neither involves employers with formal cooperation or unjustifiable
material cooperation.
“As a basis for explaining my position I will
comment on the statement of the bioethicists at the National Catholic Bioethics
Center since it has a certain elevated status coming from a rightly very
trusted and influential institution” (from below).