Monday, December 24, 2012

We Cannot Whitewash the HHS By “Rationalizing to “Material Co-operation

1)    On January 20, 2012, Health and Human Services' Secretary Kathleen Sebelius announced the mandate requiring that all health plans provide coverage at no cost (including deductibles and co-payments) for all contraceptives approved by the Food and Drug Administration as part of preventive health services for women.[4] The mandate also required coverage for sterilizations.[5]
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]
3)    Prof. Janet E. Smith writes: Is it Moral to Comply with the HHS Mandate?

Summary: Yes. [1]
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 BruggerChristopher 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.
[For earlier posts I have written about the mandate, see: "If only our Bishops had thought to consult David Gibson" ( and "Religious Liberty, Blood Transfusion, Cigarettes and Contraception" (National Catholic Register, 3/11/12)]

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.

[1] “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).

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