Please see several responses added to Prof. Dillon’s initial thoughts which follow in the main text below.
Vincent Miller recently wrote a great post at the America blog, raising some key questions about the recent HHS decision mandating contraceptive coverage. Some of us who contribute here decided it would be good to answer Miller’s call to think through the application of the principles of cooperation with evil to the recent HHS decision. I agreed to get us started. Others may add to this post, comment, or start a new post as they see fit.
I’m hoping to accomplish 3 things in this post: (1) to offer a basic framework of what is at stake for Catholic institutions (i.e., “why is this such a big deal?”), (2) to lay out the principles of cooperation (3) to offer some analysis of those principles to this issue.
1. Beth Haile laid out the basics of the HHS decision last week. With a very narrow religious exemption (that Catholic hospitals, social service organizations, and possibly even schools and parishes will NOT qualify for), employer health insurance plans will be required by law to provide contraception as part of standard, included preventative medical services to all women without any copayment. I think it is crucial to acknowledge that the Catholic Church has a long-standing, clear objection to contraception in and of itself. But I also think that it is an often-overlooked key point not only that Plan B “contraceptives” are included in the mandate, but also that most forms of contraceptive likely to be covered under medical care (pharmaceutical, anti-implantation devices) are or at least have the potential to be abortifacient means of contraception. In other words, this is not simply about contraception, but it is also about abortion.
So, what the law is asking every employer in the U.S. to do is the following: purchase for each employee health insurance coverage priced so that these services (if a covered woman asks for them) are included. To many in the Catholic community, this seems to be a law requiring our institutions to pay for services that our Church teaches to be always wrong. Thus, we get (soon-to-be Cardinal) Tim Dolan’s comment: “we have a year to figure out how to violate our consciences.” (More from Dolan.)
2. Perhaps, as Vince Miller has suggested, the traditional Catholic principles regarding cooperation with evil give us a way to think through our participation in such a way that it turns out to be not such a grave violation of our consciences after all. Let’s first review the concepts, then see how they apply. Note that this analysis has its origins in (and is most clear, most “at home”) analyzing how culpable a single secondary agent is in an act that is primarily the act of a single principal agent. The classic example is the question of how culpable the servant is who holds the ladder to enable his master’s act of adultery. The first distinction to make is whether the cooperation is formal or material. One is guilty of formal cooperation when one shares the intention of the principal agent, whether for its own sake or for ends of one’s own. Imagine Ann Boleyn’s father facilitating Henry VIII’s adultery with his daughter, in hopes that it will secure the family’s interests; that’s formal cooperation. Now imagine a lowly servant holding a ladder, objecting to everything about it, but afraid for his life and the livelihood of his family if he doesn’t do his job; no formal cooperation there.
So, now we are in the realm of material cooperation. The most pressing question here is whether the cooperation is immediate or not. The key question here is whether the cooperation that the secondary agent gives is essential to the act occurring; that is, immediate material cooperation is help without which the act could not occur. Like formal cooperation, immediate material cooperation has been held to be morally illicit. But the line between mediate and immediate can be a much thornier line to draw. Think back to the servant holding the ladder for the adulterous master. Imagine a window so high and a ladder so shaky that the servant’s help is essential to the act. That servant, should he comply, is guilty of immediate material cooperation (the fact that he does so under duress may mitigate his culpability, but not the objective evil of his cooperation).
Now we come to mediate material cooperation with evil. This is cooperation with an evil act, but which does not share the intention of the agent (i.e., is not formal) and which is not essential to the execution of the act (i.e., is not immediate). Traditionally, mediate cooperation with evil can be morally licit under three key conditions, all of which must be met in order to proceed in good conscience. These are: (1) if there is a proportionate good to be attained (and that cannot be attained in any other way than through his cooperation); (2) the good to be attained must be proportionate to the proximity of the secondary agent to the act (that is, the good must be a greater good the closer he is to the principal act, and it can be less good the more remote his involvement is); and finally, (3) scandal (defined as leading others into evil, error, or confusion) must be avoided. To return to the servant with the ladder: imagine that the master has put a foot to the rickety ladder and has said “I’m going to get up there with or without your help”; now his help is mediate, not immediate. It’s possible that he might see saving his master’s life/health as a good sufficient to justify his help, particularly if he can do so without scandal. But notice, the presumption continues to be against cooperation. The burden of proof, as it were, is on the cooperator to show that his or her cooperation meets all 3 characteristics which can make such cooperation licit.
3. So, how does this apply to Catholic institutions’ potential for compliance with the new contraceptive-abortifacient mandate? I think that if you isolate an individual–say a Human Resources director at a Catholic college or Catholic charities organization, responsible for making some sort of decision about what health plan to go with, it would be pretty easy to think through the ways in which her committing to a plan that offered these mandated benefits was relatively remote mediate cooperation with evil, and secured the great good of health care for all the employees. Since she only pays a premium and does not pay directly for services rendered, there is a certain distance there. There are, in fact, no guarantees that any of her colleagues will avail themselves of these services, so perhaps there is no evil to cooperate with at all! At least, the evil is remote and unknown enough that it would be silly to hold this agent accountable for it. Is it scandalous for a mid-level bureaucrat to make the best decision she can in a difficult situation? Hardly. (Consider how even this analysis changes–at least the part about scandal!–if we picture the same decision in the hands of the local bishop.)
But let’s try to think for a moment not in terms of an isolated individual like this, but instead of the Catholic Church in the United States, with all its institutions, members, and employees as a collective agent. Let’s try to think through how the above sort of analysis would function. First, let’s ask the question of whether our cooperation is formal or material. Well, we would surely have to acknowledge that some of us think that women’s access to contraception is a good, and we share the intentions of the Obama administration here. (Notice how the claim to collective agency has already fallen apart.)
But let’s focus on those who would agree that Catholic institutions shouldn’t participate in providing contraception. I think that if someone wants to make a case that participation in this system is justified because it is mediate material cooperation, then they have to be able to show four things. First, they would need to show that the good sought (health care for the employees at Catholic institutions) is proportionate to the evil being cooperated with. I honestly don’t know exactly how to quantify this. How do you measure the great good of health care for the employees of Catholic institutions against the evil of abortifacient contraceptives? Secondly, they would have to show that the good (health care) cannot be attained without cooperating with the evil. (We need a legal scholar to show us what the implications of non-compliance would be.) Third, given the great evil involved, they would have to be able to show that the Catholic institutions’ involvement is as remote as it can possibly be. And fourth, they would have to show that it could be done without scandal, that is, without leading anyone into evil, error, or confusion.
I have my doubts that the first three can be done. But when I think about what it would mean for the Catholic Church in the U.S. to, en masse, submit to this mandate, I find it impossible to imagine that it can be done without scandal.
I remain unconvinced, however, that cooperation with evil is the most helpful form of analysis, though perhaps someone will help convince me. Perhaps it is my own fault, relying on the classic example of the master and the servant. That example and, I think, much of the tradition around principles of cooperation, implies a principal agent who will do exactly what he will do, and the only decision that the secondary agent has is whether or not he will cooperate. What is going on here is much more complicated. We can talk about acts of contraception, we can talk about abortions, we can even talk about sterilizations. These things will be happening on a broad scale and it will be nearly impossible to quantify the level of cooperation that particular employers, insurance agencies, doctors, pharmacists, and private individuals engage in. Add to that the role of a government which not only permits these acts, but now (at least in some cases) mandates cooperation with them. But this government (as I mentioned of the Church earlier) is itself a collective agent. It gets very difficult to see clearly how much responsibility individual or collective agents should take in such a tangle.
For me at least, however, it remains impossible to imagine that a Catholic agency who had thus far refused to make such provisions on grounds of conscience should consider itself justified to change that position because of this law.
From David Cloutier:
Dana does a great job laying out the details of the tradition on this question. But these distinctions also seem to show the limits of the inherited, act-centered tradition of moral analysis. Any analysis of cooperation here misses the way in which this issue possesses a symbolic power – indeed, symbolic power on both sides – that cannot be captured by the act analysis.
What does “symbolic power” mean here? Obviously, from the side of the Church and its institutions, this refusal to provide contraceptive coverage is one of the (few!) ways in which the Catholic church as a whole can be said to be “upholding” the Church’s teaching. It is not held by most of the faithful. It is rarely encountered in sermons or teaching (outside the obligatory “NFP talk” at Engaged Encounter – can anyone say “too late”?). It is not actively pursued in civil law. And as we know, it is the defining issue of moral theology for the last fifty years. This is a battle the hierarchy cares about deeply. It could mount the barracades for just wages. But they don’t have the same symbolic power.
However, given that the mandate insists not only on contraceptive coverage, but the absence of any co-pays or fees, it is also safe to say that this represents symbolic power on the other side of this issue as well, the side of the issue that views the Church’s teaching as not simply misleading, but positively malevolent toward women. That is, it is hard not to see this mandate as an attempt to strike a blow at the Church. It would not have been difficult to exempt religious organizations from this mandate.
Anyone familiar with the history of the teaching against usury in the Middle Ages must see the analogy here. For a long time, the “official” teaching was maintained, often with gusto, while at the same time dozens of work-arounds were developed. I’m not against creative casuistry. But the situation cries out for a bolder discussion. As Dana points out above, it cries out for an analysis of collective agency (and “structures of sin”). It cries out for an analysis of why we think in our society contraception should be available for free when, say, food is not. It cries out for an analysis of what it can possibly mean for the Church to uphold a teaching when it is so routinely ignored, not simply in “difficult” situations, but as a matter of course, of “normal life.”
Having said that, Dana’s four points above actually invite these matters into the traditional framework of analysis. For one, there needs to be clarity about the “gravity” of this evil. One could have recourse to traditional definitions of “grave matter” – and conclude this is grave – but I have difficulty thinking that pastors are looking out over the large congregations and concluding this is “grave matter” when the vast majority of couples are using birth control. Bishops and theologians need to wrestle with a better, post-act-centered definition of “gravity” here. Secondly, there needs to be clarity about “scandal” and “confusion” – in a sense, there already is a great deal of confusion, and it seems hard to believe that offering contraception through a church employers would not add to this. However (and I say this with pain), Catholic employers, like my own, need to do a better job of “acting Catholic” across the board, and not just when hot-button issues like this arise. There would be less of an opportunity for scandal if Catholic employers were thorough, at all levels, in their attention to Catholic teaching. Maybe this is an opportunity for employers to do an inventory like this. In the tenure-track faculty seminar on Catholic formation I run at Mount St. Mary’s, one of my lines is that Catholic identity needs to be more than arguments over condoms in the dorms and The Vagina Monologues. Perhaps there would be less scandal and confusion on this issue if Catholic institutions more routinely responded in their activities to the teachings of the Church.
By: Patrick Clark
I am grateful to Dana for examining how the technical tools of the Catholic moral tradition would apply to this case, and for David’s insightful comments about the limitations of those tools. While they have their shortcomings, I do think they help initiate a more rigorous discourse that can help us transcend mere partisan advocacy. In my view, these categories and concepts remain useful instruments and reference points, even if they do not function as the mechanistic formulae which they were often taken to be in the past.
David is also absolutely right to bring in the “symbolic power” at work in this present battle. And as he suggests, it is far from coincidental that the central focus happens to be on the free availability of contraception. It is this issue more than any other that has highlighted the deficiencies of the act-centered moral framework for shaping Catholic life and identity. It is also this issue more than any other which has divided the Catholic laity, and alienated them from the magisterium and the practical stewardship of the episcopate. Although there remain all the other usual suspects—homosexuality, divorce and women’s ordination—the gap between teaching and practice is nowhere wider than on the issue of contraception.
An uncited statistic in yesterday’s New York Times (1/30/2012) proclaimed that 98% of sexually active Catholic women have chosen to defy this particular Church teaching. If that is indeed the case, then we should not be surprised if the overwhelming consensus of the Church faithful is either apathetic or actively opposed to the hierarchy’s current resistance to the HHS mandate. Nor should we be surprised if the secular powers continue to attack the sovereignty and social influence of the Church precisely at this point. Not only is general opinion on the side of the government on the issue, but a sustained focus on contraception also serves to shift the broader dynamic of the national abortion debate, insofar as it appears to validate the diversionary assertions of pro-choice proponents that the pro-life movement’s real goal is to ban all access to contraceptive services. I don’t mean to suggest that there’s any unified grand conspiracy at work here, but it is undeniable that the more the public debate becomes about contraception, the more popular support and political cover it provides to the abortion industry. It was more than a little curious, for example, that George Stephanopoulos brought up the legality of birth control as a prominent topic in the recent Republican presidential debate at Saint Anselm College. So ultimately, I do think the present crisis is more about the struggle between cultural forces and their representative institutions than it is about the moral significance of the particular actions in question.
The analogy that best illumines this view, in my opinion, is the decision each Catholic faces about whether or not to pay federal taxes. I am neither a lawyer nor an accountant, so I would welcome any clarification in this regard, but it seems to me that at least on the surface, individuals face the same dilemma as Catholic institutions when it comes to whether or not they should provide funds to institutions that could possibly use those funds to provide contraception to others. In 1970, under the watchful eye of Richard Nixon, The Public Health Service Act gave birth to Title X, the federal program devoted to population research and to providing greater access to “comprehensive family planning and other related preventive health services.”
Even if we bracket any of the other immoral acts which the federal government regularly performs, does the existence of Title X mean that paying my taxes constitutes an act of illicit cooperation with evil? If not, then what is the determinative difference between me paying my taxes and a Catholic institution subsidizing its employee health-insurance programs? Again, according to Dana’s analysis it would seem the key difference is the probability of scandal. Yet if we follow that thread, I think it leads us back once more to the issue of “symbolic power” and the broader cultural struggle bound up in the Church’s resistance to the imposition of these bureaucratic regulations.
In the end, I think the best way to think about this situation is in terms of witness. Both David and Kelly suggest that this particular political and legal battle is an opportunity for Catholics (especially schools) to rethink what it means to bear this identity not only as private individuals (where one could conceivably conform to the Sunday-only model of religion on offer by HHS) but as members of Catholic institutions that contribute to public life in a way that does not efface the practices and worldview which give that organization its identity. In other words, I think Catholics need to rethink what it would mean to give witness to their faith through their participation in these larger organizations which provide services to the broader population.
Is it possible that the government could make it impossible for an institution that bears this particular identity to exist? Of course; and it’s happening as we speak. We need look no further than to the rapid disappearance of Catholic adoption agencies. It is not the first time such a thing has happened, nor will it be the last. Given the historical tradition of what it means for a Catholic Christian to witness, such setbacks and heartbreaks should not surprise us. The only question is: are we even thinking about the current situation as an opportunity to give witness? And if so, are we willing to follow through with that witness? Is my university willing to shut its doors? Am I willing to lose my job? If it truly is a matter of conscience, as Archbishop Dolan says, then the answer should be clear.
An even more daunting question in my view, is “are we the kind of people who will be able to faithfully remember the sacrifice which such a witness might entail?” Are we able to train our children to remember the apostolates and institutions which our political climate may no longer permit?