The HHS Mandate and the Problem of Assessing Material Cooperation

E. Christian Brugger
January 31, 2014
Reproduced with Permission
Culture of Life Cooperation

Is it legitimate for business owners who want to provide health insurance to their employees to comply with the odious contraception mandate of the Affordable Care Act (hereafter simply "mandate")?

Answering this question requires two stages of moral analysis. The first asks whether compliance constitutes "formal" or "material" cooperation, while the second has to do with the circumstances in which we make our decision. Formal cooperation, as affirmed by Catholic ethical tradition, is always wrongful. Material cooperation is sometimes morally legitimate and sometimes wrongful.

Formal cooperation

We formally cooperate with another's wrongdoing when the act by which we cooperate shares in the bad will of the wrongdoer. We share another's bad will when we agree that the evil should be done. Any business owner who complies with the mandate while agreeing either with the purposes of the Obama Administration in imposing it or with the choices of the employees to use the objectionable services, or both, formally cooperates in wrongdoing and therefore does wrong.

Material cooperation

If we are firmly opposed to the intentions of the imposers and the users of the objectionable services, but we comply in order to avoid certain harmful consequences of not complying, then we are said to "materially cooperate" in wrongdoing.

We materially cooperate when the act by which we cooperate does not agree in the wrongdoer's bad intending of the wrongful act. In such a case, we do not share the wrongdoer's bad will, even though we contribute to the evildoing in some way.

As I said, some instances of material cooperation are legitimate and others are not.

How do we determine whether the type of material cooperation constituted by complying with the mandate is licit or wrongful? If it is material cooperation, then we've ruled out that the cooperating is wrong in virtue of the cooperator's intention (i.e., in virtue of what he wills as an end or means). We therefore are left with the question of whether the act by which he complies is morally legitimate in relation to the third font of moral analysis, having to do with circumstances.

The particularity of circumstances

Circumstances are by their nature particular. This means that the question of the legitimacy of some particular instance of material cooperation must be assessed in the light of its own specific details. Although some moral theologians have said publicly that they believe the type of material cooperation entailed by a business owner who complies under duress is licit, I do not believe anyone is competent to make a blanket judgment of this sort. Every business is unique in virtue of who owns it, who's serviced, what it delivers, its public witness in the community, and so on. Business owners of private companies must ask the question themselves whether or not their material cooperation is licit in light of their company's unique situation.

One example of the uniqueness of circumstances is seen in the nursing homes run by the Little Sisters of the Poor. Any assessment of the legitimacy of their complying must include the fact that their business is owned and run by a group of religious sisters. A religious order is a public entity in the Church, even if its apostolate is not, legally speaking, run by the Church (as is Catholic Charities). Such apostolates are rightly associated more closely with the Church than are retail stores, gas stations or manufacturing companies owned by Catholics. There is a greater risk of scandal for the Little Sisters to materially cooperate than for other business owners. This does not necessarily settle the question of the legitimacy of their compliance, but it's certainly relevant to their assessment.

Concept of "just cause"

How then do business owners in general assess whether their particular instance of material cooperation would be legitimate? This is perhaps the most difficult part of any assessment of cooperation. If we were dealing with something intrinsically evil, moral analysis would be relatively simple (though not always easy to put into practice). We would be obliged simply to refuse to do the intrinsically evil act.

But when material cooperation is at stake - that is, after ruling out a bad end and bad means for some contemplated alternative, we must determine whether there is a "just cause" (sometimes referred to in the tradition as a "proportionate reason") for tolerating the unintentional harms that are threatened by our act of cooperation.

Causing but not intending evil

Let's pause on this idea of causing but not intending evil. We know if we were contemplating an alternative that entails doing (intending) evil, we should set the alternative aside as illicit. But we're not considering doing evil, we're considering unintentionally causing it through our act of material cooperation.

Why might a morally conscientious person ever consider doing something that causes evil unintentionally? Precisely and only because the alternative - i.e., not doing it - also promises evil (what moral theology calls "harmful side effects").

We consider complying with the mandate because if we don't comply some really bad things might occur: we might not be able to offer our employees health insurance, or be straddled with crippling financial penalties, or lose good employees, or not be able to remain competitive in the marketplace and ultimately be forced to shutter our business, or, down the road, go to jail, and so on. If those weren't at stake, the answer to the question of compliance would be - as my children say - a "no brainer". But business owners are painfully aware that grave harms are at stake.

The analysis of material cooperation therefore entails comparing the reasons for complying (namely, to achieve the goods and avoid the evils that we are interested in achieving and avoiding in and through complying) with the reasons for not complying (namely, to avoid the harms that we foresee will and may be caused by materially cooperating in the wrongdoing). The reasons for complying must be sufficiently strong that the judgment to do so is reasonable despite the more or less strong reasons for not complying. This is what we mean when we say there must be a "just cause" ("proportionate reason") for complying.

We therefore need to get clear on the harms threatened by complying and not complying with the mandate. The harms of not complying are perhaps more evident. I've named a few above. I expect that readers don't need much assistance in identifying them. But the evils threatened by complying might not be so clear.

Unintentional evils threatened by compliance

I will end the essay by considering several types of harms that may be caused by complying and so may be relevant to an analysis of material cooperation. My list should not be taken as comprehensive. There may be unintentional harms not mentioned; if so, they too should be factored in. At the same time, because I only elaborate harms likely to arise by complying, I do not mean to give the impression that I believe most examples of complying are unethical. The purpose of the exercise is to assist us in seeing the possible goods at stake in order to help us to make as full and balanced an assessment as possible.

The first and most serious are what ethicist Germain Grisez calls "primary bad consequences", that is, the unintentional harms caused by contributing to the wrongdoer's wrongdoing. The people who use contraceptives harm themselves by deepening within themselves contraceptive (anti-life) dispositions, they harm their marriages, and they foster promiscuity. Further, since some human embryos will be killed as a result of the taking of the abortifacient drugs that our compliance materially cooperates in providing, fairness to embryos should be taken into consideration. Finally, universal free access to contraceptives will cause a general lowering of our community's moral standards, especially in the area of sexual morality. Our compliance will unintentionally contribute to that lowering, however marginally.

Our compliance may also cause scandal. When good people cooperate with evil it can make wrongdoing seem more acceptable, provide material for rationalization and self-deception, tempt the weak, and confuse the doubtful or ignorant. We should ask therefore whether we have reasonable ground for concluding that the example given by our (company's) compliance will lead others to choose evil or become more inclined to choose evil? If our answer is "yes," we shouldn't comply.

We should also consider the harms to ourselves that may be caused by complying. Will we dull our conscience's sensitivity towards the wrongfulness of contraception, promiscuity, and chemical abortions? Will our compliance involve us in relations of trust and interdependence with the imposers or users of the objectionable services that may make it difficult in the future to avoid wrongdoing?

Along similar lines, we should ask whether our compliance might give reassurance to the architects of the odious mandate encouraging further and more brazen attempts to coerce good people to cooperate in evil?

Finally, and most importantly for Christians, would my compliance impede me from offering credible Christian witness against the wrongdoing and on behalf of the goods adversely affected by the contraception mandate? It seems to me that this would be the case with most Church-run institutions. Whether it would be the case with other businesses needs to be considered.

Having gotten clear on the harms and benefits promised by both options, we should then ask whether one set of reasons is clearly stronger than another. If after a sober assessment we conclude that one option is clearly more consistent with our own duties, the welfare of our dependants and the integral good of our community and Church, then we should adopt that alternative.

We might judge, however, that the strength of the reasons on both sides of the argument is similar. In such an instance it might be the case that either option is morally licit to adopt. If we conclude this, then people of faith should pray about which of the morally legitimate alternatives Jesus wants them to adopt in the light of their own personal vocations.