For the past year and more, Catholics and their moral sympathizers have been calling America’s attention to two moral issues at stake in the Health and Human Services (HHS) Contraception Mandate, which was finalized with new “accommodations” on Friday, June 28, 2013. The first concerns whether religious believers themselves or the State (tax accountants, to be exact) has the authority to define what constitutes “religious exercise and expression.” The second concerns what is known as the issue of “material cooperation” in evil. While public protests like the “Fortnight for Freedom” campaign gave emphasized the first issue, they sometimes tend to obscure the second. I’d like to open our conversation about the details of Catholic complicity with the final mandate below. I suggest that while the final “accommodations” are probably sufficient to satisfy the conscience of some employers, they are not sufficient for self-insured or for-profit employers, and that the Mandate fails as a matter of public policy intended to further both its stated goals and the common good.
Material Cooperation with Evil
What many liberals fail to understand about the Catholic objection to the HHS Mandate is that our grievance does not derive from a desire to deprive non-believers of their contraception. It doesn’t even derive from a desire to outlaw abortion. Rather, the Catholic objection to the HHS Mandate stems from the desire not to contribute to or participate in the objectively evil acts of others. That is, we see the HHS Mandate as a threat to our souls.
Following St. Alphonsus Maria de Liguori, the Catholic tradition holds that one can cooperate with someone else’s evil act in two ways. Formal cooperation means intending what the wrongdoer intends, such as when one rejoices when a hair-thief shaves your aunt’s head against her will; material cooperation means assisting in the action itself, either by holding her down while her head is shaved, or providing the thief with scissors. The two kinds of cooperation are distinct because just as one can wish for an action to be done without contributing to its performance, so too one can contribute to an evil action without wishing it, such as when our taxes buy drones that kill innocents in foreign wars. While formal cooperation with evil is always wrong, then, material cooperation is sometimes, but not always, wrong, depending on one’s degree of knowledge and foresight, one’s intent, the voluntariness with which one cooperates, and so on.
Now according to Catholic ethics, the use of contraception is a serious moral evil. Theologians have argued for thousands of years (not since 1968) that contraceptives illicitly attack the essential goods of conjugal love, procreation and marital friendship, making it impossible for sex to express the total gift of self that is the mark of true love. This practice corrupts the moral virtue of chastity, diminishes the important social value of family-making as a vocation, and undermine moral disincentives to sin, including prohibitions against fornication and adultery, leading to an increase in out-of-wedlock births, abortions, divorce, and broken families. (So much is uncontroversial: see the empirical evidence discussed by Mary Eberstadt in Adam and Eve After the Pill.)
Abortifacients like Ella and Plan B are worse evils than contraceptives, since they wrongly kill innocent people. Of course, the government denies that “emergency” contraceptives are abortifacients because it holds that abortion is the termination of a pregnancy, and emergency contraceptives prevent the implantation of an embryo, thus bringing about its death without abortion. But this definition of abortion is too broad: birth terminates a pregnancy too. Abortion is a form of killing (one that also terminates a pregnancy), for life begins at conception, not nidation. Therefore emergency contraceptives are abortifacients.
Because it requires Catholics to pay for others to use contraceptives and abortifacients, then, the HHS Mandate requires us to materially cooperate with poisoners and assassins: poisoners, because contraception by definition frustrates or destroys the normal functioning of a bodily system, and assassins, because abortifacients kill human beings. The reasoning is not difficult. Some people in our culture desire to poison themselves and their female children, while others desire to kill their children outright. The HHS Mandate entitles such people to use collective group funds (“health insurance”) intended to promote health or provide therapy for disease for the purposes of poisoning and killing. There are very few alternatives to health insurance as a means to modern healthcare, and what alternatives Catholics do have–including refusing all health insurance and bearing all healthcare costs individually–are ruinously expensive. Furthermore, the government is actively striving to eliminate what alternatives there are.
So the question facing Catholics is this: given the limited real alternatives, to what extent is one culpable for paying into an insurance fund for the purposes of providing one’s own family or employees with healthcare, foreseeing but not intending that some of them will use this fund to poison themselves and kill their children? To what extent is this the moral equivalent of responding to someone’s expressed intention to dismember a child by handing her a knife?
The Mandate and the Principle of Double-Effect
What we have here is a classic case of double-effect, which occurs when a single action has two effects, one good and one bad, where the bad effect is a foreseen but unintended side-effect of one’s action. (Think about the last time you were late for work and deliberated sprinting for the office with a coffee in your hand, foreseeing but not intending it would spill.) Catholics use the moral Principle of Double-Effect to determine when it is permissible to press forward with such an action using four related conditions, all of which must be satisfied for an act to be permissible. (The exact formulation of these conditions is controversial among professional ethicists; I use the traditional version rather than one favored by New Natural Law theorists. I should also note that using the Principle of Double-Effect is a common, though not the only way to determine material complicity, as Albino Barerra argues.)
On to the analysis. The first condition of Double-Effect is that the act itself must be morally permissible. In this case, the act consists in purchasing or providing a health insurance policy that is compliant with the final HHS Mandate. The first part of the act is good in itself, namely, purchasing health insurance for the sake of promoting health and obtaining legitimate medical therapy for disease. The second part of the act—purchasing this specific kind of policy—raises the specter of material cooperation with evil, for which we turn to the second condition of double effect, the Pauline Principle: one cannot choose evil as a means to a good end.
Just as one should not nuke Africa in order to solve world hunger, so too is it prima facie impermissible to provide contraceptives to others in order to secure health insurance for oneself. Whether the HHS Mandate satisfies the Pauline Principle thus depends on whether the provision of contraceptives is a causally posterior and contingent side-effect of Catholic participation in health insurance. If the new accommodations do indeed excuse Catholics from having to “contract, arrange, pay, or refer for” contraceptive and abortifacient services in order to secure or provide health insurance, as they claim, it would seem that the Pauline Principle is satisfied.
Having spent a mind-numbing day as a legal amateur reading all 110 pages of the final mandate, my sense of the relevant new “accommodation” is this. When a religious employer notifies its insurance provider of its objection to the provision of contraceptives and abortifacients, the insurance company will provides female employees and beneficiaries an opportunity to “opt-in” to a payment program provided by the insurer (p. 31). No one is automatically enrolled. Upon enrollment, the insurer will provide payment to enrolled women to use for the purchase of contraceptives and abortifacients. Importantly, the insurers must “segregate the premium revenue collected from eligible organizations the monies they use to make such payments” (p. 26). Where will this money come from? The government uses an Institute of Health study to argue that such savings will mainly come the longitudinal costs savings of the program: paying for contraception is cheaper than paying for lots of pregnancies (p. 11, 28), including the avoidance of costs associated with detrimental health effects suffered by children ‘accidentally conceived’ by mothers unwilling to change their unhealthy lifestyles (p. 10) (I couldn’t make that up). Further costs will be reimbursed through discounts on the fees insurers pay to participate in FFE’s (Federally Facilitated Exchanges).
The rules governing self-insured institutions are more difficult to assess in this regard. Most self-insured institutions (like my own) rely on third-party administrators to handle claims and process premium payments. We provide the money, while they provide the bureaucracy and legal expertise. A plan administrator will now be required to provide contraceptive payments “on its own, or it can arrange for an issuer or other entity to provide such payments,” which will again be reimbursed through an adjustment of FFE user fees (p. 37, 57), using taxpayer dollars, in the amount it cost the administrator to provide contraceptive coverage for the previous calendar year. (The Mandate repeatedly notes that such administrators are not required to do business with self-insured organizations. These businesses will obviously incur time, trouble, and administrative costs that will need to be offset by someone’s dollars, raising the specter that there may someday be no third-parties willing to do business with religious employers—a contingency for which the Mandate does not plan.)
As I read the new accommodations, then, Catholics would not have to provide contraceptive and abortifacient services or payment for such services as a condition for securing or providing health insurance for themselves and their employees, thus making someone’s use of these services posterior to the actions of Catholics. Making use of an insurer’s payments for these services requires a woman’s request for cooperation—“please give me money to poison myself and kill my children”—that has already been formally and materially refused by Catholics. Furthermore, since she is not automatically assigned such payments, a woman may choose not to receive such payments. Thus the provision of these services is a non-necessary consequent of Catholics securing or providing health insurance. One might still object that acquiring health insurance contributes to evil by triggering the legal conditions under which a woman might collect contraceptive payments. Yuval Levin argued this in National Review Online: “The employer’s decision to provide health coverage would be the only reason the employee would get the abortive and contraceptive coverage.” That doesn’t seem right, since the independent choice of a woman is also required. Providing health insurance is a necessary but not sufficient condition for someone to receive contraceptive payments. Likewise, it seems to me that the Mandate, and not Catholics as such, creates such conditions, especially insofar as employers are penalized for not providing health insurance: this is a coerced choice. Because some women’s choice to poison and kill is a posterior, contingent, and unassisted consequence of securing or providing health insurance, then, I believe the new accommodation allows Catholics to satisfy the Pauline Principle, and thus the second condition of Double-Effect.
The third condition of Double-Effect is that the evil cannot be intended (since formal cooperation in evil is always wrong). One gains evidence of such intentions by asking whether, if real alternatives were available that did not involve the evil effect, those alternatives would be chosen instead of the proposed action. This is a difficult question in this case, since there is a real alternative, namely, the bankruptcy and/or closing of all protesting Catholic institutions under the ruinous financial penalties for providing non-compliant insurance or dropping health insurance for one’s employees altogether. An analogous consequence has already been chosen by Catholic adoption agencies in several states, which have been forced to close rather assist homosexuals adopt children. On the one hand, the new accommodations do allow for Catholic employers to publicly express the wrongness of contraceptives and abortifacients in keeping with their first amendment rights, so long as they do not directly or indirectly prevent women from requesting payments (p. 36), and this would seemingly allow Catholics to evidence their refusal to formally cooperate in the process, and so satisfy the third condition of Double-Effect. On the other hand, as Levin also points out, since federal law requires employers to explicitly authorize the actions of their third-party administrators, the Mandate “actually propose[s] having the very document by which the employer informs the plan administrator of an objection to abortive or contraceptive coverage (the so-called “self-certification” document) serve as the means by which exactly that coverage is authorized.” The Mandate thus requires contradictory behavior on the part of Catholic employers, that non-cooperators cooperate in the wrongdoing of their third-party administrators. I would welcome discussion of this point, but it seems to me that the Mandate therefore satisfies the third condition of Double-Effect for non-self-insured institutions, but fails to satisfy it for self-insured institutions.
The final and, as I understand it, least important condition of Double-Effect is that there must be a proportionate balance between the expected benefit and foreseen evil. Such proportions are difficult to determine. In this case the effects seem roughly balanced: some will use the insurance to create disease, while others will use the insurance cure it; some will use the insurance to kill, while others will use it to prevent death. Still, as I stated above, the widespread practices of contraception and abortion have ruinous effects of public goods and public virtue. These are not direct costs of the Mandate, since it is possible for the Mandate to be in effect and a virtuous nation to refuse to use it, but it does reinforce an anti-family, contraceptive culture. As James Kalb has pointed out, the massive displacement of local sources of social goods by government bureaucracy undermines the very basis of Catholic Social Teaching in solidarity and subsidiarity. I would welcome discussion of whether the indirectness and contingency of such cultural effects make the Mandate fail the fourth condition of Double-Effect.
The new accommodations to the HHS Mandate does go some distance towards placing sufficient causal distance between Catholics and wrongdoers to absolve Catholics of blameworthy material complicity in evil. My tentative and qualified conclusion—and I hope this quick analysis of the Mandate sparks further discussion, and where I have erred, correction—is that this portion of the Mandate is structured in a way some Catholic institutions can tolerate without moral culpability. (I use ‘tolerate’ in the strict sense of an evil one allows but doesn’t participate in.) It may be intolerable for all Catholic institutions, depending on how one reads the causal connections between the Mandate and its cultural consequences. The Mandate is still inadequate for self-insured institutions, who fail the third condition.
However, I would make the following practical points about the government’s sincerity regarding the new “accommodations.”
First, I would like to know whether insurance plans offered by objecting institutions will be cheaper than otherwise identical plans from non-objecting institutions that do include coverage of contraceptives and abortifacients. If they aren’t, the government is engaging in bad-faith financial hand-waving.
Second, I would like to know whether the government will cover the costs of taking a course in modern Natural Family Planning. The Sympto-Thermal and Creighton methods of NFP are just as effective at postponing pregnancy as chemical forms of birth control, are significantly cheaper than contraceptives, have no unhealthy side-effects (since they don’t frustrate a healthy bodily system), and they don’t kill anyone. If the best way to accomplish the government’s stated goals (public health and gender equity) on these criteria is NFP, then HHS should provide preferential funding for NFP over morally and medically problematic contraceptive methods. Otherwise it is acting in bad faith and promoting bad medicine.
Third, I would like to know whether there will be a mechanism for enforcing the use of “contraceptive payments” for contraceptives as opposed to other products, like vacations or beer. (I couldn’t tell from reading the Mandate.) If the government’s plan is for insurers to send women checks, which may or may not be used for contraceptives, then some people may use those checks to pay for their health insurance premiums, effectively making objecting persons pay a financial penalty for their health insurance.
Contraception and Culture
Finally, a broader evaluation. All told, the HHS Mandate is a woefully inadequate response to Catholic moral concerns.
While now allowing religious institutions to self-identify as religious institutions, the Mandate offers absolutely no conscience protections for for-profit employers. The government seemingly requires all religious institutions to be non-profit enterprises. It therefore falsely distinguishes between “commercial” and “religious” institutions, as if one couldn’t be both. In contrast, Pope Benedict XVI argued in Caritas and Veritate that Christian solidarity and charity “can and must find their place within normal economic activity,” and “not only outside or ‘after’ it” (CV, 36). Catholic Bishops and Evangelical leaders and I have argued that every individual has the natural right to refuse to participate in objective moral wrongs such as those being required by the Mandate, and this right needs to be respected by positive law.
Furthermore, the Mandate only allows “religious” institutions who “put themselves forward as religious” to qualify for an exemption. As Steven Ertelt has pointed out, “a pro-life organization, for example, that doesn’t ‘hold itself out as a religious organization’ would be forced to pay for its employees abortion pills even as it seeks to end abortion.” Implicit the Mandate are at least two assumptions. First, that a ‘religious’ objection is distinct from a ‘moral’ objection. Moral objections can be philosophical rather than theological in nature. Since the Mandate doesn’t recognize philosophical objections, it discriminates against non-religious persons and arguments by depriving them of equal standing before the law. The reason for this, the second assumption hidden in the language of the Mandate, is that all morality/rationality is liberal morality. It simply didn’t occur to the framers of the Mandate the there are rational moral objections to their policies, objections that religious and non-religious critics can agree on. That failure of political imagination is at least morally negligent. Perhaps worse.
Finally, the Mandate itself fails as a matter of public policy. The Mandate cites three “compelling government interests” in its favor: public health, gender equity, and cost savings (p. 13). Nowhere does the Mandate state how it would determine whether its policies successfully promoted these goals. Let’s think this through. How would the government react if some modern Lysistrata convinced every fertile woman in America to chemically or surgically sterilize herself and stay that way, liberated and childless? (Ask Jonathan Vast.) Compared to what does poisoning fully half the population increase public health? The Mandate repeatedly mentions the “unique health care needs” of women. Ok: so where is the free medical coverage for breast exams and pap smears, or for pre and post-natal medical care? Why are all of the “unique health needs” of women recognized by HHS as worthy of government subsidy anti-family rather than pro-family?
As for cost savings: you thought banks were too big to fail? The Mandate constitutes the government subsidy of noxious apothecaries with no monetary limit, no real Congressional oversight, and no time limit. Qui bono?
And of course, “gender equity.” Women should be furious that the Mandate describes “gender equity” as the full participation of women in society while assuming that pregnant women and homemakers aren’t already doing this (p. 64). Not only is this false—families are the condition for the possibility of civil society and robust economic life—but it also treats the symptoms of injustice against women and their families rather than the disease (and that poorly). If we’re going to spend the money, why not push for laws that make employment in American businesses more family friendly?
For instance, why not mandate that the end of the work day occur when schools let out? Why not provide intact families with tax breaks to encourage more single-worker families? Why not mandate a 30 hour full-time workweek, encouraging both more employment, a larger tax base, and more leisure time for parents to spend with their children?
Won’t encouraging voluntary sterilization encourage American businesses to further assume that they can create profitable anti-family policies or practices for their employees without expecting a backlash? (Ask Anne-Marie Slaughter.)
Won’t encouraging voluntary sterilization encourage men to treat sex as a form of entertainment, biasing the “playing field” against family-oriented women? (Ask Kate Bolick.)
Why isn’t the government asking these questions?
 The final version of the Mandate is available at <http://www.ofr.gov/OFRUpload/OFRData/2013-15866_PI.pdf>.
 T.A. Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford: Oxford UP, 2006).
 Albino Barerra, Market Complicity and Christian Ethics (Cambridge: Cambridge UP, 2011).
 Yuval Levin, “The Final HHS Mandate.” Published online at The National Review on June 28, 2013. Available at http://www.nationalreview.com/corner/352374/final-hhs-mandate-yuval-levin.
 James Kalb, “What Are Catholics to Do? Part III.” Published online at The Catholic World Report on May 3rd, 2013. Available at <http://www.catholicworldreport.com/Item/2233/what_are_catholics_to_do_part_iii.aspx#.UdLxCRazLwz>.
 For the Sympto-Thermal method, see Frank-Hermann et al, “The Effectiveness of a fertility awareness based method to avoid pregnancy in relation to a couple’s sexual behavior during the fertile time: a prospective longitudinal study,” Human Reproduction 22 (5) 2007: 1310-19. For the Creighton method, see Fehring et al, “Use Effectiveness of the Creighton Model Ovulation Method of Natural Family Planning,” Marquette University, College of Nursing Research and Publications, 1994. For comparative effectiveness of NFP and chemical contraceptives, see European Natural Family Planning study groups, “Prospective European multi-center study of natural family planning (1989-1992): interim results,” Advances in Contraception 9 (1993): 269-83, as well as R. Hatcher, et al., Contraceptive Technology, 18th revised edition (New York, NY: Ardent Media, 2004), table 31-1, 792-847.
 Evangelicals and Cathlolics Together, “In Defense of Religious Freedom.” First Things, March 2012. Available online at http://www.firstthings.com/article/2012/02/in-defense-of-religious-freedom. I presented several public talks at Fortnight for Freedom panels, the text of which is available at < See the text several public talks given at Fortnight for Freedom panels at <http://philosophystone.com/2013/06/26/on-religious-freedom/>.
 Steven Ertelt, “Obama Admin’s HHS Mandate Changes Still Violate Religious Conscience ,” published online at LifeSiteNews on July 1, 2013. Available at <http://www.lifenews.com/2013/07/01/obama-admins-hhs-mandate-changes-still-violate-religious-conscience/>.
 Jonathan Vast. What to Expect When No One’s Expecting: America’s Coming Demographic Disaster (Encounter Books, 2013).
Anne-Marie Slaughter, “Why Women Still Can’t Have it All,” Atlantic Monthly, July/August 2012. Available online at http://www.theatlantic.com/magazine/archive/2012/07/why-women-still-cant-have-it-all/309020/.
Kate Bolick, “All the Single Ladies,” Atlantic Monthly, November 2011. Available online at http://www.theatlantic.com/magazine/archive/2011/11/all-the-single-ladies/308654/.