Material Complicity and the Final HHS Mandate

ramirez-mandate-lgThis post explains traditional Natural Law thought about complicity with evil to assess the permissibility of cooperating with the final version of the HHS Mandate.

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[1], 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;[2] 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.[3])

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.”[4]  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.[5] 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.[6] 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.[7]

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.”[8] 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.[9]) 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.[10])

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.[11])

Why isn’t the government asking these questions?


[1] The final version of the Mandate is available at <http://www.ofr.gov/OFRUpload/OFRData/2013-15866_PI.pdf&gt;.

[2] T.A. Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford: Oxford UP, 2006).

[3] Albino Barerra, Market Complicity and Christian Ethics (Cambridge: Cambridge UP, 2011).

[4] 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.

[5] 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&gt;.

[6] 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.

[7] 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/&gt;.

[8] 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/&gt;.

[9] Jonathan Vast. What to Expect When No One’s Expecting: America’s Coming Demographic Disaster (Encounter Books, 2013).

[10]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/.

[11]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/.

On Religious Freedom

standupI recently presented these comments at two Fortnight for Freedom panels for the Diocese of Allentown, PA. My thanks to the diocese for inviting me, and to the other excellent panelists!

Introduction

Do rights protect autonomy, or do rights protect duties and obligations?

That very abstract question is at the heart of our nation’s current intellectual crises over religious freedom, homosexual marriage, and abortion. Tonight I want to briefly canvas two positions on the question–the Liberal interpretation lying behind the HHS Mandate, and the Natural Law interpretation that grounds Christianity’s resistance to such mandates on grounds of religious freedom. My hope is that you will gain a better understanding of the issue and the arguments surrounding it, as well as a way to frame related issues, such as the debate over homosexual marriage.

The Liberal Tradition

Classical liberalism holds that rights protect autonomy. Liberal rights are codified expressions of what is viewed as the absolute freedom to define the meaning and purpose of one’s own life. Dedicating yourself to making marshmallow sculptures of chipmunks is, from the point of view of Liberalism, as legitimate as dedicating your life to curing cancer. Indeed, many people are attracted to Liberalism because of its supposed ‘value neutrality.’

Sometimes, of course, our freedoms bump into each other. Since the goal of Liberalism is to guarantee maximum freedom to do whatever we wish, for whatever end, Liberalism would have us respect other people’s freedoms by interfering with their lives as little as possible.

Of course, no one is absolutely free to do whatever they want. We all face natural limits like power and scarcity. For example, I am balding; I would like to have a full head of hair, but I am not free to have a full head of hair. I don’t have the power to grow hair. When I try to push the hair out of my head I end up constipated. I am also limited by scarcity. I have only one head. If I was a robot, I might wear a different head every day, changing them out like wigs.

While ancient peoples, by and large, dealt with powerlessness and scarcity by developing moral virtues like patience, temperance, and hope, modernity has a new solution: technology. Technology increases our power and increases the products among which we can choose. Today I can cure my baldness with drugs, disguise it with implants, or hide it spray paint: then I will be happy. This is the promise of technology in our day: it allows us to satisfy all of our desires and so become happy.

Liberalism thus tends to what several popes have called the “cult of progress.” This cult views technology as necessary for happiness, that every technology is good so long as it pleases someone. Limiting technology therefore limits “choice” or autonomy, and therefore someone’s happiness.

This brings us to the HHS Mandate’s definition of contraceptive and abortifacient technology as “healthcare.” Liberals believe that denying someone access to the technological means to freely satisfy their desires is as good as denying them happiness because it “limits” their autonomy. When one says, “Abortion”–or contraception, or in vitro fertilization, or whatever–is wrong, bad technology, what they hear is: you don’t have a right to be happy. “And don’t I have a right to be happy?” they respond. (The answer, by the way, is no: we have a right to be good, as I’ll explain later. This is why Liberalism will always be fundamentally opposed to the Church on the majority of moral issues. Liberalism understands any limitation of one’s freedom of choice or one’s access to technology as an attack on one’s autonomy and therefore on one’s right to happiness–even when these limitations are made on objective moral grounds.)

But if Liberalism wants to maximize everyone’s freedom, why should it force Catholics to provide objectionable services in the first place? Well, those of you with children, ask yourself this: what happens when Joe decides he wants to play with Jane’s toys, but Jane doesn’t want Joe to play with her toys, for whatever reason? Who has to step in and solve the problem? Parents. So what happens in the adult world when Smith decides he needs something from Jones–maybe something important, like medical care, or education–and Jones doesn’t want to provide it because he thinks Smith’s intentions are immoral? They go to court. And at that point the State has to decide whether to coerce Jones to give Smith what Smith “needs” to be happy.

Here we come to the fundamental paradox of modern Liberalism. On the one hand, Liberalism is grounded in the idea that we should respect the freedom of others as sacred. On the other hand, Liberals also believe that in order to guarantee their freedom, they can in practice use the coercive power of the state to compel others to do what they believe is wrong.

Jean Valjean and Natural Rights

These ways are not our ways. Catholicism has a millenia-long tradition upholding the Natural Law position that rights protect obligations rather than autonomy, as Liberalism holds. Let me illustrate the idea using a famous story before I explain its consequences for religious freedom. The story is from Victor Hugo’s novel Les Miserables.

Imagine a starving pauper named Jean Valjean standing in front of a bakery window. He has no money to pay the baker for bread, and no other food is available. He can break the window and take the bread or starve. He takes and eats, and is subsequently sentenced to 19 years of hard labor for theft.

The great Catholic theologian St. Thomas Aquinas argues that Jean Valjean (or those like him) did nothing wrong when he took the Baker’s bread. Aquinas even denies that taking the bread was stealing, arguing as follows:

Things which are of human right cannot derogate from natural right or Divine right. Now according to the natural order established by Divine Providence, inferior things are ordained for the purpose of succoring man’s needs by their means. Wherefore the division and appropriation of things which are based on human law, do not preclude the fact that man’s needs have to be remedied by means of these very things. (Summa Theologica 2-2.66.7c)

In other words, Aquinas argues Jean Valjean’s “extreme need” caused the Baker’s bread to become his own. Jean Valjean’s natural right to the bread dissolved the Baker’s legal right over the bread. How did this happen?

Bread exists to feed human beings. Human beings exist to know, love, and serve a God who has loved them into existence for their own sake. Jean Valjean, like all of us, possesses his life as a gift given to himself. He has a duty to preserve that gift, and give thanks for it, and to make it fruitful by giving it to others. Giving thanks and being fruitful: those duties are at the heart of Christ’s two Great Commandments to love God and neighbor.

Now here where Aquinas’s idea comes into play: Jean Valjean cannot do anything if he cannot eat. But one cannot have an obligation to do what one cannot do. I cannot promise my son that he will grow up to be a six foot tall millionaire, or that he will never be in an earthquake. I cannot promise that because I cannot make him a six foot tall millionaire, or prevent earthquakes (any more than I can make myself grow hair, apparently). Therefore, if I do have an obligation to do something, I must have the ability to do it. If Jean Valjean has obligations to, in thanks, make his life fruitful, the Natural Law concludes that he must therefore have a right–a moral protection or claim–to what is necessary for him to to those things, such the food necessary for life itself. At that particular moment, standing before the Baker’s window, Jean Valjean’s extreme need gave him a natural right to the Baker’s bread, because that is the point of rights: we have moral rights so that we have the ability to satisfy our moral obligations.

Yet what about Baker’s rights, you might ask? Surely his rights were legitimate too? Of course they were–but as man-made, and therefore inferior “legal” rights, not as natural rights. Human beings invent all sorts of legal rights and duties to protect our natural rights: we tell people to drive on one side of the road rather than another to protect lives, we pay taxes to fund schools, and we have a whole system of property rights that are the foundation of a peaceful and productive economy. Legal rights are supposed to facilitate our freedom and ability to do and be good. However, when a legal right contradicts a natural right–that is, when it directly prevents you from fulfilling your obligation as a human being to know, love, and serve God–the now-pointless legal right dissolves before the greater claim, just as the Baker’s right to the bread dissolved in the face of Jean Valjean’s natural right to preserve himself. Rights protect duties; they guarantee our power and freedom to be good.

This simple idea has two enormous consequences.

First, it entails that no earthly power, no government of men, has absolute dominion over our lives, freedom, or conscience. As our Founding Fathers argued in the Declaration of Independence, the priority of natural rights and duties over man-made rights and duties entails that governments are limited by the natural law. Governments are instituted in order to secure our natural rights, they wrote, and “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”–or at the very least, to resist it.

The second consequence follows from the first. If moral rights protect our ability to do and be good, and the natural law has priority over the civil law, then not only do we have a natural right to exercise ourselves in ways necessary for the fulfillment of our moral duties, as Jean Valjean did when he took bread, but we also have the right to refuse to obey when a government commands us to do what is wrong, what we have an obligation not to do. That argument also has a long pedigree, having famously been made by American abolitionists during the civil war, by the Nuremberg Court against Nazi War criminals, by Mahatma Ghandi against the British and by Dr. Martin Luther King in his “Letter from Birmingham Jail,” to name a few.

The Case for Religious Freedom

Now what does Natural Law have to say about religious freedom? Quite a bit, actually: such reasoning is being defended by Catholic bishops and many others across the country, and it can be found in the Vatican II document Gaudium et spes, but it was recently given an excellent formulation by the ecumenical group Evangelicals and Catholics Together in a statement called “In Defense of Religious Freedom,” which I’ll summarize here. (The statement is available at <http://www.firstthings.com/article/2012/02/in-defense-of-religious-freedom>.)

The argument begins with the premise that “Human beings have been created with the capacity to know God, the will to seek God, and a spiritual thirst for God.” Let’s break that down. Human beings are born with a desire to know. Blessed John Paul II said this desire sprang from the experience of “original solitude,” the ecstatic experience of a conscious being standing forth from the rest of creation, of being able to ask, “what does it all mean?” Happily, we are not only born to ask the question, but also born with a capacity to seek out its answer. We have been given reason and revelation to help us fulfill our desire: reason with which to seek truth, and revelation to guide us into truth’s fullness. As  Christians we believe that the the fullness of truth and the satisfaction of this desire is God Himself. No created good will satisfy us. “Whoever drinks of this water shall thirst again,” Jesus says, “but whoever drinks of the water that I shall give him shall never thirst … [and] shall be in him a well of water springing up into everlasting life” (John 4: 13-14).

It is important to emphasize here that truth is something to be sought and achieved, not something to be possessed. Even faith, says Aquinas, is a habit we must practice and grow in. This makes sense, for the fullness of truth is Love himself, and love is always an activity. Husbands, ask your wives: love is something you have to work at. In contrast to Liberalism’s idea that human dignity rests on undifferentiated freedom, Christians believe that our dignity springs from the fact that we have been made in the image of God and we have been made for God. We are homo adorans, made for worship.

This fact about the human person has three moral implications. First, it gives each of us a duty to seek, as far as we are able and in our own way, the truth about ultimate things. Every person has this obligation, no matter their race, culture or creed. To refuse this duty is to be negligent of our souls. Blessed is he who is zealous for the truth, Christ says, who “hungers and thirsts for righteousness sake” (Mt. 5: 6). Second, the absolute dignity of every soul loved into existence by God gives us an obligation to enable and encourage their honest and sincere search for truth, since to frustrate or prevent this search is to deny that the other person is made in and called to be an image of God.

Third, these obligations to seek and to help others seek God generate a fundamental natural right to do so, because rights protect duties. This is what we call the natural right to religious freedom. Since natural rights are prior to legal rights, the Evangelicals and Catholics Together statement concludes that “Any power, be it cultural or political, that puts unwarranted impediments in the path of the human quest for truth, which culminates in the human quest for God, is violating the order of creation.” The HHS Mandate is just such an unwarranted impediment to religious freedom, since it attempts to define what constitutes genuine religious expression–medical care, education, and charitable works apparently do not qualify. Yet in the Christian tradition, the quest for spiritual truth is not merely contemplative–a matter of philosophy, theology, and prayer–but also active, since we are told by Christ himself that we will find His face in the face of our poorest neighbors.

Finally, Evangelicals and Catholic Together emphasize that religious freedom, which is necessary for accomplishing our fundamental duty to seek the voice of God in whatever manner He speaks to us, is prior to every other freedom: the freedom of speech, the freedom of assembly, the freedom of press, the freedom to assemble and so discuss, and seek, and live out our our convictions with others, the freedom to form and sustain distinctive institutions dedicated to these activities, and above all the freedom to worship–all of these freedoms are necessary for religious freedom. Religious freedom is not one freedom among others; rather, it is the foundation of every other freedom (CET, p. 7).

Conclusion

To sum up: Despite the American government’s argument that we have legal duty to obey the HHS Mandate rooted in a Liberal conception of freedom, we have a prior duty rooted in the natural law and Christian revelation to live in accord with our convictions, including the convictions that contraception and abortion are wrong. We have a right to act in accord with that duty, both in the choices we make for ourselves, and to refuse to be complicit in these evils. We may, as members of a pluralistic society, sometimes tolerate evil–and our refusal to provide others with contraceptives without preventing others’ use of contraceptives does just that–but we may not participate in it. When a government such as ours requires complicity in evil, we must refuse to become part of such “structures of sin.” We must engage in civil disobedience.

Two things are at stake here. First, the very idea of religious freedom as the “first freedom,” as the right which creates the space in which human beings can seek the truth and live sincerely in accord with that truth, the right to be good. Also at stake are the real evils of contraception and abortion, which make no one truly happy, and which we have a duty and therefore a right not to participate in.

Lenten Reflection on Suffering

bound_lamb_3For most people throughout history, the fundamental existential question is about suffering: why is it, and what does it mean?

The answer to the first question is obvious. Rocks don’t suffer, but people do. People suffer because they have desires, and many of those desires are embodied in interests–things whose possession makes life go well. I use the term ‘things’ loosely here. Our interests can be in material objects, but our strongest needs are for relationships with other human beings, for immaterial goods like friendship, love, power and honor. If we did not care about such things, we could not suffer their loss. Thus some philosophers, such as Heidegger, go so far as to define man as the careful being, the being whose fundamental relationship with the world is one of concern.

This insight provides several suggestions about how to answer the second question about the meaning of suffering. If suffering is caused by concern, then the value of suffering depends on the value of our concerns. Suppose (as materialists do) we learn that the world is not ultimately inherently valuable? Then suffering is both meaningless and irrational, since the cause of suffering is our penchant for seeing in the world something that isn’t there. The rational cure for suffering will be to eliminate unnecessary desire, to live, so far as possible, without concern. The Epicurean or Stoic sage who does this will have achieved ataraxia, untroubledness, though the world breaks against him. As Anaxagoras replied when he learned of the death of his son, “I knew my child was mortal.”

Suppose, on the other hand, you believe that the world is inherently valuable. Then suffering is both meaningful and rational, since it marks the lack or loss of some real good. What we need to determine in this case is what the good is, and whether it can be possessed by us. (The former is an ontological question, the latter a metaphysical one.) If you’re an atheist, the goods of this world are all there are, but they are difficult to possess: the world fights us for possession of her goods. The solution to suffering, then, as Francis Bacon argued, is the ‘rape of Nature,’ to force her to give up what she so selfishly prizes. We do this through power, through our technological mastery of the world. The solution to suffering is the utilitarian application of empirical science.

If one is a theist, however, the atheist has answered the ontological question poorly. For how could the creation be a greater good than its Creator, a Being who is, by definition, perfect? The source of suffering for the theist isn’t illusory desire (as it is for Lucretius or Marcus Aurelius), or miserly nature (as it is for the technologist), but loving lower goods that are incapable of satisfying our infinite desire in place of higher goods that are. Suffering, as Augustine saw, is a mark of disordered love:

Late have I loved you, O beauty so ancient and so new;
late have I loved you.

For behold you were within me, and I outside;
and I sought you outside and in my ugliness fell
upon those lovely things that you have made.
You were with me and I was not with you.
I was kept from you by those things,
yet had they not been in you,
they would not have been at all.
You called and cried to me and broke upon my deafness;
and you sent forth your light and shone upon me,
and chased away my blindness;
You breathed fragrance upon me,
and I drew in my breath and do now pant for you:
I tasted you and I now hunger and thirst for you;
you touched me, and I have burned for your peace.
(Confessions X.27)

To borrow from another Augustinian, Søren Kierkegaard argued that “purity of heart is to will one thing,” God above all things. This is not to say that the world is bad. It is to say that the world’s goods can be a temptation to the purity of one’s love, as a rich woman’s wealth or beauty can be a temptation to a suitor who desires to love her well. The metaphysical question for the theist, then, is at bottom a moral question: how to be pleased and pained by real goods and real evils rather than their impostors.

False suffering is sin (it evinces disordered love), while sin is the occasion of true suffering. How to tell the difference? If only we had some guide, someone willing to descend into the darkness of sin and show us the way to truth. A suffering servant.

For this do we hope.