In these pages, I recently argued that Catholics and others must not comply with the United States Department of Health and Human Services’ (HHS) mandate requiring virtually all employers to provide health insurance to their employees that would cover direct sterilization and contraceptive drugs and devices, including those which may cause abortions. The discussion there focused primarily on a defense of conscience and religious liberty. Here I would like to explain further why, as a matter of a well-formed conscience, Catholics must not compromise the demands of the moral law and their own faith by obeying the mandate.
The US bishops’ witness to moral truth
In its most recent statement on this matter, the United States Conference of Catholic Bishops (USCCB) gave several examples, including the HHS mandate, in which religious liberty is currently under attack in our society, and spoke prophetically about the need to defend this most cherished freedom. The bishops rightly state that the mandate amounts to an unjust law, which has no moral authority because it forces “religious institutions to facilitate and fund a product contrary to their own moral teaching and purport[s] to define which religious institutions are ‘religious enough’ to merit protection of their religious liberty.” They underline the obligation not to obey an unjust law in the strongest of terms:
It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.
Promoting the common good
The bishops, however, are not simply adopting a defensive posture. They wisely understand that protecting conscience and religious liberty is foundational to allowing the demands of faith to generate and undergird the Catholic contribution to the common good. As one example of the importance religious witness has to society the bishops recall the civil rights movement: “During the civil rights movement of the 1950s and 1960s, Americans shone the light of the Gospel on a dark history of slavery, segregation, and racial bigotry. The civil rights movement was an essentially religious movement, a call to awaken consciences, not only an appeal to the Constitution of America to honor its heritage of liberty.”
Opposing the immoral demands of the mandate is likewise an opportunity for Catholics to give prophetic witness to the evil practices which they and others cannot in good conscience promote. The Catholic Church opposes direct sterilization, and the use of contraceptive drugs and devices, including those which may cause abortion, not as a matter of “company policy,” but as a matter of moral conviction that these practices violate the true dignity of the human person. One cannot promote the true good of individuals and society by facilitating and promoting practices that are, in fact, injurious to persons.
A call to prophetic witness
The bishops conclude their statement on religious liberty by calling upon Catholic laypersons, politicians, those working in education, health care, and social service ministries, and priests and religious to undertake the important work of protecting conscience and religious liberty rights. They appeal to their brother bishops to “exhort each other with fraternal charity to be bold, clear, and insistent in warning against threats to the rights of our people. Let us be the ‘conscience of the state.’”
No room for compromise
Although the bishops do not take up the question of cooperation, they do indicate that there would be no moral justification for obeying the mandate. In fact, they speak of having the courage not to obey unjust laws, under which heading they place the mandate. I think the bishops are absolutely correct in stating that there can be no compromise on the part of Catholics in this matter. This is so because, depending on the employer’s acceptance or rejection of the immoral practices in question, compliance with the mandate would constitute either formal or immediate material cooperation. The former is never morally permissible and the latter is not permissible in the matter of the mandate.
The principle of cooperation
The principle of cooperation (POC) is used to evaluate the morality of a secondary agent’s actions that in some way contribute to the immoral acts of a primary agent. Since a basic principle of Catholic moral teaching is that evil cannot be done for any reason, including the pursuit of good, the POC could never justify a secondary agent’s agreement with the evil intended by the primary agent. The primary and secondary agents’ intentions, it should be noted, are present in both what they do and in the motive for which they do it.
Although evil can never be directly intended, the Catholic moral tradition has recognized that evil may sometimes be indirectly intended; that is, tolerated. Both the principle of double effect and the principle of cooperation address situations in which the pursuit of some good may well involve the toleration of evil. However, moral agents must be truly reluctant to do something that requires the toleration of evil. Obviously, neither principle should be employed as a method to rationalize participation in evil.
The POC addresses situations in which a secondary agent’s pursuit of some good necessitates the toleration of the evil done by the primary agent. It assists the secondary agent in evaluating his participation in evil by identifying the conditions that make cooperation morally justifiable. These conditions are revealed by answering a series of questions. Is it necessary to pursue this good here and now if it involves cooperation in evil? Do the circumstances make it clear that the evil is only tolerated? Is the good that is pursued proportionate to the evil that is tolerated? Will cooperation with evil be scandalous in the sense that it would contribute to the spreading of evil, by making evil actions seem less evil, and leading others to accept, perform, and even promote those same actions?
By answering such questions, one is able to distinguish cooperation that is the same as doing evil from cooperation that demonstrates a toleration of evil necessitated by an obligation to pursue some proportionate good that cannot otherwise be reasonably achieved. If the secondary agent claims to be pursuing some necessary good and only tolerating the evil the primary agent is engaged in, then the POC assesses the validity of this claim. It does so by examining the secondary agent’s intention as it is found in what he does (object of the act) and in why he does it (motive), in light of all the relevant circumstances in which the act takes place. Regarding what the agent does, the POC asks if the cooperation is necessary to the primary agent’s action, or whether it helps in some material but non-essential way. Regarding why the secondary agent cooperates, the POC asks if there is any obligation to pursue the good and if the good pursued is proportionate to the evil tolerated.
Since evil can never be directly intended, the will of the secondary agent can never be in agreement with the evil will of the primary agent. This level of cooperation is called formal and is always forbidden. Such formal agreement with the immoral will of the primary agent is explicit when the secondary agent makes no claim to the contrary. It is implicit when, even if he claims otherwise, no other plausible explanation can be given for his level of participation in the primary agent’s evil action.
Still there may be circumstances in which a secondary agent’s cooperation, though essential to the evil act, is provided despite his opposition to the evil will of the primary agent. For example, an anesthesiologist who would never choose to assist with a direct abortion provides anesthesia to a pregnant woman who is undergoing surgery for injuries sustained in an automobile accident. During the course of the operation, the surgeon decides that the woman’s chances for survival would be improved if he aborts the fetus. There are no other anesthesiologists available and the attending anesthesiologist has no alternative but to continue participating in the operation. His cooperation in the immoral act of the surgeon is necessary, yet his claim not to agree with the evil will of the primary agent is made credible by the duress under which he is made to cooperate. This is called immediate material cooperation, which may be permissible in such rare circumstances as those described here.
When the secondary agent’s will is not in agreement with the evil intention of the primary agent and his cooperation is not essential to the evil act, the cooperation is mediate and material. He cooperates in this fashion because of some good that he is obligated to pursue and cannot otherwise reasonably attain. Theologians have introduced two additional refinements to test the credibility of the secondary agent’s claim not to agree with the evil intention of the primary agent. These deal with the physical and causal relationship of the secondary agent’s action to the evil action itself. The closer the secondary agent is to the immoral act of the primary agent, the more compelling must be his reasons for cooperating. This is the basis for the distinction between remote mediate material cooperation and proximate mediate material cooperation. The tradition has allowed for mediate material cooperation (proximate or remote) when the good at stake is proportionate to the evil tolerated and every effort is made to avoid giving scandal. When scandal is likely then even mediate material cooperation is impermissible.
CDF and institutionalized cooperation with evil
Several years ago, Catholic health care providers tried to justify permitting direct sterilizations in Catholic hospitals. They appealed to the principle of cooperation and claimed that their cooperation was justified by duress (e.g., the threat of losing ob-gyn physicians, resulting in the need to close the entire obstetrics department, with the consequent loss of revenues needed to keep the hospital afloat). The Congregation for the Doctrine of the Faith (CDF) rejected this claim by pointing out that permitting direct sterilization in these circumstances would force these Catholic institutions routinely to allow direct sterilizations, thereby institutionalizing the practice. The CDF’s judgment highlights the fact that even if duress may in a particular situation justify a particular instance of immediate material cooperation, ongoing duress could not justify regularizing such cooperation. Moreover, the institutionalization of cooperation with direct sterilization would be truly scandalous, which is a further reason for which it cannot be justified.
The HHS mandate and private employers
Although the US bishops’ opposition to the mandate has focused primarily on its effect on Catholic institutions, they are also deeply concerned about its effect on individual employers. A Catholic employer who in conscience opposes direct sterilization, and contraceptive drugs and devices, including those which may cause abortions, but nevertheless provides the insurance coverage because of a government mandate, would be an immediate material cooperator in these same evil practices. The HHS mandate would force such employers to provide this coverage on an ongoing basis, thereby requiring them to regularize their immediate material cooperation with evil. For this reason, and the fact that it would be truly scandalous, their cooperation could never be justifiable.
Obeying the mandate and paying taxes
While there are some similarities between providing coverage for these immoral practices and paying taxes, which are then used by the government to fund some immoral practices, there are some important differences. The HHS mandate requires employers to provide coverage specifically for immoral practices, which they had previously been exempt from doing. The very purpose of the mandate is to provide insurance for contraception, etc. That being the case, to purchase such insurance for one’s employees, even as part of a policy that covers many truly good health care services, is to deliberately pay for drugs and procedures which are violations of the moral law, and their own consciences. This is not the same thing as paying taxes which go into a general fund from which the government takes money to pay for all its projects, including some that are immoral. Citizens are not asked to pay taxes (or perhaps even more in taxes) specifically for immoral practices. And no religious body is asked, as a matter of policy, explicitly to fund immoral practices in violation of its held beliefs.
We are all obliged to pay taxes and have never exercised much control over how our tax dollars are used, although we have had some success in curtailing tax-funded direct abortion. However, the Patient Protection and Affordable Care Act (Obamacare), including the provisions of the HHS mandate, can be avoided by not providing health insurance for one’s employees and paying a $2,000 per employee annual fine for violating this law. (On this point, it has been noted that some employers may be inclined to drop health insurance for their employees as a means of saving money. It would be far less costly for employers to pay the fines than to purchase the insurance.) By paying taxes, we are all engaged in justifiable remote mediate material cooperation with the evil actions undertaken by our government. But obedience to the mandate would constitute unjustifiable immediate material cooperation.
Catholic teaching and employee benefits
Although Catholic social teaching encourages providing health insurance coverage, it assumes that the insurance would address the true health care needs of employees and that it would be delivered in a morally upright way. Direct sterilization and contraception are not health care since they are directly aimed at either impeding or destroying the proper function of a healthy reproductive system. There can be no moral obligation to pay for harmful drugs and procedures which violate the dignity of the human person. This fact would perhaps be more readily grasped if our government demanded employers to provide coverage for direct abortion and euthanasia, as it may yet do. If we can justify cooperation with direct sterilization and contraception, on what basis would we refuse to cooperate with direct abortion and euthanasia?
The HHS mandate represents a serious attack on conscience and religious liberty. In this article, I have argued that individuals and institutions must be free from governmental interference in following the morally sound demands of their consciences and in making their particular contribution to the common good. In conclusion, I would like to make three points: First, providing health insurance coverage for immoral practices cannot be justified whether it involves formal or immediate material cooperation. Although it is true that an employer who buckles under the demands of the mandate would not be culpable for his cooperation if he lacked full consent of the will, his cooperation would still be objectively evil and unjustified. Second, the ideal resolution to the violations of conscience and religious liberty that the HHS mandate places on Catholics and others would be to withdraw the mandate. Third, if the mandate is not withdrawn, the response on the part of Catholic institutions and private employers should be non-compliance. There is no moral obligation to obey an unjust law or regulation and every obligation to resist it insofar as possible. Disobeying the mandate may require employers to drop health care coverage for their employees and pay the fine for doing so. As regrettable as the loss of such coverage would be, it would be more tragic to force employers to pay for these immoral practices.
As Bishop Daniel Jenky of Peoria recently said during a homily at a Catholic men’s conference:
As Christians we must love our enemies and pray for those who persecute us, but as Christians we must also stand up for what we believe and always be ready to fight for the Faith. The days in which we live now require heroic Catholicism, not casual Catholicism. We can no longer be Catholics by accident, but instead be Catholics by conviction. In our own families, in our parishes, where we live and where we work—like that very first apostolic generation—we must be bold witnesses to the Lordship of Jesus Christ. We must be a fearless army of Catholic men, ready to give everything we have for the Lord, who gave everything for our salvation.
The principle of cooperation was never intended as a tool to rationalize the promotion of evil. We must not look for “loopholes” in Catholic moral teaching to excuse ourselves from the prophetic witness that this moment demands. Cooperation is not an option.
 Citing a letter from Cardinal Joseph Ratzinger to Bishop Joseph Fiorenza, then president of the United States Conference of Catholic Bishops, the Catholic Health Association sent its members a list of four specific concerns raised by the CDF. The CHA’s analysis, titled “The Congregation for the Doctrine of the Faith’s Concerns Regarding the Principle of Cooperation,” was included in a mailing to its members under cover memorandum dated September 26, 2000. For a discussion of this question as it applied to the revisions of the 1994 version of the USCCB’s Ethical and Religious Directives for Health Care Services, especially in relation to its Appendix on the Principle of Cooperation, see: Kevin T. McMahon, “Revising the ERDS ’94: Goals, Opposition and Resolution,” Linacre Quarterly, May 2001.
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