The Unthinkability of Compliance

Dr. Janet Smith, with whose work every Catholic interested in moral theology and philosophy has good reason to be familiar, has recently arguedthat cooperation with the HHS mandate is either remote or at worst mediate material cooperation with evil rather than formal cooperation.  In doing so, she proceeds—as does much analysis—along the lines of St. Alphonsus Ligouri, who defines material cooperation as “that cooperation which concurs only with the bad action of the other, outside the intention of the cooperator.”  If we mean by this intention of the end, certainly this is one way of committing formal cooperation with evil, but not the only way—one recollects here the very lucid arguments of Dr. Michael Pakaluk on this point—because the object of the moral act must also be good and if it is not the act is evil.  Formulations about intention leave one yet with a great measure of ambiguity, precisely because “intention” is an analogical term (it principally refers to the act of the will with respect to the end, but refers also and secondarily—owing to the prior causal role of the intention of the end—to the intention of the object, and in a third sense even to the intention of any part of the motion toward the end).  

But certainly there remains the need for the nature of the object of one’s act to be good, since if the object is evil the act is evil. Thomas Aquinas teaches that for the moral act to be good it must not only have a good end, but a good object (and, for that matter, good circumstances), and if the object is morally evil, then the act is morally evil.  So, the insistence that if only the cooperator does not intend the same end as the wrongdoer he is not guilty of formal cooperation with evil, implicitly treats the object of moral action as inessential to action.  But, to the contrary, St. Thomas Aquinas unequivocally teaches that the object is essential to the moral act, and that if it is evil the action is evil. 

So: if one contracts to provide insurance covering a basket of services, knowing that included among these “services” are grave evils, in what sense is one not contracting for them?  Of course, coercion is involved.  But while coercion can limit or even remove culpability, it does not change the object of the coerced action as such.  I may be told that unless I murder some innocent party, my child will be murdered; but if I proceed to murder that innocent “someone” my culpability may be reduced by the coercion, but the object of the act is still wrongful homicide.  The question is not whether employers are being wrongfully coerced by the state, as it is manifest that they are.  The question is, may one offer insurance coverage for vice because one is being threatened otherwise with the loss of the ability to offer health insurance legally?  After all, one presumes that the Catholic institution or party offering the insurance “doesn’t want to” offer coverage for vicious action, and “doesn’t intend”—as an end—that vicious action.  If it were true that formal cooperation existed if and only if one intended the same grave evil as that being pursued by the evildoer with whom one was cooperating, then to lack that intention of the end would necessarily imply that one were not formally cooperating. However, this entirely misses the formality of choice and the essential importance of determining the nature of the object of choice.  I may not intend something as an end, but still may choose it as object for the sake of the end.  If what is chosen is gravely evil, what ensues is a gravely evil action.

What is being argued today is largely that since the Catholic institution only intends providing genuine health insurance as an end, and the mandatory extension of this insurance to vice is not willed as an end by the Catholic institution, it is free to choose to offer an insurance package that covers vicious activities.  I say “choose” because although it is under duress, the Catholic institution/employer is still free not to offer benefits at all.  And as a matter of unequivocal fact it is the whole package of “services” that the Catholic institution provides access to by providing insurance coverage not only for health services but for vice.  It is not only those services that are genuinely ordered to healthcare, but also those that are ordered to abortifacient contraception, to which the insurance provided by the institution gives access.  This is a matter of fact.  These will be made available through the employer’s health insurance if and only if the employer’s health insurance covers them; and if the employer offers no health insurance, this means that the employer will not make the access to the vicious pseudo-services available through its insurance policy.  So:  may the Catholic institution/employer offer insurance coverage for health care together with insurance coverage for vice?  

If the government mandated that at Halloween mothers must provide one piece of rat poison or one candy bar with a razor blade inside for every three normal pieces of candy, could the mother reason that she is under coercion, and then provide the candy combined with the poison?  Would that be only mediate or remote material cooperation?  No, because although (hypothetically) she would not will the eating of the poisoned candy as an end, she would nonetheless—under coercion—have chosen to provide it rather than to cease giving candy altogether. 

The form of the choice offered to Catholic institutions essentially presents the option of choosing to cooperate—to offer insurance coverage for vice—as a condition for state permission to offer health care.  But it is immoral to provide insurance coverage for vice.  Period.  It is something that no one should do.  This is the nature of grave evil, to be something that no one should do.  That one ought not to do it is not determined by the Obama administration, nor by HHS; it is determined by the eternal law.  Providing insurance to cover vicious activity is an evil; providing access to gravely vicious activity is gravely evil, and one way that one provides access to such activity is to cover it with insurance.  Clearly this should not be done.  Any institution that cooperates in providing such insurance coverage is indeed cooperating in providing access to gravely vicious activity.  

The HHS case is different from that of driving a bank robber to rob a bank, because merely driving the robber to a bank is not specified by the robbery but only by access to the bank.  But providing insurance for grave vice, is to set up the means specifically to pursue grave vice:  so much so that the insurance policy contains this in its very letter. That is evil.  It is not accidental to the provision of insurance coverage expressly for vice that the insurance coverage provides access to: vice.  The choice to provide such coverage—even if the alternative is to provide no coverage for health insurance—is an evil choice.

The similar case would be agreeing to arrange “insurance” that covers the provision of “murder services” as a condition for being permitted to continue arranging insurance covering health care (lest one forget that abortifacients are instruments of wrongful homicide).  But one comes to full stop:  one may not agree to arrange “insurance” that covers wrongful homicide (coercion or no).  Therefore, any basket of “services” that offers this cannot be offered.  To say that “the benefits of compliance outweigh the cost” is to treat the good of the human life whose extinction one arranges to have funded by insurance a mere deficient utility compared with the cost of insurance.

Not focusing on the nature of choice, the insistence on material cooperation focuses only on intention of the end.  But when the object chosen is gravely wrong, the action is gravely wrong, irrespective the goodness of intention.  Nor does coercion change anything but the culpability of the agents.   Both the intention of the end, and the choice of the means, must be sound:  both the end and the object of the action must be good.  But it is not good to provide an insurance policy covering both genuine health needs and vicious activity.  

In Smith’s analysis, the example of “bundled” evil is given:

The example of buying groceries from a grocery store owned by an abortionist serves here as well. Some of the money we paid for cheerios might go to pay for advertising the abortion clinic but since we do not intend at all to fund abortions and since the amount of the money that goes to abortion is negligible, our shopping at the store is morally permissible.

However, in comparison to the present case, this illustration of bundling seems—and is—trivial.  The example is one of very remote material cooperation.  For all the reasons already stated, the case of the HHS mandate is a vastly different case.

Lastly, resistance to the HHS mandate is absolutely morally required, because the HHS mandate presumes unilaterally to direct Church institutions to immoral uses, to force the Church to become gravely complicit in scandal, and wholly to invert the sacred purpose that renders Catholic institutions to be Catholic institutions.  This is to say that the HHS mandate, mandates a defacing of the Church, a sacrilegious inversion of the purposes that make juridically Catholic institutions be Catholic.  For these reasons alone, it is simply impossible for any good Catholic to cooperate with the mandate at the moment when it becomes fully effective.  The HHS mandate is insufficient in reason and law to command any well-formed conscience.  Of course, it is wrong for Catholic employers as individuals—and indeed, it is wrong for any individual employer who in conscience understands the grave evil of abortifacient contraception—to cooperate with the mandate.  But the truth is that the HHS mandate is war on the Church.  Thus to be discussing institutional compliance as a plausible option is, to this author’s mind, imprudent and dangerous.  One does not cooperate with those who seek to move one through coercion to provide access to vice and to harm the Church.  The calendar of the saints is filled with illustrations of the price—and the glory—that this may exact from the conflicted human creature in via… Moral theologians and philosophers must traverse a wide array of difficult and even exotic questions.  But the gravitational center of the Catholic response to the HHS Mandate should consist of one immutable syllable:  “no”.

Formal and Material Cooperation: Once More into the Breach

Perhaps the determining element in the question whether institutional cooperation with the HHS Mandate is formal or material consists in the answer to the question whether an institutional choice to provide a basket of services including a malum, implies an institutional choice of that malum.  From the vantage of the individual opposed to contraception the answer can be simple:  no, because the individual is simply trying to obtain a licit service and being extorted.  But there is no prima facie legal or moral obligation for an institution to provide health insurance.  Thus, to choose to provide health insurance with malum, is not only materially to include the malum, but to choose to obtain it and to make it obtainable by others.  The malum is like an integer added to a sum:  it is included in the object of choice as something one is contracting to provide; it is as formal as the presence of a musical note in a musical composition, which would indeed be a different composition without that note, even though as merely a “part” of the composition that note is “material”.  Hence, while “material” in relation to the whole ensemble—as is every “part” qua “part”—it is formal with respect to the choice to provide it.  I.e., contracting to provide an evil is not merely material inasmuch as the evil is every bit as essential to the basket of items contracted for as all the other constituents, even though the institution might prefer not to choose it.  If one views goodness as from total causes, then the addition of one element that is wrong destroys the action.  Of course, one might say that it is evil to comply, but only because it is a more proximate material cooperation that is still material.  However (assuming a Catholic institution), the end for the sake of which the institute acts is health care; but it does this by formally choosing something that is not choiceworthy.  That the malum is only materially included does not change the datum that it is essentially included (and this is the heart of the difficulty:  to be merely material in the object does not keep something from being essential to the object).  Now, it could be merely material cooperation if the purchase of the evil “service” were per se ordained to a good.  But there is nothing about provision of access to abortifacient contraception that is of itself per se ordered to the provision of health care.  Thus, the relation between providing contraceptive “services” and providing health care is per accidens, and so one is doing two things, not one, with two species, not one:  one is providing access to vice, and one is providing access to health care.  These two acts have different species.  Acts are specified by their objects.  So, one is faced with buying an evil service.  How bad is that?  Well, how bad is the service?  It is a service to help people contracept, often killing conceived children.  It might be argued from the vantage of the institutional intention to provide health care, that the malum of providing access to evil is treated as a means although it isn’t one:  i.e., “if we are to provide health care, we can only do it by also consenting to provide access to abortifacient contraception; so we must provide access to the latter in order to do the former.”  It is not that the abortifacient contraception or its provision is naturally of itself the means for health care (if it were, the species from the intention of providing health care would be most formal and containing) but rather that only by consenting to the provision of contraceptives may one provide what one wants to provide, so that this consent to provide abortifacient contraception is in this way a chosen condition of pursuing one’s intention.  But, to reiterate, here too one sees that there is a per accidens order, with two species:  providing health care, and providing access to vice.  But the act of choosing to provide access to vice, i.e., contraceptive “services,” is not choiceworthy.  Of course, it is true that those who consider the cooperation to be proximate material cooperation concur in this judgment.  But it is important to realize that what is only materially present in the object may still be essential and therefore constitute formal cooperation.  Granted that what is most formal in the hypothetic cooperative action of the Catholic institution is its effort to provide access to health care, it must still choose something that is not choiceworthy in order to proceed, and ought not to do this. Would it be “even more formal” cooperation did the institution positively seek to provide the malum?  Yes.  But insofar as the institution chooses a package with a gravely evil constituent, irrespective the intention, it is formally in choice embracing that constituent which is deliberately chosen along with the rest, and that includes its nature and per se effects.  Of course, when one considers that formally and juridically Catholic institutions are being commanded to give scandal as a condition for obtaining health care—and that the analogously sacred missio the pursuit of which defines such institutions would thus be sacrilegiously perverted by a unilateral act of the state—it is all the clearer that cooperation is absolutely impossible.

The Dubious Guidance of the New Natural Law Theorists on "Formal Cooperation"

Christopher Tollefsen argues as follows regarding the issue of formal cooperation:

As Sherif Girgis and Robert P. George have explained, formal cooperation involves acts that assist another in wrongdoing, in which the intention of the one providing assistance is precisely to further the wrongful aims of the primary agent. If I provide you with contraceptives in order to enable you to contracept, then I am formally cooperating with you. Formal cooperation is not guaranteed by inevitability: I might know to a certainty that you will misuse some resource or aid I give you. But unless I provide the aid for the sake of so enabling you, then I do not share in your bad intention.

Where the HHS mandate is concerned, there should be little doubt that formal cooperation is not at issue. If the president of a Catholic college is compelled to offer the coverage and complies, it will not be done for the sake of enabling his employers to contracept, but for the sake of complying with a legally authoritative, even if unjust, policy. Accordingly, the form of cooperation at stake is material, not formal.

Alas, this is an aperçu that wasn’t, because the definition of formal cooperation is incorrect.  The definition provided implies that only if the cooperator “intends” to bring about the evil involved is the cooperation formal. But “intent” is being used in a peculiar fashion, to denote only what makes the act desirable to the agent and to positively exclude the integral nature and per se effects of that which is chosen. Note how easy this makes avoiding formal cooperation:  one may do anything whatsoever provided that one wishes one weren’t doing it.  But the integral nature and per se effects of action are always included in the moral object, contrary to those for whom the object of moral action is merely what makes that action appetible to the agent.  This is because we choose actions and not merely the formal aspect under which the action is desirable to us—not merely the ratio of the appetibility of an action—but also the action itself.  The one who murders “wishing” he were not, but nonetheless choosing to do so, has a conflicted conscience, but is a murderer.  The one who offers to provide mass support for the pursuit of sinful actions, while wishing he were not aiding sinful actions, is still “directly” providing such support:  “directness” is not a function merely of how one describes one’s proposal for action, but includes the action itself, its integral nature, and per se effects.  So, perhaps the reason why someone performs formal cooperation with evil is not because he wishes the evil to be done, but for some other reason:  but it is wrong to do.  It is wrong to provide mass access to things that one knows are principally sought after for gravely immoral purpose, and the wrongness is formal because providing such access is in essential part defined by its causal implication in depravity and the agent is choosing this causal implication irrespective what he “wishes”.  The case is similar with respect to the performance of action generally. For instance, perhaps someone crushes an infant’s skull to remove it from the birth canal and save the mother, and not because one wishes to hurt the child:  but this is wrongful homicide and not a medical act, because the act terminates in the child—in such a way as to hurt and kill the child—and not in the putative patient, the mother.  Irrespective that the agent “only wishes to help the mother” what the agent is doing is murdering a child.  Roman Catholics who wish serious guidance about these matters should reflect that the George/Gigris account is deriving from a theory that countenances the crushing of infant skulls in craniotomy, and that is deeply implicated in the recent abortion (as witness the Lysaught brief defending the hospital) for which the former St. Joseph’s Catholic Hospital has rightly lost its Catholic status.  It is wonderful that gifted men of affairs and lawyers are willing to defend the rights of Catholic believers in the public forum.  But inasmuch as some of these persons are wedded to a theory in critical contradiction with important elements of the actual moral tradition of the Church—a tradition centrally related to the teaching of St. Thomas Aquinas—the long-term benefit is dubious.  This begins to be seen in the misportrayal of the Church’s teaching regarding material and formal cooperation, which the NNLT—wedded to a purely logicist insistence on the content of a proposal for action rather than a realist account such as is found in the teaching of Aquinas—cannot help but get wrong, having gotten wrong the analysis of human action in general.  The chickens of the NNLT are beginning to come home to roost:  NNLT chicken roosting is an emerging bull market.