On January 20, the Obama administration proposed a federal regulation that was promptly denounced, in the strongest terms, by voices from across the political and religious spectrum. Critics of every persuasion condemned it as a gross violation of religious liberty and the rights of conscience. Why? It required many Catholic and other religious institutions and individual employers, in violation of their religious and moral convictions, to provide insurance policies covering abortion-inducing drugs, sterilizations, and contraceptives.
On February 10, some of these same critics praised the Obama administration for promising to revise the regulation to, at one step remove, require many Catholic and other religious institutions and individual employers, in violation of their religious and moral convictions, to offer insurance policies covering abortion-inducing drugs, sterilizations, and contraceptives.
In a press conference, President Obama tried to explain the difference. Under the new plan, if a non-profit organization not otherwise exempted is religiously opposed to contraception or abortion-drugs, then the insurance company (not the religious organization itself) “will be required to reach out and offer the woman contraceptive care free of charge... [so that] religious organizations won’t have to pay for these services, and no religious institution will have to provide these services directly.”
Of course, President Obama cannot make abortion drugs or contraceptives actually cost-free. By requiring insurance companies to offer employees these services “free of charge,” he is effectively ensuring that their costs are shifted to employer-paid premiums. So under both versions of the regulation, thousands of employers will be forced to pay for services that violate their moral and religious beliefs.
Then perhaps the difference is that with the latest change, employers will no longer be required to “provide these services directly”? But no employer was ever required to provide these “services;” that is, to dispense contraceptive and abortion-inducing drugs, or perform sterilizations.
Let’s try a third time. According to the revised proposal, released late on February 10, insurance companies will now be required (a) to make “insurance without contraception coverage” available for religiously affiliated employers to buy for their employees, and (b) “simultaneously to offer contraceptive coverage directly to the employer’s plan participants who desire it,” for free and without cost-sharing. Perhaps here lie the distinctions that are meant to make a moral difference?
Robert Hockett, a Cornell University law professor and a thoughtful, fair-minded liberal Catholic, entertains the possibility. He sees two ways to understand the new mandate, two scenarios for how it might play out: one deeply objectionable, the other perhaps not.
In the first, all non-exempted employers must buy insurance policies that cover contraceptives and abortion-drugs. The difference is just that religiously affiliated employers can leave to insurance companies the dirty work of notifying employees of this coverage. This proposal, Hockett thinks, would be empty and disingenuous, “a mere ‘speak no evil…’ allowance” for religious institutions. We couldn’t agree more.
But Professor Hockett is friendlier to the second possibility he envisages: Religious employers buy their employees an insurance policy that does not cover contraceptives and abortion-drugs, but the insurance company must then offer those same employees a second policy that does.
Hockett suggests the possibility that this latter option needn’t involve religious groups endorsing contraception or abortion—just as the government needn’t be endorsing religious groups when it funds their schools. In the latter case, Hockett has argued, the government just allocates a certain sum of money for each person’s education, and parents’ choices are what channel some of it toward religious education.
Nothing released by the administration clarifies which scenario it has in mind. But when pressed for details Friday morning, senior White House aides told the USCCB that what insurers must separately provide to employees of objecting religious institutions is not a second policy, nor a rider on the first, but just the offer of extra coverage (for the morally controversial items), which the employee can accept at no charge.
So the administration’s tack seems to fall between the two possibilities that Hockett envisages. Employees of religiously affiliated institutions will receive just one policy, and its controversial parts will be advertised by insurers, as in the first scenario. But as in the second, coverage for contraceptives and abortifacients won’t be automatic because the one policy will have two tiers for employees to choose from: the first (to exclude contraceptive coverage) described by employers to their employees, and the second (to include contraceptive coverage) described directly by insurance companies to employees. Nothing is finalized—the administration’s written descriptions are exceptionally vague—but this is the best conjecture.
Now, having crossed our eyes to split these hairs, we can turn to our central point: none of these distinctions could make a moral difference. And that is not merely because this “compromise” makes no attempt to respect the rights of religiously observant employers (including owners of or shareholders in insurance companies), or religiously affiliated self-insurers. For even laying that extremely important issue aside, no matter which version of the new mandate is finally implemented, it will not differ in moral substance from the original. Any good objection to the first would apply with similar force to the second. And the contrary impression owes more to an aversion—understandable, but not morally significant—to the sheer fact of being too “close” to wrongdoing, than it does to sober reflection on the morally bad effects of such “closeness.”
Here it will be useful to recall an important distinction that the Western moral tradition has relied on for centuries, between two types of cooperation in another’s wrongs: formal and material. In both, you play some role in someone else’s wrongful act. But in what is called “formal” cooperation, you share the wrongdoer’s intention: the object of his act, which renders it immoral. In merely “material” cooperation, you don’t.
Formal cooperation with wrongdoing is always wrong. If it is wrong to rob a house, surely it is wrong to help a robber up to the window so that he can do the deed. More to the point, if it is wrong to use the “five days after” pill, which can prevent conception but also work by causing embryonic death, it’s also wrong for a pharmacy owner to stock her pharmacy with the drug so that those seeking to abort a newly conceived child can accomplish their goal. In both examples, the wrongdoer and the cooperator have the same (wrongful) objective.
Material cooperation, on the other hand, is not always wrong, and indeed can’t always be avoided. We are too interconnected for that. A cheery barista might well know that a triple espresso she sells today will likely caffeinate someone’s hurtful outburst at work. That makes her a material cooperator with intemperance, but not necessarily guilty of anything. And yet a bartender who hands a drunken customer his keys might share the blame for pedestrian injuries, however much he had hoped that the man’s drive home would pass without incident.
What marks the difference? What makes material cooperation wrong, when it is wrong?
Morality is fundamentally a matter of (a) your intentions—which, by definition, aren’t the issue in merely material cooperation, only in formal—and of (b) the fairness of your choice as judged by its foreseen good and bad effects upon all concerned.
It is true that moralists draw a further distinction between “proximate” and “remote” material cooperation; but that is because material cooperation often has worse effects as a result of being more immediate. Of course, this doesn’t always hold. And even when it does, it is the additional harms—not the immediacy of your involvement itself—that make a difference (perhaps decisively) for moral evaluation.
These additional harms include all the wrongs that would have been averted if you hadn’t played a role; their toll on others; and the false beliefs about right and wrong that people infer from your involvement, to name but three of many possible factors.
With this framework in place, we can see that the Obama administration’s proposed changes would really change nothing that matters morally.
To begin with, neither before nor after the February 10th “compromise” would the mandate require religious objectors to cooperate formally in what they considered wrongdoing—i.e., to intend that their employees make use of contraceptives, sterilization, or abortion-drugs. Both would, however, require material cooperation.
And that material cooperation would have substantially similar bad effects. After all, before and after the change, employees would have coverage for contraceptives and abortion drugs by virtue of their religiously affiliated (or religiously observant, or morally conscientious) employers’ insurance contracts. Before and after, employers who oppose these drugs would nevertheless be required to select, contract, and—let’s drop the charade—pay for plans by which their employees obtained coverage for them.
Either way, then, the mandate would violate religious liberty and freedom of conscience:
First, it would dramatically compromise the mission of religiously affiliated institutions to give witness to the moral teachings of their faith. People would wonder, for example, how serious the Catholic Church could really be about the idea that abortion takes innocent life, if it contracts with companies that offer coverage for abortion drugs and even pays (directly or “indirectly”) for that coverage. If the Church violates by purse what it professes by word, how seriously can we take its word? The same could be said of individual Catholic employers or self-consciously Catholic business firms—and not only the Catholic ones.
Second, the involvement of thousands of religious institutions—by signaling moral indifference and providing funds—would (eventually) lead to more acts of the sort that the faith condemns as morally wrongful and even, as with abortion, gravely unjust. Religious groups’ involvement would thus multiply what they regarded as serious moral and other harms. And it would eliminate none of these effects to add an easy middle step between an institution’s purchase of a policy, and the employee’s use of it for abortion or contraception.
We accept the implication, raised by Professor Hockett, that there is a formal parallel between the federal government’s cooperation in religious education via school vouchers, and employers’ cooperation in abortion and contraception under the proposed mandate. We just think that while the first fully respects non-establishment, properly understood, the second violates religious liberty.
But if the Obama administration’s “compromise” doesn’t eliminate formal cooperation (which was never really at issue), if it doesn’t let religious institutions escape material cooperation or even curb such cooperation’s bad effects, why did it draw sighs of relief from prominent Catholics who supported Obama in 2008 despite his extraordinary promise and record of support for abortion?
Perhaps some who first criticized Obama for violating religious liberty and now praise his “compromise” think that the revised plan marked a shift from requiring employers’ formal complicity to requiring just material cooperation. Others, however, might just think that it makes a moral difference, in itself, whether one is at four steps’ remove from a wrong, or just three.
All that the “compromise” means, after all, is that tapping into the contraceptive coverage will now require an extra step: the employee’s formal acceptance of the insurance company’s offer—acceptance which would have been required anyway in the more casual form of reimbursement requests.
But surely it can’t matter as such how many links there are in the chain connecting our actions to what we consider morally wrongful acts—or, to switch metaphors, how many dominoes have to fall before the expected harms result. To think otherwise is to succumb to the superstition that we might catch blame by causal closeness to immoral acts, as we might catch a cold by being close to the contagion. It is to be concerned with aesthetic problems, and content with cosmetic solutions; to see one’s complicity not as bad, but too bald.
Morality is not about keeping as long a leash as you can on the harms you cause. It is about keeping upright intentions and rejecting unfair tradeoffs—neither of which Obama’s proposed revision even pretends to affect. So we see no way around the conclusion that the “compromise” is ultimately an accounting trick. No mere “revision” will make the mandate pass muster. It must be rescinded.
Sherif Girgis is a PhD Candidate in Philosophy at Princeton University and a law student at Yale University. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.
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