The controversy over the HHS mandate, requiring all employers to provide insurance coverage or suffer fines, is now so well known that it requires hardly any introduction. The responses by Catholics, and their reasonable friends, believers and unbelievers alike, have not been uniform, however; several different considerations have been raised, and their relation to one another has not been investigated. Here I distinguish between five different forms of objection.
1. I argued in an earlier Public Discourse essay that including abortion-inducing drugs, contraception, and sterilization under the rubric “preventive services” is not, in fact, conducive to the common good. Contraception does not prevent any illness or disease as such. Conception of a child is neither a disease nor an illness, nor is pregnancy, and even such ailments as can attend pregnancy are not themselves what is prevented by contraception. That act, rather, prevents children from coming into being; even beyond the wrongness of the act in itself, it is hard to see how the prevention of new life can be considered part of the common good.
So the mandate is flawed from the beginning, independent of its relationship to religious liberty. But three further arguments link the errors of the mandate to the burdens of conscience it creates.
2. One such approach is by way of the concept 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.
3. That an act will provide material aid, while involving no shared intention, does not thereby make it a permissible act to choose. As Girgis and George again point out, material cooperation must be assessed from a moral standpoint: are the reasons for cooperating proportionate to the reasons for not doing so or, on balance, should the reasons for not cooperating trump the reasons for doing so? Girgis and George give a good account of the reasons one should consider for not cooperating: contributing to the use and acceptance of contraception, the effects on how others will perceive your witness, the effects on your own emotions. We could add that material cooperators sometimes eventually become formal cooperators—the habit of contributing eventually leads them to share a will with those they help. And Girgis and George argue convincingly that the proposed "compromise" makes no relevant difference to these questions of material cooperation.
Such judgments are judgments of prudence; in consequence, I do not think it can be said, independent of consideration of particular cases, that all Catholics, whether they are running a Catholic hospital, or only a private business, must refuse to cooperate. Indeed, the reasons for otherwise faithful owners of private businesses to cooperate, if the mandate should survive court challenge, are quite strong, since those owners might be unable to meet their vocational requirements if they are forced out of business. And even for Catholic institutions, judgments regarding material cooperation alone might not be enough to make it a moral necessity to refuse to comply in every case.
Still, good lawmakers take cognizance of whether citizens will be able, generally speaking, to comply with their law. It would be absurd, for example, to make a law that, simply because of practical considerations, could not be complied with by many citizens. All the more reason, then, that a law with which many citizens will be unable to comply for moral and religious reasons is—barring significant demands of the common good—bad law. But we have seen above that the common good does not demand contraceptive services as preventive care. So the concerns about wrongful material cooperation are important.
4. How others perceive one's Catholic witness is an important effect of one's choice to cooperate or not. But it is a different consideration than the obligation to make such witness. This obligation is arguably the single most important aspect of a Catholic apostolate, charged as it is with carrying out Christ's redemptive and evangelical mission here on earth. And for many, most, and perhaps all, Catholic apostolates, the demand to give witness to Church teaching might require absolute noncompliance: how could one witness to that teaching while also materially cooperating with a mandate contrary to that teaching?
To that seemingly rhetorical question there are some possible answers. A Catholic hospital forced to provide contraceptive coverage could provide mandatory job training seminars clearly explaining Church teaching on contraception, could provide literature on that teaching to all its patients, and could, of course, seek to hire only those personnel who it was confident supported the mission of the Church, including its pro-life, pro-family mission. (That Catholic hospitals and universities have not done this is perhaps their greatest failing in their apostolic work, a failing that has contributed to the current HHS crisis in various ways.) Perhaps such institutions could request of their employees a "run" on the available contraceptives, and then publicly destroy, in protest, everything that had been obtained. So it is not clear that a universal judgment about witness is possible any more than a universal judgment about material cooperation.
Nevertheless, for most such institutions, the reasonable way to give witness will be to refuse to comply; in Catholic institutions as they are today, the witness will be given not just to the outside world, but to the employees themselves, many of whom are not Catholic, and some of whom might have little sympathy for Catholic teaching. Their sympathy, and their respect for the religious mission of their employers, might be strengthened only by non-compliance. So again, we have a law with which many Catholic institutions will simply judge themselves unable to comply; and that is, under the circumstances, bad law.
5. As with questions of material cooperation, questions of what one's apostolic witness requires in the face of the mandate are questions after the fact of the mandate; they are questions of how to respond to what is already unjust and contrary to the common good. Yet these responses could have been anticipated, and taken into consideration by those judging the reasonableness of the mandate.
The final consideration is one that required no such anticipation, and is best understood, I think, as a consideration of religious liberty. For among the most stringent duties of Catholic institutions in providing witness is one which is well publicized, and was in effect before the mandate was ever under consideration: that they in no way undertake to make available drugs or procedures held by the Catholic Church to be morally abhorrent, while carrying out the other central features of their mission.
This judgment is a judgment of Catholic policy. And it is a policy judgment the making of which is both necessary and central to the Catholic identity of a religious hospital or university. Necessary, because a Catholic apostolate is constituted by its moral judgments and choices—by its judgments and acts of conscience. Without the opportunity to make judgments and act in accordance with its conscience, there can be no institutional reality or identity at all. Central, because no institution is Catholic unless its judgments of conscience are those of the Church.
These necessary, essential, and universally recognized policy judgments of religious institutions are something that reasonable legislators should always take cognizance of, for the common good includes prominently not just the goods and services provided by such institutions, but the good of having such institutions, of enabling religious individuals to work together to constitute a religious identity and fulfill a religious mission. My point here is not that the pluralism that results from the existence of such institutions is good, although it often is; rather, it is that the forms of community life in service of human goods that these institutions make possible are themselves goods critical to human well-being; respect for such institutions is thus a critical part of a nation's moral obligations.
In addition to its neglect of the burdens on conscience the mandate would create, the Obama administration seems entirely to have overlooked this essential part of the common good. It rather chose to believe not only that some spurious services are part of the common good, but also that the common good includes only the provision of such services. That mistake is a threat not only to religious liberty, but to the liberty of citizens more broadly, for it treats human well-being entirely as a matter of what can be provided to them, and not as a matter of what must be done by them, working together with their fellow citizens for their fulfillment in community. Were the central task of government to be seen as that of aiding citizens in their own self-constitution, oriented toward real human goods including the good of religion, mandates such as the one here under consideration would be seen for the unjust impositions they are.
Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a visiting fellow in the James Madison Program in American Ideals and Institutions at Princeton University. He is the author, with Robert P. George, of Embryo: A Defense of Human Life, the second edition of which recently has been released. Tollefsen sits on the editorial board of Public Discourse.