There is now a lively argument among ethicists as to whether a religious or otherwise conscientiously objecting employer may, without moral wrongdoing on its own part, abide by the revised form of the Obama Administration’s mandate that employer-provided health care plans must include coverage for abortion-inducing drugs, sterilizations, and contraception. Thus, responding to doubts raised by Robert Hockett at Mirror of Justice, Sherif Girgis and Robert George have argued here on Public Discourse that, even in its revised form, the mandate involves objecting employers in wrongdoing. David Gibson, in an infelicitously condescending piece in USA Today, argues for the opposite view, to which Janet Smith delivers a blazing refutation at CatholicVote. More recently on Public Discourse, Christopher Tollefsen develops the position of Girgis and George but argues that complying may be morally permissible for some employers but not for others, depending on their particular circumstances.
Everyone involved in this debate agrees that the problem should be analyzed using the traditional doctrine of cooperation with evil, which deals with situations in which one person cooperates with another who is engaged in moral wrongdoing. In formal cooperation, the cooperating party endorses the wrongful act of the primary wrongdoer, as when a corrupt night watchman intentionally unlocks the door to let in a gang of thieves, and so formal cooperation with evil is always wrong. The modern legal analogue is accomplice liability in criminal law. Everyone in the debate agrees that, because the objecting employers obviously do not want to provide the coverage they find objectionable, there is no question of their compliance involving them in formal cooperation with evil.
But everyone in the debate also agrees that complying with the mandate would involve employers in material cooperation. In material cooperation, the cooperating party in no way endorses the wrongful act of the primary wrongdoer but nevertheless does some action that facilitates or contributes to it. Sometimes material cooperation is wrong, sometimes it is not; the issue turns on such factors as the gravity of the wrongdoing, the degree of the cooperator’s involvement, the possibility that cooperation will give scandal, and the harms that would result from not cooperating. Thus, the gas station attendant who sells gasoline to a notorious adulterer, knowing that he will use it to drive to an assignation with his mistress, cooperates with evil materially but presumably guiltlessly. The adulterer’s friend, who gives him the use of his summer cottage hoping he will use it only to go fishing but knowing he will likely use it to meet his mistress, also cooperates with evil materially, but his cooperation is likely culpable. As Tollefsen rightly says, whether an action of material cooperation is permissible is a question of prudence in the moral meaning of that term. A modern lawyer would say that the question depends on a multi-factor balancing test.
The disagreement centers on how these prudential considerations work out, how the multiple factors are to be balanced in particular cases. Hockett thinks we need answers to a great many questions before we can decide. Girgis and George think the answer is already clear: complying with even the revised mandate would involve culpable material cooperation with evil. Gibson is sure that the cooperation would be morally permissible. Smith is sure it would be very culpable indeed. Tollefsen makes the sensible point that the question may turn out differently for different employers because of their different circumstances. He argues convincingly that a Catholic businessman running a for-profit business could likely comply with the mandate without guilt because the alternative would require him to abandon his legitimate vocation. Catholic hospitals, schools, and charities, on the other hand, exist not only to serve the needy but to testify in the world to Catholic truth, and so they very likely could not comply without culpability.
I think that there is some confusion here, partly in the very doctrine of cooperation with evil and then more significantly with its application to the problem of the contraception mandate.
The problem with the doctrine is that it includes two quite different kinds of cases under the single rubric of material cooperation. In one kind of case, the cooperating agent wants to perform an action that is usually morally permissible but that, in particular circumstances, may contribute to another’s wrongdoing. Both my gas station attendant selling gas to the adulterer and the adulterer’s friend giving him the use of a summer cottage fall in this class. In such cases, the question is whether the agent must refrain from an action that would otherwise be morally permissible lest he be implicated in another’s wrongdoing. In another kind of case, the action in question is generally wrong and the cooperating agent does not want to perform it, but the primary wrongdoer is trying to coerce him into doing it anyway by using force or the threat of force. Thus bank robbers may put a gun to the head of the bank manager and order him to open the safe. In this kind of case, the question is whether the agent may perform an action that would otherwise be morally wrong because he is being coerced into doing so by the primary wrongdoer. We today would think of this latter kind of case as involving actions taken under duress.
There are surely certain similarities between the two kinds of cases, and verbally one can unite the two under the single question of whether the cooperating agent may perform an action that will aid certain wrongdoing by the primary wrongdoer which the cooperating agent does not himself endorse. But there are also very important and obvious differences between the two kinds of cases as well, and chief among these is that, in cases involving coercion or duress, the primary wrongdoer is engaged in two separate forms of wrongdoing: besides the primary wrong at which he aims, he engages in a secondary wrong when he tries to coerce someone else into helping him accomplish the primary wrong. Thus, the bank robbers both rob the bank (that’s one wrong) and coerce the bank manager into helping them do so (that’s another).
And this brings us back to the Obama Administration’s contraception mandate. Agreeing that employers who comply with the mandate would be engaged in material cooperation with evil, everyone involved in this debate has focused on whether such cooperation would be culpable. On that issue, I agree with Tollefsen that the question will depend on the circumstances of the particular employer, but I deny the assumption, explicit in Gibson and perhaps unwittingly accepted by others, that if religious and conscientiously objecting employers may comply with the mandate without involving themselves in moral wrongdoing, then the mandate is morally unobjectionable.
Such an idea is certainly not right. Even if their cooperation is not culpable, the objecting employers would be cooperating only because they are being coerced into doing so: if they do not comply, then the law imposes on them rather substantial financial penalties. Such a law is morally objectionable even if the coercion involved makes complying with the law morally permissible. To think that the mandate is unobjectionable because it is possible to comply with it without guilt is like thinking there is nothing objectionable in the robbers putting a gun to the bank manager’s head and ordering him to open the safe because, after all, the manager will not sin if he complies. If he opens the safe, the bank manager will have done nothing morally wrong, for the coercion excuses what would otherwise be a wrongful action, but it is quite absurd to say on this basis that the bank manager has nothing to complain about or, even worse, that the bank robbers have done nothing wrong.
The fundamental problem with the contraception mandate is not that complying with it involves objecting employers in moral wrongdoing. At least for some employers, it may well do that, and this certainly makes the mandate morally objectionable, but this is not the fundamental problem. The fundamental problem with the mandate is that it coerces some people into doing what they think is wrong, and this problem remains regardless of whether the coercion excuses the actions of the people being coerced.
Robert T. Miller is a Professor of Law at Villanova University, and as of August 2012 he will be a Professor of Law and Sandler Faculty Fellow of Corporate Law at the University of Iowa.