My distinguished colleagues and friends Michael Pakaluk and Steven Long have recently opened a new chapter in the intra-Catholic debate over the Obama Administration’s HHS mandate and the moral implications of the responses to it by employers, especially Catholic employers. I think that it is an important chapter since it raises issues that have not yet been appropriately dealt with.
But before commenting on their interventions, I would like to consider a little history…
The debate’s first chapter — or at least an significant chapter — began in February. Robert T. Miller, now professor of law at the University of Iowa, summed up the state of the debate at the time, noting its key participants, in a piece at The Public Discourse:
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.
Miller noted that ”[e]veryone 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.” Traditionally there is a distinction between formal and material cooperation with evil.
"In formal cooperation,” Miller explains, ”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.”
But, according to Miller, everyone involved in the debate at that time agreed “that 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.”
Thus, he concluded, “everyone in the debate also agrees that complying with the mandate would involve employers in material cooperation.” But as he would go on to tell the readers of The Public discourse, sometimes material cooperation is wrong and sometimes it is not. It was on the details of this point that there was disagreement.
Whether Miller is right that all the participants agree that material cooperation is the correct moral description of compliance with the mandate is unclear. Janet Smith, for instance, does not appear in her piece to have settled on understanding the compliance as material cooperation. On my reading (which may very well be mistaken) her concern seems mostly to be to explain that material cooperation does not imply that there is no moral wrongdoing, not to affirm that material cooperation is indeed the correct way to understand what is going on in complying with the mandate.
The view that what we are dealing with is a question of material cooperation and that we need only figure out whether the material cooperation in question in various cases is morally impermissible has resurfaced this month in an article at First Things by R.R. Reno and Thomas Joseph White, OP, and in an article at CatholicCulture.org by Jeff Mirus.
At length we come to the twist in our story. Michael Pakaluk and Steven Long are now questioning the validity of the basic moral analysis that up to this point has seemed to win the consensus of Catholic authors (but perhaps not Smith?). Is it plain that compliance with the mandate is material cooperation or might it actually be formal? If it is formal, then in every case it would be morally wrong and not only, possibly, in some.
In separate posts (here and here) at the blog of the Ave Maria University Philosophy Department Pakaluk has responded to Reno and White and to Mirus. He has not yet come to a conclusion about whether he believes compliance is a matter of formal or material cooperation but believes that there are good reasons for thinking that it is formal and that Reno, White, and Mirus need to show why these reasons are not sufficiently compelling. Among the reasons Pakaluk offers for the cooperation to be construed as formal is the following:
Any benefit which an employer provides is offered to the employee as something which the employer regards as good. That is precisely why it is called a “benefit” and is thought to be connected with the goals and mission of the organization. If the employer can claim credit for a benefit which truly is good, then he likewise gets responsibility for a benefit which is bad. That is, the purpose or will of the employer is engaged. The character of the benefit makes a statement about the employer’s conception of what is good, and to compel that something bad be provided as a benefit, is to insert something bad as included in what the employer is offering as good. Hence something offered as a benefit is cooperated in formally.
I take Pakaluk’s point to be that, whether he likes it or not, the employer is the one offering the benefit to the employee as a “benefit,” as something good, which means in the matter that we are discussing that the employer is the one offering to the empolyee the objectionable benefit as something good. Is this not formal cooperation? Or is it obvious that we are dealing with material cooperation?
Pakaluk has not yet addressed the arguments of those who participated in the debate in February.
Long, writing at Thomistica.net, leans much more strongly toward seeing compliance as formal cooperation. According to Long, what counts morally in the cooperation is not simply the intention of the end but also “the integral nature and per se effects of [the] chosen action.” In other words, although I may tell myself that I do not want my employees to use the contraception, abortifacients, and sterilization that I am providing them through the healthcare plan that I have purchased for them, objectively speaking, I am in fact providing them with these things and am directly implicated in their use. This is “wrongful conduct” and “not a merely material cooperation,” says Long.
But Long is clearly much more concerned with the latter three (George, Girgis, and Tollefsen) since he sees in their work — and in the New Natural Law Theory that they represent — a systematic emphasis on the intended goal as the key to the moral assessment to the exclusion of the objective nature of the action chosen. Long sees this as hampering their moral judgment not only in the debate at hand but in general.
Given what Long holds about what consitutes formal cooperation, he obviously would also disagree with Miller’s claim (which I quoted earlier) that because 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. Miller too does not seem concerned about the objective nature of the action.
Although I do not think of myself as a specialist in ethics (even if I do occasionally write on it!), my sympathies are with Pakaluk and Long. But I do not for a moment believe (nor do they — and this is precisely one of their points) that the question before us is easily answered. It may be a prudential matter in which reasonable people will be able legitimately to disagree or it may simply be a “perplexing matter” to which there is a definitive answer that is just not clear at the moment. (I thank Michael Pakaluk for suggesting this distinction.) Whatever the truth turns out to be, I think the concerns that Pakaluk and Long have introduced will prove fruitful for the debate.