Dr. Janet Smith, a friend and ally, has recently posted a lengthy examination on the HHS Mandate. Does it help to answer my question?
Recall my question: What confidence do we have that cooperation with the mandate is not “formal”? Recall the motivation for the question: Formal cooperation with wrongdoing is never allowed, whatever the consequences. Formal cooperation, if acceded to, is not merely uncomfortable but also, ineluctably, corrupting. So, we’d like to be clear that the cooperation is not formal—when prima facie there are considerations that have merit and that seem to tip in that direction—and yet I find that many commentators simply assume, and do not argue, that it is not formal but rather material.
So what does Janet Smith say along these lines? She says the following:
Fist let us get a clear sense of the act being performed. The employer is not going up to the counter of a pharmacy and purchasing an abortion-inducing drug for an employee. He is not keeping a storeroom of contraceptives to which employees have ready access. He is not keeping a surgeon on staff who will do sterilizations. He is paying for a health care plan that will pay for AID-S-C should the employee receive a prescription for such. While often employers may have certainty that some employees will make use of such options, other employers may have full confidence that none of their employees will make use of them. Since the employer does not intend that any of his employees use the services and since he does not directly make them available, I am confident that the cooperation is not formal but is justifiable material cooperation. (In a future column I will respond to Pakaluk’s and Long’s arguments that the cooperation is formal.)
If you read the passage carefully, you will see that she gives only two arguments. The first seems to be a fallacy, and the second seems a case of neglecting what needs to be shown (ignoratio elenchii).
Smith’s first argument above seems a version of the same fallacy that I had pointed out in an earlier post: “Clearly X, Y, or Z would be formal cooperation; but this is not X,Y, or Z; therefore, this is not formal cooperation.” That’s the fallacy again of “denying the antecedent.”
Yes, indeed, we grant that employers in complying with the mandate will not be doing a variety of actions which would obviously constitute formal cooperation. The employers themselves will not be doing surgical sterilizations, for example. But what does that show what they will be doing? What they will be doing might variously be characterized as: “paying for all the expenses of an agent who will pay for sterilizations and abortions,” ”offering under the rubric of a health benefit the free access to, and promotion and distribution of, that which is actually harmful and destructive of health,” or even “as a benefit of employment, making reimbursement available for all employees who might wish to mutilate themselves or destroy their own children.” —Doing an action so described certainly seems wrong. So why aren’t these correct descriptions of the action which is involved in compliance?
(That employers might have confidence that none of their employees would actually ever make use of this putative benefit, even under extreme duress, strikes me as both highly implausible and also irrelevant to questions about the formality of the action.)
Smith’s second argument is found in the sentence: “Since the employer does not intend that any of his employees use the services and since he does not directly make them available … the cooperation is not formal but is justifiable material cooperation.” The sentence is complex because it is really two sentences in one. When we split them up like so:
Since the employer does not intend that any of his employees use the services … the cooperation is not formal.
Since he does not directly make them available .. the cooperation is not proximate material and therefore unjustifiable material.
we see that the entire argument hinges on the idea that “the employer does not intend that any of his employees use the services.” (This argument is alluding to the old definition, going back to St. Alphonsus Liguori, that cooperation is formal when the agent shares in the intention of the agent.)
But do you see how the argument misses the mark? What is at issue —what provides the basis for a reasonable suspicion of formal cooperation—is not that the employer intends that his employees use these services, but rather that the employer intends to do something which, it seems, is rightly described by one of the descriptions I provided above, or something similar.
I suspect that Smith made this mistake because her second argument is ultimately based on the first argument. She is reasoning that to intend that someone use those evil services is obviously evil; also, to provide means for someone specifically to use those evil services is also evil; but compliance with the mandate involves neither of these things; thus compliance with the mandate is not evil. —But that is a fallacy, since one needs to show that those are the only two ways in which cooperation can be formal.
Immediately following the passage quoted above, Smith says the following, which I find curious:
Let us note that if a person who provides material assistance to wrong doers is cooperating with evil then God would be the biggest cooperator of all. After all, God gives human beings everything we have and He has certain knowledge that we will use it for evil, even knowledge of how each particular individual will use things to do evil. Parents would be cooperators with evil since they supply their children with everything they have; yet who would say that parents are materially cooperating in all the wrongdoing their children may do?
But consider that case of parents. Suppose a mother and father go on a trip abroad while their teenage children are watching the house. During the time that the parents are away, the children must on various occasions visit the doctor for prearranged health visits. So the parents put money in a cookie jar in the kitchen, for the children to use for the medical co-pay. They put a label on the jar: “For medical expenses only! Not for movies, snacks, or gas money!” Suppose now that some madman threatens the parents and tells them that they have to add something else to the label: “Note: Medical expenses do include contraceptives, sterilizations, and abortions, should they be necessary.” The parents have not wanted to add this clarification to the jar; they were threatened to do so. They are good Catholics and so are their children. They think it next to impossible that their children would use the money for these purposes.
So, in this case, would the parents do anything wrong by giving in to the threat, that is, simply by adding that message to the label (yet thereby permitting the money’s use for certain purposes)? They are obviously not “intending” that the children use the money for those purposes, in the limited sense that they don’t want this: they have been coerced, after all. They are not providing “direct assistance” for those practices (I guess). But there is a separate question as to the liceity of how the cookie jar itself is set up — which cannot be dodged by saying that the money inside is only a material means, or really, by placing however many additional steps between the parents and the cookie jar. (For non-catastrophic health care, the so-called “insurer” bears no risk and is simply a reimbursement processor, who takes a 40% cut.)
It is not necessary that the analogy be correct in all respects. The analogy suffices to show that there is a distinct question that needs to be addressed.