Thespians and the HHS mandate

September 24, 2012 § 23 Comments

An intrinsically immoral act is a deliberately chosen behaviour which is objectively – the behaviour – evil. In order to know what behaviour is chosen (the “object”) we need to see things from the perspective of the acting subject; because it is possible for the acting subject to be mistaken about the objective facts. If he is mistaken about the objective facts then his third-party observable behaviour isn’t what he actually chose. The object of an act is the objective behaviour actually chosen by the acting subject, so once we know what objective behaviour the acting subject actually chose – which can be different from what we observe as a third party either because there are non-material objective facts that we don’t observe or because the acting subject is himself mistaken about objective facts that we know – we can evaluate the moral species of his act.

An intrinsically immoral act is always an action performed by the person himself: it is his own deliberately chosen actions which we evaluate morally. His intentions are the subjective meaning he assigns to his act: the things he desires from his behaviour versus the things he wishes were not intrinsic to his behaviour or extrinsic effects of it. Intentions do not enter into moral evaluation of the object. (It is possible of course for non-intrinsically immoral acts to be evil because of evil intentions, or also because of circumstances).

Formal cooperation, on the other hand, is a matter of how our own intentions stand in relation to someone else’s act. A woman who procures an abortion does not (generally) actually perform the abortion herself. The actual concrete action is performed by the abortionist. However, since the woman who procures an abortion – makes the phone call, shows up at the appointment, etc. – intends the evil action performed by another person, she is guilty of formal cooperation with evil. Strictly speaking she has not performed an intrinsically immoral action herself. An actress on a “reality” show who pretends to make the call and show up to the appointment is not (necessarily) guilty of moral evil, and certainly is not guilty of moral evil as pertains to procuring an abortion. She doesn’t actually intend to procure an abortion: she is therefore not formally cooperating with an abortion. (We will set aside the complex relations between acting, joking, and lying, which is another matter entirely). However, if the person “acting” as the abortionist on the “reality” show actually performs an abortion, he obviously would be guilty of moral evil.

So the distinction between an intrinsically immoral action and formal cooperation is pretty clear, in my view. We should expect morality at bottom to be pretty clear and easy to understand, especially since St. Paul and Christ Himself have admonished us to be as little children as far as evil is concerned. It is true that at times we encounter genuinely puzzling cases “on the margins”. But the great majority of supposed moral conundrums arise, in my view, from the fact that there are just lots of clearly wrong actions that we are uncomfortable condemning as morally wrong.

This brings us to the question of compliance with the HHS mandate, and whether such compliance is formal cooperation or material cooperation with evil. Material cooperation is where we cooperate with another person’s evil act through some morally acceptable (taken in itself) action of our own, but we do not intend that other person’s evil act. A canonical example is of the commanding officer ordering his troops into the breach: this cooperates with the enemy’s action of killing his men, but the commanding officer obviously (unless it is a David-Uriah-Bathsheba situation) does not intend the killing of his own men. In fact his own act will be more successful if the enemy fails to kill any of his own men: clearly a case of material cooperation with evil with unintended bad effects.

There have been some recent articles bringing up the possibility that compliance with the HHS mandate is formal cooperation with evil, and therefore simply impermissible. See here and here, for example (hat tip Scott). I commend the authors of those articles for bringing up the point. All too often the questions of intrinsic evil and formal cooperation are simply glossed over, assumed without even a hint of an argument, so we can jump ahead to what the author wants to do: apply the principle of double-effect. Because once we’ve determined that an action is neither intrinsically evil nor formal cooperation with evil – that is, once we’ve determined that an action is material cooperation with evil – then its moral status becomes much more debatable.

Even once we arrive here I think there is a tendency to gloss over the requirements for licit material cooperation with evil: that is, the requirement that the material cooperation with evil must not be proximate and it must pass all of the criteria of the principle of double effect. The just war doctrine is one of those areas, where the fact that prudential judgement is involved in applying double effect is often treated as if it were the same as concluding that a particular decision to wage war cannot be determined to be categorically wrong based on objective, well known facts.

But here I will stop short of further discussion of justifying material cooperation with evil. The question on the table is, is compliance with the HHS mandate necessarily formal cooperation with evil? And while I strongly commend those who raise the question for raising it I think the answer is most likely that no, compliance with the HHS mandate is not necessarily formal cooperation with evil. I do have an important caveat in the closing paragraphs of this post, however.

I use the term “necessarily” because it is always possible to formally cooperate with evil, even without doing anything at all. Someone who in his own head says “good on her for getting that abortion” or “good for those people providing contraception” or “good for that judge clearing the way for Terri Shaivo to be starved to death” or “good on Bush for bombing that restaurant full of towel heads” has formally cooperated with mortally grave moral evil: he intends the evil act of another person or has shared in the evil intention of another person, and is morally condemned by that intention.

The plight of an employer faced with complying with the HHS mandate is similar to the plight of a legislator faced with a bill that restricts more abortions than are restricted now, yet still includes some exceptions – say the usual dark triad of rape, incest, and life of the mother. Evangelium Vitae tells us that not only is abortion itself intrinsically immoral; it is also morally wrong in itself to pass laws explicitly authorizing any abortion. It follows (my inference) that a legislator who specifically proposes the three exceptions in law, even if only as a means to the very laudable end of increasing legal restriction of abortion, does evil. You can’t specifically propose the three exceptions without intending the three exceptions as a means to some end: formal cooperation with evil. On the other hand, Evangelium Vitae also tells us that a legislator can licitly support such a bill, so long as his absolute rejection of all abortion – including by inference the three exceptions – is explicit and well known.

The situation with the good pro-life legislator is that he faces an omnibus choice: he does not support the three exceptions themselves and did not propose them himself, but if voting for the bill results in an overall better state of the law it is acceptable for him to vote for the bill. Similarly, the good employer does not support the provision of contraception and did not propose it himself. But he also faces an omnibus choice, where every option he chooses has bad – though unintended by him – consequences. It would be formal cooperation for him to propose and support evil provisions in the health insurance plan himself, as a means to any end; but it is not necessarily formal cooperation with evil for him to support the provision of health insurance that has many good benefits, even though it also provides, literally against his will, the material means for other people to do evil things.

There is a certain danger in this kind of thinking though. It is one thing to support a bill which increases restrictions on abortion across the board, even while retaining exceptions proposed by others (who are necessarily employing gravely evil means in so proposing, despite in some cases laudable ends). It would be another thing to support a bill which trades off restrictions: one which (say) introduced a previously closed exception for rape but closed an existing exception for incest. And it would be another thing still to trade off incommensurable evils: say, to further restrict some abortions while mandating sterilizations of certain individuals. It is far from clear that these “lesser of two incommensurable evils” calculations can avoid formal cooperation with the evil actions deemed “lesser”. I cannot therefore definitely conclude that compliance with the HHS mandate is not necessarily formal cooperation with evil (though I expected to conclude that when I started writing the post; so there you go).

If we conclude that compliance with the HHS mandate is not formal cooperation with evil, does that end the discussion? Not at all. As the cited articles point out, this is a discussion which must be had before it makes any sense to even begin analyzing compliance with the mandate as material cooperation with evil. If compliance with the mandate were necessarily formal cooperation with evil that would end the discussion right there: noncompliance would be morally obligatory.

§ 23 Responses to Thespians and the HHS mandate

  • […] Suz. NAWALT (Not All Women are like that) Mark Steyn The health system that ate America. Zipster Thespians and the HHS mandate, Telling Right Lies LGR All it takes is one single mom. Feral Woman AKA “clean slates” […]

  • William Luse says:

    This looks like good stuff, Zippy. I’m just drowning in other things right now and don’t have time to give it the attention it deserves. But I will.

  • Any time Bill, and thanks. These posts are as much to clarify my own thinking as anything else.

  • Scott W. says:

    Now that election time is rolling around and we are starting to see “Exercise your right to vote or feel the wrath of The Almighty!”-type commentary, I wonder if we could press you to work up a primer of non-voting.

  • Scott,

    I have two series’ of posts percolating in my head, waiting for the time to write them to materialize: one systematizing the voting arguments and one on “Game”. All I really lack is the time to do them.

    When it comes to the voting ones I wonder if it might not be better to wait until after the election. The closer we get to the Most Important Election Day Ever[tm] the more that distorts objectivity, it seems to me.

  • Scott W. says:

    When it comes to the voting ones I wonder if it might not be better to wait until after the election.

    But I’m having a crisis of democratic faith now! :) CCC 2240 is pretty hard to overcome, yet your comment of universal suffrage being the lex orandi to Liberalism’s lex credendi rings in my ears. Net research on Catholics and voting only turns up voting guides, which pretty much all but tell you that you must vote. Naturally, any thoughts you have before the date with the altar of levers and curtains would be appreciated.

  • CCC 2240 is pretty hard to overcome, …

    I’m not sure what you mean, but if it is something like “2240 means everyone on earth must categorically and always cast every ballot he is eligible to cast, with a selection for every race, and he must personally fight in every defensive war his country ever wages”, well, I’m just not seeing it. At all.

  • Scott W. says:

    While I don’t think 2240 mandates voting in everything possible, I do think that it has in mind elections to serious and major offices. If one says, “Well, the Magisterium doesn’t define how we exercise our right to vote”, that strikes me as one of those appeals to finer detail that drives us batty when we get it from torture apologists. It seems (and I will be happily corrected on this point) that if there are no candidates that avoid supporting intrinsic evil, then there is only the Mark Shea option of voting Doomed Quixotic 3rd Party that both avoids support for evil AND discharges your obligation.

  • This is just the sort of thing I don’t have the time or inclination, right now, to get into again in a way which can do it justice.

    You are elevating three throw-away examples of civic acts in 2240 to the point where you make that what 2240 is about, as if there are no other kinds of civic acts to which it would apply; and you avoid the question – not just in the same passage but in the same sentence – of military service. If you lived in a banana republic (where the universal Catechism is every bit as much in force as it is here), I doubt you would feel compelled to enlist in the military or to choose between the fascists and the communists. You could and would abstain from (conscientiously object to) both with no moral qualms whatsoever, and rightly so.

    I’d speculate that the only reason you are struggling with this is because you view our situation as somehow categorically different from the situation in a banana republic or a big Communist or Nazi country. I literally don’t view our situation as fundamentally different: the differences are mainly that our version of liberalism does a better job marketing itself, keeps better control over the aesthetic, even though it is, beneath the aesthetic surface, the same old poison with the same kinds of body counts, atrocities, etc.

    My problem with this subject is twofold: one, that I’ve already hashed it out ad nauseum over the years in lots of different places, so I’m sick of talking about it. (Of course it isn’t readers’ fault that they may not have seen all these other discussions). Two, there is the problem of time and priorities. The reason I am considering doing a synthesis series on it like my waterboarding series is precisely so I don’t have to talk about it anymore.

  • Scott W. says:

    I’ll not bother you any more on the subject.

  • I’m not trying to be cranky; it just really isn’t on the front burner right now.

  • Scott W. says:

    No worries. In fact, your response did help.

  • bill says:

    I’m going to take a chance and say that compliance with the mandate is formal cooperation, and then you can pick it apart if you wish. After all, would there be any doubt of it if a Catholic institution offered this inducement to evil of its own free will, even while counseling against it? We are not to lead ourselves, or others, into temptation.

    The mitigating factor in the current climate is that Catholic institutions were at first compelled to offer it. The administration then said, no, only the insurance company is obliged to offer it. Nevertheless, the Catholic institution who offers medical benefits to its employees won’t be able to find
    a company that doesn’t offer it, thus ending up in the same place. The government’s hope is that the institution will be able to pretend – to paraphrase a Cardinal (George? Dolan?) – that in complying it has figured out a way not to violate its Catholic conscience. (This naked attempt to deceive doubles the government’s sin, imo). This puts the institution in the position of waving the contraceptive apple beneath our eyes while yelling at the top of its lungs, “Don’t touch it!”

    Now the penalty for failing to comply is not death or torture, but I doubt that makes a difference. If formal cooperation requires full consent of heart and mind, the institutions can surely claim that they obviously do not consent, their protests giving evidence. But again, I don’t think that makes a difference. It’s just another instance of Anscombe’s speechmaking charge, in which I tell myself that I don’t intend the evil means, but only the good end, while in fact my actions belie my words. I really didn’t intend that you avail yourself of the contraception; the responsibility for that lies with you. In fact, I told you not to. But what was I to do? I can suffer either a crushing financial penalty, or the
    loss of many employees, either of which could make me extinct. Better I live to fight another day. All of which boils down to: the state of your soul and your purity of body, and my obligation not to do what I know I shouldn’t do, are of less importance to me than my own survival. Standing in the role of contraceptive pimp – even under threat of persecution – is to defy Christ’s commandment to do no evil. The blandishments of the State notwithstanding, and which afford us no excuse in our weakness, it’s a form of apostasy, against which we are to persevere even unto death. It is a forgivable sin, as with many such in the ancient Church, but history tells us it was taken quite seriously. And none of this even takes into account our posture in the eyes of the world, which will rightly see us as cowardly fools bereft of all conviction.

  • William Luse says:

    That was my comment above, Zip. WordPress is messing with me.

  • Well, here is the thing.

    Providing insurance that covers contraception – among many other things – isn’t the same thing as engaging in a contracepted sexual act onesself. And if one provides that omnibus insurance without intending or condoning engaging in contracepted sexual acts, it isn’t formal cooperation with a contracepted sexual act. If one has a choice of providing reasonably equivalent plans with or without such coverage, then, one sins in choosing to provide the one with contraception coverage. It isn’t in my view possible to make such an explicit choice without intending the contraception coverage and therefore concomitant contracepted sexual acts of others: formal cooperation.

    But with the mandate we have a case of employers who do not have that choice; therefore formal cooperation cannot be imputed.

    That still leaves us with the problem of scandal. By its nature providing contraception coverage creates scandal because it (not very) implicitly condones contracepted sexual acts. However, this scandal can be mitigated by vigorous, loud, well-publicized opposition to contracepted sexual acts and to the mandatory requirement for contraception coverage. So I think one is definitely guilty of scandal unless one makes loud protestations. One’s objective behaviour is objectively scandalous unless one (rather ironically) uses some barrier method to prevent the propagation of scandal.

    You can see the similarity in the case of the legislator and the “three exceptions” law that he votes for, but did not himself propose. Absent his loud protestations against the exceptions, he causes scandal. So Evangelium Vitae makes the point that his absolute opposition to all abortion, including his opposition to the three exceptions (as a means to any end), must be well known in order for it to be licit for him to vote for the bill.

    Now some might think that the “violation of conscience” rhetoric from the Magisterium implies that to comply with the mandate is formal cooperation with evil. But paraphrasing Evangelium Vitae, forcing an unnecessary choice between material cooperation with evil and some other grave consequences is to violate a person’s conscience:

    The passing of unjust laws often raises difficult problems of conscience for morally upright people with regard to the issue of cooperation, since they have a right to demand not to be forced to take part in morally evil actions.

    So I don’t think we can conclude formal cooperation from the Magisterial protestations.

  • William Luse says:

    I actually agree with you. But it’s still going to be a very bad thing if they comply, even if accompanied by protestations.

  • But it’s still going to be a very bad thing if they comply, even if accompanied by protestations.

    Yeah.

  • […] people are confusing the object of an act of voting with their intentions.   Remember that the object of an act is the actual objective (thus the term “object”) concrete behaviour we […]

  • […] been following along, you almost certainly know by now how to avoid the trap of engaging in formal cooperation with evil.    Formal cooperation with evil is almost certainly, by far, the most pervasive  moral problem […]

  • […] discuss that much), whether or not we ought to do it becomes a prudential judgement.  That means getting our intentions right; and since most peoples’ intentions are (rightly or wrongly) focused on possible election […]

  • […] the moral domain it is wrong for us to lie or to advocate lying.  (Advocacy of lying is formal cooperation with evil and is just as wrong as lying ourselves).  When we advocate that the government adopt […]

  • […] Catholic moral theology we distinguish between what is formal (that is, intended) and what is material […]

  • […] analysis of material cooperation with evil is correct, as best as I can tell.  As in similar situations, compliance with the law under protest in order to sustain an ability to make a living is, again in […]

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