Thespians and the HHS mandate
September 24, 2012 § 22 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.