An infertile contention

Catholic consequentialists who pretend to follow Veritatis Splendour and the tradition of the Church are always trying to recast the “object” of an act as, not the objective part of the act – the behavior chosen by the acting subject – but as the goal of an act or what motivates the act. The objective part of a human act (the “object”) is a “goal” only in a very limited sense: as you initiate a behaviour in the will your “goal” is to move your body or use other powers under the control of your will to make that specific behaviour a reality.

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An intrinsically immoral act is one in which “that specific behaviour” – the object – is knowingly chosen by the acting subject and is an immoral behaviour.  In the case of sex, “that specific behaviour” is either the sort of behavior that sometimes naturally and without interference results in pregnancy and children, or it is a modified unnatural behavior which by its nature qua behaviour attempts to gain the other benefits of sex while ruling out pregnancy.  The former kinds of behaviour are consistent with the telos of sex; the latter are not.  Choosing natural intercourse is consistent with the telos of sex.  Choosing sodomy or condomistic sex isn’t.

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But Catholic consequentialists are always trying to conflate the deliberate choice of specific behaviors with intentions – with what the person is ultimately trying to accomplish, with whether or not the couple is actually trying to and wants to get pregnant, etc.  That is tommyrot.  Veritatis Splendour:

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Such theories however are not faithful to the Church’s teaching, when they believe they can justify, as morally good, deliberate choices of kinds of behaviour contrary to the commandments of the divine and natural law. These theories cannot claim to be grounded in the Catholic moral tradition.

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One must therefore reject the thesis, characteristic of teleological and proportionalist theories, which holds that it is impossible to qualify as morally evil according to its species — its “object” — the deliberate choice of certain kinds of behaviour or specific acts, apart from a consideration of the intention for which the choice is made or the totality of the foreseeable consequences of that act for all persons concerned.

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Recent attacks on the traditional understanding of the telos of sex are ill founded, because they rest on a faulty understanding of what the natural law is and is not.  Natural law is not “basically law which can be derived by a fair minded and reasoned look at the facts.”  Natural law is moral precepts derived from the metaphysical nature of persons and things.  The nature of persons and things are such that certain kinds of sexual behaviours are the kind of behaviours which produce children.  This doesn’t mean that they always actually do produce children; just that they are the kind of behaviour which produces children.

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Other kinds of sexual behaviours, intrinsically by their nature qua behaviour, block the generation of children.

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The Social Pathologist writes:

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The natural law tradition which Humanae Vitae sought to uphold was right in upholding the traditional principle that coitus should not be privated  but wrong in its understanding of what constituted a privation.  In asking men to conform to the laws of nature they were asking men to conform to the understanding of the laws of nature as understood in the medieval period, not the laws of nature as understood by modern science. The document has the remarkable distinction of being right in principle but wrong in application due to an error of fact.

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Modern scientific triumphalism cannot change human nature and the metaphysical nature of sexual acts, and it is more than a little precious to propose that those benighted people who lived in the dark and ignorant past didn’t know that some sex acts are infertile.  Heck, surgeons have been doing vasectomies for 500 years or more.  St. Augustine knew all about a woman’s infertile periods more than a millennium and a half ago.   There has been absolutely no new “scientific” information, for thousands of years or more, that could affect the metaphysical nature of the sex act.

The tyranny of the subjective and “contraceptive mentality”

Hence, those many people are in error who today assert that one can find neither in human nature nor in the revealed law any absolute and immutable norm to serve for particular actions other than the one which expresses itself in the general law of charity and respect for human dignity.  – Persona Humana

Modern Christians are very enamored with the notion of doing things with a pure heart.  There isn’t anything wrong with that in proper context.  But like all truths it can be emphasized so much that it takes up all the oxygen in the room, building a tower of lies by policing the intellect and crowding out essential truths.

Thus the overemphasis on “contraceptive mentality”.  Contraceptive mentality is something that lives in the subjective world of our minds, and in the subjective world of our minds we reign supreme.  No other person can tell us what takes place there as we live our omnipotent lives in the subjective realm, projecting ourselves as the tragic hero on the IMAX movie screens of our interior existence.  Furthermore we can assume what we like about the subjective states of other people without the possibility of falsification, creating movies for them in our own minds, movies which follow our own script.  Modern Catholics and Protestants alike tend to treat subjective “mentality” as the fundamental playground for morality.  When juxtaposing contraception and “natural family planning” the subjective playground is simply assumed, and dispute rages over whether the latter can or need not be employed with the same subjective “contraceptive mentality” as the former.

This overemphasis of the subjective interior life over choices of objective behavior turns morality upside down, and the implications are far-reaching.

In this regard the Council declares that the moral goodness of the acts proper to conjugal life, acts which are ordered according to true human dignity, “does not depend solely on sincere intentions or on an evaluation of motives. It must be determined by objective standards. These, based on the nature of the human person and his acts, preserve the full sense of mutual self-giving and human procreation in the context of true love.” – Persona Humana

Contracepted sexual acts are not immoral first and foremost because of a subjective “contraceptive mentality”.  Contracepted sexual acts are immoral because they are unnatural sexual behaviors like sodomy: they involve using the human body in a manner contrary to its telos, contrary to the truth about Man and his fundamental nature and meaning as an embodied sexual person.

That of course doesn’t mean that subjective “mentality” (what moral theologians sometimes call the “fundamental option”) and whatnot make no difference or are unimportant.  But it means that people who attempt to separate them from the choice of specific concrete acts – and choices to refrain from acting, especially in areas where our moral discretion as rational men made in the Imago Dei is wide – are making a basic error in their moral reasoning.

In reality, it is precisely the fundamental option which in the last resort defines a person’s moral disposition. But it can be completely changed by particular acts, especially when, as often happens, these have been prepared for by previous more superficial acts. Whatever the case, it is wrong to say that particular acts are not enough to constitute mortal sin. – Persona Humana

So now that we understand that what makes contraception always gravely morally wrong – intrinsically immoral – is not “mentality” as something distinct from behaviors but rather the choice of concrete behaviors contrary to the telos of the marital act, we can conclude:

The sexual activity, in which husband and wife are intimately and chastely united with one another, through which human life is transmitted, is, as the recent Council recalled, “noble and worthy.”  It does not, moreover, cease to be legitimate even when, for reasons independent of their will, it is foreseen to be infertile. For its natural adaptation to the expression and strengthening of the union of husband and wife is not thereby suppressed. The fact is, as experience shows, that new life is not the result of each and every act of sexual intercourse. God has wisely ordered laws of nature and the incidence of fertility in such a way that successive births are already naturally spaced through the inherent operation of these laws. The Church, nevertheless, in urging men to the observance of the precepts of the natural law, which it interprets by its constant doctrine, teaches that each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life.  – Humanae Vitae

NFP vs Contraception

NFP (that is, selective sexual abstinence) is a fundamentally different kind of thing from contraception.  Sitting on the couch reading a book is a fundamentally different kind of act from donning a condom and engaging in sterile sex.  This arises from the more general fact that doing something is fundamentally different from not doing something.

Doing something is incarnationally real; refraining from doing something is not real in the same sense.  This can be shown by observing that if Bob does something, Bob must exist at the time of the doing.  But for Bob to “not do” something, he doesn’t even have to exist at the time of the not-doing.  [Note: see Kristor’s criticism of this paragraph here.]

In general, we have a moral obligation not to choose evil behaviors.  The prohibition of contracepted sexual acts arises from this kind of moral obligation: a negative moral precept.

We also, and distinctly, have positive duties to do certain things.  The fact that NFP can be immoral – depending on the intentions and circumstances of the couple – arises from the positive duty of parents to be open to children.  Like all positive duties – and unlike negative prohibitions – this depends on circumstances and intentions.  This is a positive moral precept.

Whatever one may think of NFP – and I’ve been critical of triumphalism about its use in the past – it is clear that it is an entirely distinct kind of thing from contraception.  Contraception involves the deliberate choice of a concrete behavior in violation of a negative moral precept: the mutilation of an ontologically real act.  NFP involves a choice to refrain from certain licit but not obligatory behaviors at certain times.

So when someone claims that NFP and contraception are the same kind of thing he has made a fundamental category error.

Thespians and the HHS mandate

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.