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The Department of Health and Human Services has mandated that most large employers include in their health plans, at no cost, pharmaceutical contraceptives, sterilization procedures, and certain forms of so-called “emergency contraception.” Catholic philosophers and theologians have been debating whether complying with the mandate would be morally acceptable. They usually begin by asking whether complying would be “formal” or “material” cooperation with evil. If formal, then complying with the mandate is ruled out.

But if complying with the HHS mandate is only material cooperation, then complying might be acceptable, depending on a number of considerations: whether the cooperation is mediate, whether it is remote or proximate, how burdensome not cooperating would be, and so on. What’s more, if cooperation is material, the issue of scandal has to be considered: What might be acceptable for an employer that is not overtly religious might be unacceptable for an employer that is. Many of the participants in the debate seem to favor the view that complying would be material and licit, as Janet Smtih argues, at least for non-religious employers, in “Is it Moral to Comply with the HHS Mandate?”

Cooperation is formal if the cooperating agent shares the primary agent’s intention, and material if not. That sounds clear, but defining intention is difficult. If it is understood in a strongly mentalistic way, as consisting exclusively in what the agent has it in mind to do, then the agent can at least try to avoid formal cooperation by excluding from his plans the evil effects of the action he is cooperating with.

This way of thinking about intention has led some philosophers to say that a doctor can crush a baby’s skull without intending to kill it. If, however, “intention” is taken to refer to the intrinsic teleology of an action, with the teleology of that action being only partially constituted by the agent’s mental states, then the action one performs may carry its own intention in a way that no amount of refined planning on the agent’s part can do away with. Because of these difficulties, disagreement over whether complying with the mandate would be formal or material might well be disagreement not so much over the mandate as over the nature of intention itself.

But the very existence of the debate is somewhat surprising. In a statement on March 14, 2012, entitled “United for Religious Freedom,” the Administrative Committee of the U.S. Conference of Catholic Bishops said that the mandate requires individual Catholics, and Catholic institutions, to “act against Church teachings.” And in a statement of April 12 entitled “Our First, Most Cherished Liberty,” the bishops’ Ad Hoc Committee for Religious Liberty said that the mandate will “force religious institutions to facilitate and fund a product contrary to their own moral teaching.”

It is sometimes difficult to be sure when the bishops are giving policy recommendations and when they are fully exercising their magisterial role, but here they do seem to be exercising their authority to teach and to be saying that complying with the mandate would be wrong. If that is so, then to find Catholic philosophers and theologians wondering whether complying would be acceptable is surprising, especially inasmuch as the list of those defending compliance includes thinkers who are on no one’s list of dissenters.

The bishops’ language of “facilitating and funding” suggests a different way of thinking about the issue. A medical insurance policy is a way of facilitating and funding the use of certain products and procedures. Of the products and procedures at issue in the mandate debate, at least some do have legitimate therapeutic purposes (e.g., the anovulent pill is sometimes used as a kind of hormone therapy). Some, however, do not, and even the ones that do are normally used for illegitimate reasons. Given that fact, a morally serious employer would want to have in place some kind of moral filter so as to avoid, as far as reasonably possible, facilitating wrongful actions.

The mandate, however, requires employers to make the relevant products and procedures available to any employee who has a doctor’s prescription: no moral distinctions are allowed. This is problematic even if the employer neither plans for, nor foresees, his employers using such services. To have a policy to make them available without moral filters is to act with depraved indifference to the good. It is like selling morphine over the counter.

In the case of Catholic institutions, the additional issue of scandal arises. If these institutions do not follow the bishops’ lead, but comply with the government’s mandate instead, they will send a very clear message: When threatened by the state, Catholic institutions fall in line. Once that principle had been established, the only question left would be how far it could be pushed. The state could issue commands with penalties attached, and if Catholic institutions resisted, the penalties could be raised as necessary. This is a not a path that Catholic institutions should go down. If complying with the mandate means violating Church teaching, as the bishops seem to say, then non-compliance must begin at the very start.

What would happen then? Over the course of a few months, there would be legal wrangling, fines, and possibly jail terms for protesters and a few stalwart leaders who refuse to pay. Over the course of a few years, there would be an erosion of the Church’s public presence, as Catholic institutions find themselves burdened by fines and unable to offer health coverage. In short, the Church would suffer persecution, just as Christ promised would happen. But Christ also promised rich rewards for those who remain faithful to his teachings. We will have to choose conformity with Christ over compliance with man.

Michael Gorman is associate professor of philosophy at Catholic University of America.

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