A Foreign View of the HHS Mandate

Perhaps it is because I am a European living in Europe and, thereby, not so entangled in the HHS mandate issue (and have less to lose) that I cannot understand the thinking that surrounds the response of some Catholics in the US.  From where I stand, across The Pond, compliance with the HHS mandate is, in most cases, a instance of remote material cooperation with evil that ought to be avoided if possible but is justifiable if not.

In this essay, therefore, I am going to argue that while it is good and proper to fight the HHS mandate—because it facilitates evil medical and sexual practices—nevertheless, if the current legal challenge to the mandate fails, compliance can be justified in the majority of cases.  I am also going to argue that while there is a duty to oppose the mandate (something courageously undertaken by many Catholic organizations and bishops in the US), opposing it on the grounds of religious freedom or freedom of conscience is a high-risk strategy that could have harmful consequences.

HHS Mandate and Cooperation
It is widely accepted by Catholic ethicists that remote material cooperation with evil is allowed, but that immediate cooperation is not.  Some people in the States think complying with the HHS mandate is immediate cooperation and therefore is not permitted, but I think it is only remote material cooperation and therefore licit, and here is why.

When an employer purchases for an employee an insurance policy that covers a range of medical services, including services deemed immoral by sound morality, the employer is mediately and not immediately cooperating with evil if and when the employee uses this policy to access these abhorrent services.  I say this is “mediate” cooperation because the health insurance policy covers all sorts of services and so the purchasing of it is not uniquely ordered to the provision of the immoral ones.

In contrast, the insurance company that pays for the immoral service (accessed by the employee) is immediately cooperating because their payments are uniquely ordered in this case to that immoral service.  Unlike the employer who purchases the policy, the insurance company actually pays for the service: since paying for something means more than contributing money, it means assigning some money to some particular good or service (cf. Aquinas, II Quodlibet, 1.2).  Now paying for evil seems to instigate it and not merely set the scene for it.   Accordingly, it is reasonable to call it immediate cooperation, which is illicit.

The up-shot of this is that while self-insurance of employees by a Catholic organization is likely to be problematic to the extent that the Catholic organization is also effectively the insurance company, buying third party insurance policies is only a form of remote mediate cooperation and, therefore, can be justified when, in the pursuit of a good goal, it cannot be avoided.

Much more needs to be said about the issue of self-insurance but, in a short essay, this is not possible.  I will restrict myself here simply to saying that self-insurance raises moral problems that insurance through a third party does not.   Moreover, since those Catholic organizations that currently self-insure can switch to a third party mode of insurance, to show that there is a way out of the current impasse, I only need to demonstrate that insurance through a third party can be justified.

The Funfair
When an employer purchases a policy from a third party, from the point of view of the employer, the insurance package is a part of the remuneration of the employee, alongside the wage.  Now, the wage paid to the employee as part of this package may also be used immorally by the employee to pay for an abortion, condoms, a prostitute, a pornographic magazine, and so on.  Currency is, by definition, a token to access all purchasable services and goods in the society.  In paying the salary at the end of the month, the employer is cooperating in any evil service or immoral good that the employee purchases with that money.  This is certainly cooperation with evil but it is remote and tolerable.  It is remote cooperation because it is not uniquely ordered to the evil that the wrong-doer does and only very generally provides the context for the wrong doing.

Seen in this light, there is little difference between the cooperation that occurs via the wage and that which might occur via the insurance policy.  Of course, this argument is a kind of negative proof of my thesis by a form of reductio ad absurdum because I am arguing that if complying with the HHS mandate is an unjustifiable cooperation with evil then so is paying wages; but paying wages is not wrong.

To illustrate the argument that there is no significant difference between paying wages that will be used immorally and buying an insurance policy that will be used immorally let me give an analogy.  Imagine a fun park in which there are different rides and entertainments including, in one corner, a tarot card reader (you have to imagine an old style English fair here rather than Disney Land).  In this fun park, you can buy a ticket that gives free admission to any activity for the whole day (a day ticket) or, alternatively, you can pay for admission to each activity individually.  As birthday presents, I give one friend a day ticket (analogous to the insurance cover) and one friend sixty euros in cash (analogous to the wages) to spend in the park.  I cannot see that I am more responsible for one or the other if they decide to go to the tarot card reader, especially when I have warned them both about it and voiced my disapproval of it, despite my enthusiasm for the rest of the park.  In either case, I am mediately materially cooperating with the friend, if he goes to the tarot card reader.

Constraining Evil
However, perhaps someone might point out that the friend with the day ticket is more likely to use it to visit the tarot card reader because it does not “cost” him anything to visit the tarot card reader, whereas the other friend will deplete his sixty euros if he visits her.  In this way, it might be argued that providing insurance coverage for the employee (that necessarily covers immoral services) increases the likelihood of him availing himself of immoral services for which he would otherwise have to use his wages.  Note that the insurance policy does not give access to these immoral services—it merely pays for them.  In this sense, compliance with the HHS mandate would boil down to an employer removing a constraint that currently deters (but does not prohibit) the employee from availing himself of immoral services.  The employee can get the immoral services via his wages, but he is more likely to get them if he has insurance.  Perhaps this is where the problem of cooperation with evil on the part of the employer really resides—he removes a (financial) constraint on the employee doing evil?

Now, I am not sure if this is true because to a person who wants contraceptives or an abortion these are considered by him or her to be essential.  The seeker of such services will be happier to get them at no extra cost, for sure, but he will get them anyway if he cannot get them on insurance.  Therefore, the insurance does not clearly remove a financial constraint on the employee, much less an essential impediment.

Moreover, in the pursuit of a good goal, it can be legitimate to remove something that is constraining a person from doing what is wrong.  Imagine I am responsible for the computers in a Catholic college.  One aspect of my work is to provide the internet access for my colleagues and students that they needed for their work.  However, by providing this access, I remove a constraint to the viewing of pornography, since the possibility of accessing pornography comes with having internet access.  I say “constraint” because those inclined to get hold of pornography could do so without internet access.  They can buy it in the local book store.  However, this will cost them more and require more effort, so the internet obviously makes viewing pornography that much more likely.

Should I refuse to give internet access on the basis that I cannot in good conscience remove a constraint on a serious evil?  I answer “no” because while I foresee that providing internet access includes removing a constraint on evil, I do not will this side-effect.  In pursuit of a good goal (keeping my job or facilitating research), I can tolerate the removal of this constraint.

The same is true of the purchase of insurance under the HHS mandate.  It may remove a constraint on the use of immoral services by some employees: services they can already legally access if they pay for them out of the money the employer pays them.  However, in the pursuit of a good goal—either the company staying in business or the provision of health coverage for employees and their dependants—the removal of a constraint on evil is tolerable because the constraint is not very significant (even if the evil is great) and the good pursued is important.

In conclusion then, if we focus on the fact that the employer will be financially contributing to immoral services, the case is no different from paying the salary.  If we focus on the fact that buying insurance might increase the possibility of employees accessing the services, this entails the removal of a constraint on wrong doing that is tolerable given the goods being pursued and the limited character of the constraint.

What to do?
It is, of course, right that Catholic organizations oppose the HHS mandate.  Opposition is required in order to avoid scandal and to try to avoid even remote cooperation with evil, since even this form of cooperation should be avoided if possible.  It is also required because the HHS mandate has given another opportunity for Catholics to stand up for the truth.  Such opportunities should never be squandered.

The Catholic community in the United States, and the bishops in particular, should be commended for the stand they have taken against the HHS mandate.  They have taken seriously the moral duty to proclaim the truth about human sexuality and the sanctity of life, truths increasingly opposed by secular forces in society, epitomized by the mandate.  However, I argue that if the legal challenge to this mandate is lost, Catholic employers can comply with the mandate—by purchasing an insurance policy that covers immoral services—without unjustifiably cooperating with evil.  They are cooperating and it is with an evil, but it is justified.  Of course, they are not morally obliged to cooperate: I am only saying that they can.

One question remaining is whether or not an effort should be made to get exceptions to the HHS mandate on the grounds of freedom of religion or freedom of conscience.  This, I have to admit, makes me very nervous.

Regarding the first—freedom of religion—the problem is that it simply is not a religious question.  Abortion, contraception, and sterilization are no more a religious issues than are murder, rape, and incest.   I fear that to claim an exception on the basis of religious liberty has a long term negative effect on morality in society because it leads people to think that right and wrong is not something that can be known by reason but is just about religious sensibilities.

Regarding liberty of conscience, I think this is ultimately conceding ground to relativism.  The fact is that liberty of conscience only exists in indifferent matters.  There can be liberty of conscience about whether the holy day in the week is Friday, Saturday, or Sunday because this cannot be settled by reason alone.  But there can be no liberty of conscience in matters of stealing, raping, or paying reasonable taxes because reason can decide these issues.  Therefore to claim liberty of conscience on the HHS mandate is to place abortion, sterilization, and contraception in the former category of indifferent matters.  But this is just what the relativists claim and what we should deny.

The only benefit I can see about the freedom of conscience argument is that if it is granted by the State it is then, on their side, an implicit admission that one cannot know for sure whether the law is a just one.  After all, when the State is certain about the justice of its laws—laws on theft, and tax, and so on—it does not give exception clauses on the basis of conscience.  Hence, in this way, perhaps a freedom of conscience clause might act as a kind of Trojan horse within the law because it is an admission about the possible injustice of the law that might in time develop into a clearer recognition of its injustice.  However, given what I have said about its relativist undertones, claiming freedom of conscience is a very risky strategy indeed.