Do the bishops really need to close hospitals?
In their dispute with the Obama Administration over the HHS contraception mandate, a number of U.S.bishops have suggested that they will have to close hospitals, schools and Catholic universities if the mandate is not modified or withdrawn.But would the bishops really be required to do this? While Im sympathetic to the bishops concerns and support their efforts to broaden the exemption for religious employers, I do not think it is true that a failure in this regard would require the closing of Catholic institutions. For the moment, I am going to set aside the question of whether closing is the most likely outcome or whether the institutions in question would merely be asked to sever their formal ties with the Church. Clearly, neither is a desirable outcome.The concept in moral theology that is in play here is known as cooperation. When we facilitate the acts of another person in some way, we are said to be cooperating with them. If those acts are evil, then we may share some moral culpability for those actions.In general, Catholics are called to do good and avoid evil. If we share the evil intent of the other person (e.g. driving the getaway car to facilitate a bank robbery), it is said to be formal cooperation with evil and morally blameworthy. However, if the actor is cooperating but does not share the intent of the other person (e.g. driving the getaway car because you have a gun to your head), their cooperation is said to be material. Material cooperation may be permissible if the act of cooperation is not itself intrinsically evil (driving a car is, in itself, a neutral act) and there are proportionate reasons for the material cooperation (e.g. fear of death).A related concept is the degree of proximity between the person cooperating and the original actor. My moral culpability in the actions of another person may be greater if my actions directly facilitate his act. If my actions assist the original actor only indirectly and I do not share his evil intent, this is said to be remote material cooperation and my moral culpability is reduced still further.We can assume that some employees of Catholic institutions use contraception, which Catholic teaching holds to be an intrinsically evil act. To what extent is the Church, as their employer, morally complicit in those acts?
Does the Church share the intent of the actors? One might be inclined to say no, at least at the level of moral principle. However, if Church institutions are providing insurance that covers contraception, one could use this as evidence that, whatever their stated views, they either share the evil intent or are neutral about it. On the other hand, if the Church is only providing the coverage because they are mandated to do so by law, that case is considerably weakened. Ironically, the mandate itself mitigates the problem of formal cooperation.There are additional steps the bishops could take to further mitigate the Churchs moral culpability. Instead of self-insuring, they could purchase coverage from insurance companies who are themselves mandated to offer contraceptive coverage.The bishops and many Catholic institutions are objecting that they are still paying for the coverage, even if the mandate to provide the benefit is falling on the insurance company. Their premiums, they argue, will almost certainly have to reflect the cost of providing the contraceptive benefit.At this point, however, we are adding degrees of remoteness to the Churchs material cooperation. The Church would be purchasing a standardized insurance product in order to provide coverage for its employees. That payment, mediated through the insurance company, will indirectly facilitate a wide range of acts. In some years, the premiums paid by the Catholic institution will exceed the actual cost of providing services, which means those funds will pay for services obtained by employees of other organizations. These services could include contraception and even, in some cases, abortion. This risk is inherent in the nature of insurance and, in fact, exists even today for those Church-affiliated institutions that purchase private insurance, even if those plans do not cover contraception.These institutions could add additional degrees of remoteness by changing how they offer their insurance. Rather than purchasing the coverage directly, they could convert the benefit to a voucher that the employee could use to purchase coverage through the Health Exchanges currently being set up under the ACA. Ordinarily, such an approach would leave employees considerably worse off because they would lose the benefits of being part of a large pool. However, the Exchanges are designed to be large purchasing pools and some employees of Church-affiliated institutions may have wages low enough to qualify for the available subsidies.My point is that, in the end, the bishops have options. Even if they do not prevail in court (and I think there is a strong likelihood that they will not), there are legitimate ways to mitigate their moral culpability. They do not have to close or secularize Catholic institutions. If they do so, it will be a choice.