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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suggested that they will have to close hospitals, schools and Catholic universities if the mandate is not modified or withdrawn.But would the bishops really be required to do this?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.


Commenting Guidelines

Health care in this country has become so regimented that it likely will no longer be possible for "Catholic" hospitals to be recognizably Catholic. They're very secularized already, with lay administrations tightly hemmed in by fiscal and regulatory restraints. Maybe it's time for the Church to husband its resources, getting out of hospitals and more into things like nursing homes and hospices. Hospitals have become big machines, with no room for religion. If there were still nuns and priests in abundance, something might be done, but as it is, I think it's a lost cause. Put your few remaining eggs in a better basket.

I cannot fathom the moral depravity that would lead someone to conclude that closing institutions would be an acceptable cost of being able to ensure that those employees who wish to use contraception pay for it using the salary portion of their compensation rather than through their health insurance portion of their compensation.

"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."During my working years, I had insurance coverage from my employer. I have no idea, and never thought to wonder, whether contraception or abortion was covered. I'd see a doctor, submit the bill, and the insurance would pay or not pay or fool around with it for months and hope it would go away. It never occurred to me that I could buy contraceptives with my insurance. It appears I am guilty of remote material cooperation, or what some bishops would close their hospitals to avoid.And you probably are, too.Should we have quit our jobs? Thrown ourselves on the mercy of a self-insured Catholic organization? What? Will a bishop please address that. They have taken it upon themselves to raise those questions above my pay grade.

The Catholic bishops to the contrary notwithstanding, artificial contraception is not intrinsically evil.But the Catholic bishops claim that it is. So the debate with them about this claim should be "joined." In short, both Catholics and non-Catholics in the United States should engage the Catholic bishops in direct debate about their major claim regarding the supposed evil of contraception, instead of engaging in side debates about formal and material cooperation with alleged evil.Because the Catholic bishops in the United States are American citizens, they are entitled to free speech to criticize the federal government's regulations involving the so-called contraception mandate.But in the process of criticizing the federal government's regulations involving the contraception mandate, the Catholic bishops have brought into sharp relief their dubious claim against contraception supposedly being intrinsically evil.Thus their dubious claim about contraception supposedly being intrinsically evil should be debated in a direct and forthright way.

Since the primary mission of the Church is not to run hospitals or schools, rather than twisting to make the sort of compromise you mention Peter, it would be reasonable enough for the bishops to simply sell off those assets. They could then apply the money received to the Churchs remaining social outreach programs, and work in areas of society as allowed by the government.

It would not be that dramatic Cupcake so do not worry; the hospitals will not be closed. They would be simply sold, and would remain open.

Thanks for the helpful analysis! Being quite involved in a Cathollic hospital and informal conversations with a variety of administrators, I could not imagine them deciding to "close" even if the bishops push this issue-- and I think there are few bishops who would go that far-- though Phoenix expereince could be repeated with great pain....

My only quarrel with Peter Nixon's comments has to do with his apparent satisfaction with the conception of "material cooperation" with evil." To propose a distinction between "proximate material cooperation" and "remote material cooperation" is to invite the worst sort of casuistry. Given the nature of modern society it is folly to claim that most of us, by virtue of ordinary political conduct such as voting, paying taxes, holding office in policy setting institutions(whether governmenta or corporate), involves us in institutional evils of various sorts. In other words, there is no avoiding having materially ""dirty hands." Unless I am mistaken, this is one of the important points to which John DiGioia gave expression in his speech at the Commonweal Conversations that honored him. I repeat here the hope that the full text of his speech is soon made readily available.

Will bishops set an example and decline to hire lawyers, PR firms, and such who have divergent practices from Catholic morality, say the support of divorce? Will they decline to surf the net, or refuse to plug in their tv cable given the amount of soft porn (and worse) one can find on screens these days? Have their USCCB hotels been carefully vetted as site that did not host gay marriage receptions, PP fundraisers, or yoga workshops? This is a serious question: how many Baltimore Ravens have to come out in favor of same sex unions before Archbishop Lori will have to burn his football tickets? What's the limit?

"Since the primary mission of the Church is not to run hospitals or schools..."Ken, this point is debatable. The earliest Christian communities, as they found themselves increasingly cut off from their Jewish roots as a result of being perceived as religious troublemakers in synagogues and at Temple, were forced out of necessity to set up their own social support systems. Such new arrangements would logically have included some provision for health care, however crude it might look according to what we have today. The same would hold true about indoctrination in the faith. No longer enjoying certain rights/privileges accorded the Jews under Roman rule, these new Christians would have to organize themselves into functioning communities of believers. I'd be surprised if bishops have any actual financial control over hospitals, whether identified as "Catholic" or "in the Catholic tradition". The hierarchs can certainly add their voices to the conversation, but critical decisions will likely be made by others not beholden to the bishops.I don't know what you mean by your reference to "as allowed by the government".

Peter,The Catholic Church does not teach that contraception is an intrinsically evil act. It's only taught as intrinsically evil in marriage and then only when the intent is to prevent conception not to treat hormonal conditions, limit disease transmission etc.Romney's point that employers have no right to limit their employees access to contraception is correct and fully consistent with Catholic teaching on conscience and the reality that health insurance is payment due for work done hence something the worker owns, not the employer. It's not the employers who are actually paying - it's the employees.It seems to me that the argument against access to contraception not only doesn't get to first base, it doesn't even leave home plate.God Bless

Chris Sullivan,Health insurance and other benefits are part of an employee's compensation. However, the decision as to plan design and coverage is the employer's right as the plan sponsor. Employees do not own the benefits. If the benefits are negotiated as part of an employer-employee agreement, this also is not the issue unless contraceptive coverage was specifically negotiated. The value of contraceptive coverage is extremely small compared to the value of the entire health plan.If contraceptive coverage was part of a health plan (negotiated) and the employer took away this benefit, then they would have to show just cause. This often arises when the employer is in serious financial shape, is in Chapter 11, etc. Sometimes, the employer will make trade-offs, such as dropping or limiting coverage, increasing deductibles, but offering dental insurance to the package. Sometimes this has to be re-negotiated and sometimes it does not. Most employers have full discretion with plan design and are sensitive to employee morale and competitive practices. Thus, whether contraception coverage is part of the plan is mostly a function of state law requiring coverage, or it is the policy of the employer to treat contraception as any other necessary medical expense.There is not much of a difference in material or remote cooperation with evil for employers who cover contraception as a health care expense because they are not forcing employees or encouraging them to purchase and use contraception. Employees can pay for it from their cash compensation (if the health plan does not cover it) or get reimbursed from the health plan if it is covered. The employee decision to use contraception is a decision of conscience because most Catholics don't believe it is intrinsically evil.

I do not understand why it would be so, but I get the impression that most posters here seem to think the bishops are wrong, and that they and other employers should pay for bc and abortion pills.Am I miskaten; do most folks on this blog favor the goverment (fedearl or local) forcing employers to pay for bc pills, abortifacients, and other means of contraception?

Ken: I think that a large majority of employees (and most likely employers) do not view birth control of any kind and even abortifacients in the same light that you and Catholics who seem to oppose their use do. They do not look at it as being "forced" to provide services that are seen as part of usual and customary forms of health care, but, rather, as part and parcel of the total healtcare package. Ditto for viagra, vasectomies and other male-oriented "enhancements."

Like Peter Nixon, Michael Barberi talks in terms of material cooperation, whether "remote" or "proximate. This suggests to me that this terminology is a staple of moral theological discourse. i don't want to keep talking about this, but let me say explicitly why I consider this terminology useless at best and often a substitute for careful thought.1. The word 'cooperation' ordinarily denotes some degree of intentional agreement. But does 'material cooperation imply intentional agreement in these cases?2. The words 'remote' and 'proximate' have to do with distance of some sort. Here it's obviously not physical distance. But what sort of measurable distance are we talking about?3. We might also ask about the 'magnitude' of the "cooperation." But again , how do we measure the relevant sense of 'magnitude here? So to with the matter of frequency. Is it seldom or often? Again, what is the unit of measurement?I grant that all this sort of talk might have some pedagogical value in helping people think through what they are doing. But how could this talk give rise to condemnations. There used to be an interpretative principle inscribed in the Code of Canon Law. It said that prohibitions were to be interpreted strictly, but permissions were to be interpreted broadly. Whether that principle is in the present Code I don't know. But it is surely a humane principle. Its applicability to this issue of the HHS mandate and its bearing on the conduct of Catholics ought to be pretty obvious.There! I've said all I have to say about this. I am certainly prepared to be refuted or corrected, but please address at least some of the points I raise.

Ken --I don't think anyone can say what most people here think about the subject. We'd need to take a poll of individuals to answer your question. It seems obvious that some think that the bishops are right about all the aspects of this comples issue. Others think that the bishops are making a moral mountain out of a moral molehill and that the bishops have no case. Still others (like me and Grant?) think it's a moral molehill, but since the bishops find it is against their particular religious beliefs they have a legal right to complain, and perhaps they are right to do so. However, some of us in this last group think the bishops' manner of complaint has been at best unwise as well as ineffective so far.Don't ask for a simple answer around here. We liberals come in many different flavors. As do the conservatives. Sigh and sigh.

Bernard --I find the vocabulary and the principles the words express very helpful at times, and unlike "transubstantiation" you don't need to know a lot of philosophy or theology to understand them. So I don't think the problem is mainly semantic. I think it's much, much deeper -- the problem of prudential juddment. All of the Catholic moral theologians (except the ones in the CDF who already know everything) seem to realize that there is no sure way to solve every single difficult moral problem. So (if possible) the ethicists/moral theologians need to invent some moral decision procedures which we might use in deciding hard cases. I think that use of some of the theoretical developments in philosophy of logic and language could help here. For instance, the ethicians might consider whether there is a universal decision procedure for solving *all* ethical problems in the first place? Put into logical language: are all moral judgments decidable? If they're not all decidable, are there any which are? If so, which are they? And which cannot be surely decided? Finally, if all that were figured out, then the ethicists might try to develop the needed moral decision procedures. We already have some principles about what we should never do. For instance, never do evil to cause good. (Alhough I think that principle is debatable, at least it helps with most moral questions.) But when we have two positive commands things get terribly complex. Sophie's choice is the classic example -- save your daughter from being murdered and save your son from being murdered. Another sort of basic problem that needs to be put in its place in moral problem-solving is the remote/proximate distinction. "Remote/proximate" seems to me to be a metaphor for differences in degree of some sort, but of which sort? And, as you ask, how do we measure them? What do we *do* to measure them? What procedure do we follow? I have never really studied ethics or taught it because I have always found ethics a most frustrating subject, except for its most basic foundations. After the foundations, ethical problems quickly become extremely unclear. I do think that part of the reason is that the definitions of the words of ethics (e.g., "proximate" and "remote") while apparently clear sometimes actually aren't very clear at all. Again, I suspect that there are insights from contemporary philosophy of language and logic that might help greatly. It's worth a try. Anscombe did some great work on "intention". Would that the current analytical Thomists would do some work on decision procedures, but, frankly, the analysts too often seem to be concerned with nit-picking of language uses. Considering how intractable the problems with prudence have been, I suspect it will take some major new philosophers to even begin to make headway with all of this. We need a new St. Thomas..

Some bishops threaten to close Church-affiliated hospitals and other activities of value to the community at large and through which they carry out out some of their charitable obligations to society. Thereby, they ensure that managements will not be associated with making available the mandated insurance coverage for contraception to their insured employees of any faith or none. If they literally close a hospital, they deprive the community of a valued, lifesaving resource and themselves of direct means for significant charitable service. Their resulting impact on the critical matter of contraceptive practices by Catholics and others is not likely to be any different than it has been for the past 40 years.If they choose to sell, there is no progress in selling to an owner who would be bound by the same Church constraints as the original owner. If they were to sell to an owner not bound by those constraints, they are facilitating, not only mandated contraception insurance coverage for employees, to which they object, but potentially other hospital activities which the bishops declare evil. Cooperation and proximity would no doubt be studied to the satisfaction of the bishops and a small group of experts but, beyond that, I am inclined to agree with Bernard D. as to useless terminology and substitute for thought. Thorough thinking through beforehand of implications and consequences of closing hospitals, etc., might have influenced the bishops' forecast of inescapable consequences they foresaw from the mandate. (A Catholic hospital sale has been in progress recently in Baltimore. Note the Cardinal's reported expression of deep disappointment, hope, and prayer over prospects of non-Catholic ownership: )

" Its only taught as intrinsically evil in marriage " -- really??the bishops are playing politics with people's lives

The author, Mr. Nixon, merely repeats Alphonsus Liguori's definition of formal cooperation ("sharing the intention of the principal agent") without mentioning that this definition is highly disputed in moral theology. In fact, many moral theologians today argue that this is NOT Aquinas's understanding of cooperation. Moreover, in Evangelium Vitae (n.74), Pope John Paul moves against that manualist understanding of formal cooperation, and asserts that formal cooperation can be either "direct participation in an act" or "sharing in the immoral intention". Consonant with his re-emphasis on the "object" of the moral act, there are two principal ways then one can cooperate in another's act, formally: either to share the same intention as the agent (that is, intention of the end), or to aid in performing the act by choosing the same object as the actor. Note as well that duress does not distinguish between formal and material, but rather between degrees of voluntariness, and therefore culpability (see Aristotle's Ethics, Book III). In other words, one can still be "mandated" to provide abortafacients, not wish to provide them, but still choose to provide them for some other ulterior motive (e.g. to prevent tax penalties and ultimate loss of church property and institutions); nonetheless, the "kind" of act you are doing, *formally*, is still providing abortafacients (if that is indeed *what* you are doing). We know that this is your act by the per se nature of its "motion" to its end (that is, the terminus of the external act, the thing or state of affairs proximately chosen to be done). There may indeed be little blame for your act, because of the amount of duress (another discussion), but that does not change the *nature* of what you did--that is, the *object* which you chose. Therefore, rightly is your participation called *formal* (if in fact *what* you did in its nature was an act of providing abortafacients).Such is the kind of analysis that the Church requires in light of Veritatis Splendor. Proportionalists may desire another analysis; but at least according to the magisterium now, such an analysis could not be licit.[I should mention there is a interesting debate going on now between moral theologians about whether the cooperation in HHS by the Church would be formal or material; see for a summary, here ( and here (]

A question concerning Ms. Abel/s comment:Is there a distinction between participation in an act and cooperation in an act? I think that there is.Example:Suppose I am a clerk in a drug store and am told to restock the condom shelf. Though I am opposed to the existence of condoms, I do it. Suppose I am the clerk at the cash register who makes the sale of condoms to Mr. X even though I think that there should be no such things for sale.I, as this clerk, am participating in these things. It strains credulity to call what I do in these cases "cooperation."How all this bears upon the HHS mandate is of course more complicated than my example would show. But whether participation is equivalent to cooperation is not irrelevant.

It seems to me that buying something is never intrinsically immoral. One could buy *anything* for the purpose of getting it off the market, and in no case would that be intrinsically immoral. So it is not the actual paying for the contraceptives which is intrinsically immoral -- it's their use that is immoral (at least according to the bishops it is). So it seems to me that it must be the *intention* of the buyer of the contraceptives which determines the morality of *his* act (the buying) as distinguished from the intention of the user (to prevent conception). If his intention is proportionately good (to preserve the Catholic hospitals which heal and save lives and the schools which educate) then I would not think it is immoral.

Sr. Rebecca,Now you are speaking my language....:-)Thanks for your comments and for the link to the other sites. Let me make a few points.First, whether Ligouri got Aquinas right or not, his definition continues to be the operative one both in the Catechism (cf 1868) and in most debates among Catholic theologians. While I found the authors in the linked web sites interesting, it must be said that they represent a somewhat narrow range of opinion among moral theologians. So I'm not sure that describing the definition as "highly controversial" is entirely fair. Secondly, Section 74 of Evangelium Vitae, if read in its entirety, is clearly dealing with the situation of employees of health care organizations. Even if they are not directly performing abortions, the question of their degree of cooperation and moral culpability may be at issue. It's clear that the Pope believes that "consultation, preparation and execution of the acts" may be a participation in the act (i.e abortion) itself.What we're debating here are whether certain acts are so proximate to the act of abortion (e.g. a nurse preparing the room where the procedure will be performed) that they are essentially part of the act itself. So it's not clear to me why this upends Ligouri.More to the point, this doesn't really address the question of insurance, which is what is at issue here. Many of the folks arguing that cooperation would be formal seem to equate providing insurance for something with participating in the act itself. Employers are not being mandated to "provide contraception" in the sense of having it available in an employee health clinic. They are being mandated to either purchase insurance for their employees or pay a tax. The only insurance available in the insurance market will be insurance that covers contraception. To me, this is adding so many degrees of remoteness that--coupled with the fact that it is clearly outside the intention of an institutional Catholic employer--making a charge of formal cooperation "stick," so to speak, is extraordinarily difficult.

1. It is precisely the nature of "intention" that is in question here. As evidence of the controversial nature of the question, I submit the debate which has been going on for some time now about Fr. Rhonheimer's work on intention and the moral object (paralleled as well with similar concerns about the action theory of the NNL people). That many proportionalists are uninterested in that debate, and that many moral theologians are proportionalists, does not change this. (See also Fr. McLean A. Cummings's dissertation published at the Regina Apostolorum in Rome, "The Servant and the Ladder: Implicitly Formal Cooperation with Evil in light of Veritatis Splendor" [2009].) 2. Again, the point of the EV reference was to show how a recent magisterial teaching gave formal cooperation a wider reference than another recent tradition (namely, the proportionalist one). This corresponds to the more Dominican-inspired manuals' distinction between explicit and implicit formal cooperation. (See as well B.Haring's earlier critique of Liguori in the Law of Christ, p.293: "In formal cooperation, one's action of itself is to be characterized as an influence, as partial cause of an evil effect which must be avoided. Wherefore it is evil, although the agent himself may deplore the evil effect.")3. Adding or removing degrees of proximity does not determine formality. In fact, we often hold agents far removed in proximity from grave acts more responsible based on their causal role in that chain. (Your mentioning of the facts <> do not determine formality, but are rather reasons which may afford a judgment of proportionality in a true double-effect scenario, as in material cooperation. Obviously they do not demonstrate the fact of mere material cooperation.)4. I think the question which we need to focus on is, what exactly is the act of "contracting" (and possibly as well, "insuring," or "providing insurance"). Is it the mere arranging of materials? Does it bear no formal relation to *which* is covered in the contract, and the acts which are later done by virtue of the resources contracted? Briefly, I think Long and Pakaluk raise important questions in this regard (particularly Pakaluk here: that have not been answered. (I also think the folks at the NCBC have a interesting take as well: The more extreme examples may be probative: like conceding with a mandate to provide abortion-on-demand coverage in any insurance policy.

"(Your mentioning of the facts do not determine formality, but are rather reasons which may afford a judgment of proportionality in a true double-effect scenario, as in material cooperation. Obviously they do not demonstrate the fact of mere material cooperation.)"Sr. Rebecca --What does this mean?What is your own position in the matter of the bishops buying insurance that pays for contraception for their employees? Which reasons do you find persuasive?