Grant Gallicho February 21, 2013 - 11:00am
Last weekend, Winter Storm Franck dislodged an avalanche of verbiage onto the sleepy hamlet of First Thoughts. Over the past few days, residents have been laboring to uncover the contours of an argument that engages the moral tradition many of them hold dear. Better fire up the snowblower.
Matthew Franck and I do not agree about several features of the Obama administration's latest revision of its contraception mandate. Where he sees government intrusion and moral thuggery, I see an imperfect but serious attempt to grapple with the concerns of religiously affiliated employers. He rejects my argument that Catholic employers may, according to their own moral tradition, licitly abide by HHS's proposals. But now Franck goes further, claiming that I have unwittingly undermined my own position by admitting that the premiums paid by a Catholic employer might be used to cover contraception for an employee of another company. You see, two weeks ago I wrote that the "accommodation" would not "oblige a Catholic institution to fund contraception coverage." And then the following week I tried to help Franck understand how insurance works -- by explaining that insurers pool premium payments from all their customers and distribute the funds as they see fit. Aha!
When Gallicho writes that such an employer may be one of the funding sources, he gives the game away. He is one inch away from understanding the point he himself is trying to make, about the fungibility of money. All the employers paying premiums to one insurance provider are paying, in common, for the contraception coverage of all their employees. Another way to say it that is equally true is that each and every one of them is paying for contraception coverage, in a common risk pool (if that term applies accurately to a choice that has very little to do with risk), from which all their employees contraception is funded. All are paying; each is paying; if EWTN is one of the all, it is one of the each. It will be paying for contraception.
Is it true? Have the hurricane-force gusts of Winter Storm Franck blown my argument apart? Not really, because there's paying for something and then there's paying for something. When you buy a banana, you indicate your interest by presenting it at your grocer's cash register. The clerk tells you how much it costs, you hand him the money, and off you go with your proof-of-God fruit. But what will that grocer do with your money? Will he use it to pay his divorce lawyer? To bust the cashiers union? To bring in the store's next shipment of condoms? If so, can it be said that you have funded those activities? Remotely, yes. But did you ask for those things when you brought that banana to the cashier? Of course not. Would those events have transpired if you had gotten the banana from another vendor? In all likelihood, yes. So even though your money may have facilitated the grocer's immoral actions, you're not culpable. You didn't patronize that grocer because you wanted to support those actions. You couldn't say for sure whether he'd use your money to further his immoral aims. You patronized him because you were hungry. No harm, no foul.
So it goes with the contraception mandate. (Refresher: According to the latest proposal, religiously affiliated employers like hospitals, colleges, and charities, will be able to contract for employee insurance policies that exclude contraception coverage. Their employees will, in turn, receive an offer of free contraception coverage from the insurer.) Franck asserts that these "accommodated" religious employers will still be contracting for contraception coverage. Not so. He says the accommodation amounts to a contract by default, because insurers will offer free contraception coverage only to people they already cover (otherwise they would have no financial incentive to do so). But that's a dodge. At this point, who could doubt the intent of the religiously objecting employer? The HHS proposal will not require religious employers to endorse the use of contraception, nor will it bar such employers from informing their workers about Catholic teaching on the subject. (Indeed, that is precisely what the bishop of Madison did when he chose to comply with Wisconsin law and include contraceptive coverage in his employee health plan.)
Intent still matters in Catholic moral reasoning. You aren't engaging in Catholic moral analysis until you answer three questions: What was the intent of the moral agent? What was the effect of his action? Could those effects have been brought about without his action? Franck is all over the second question. But the first and third barely feature in his analysis. Nevertheless, he manages to bump up against the third in his most recent post, if only by accident.
In pointing out that pooled resources complicate the culpability of those who fund them, I noted that paying taxes is not immoral even though tax dollars fund illicit acts (including contraception, thanks to Title X). And Franck agrees with me. But...
does he really mean to assimilate the business of contracting for insurance coverage--a free market transaction between employers and insurance providers--to the situation that obtains between taxpayers and the state? I know that many conservatives have observed that ObamaCare converts health insurance providers into public utilities. Gallicho would go further, seeing them as public agencies, or the moral equivalent thereof.
The business of purchasing health insurance is a lot of things, but a free-market transaction is not one of them. The health-insurance market is tightly controlled by state and federal regulations. They determine what we can and cannot buy. They control whom insurers can -- and, in some cases, must -- sell to. They even tell us where we can buy it -- you can purchase a car across state lines, but not health insurance. The Affordable Care Act increases regulation in several important areas (sayonara, preexisting conditions). It also turns health-care coverage into a requirement of citizenship -- the implications of which seem lost on Franck. He writes:
When we pay taxes, we do so as a civic duty, and we do so under coercion. If we are liable for taxes, we have a duty to pay them as members of the community. Because the state must be able to compel payment, we are subject to coercion if we dont pay. But we share responsibility for the good or evil our government does, and we owe one another our best persuasive efforts, and the action of our votes, to see to it that the government does good and avoids evil.
Our duly elected representatives crafted and passed a bill, signed into law by our democratically elected president, that compels -- you might even say it coerces -- Americans to have health insurance. Franck laments that the government did not decide to provide contraceptives directly (indeed, that would have saved all of us a lot of headaches). In that case, "the state -- meaning all of us whom it represents, collectively -- would be right back 'on the hook,' and we could struggle democratically over whether this coverage is a good to be funded by taxpayers or an evil to remain unfunded by the federal budget." That, Franck opines, "would be a fight in the open, at least. But the HHS mandate is something else again, entailing layer on layer of coercion, deception, and moral thuggery."
Nonsense. The Affordable Care Act was produced by a democratically elected government. The Department of Health and Human Services has issued three sets of proposals responding to the concerns of certain religious employers. It has asked for public comment. If the voters decide that the law does evil, they can throw those responsible out of office. In the meantime, if you can obtain health insurance and you choose not to, you'll have to pay a fine. The Supreme Court declared the individual mandate constitutional as an extension of congressional taxing power.
Back to Franck:
The reason we are not on the hook individually for any evils on which our tax dollars are spent is...that the state acts as the representative of all of us citizens in common (this is true in every state, and literally so in a democracy), and the evils (if any) that it commits are our collective (not individual) responsibility whether we pay any taxes or not.
He's right. That's how you run the argument. Now let's apply it to the contraception mandate. If an accommodated religious employer decides not to provide health coverage to its employees, what's likely to happen? Employees will go to the state exchanges and purchase health plans that include contraception coverage -- worse, they might even contract for a plan that covers abortion (the Affordable Care Act explicitly allows states to bar exchanges from offering plans that cover abortions). That fact diminishes the culpability of accommodated religious employers who choose to provide health coverage to their workers. Add to that the fact that they contract for coverage that excludes contraception, along with the fact that providing health care outweighs the risk that employees might or might not use the separate contraception coverage, and what you have is licit remote material cooperation with evil under duress.
But Franck isn't going for it. At least he has come to understand that one group purchaser can't be held accountable for coverage used by another.
If I run Carolina Catholic College and sign a contract with Blue Cross, it may trouble me that Blue Cross is providing birth control pills to Duke employees, but in its contract with my college, it better not provide those pills to our employees. I am not culpable for the arrangement BC has with Duke. I am directing premiums to a common BC pool out of which funds pay for Duke employees birth control pills, but at least I have not created a triadic relationship in which BC, by virtue of its contract with us, provides those pills to Carolina Catholic employees.
Ah, yes, the triadic relationship -- famous in Catholic moral theological circles for being completely made up by Matthew Franck. He admits that there's nothing wrong with paying an insurer that covers abortions so long as you're not contracting for that coverage. Your money goes into the pool. The insurer then decides how to spend it. You aren't culpable because you didn't contract for such coverage. But here comes the HHS accommodation, "which preserves exactly that triadic relationship, under a deception that the link is severed between employer's actions and employees' access to contraception."
One might be forgiven for detecting in this passage just a touch of obscurantism. Is a triadic relationship one that involves inevitable outcomes by virtue of one's relationship with two other parties? What's the outcome? Franck tells us: employees of accommodated religious institutions will receive "illicit coverage." There it is again -- that fake moral category: the illicit thing. Remember, the Catholic moral tradition does not recognize things in themselves as licit or illicit. Only acts can be so. Until an employee uses that coverage for illicit purposes, there's been no violation of Catholic teaching. (That's why the issue of alleged "automatic coverage" is a red herring.)
Critics of the mandate would rather pretend that the employees' role in the moral question is incidental, or at least not as important as the employers' decision to provide coverage. In fact it is essential -- not only because the decision to behave illicitly is theirs, but also because they receive health-care coverage as compensation for their labor. In the United States, health benefits are considered part of a worker's wages. When diocesan employees buy condoms with their wages, is it their bishop's fault? When they don't, does their bishop get credit? Of course not. An employer is never responsible for his employees' consumption choices. Why should it be any different in the case of third-party-provided contraception coverage? (Note, too, that Franck doesn't have a lot to say about HHS's proposals for "self-insured" religious employers -- that's because HHS will essentially pay a third party to provide contraception coverage. There's almost no cooperation with evil to speak of.)
The mandate's critics twist Catholic moral reasoning into impossible knots: Does Franck really believe it's possible to "sever" all links between human choices and evil outcomes? I doubt it. So why suggest such a thing? Could it be that critics of the mandate contort themselves so because they're loath say what they're really thinking: that no one has a right to opt in to contraception coverage, and no employees have a moral right to use contraception -- Catholic or not? If so, they should say so. But, of course, that would be giving away the game.