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Snowed in.

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.



Commenting Guidelines

Mark Proska.The employer's choices are:1. I will continue to provide my employees with the same insurance I have provided until now - which excludes coverage for contraception.Or.2. I will stop providing any health insurance to my employees because that will prevent them from qualifying to receive free contraception under the HHS program.Neither of those choices involves intrinsic evil. That's important because Catholic morality does't allow us to do intrinsic evil so that good may come of it. We don't do the "lesser of two evils"The employer can consider which choice will accomplish the greater good. My guess is that most will choose the first.

Your problem is not just with me, but with Catholic moral teaching. You seem to think that as long as ones actions bring about the same result, nothing else matters. So running someone down with your car is morally no different from accidentally running someone over. And paying ones employees money they use to buy contraception is no different from providing it to them directlysame result! You continue to attribute to me straw men arguments that I have not made.You ask, Can you direct me to where I said I believe Catholic employers are already funding contraception or abortion?So the answer is, no, you cannot.Whether you believe it or not, it is the case. According to your own rigoristic definition of what it means for someone to fund something, any Catholic employer that buys group health insurance from any of the major insurance providers is funding contraception and abortion, since these providers cover abortion and contraception for some of their policyholders.Again, this is not my argumentperhaps you wish it were. Let me try to clarify for you. If an insurance company charges a Church $500 for a health insurance policy that does not cover abortion services, and charges another entity that has the exact same risk profile an extra $200 ($700 in total) for a policy that does cover abortion services, and puts the combined $1200 into the same checking account, I do not feel in any way the Church is funding abortion services. Presumably you agree. On the other hand, if the insurance company takes the money from the Church and, after laundering it through the HHS mechanism, uses the Churchs premium dollars to pay a drug company to provide free contraception, rather than paying an OBGYN to deliver a baby then, yes, I do believe the Church is funding contraception services. Presumably, you dont agree.If I have been presumptuous in any wayif you were in fact writing to Catholic employers around the country warning them that they were endangering their immortal souls by doing business with health insurance companies long before the HHS mandate was first proposedI apologize.If you are sincerely apologizing, I sincerely accept it.

Mark,It is not the fact that the money all ends up in the same account that matters morallyor, rather, it is not that fact alone. It is the fact that the money used to cover contraceptive services is drawn from that account. And this is the case in both of your examples. The only difference between the two cases you describe is that in the one case the money the Catholic employer sends the insurance company pays for the contraception used by some one else's employees, while in the other case the money the employer sends the insurance company may pay for the contraception used by its own employees. That distinction is not morally important, however much you try to make it sound as if it were by using words like "laundering." Insofar as there is any "laundering" going on in the second case, there is also "laundering" going on in the first. What you describe as the "straw man" is my attempt to make your argument coherent, but apparently it isn't.(Likewise, you cannot accept my sincere but conditional apology if you do not object to Catholic employers buying health insurance from providers that cover contraception and abortion, and now you've made it very clear that you don't.)There are many reasons one could oppose the contraception mandate. I oppose it myself. But if you are going to claim it violates religious liberty, you will have to show that it either prevents members of a religious community from doing what their religion requires them to do or forces them to do what their own religion forbids. The Church does not forbid remote material cooperation with evil.

"There are many reasons one could oppose the contraception mandate. I oppose it myself. "Matthew - have you written here, or publicly anywhere else, explaining your opposition? I'd certainly like to know your reasoning.

It is not the fact that the money all ends up in the same account that matters morallyor, rather, it is not that fact alone. It is the fact that the money used to cover contraceptive services is drawn from that account. And this is the case in both of your examples.You are missing the point entirely.Imagine two scenarios, if you will: 1. I check out from Barnes & Noble; B&N says, "Oh, since you're here, we're automatically giving you a free copy of Penthouse with your purchase. But don't worry, it's totally free to you; sure, we're paying Penthouse out of our general funds, but that money is fungible; all that you need to know is that it comes totally free with your purchase."2. I check out from Barnes & Noble and some other customer somewhere else is buying a copy of Penthouse. My bag doesn't have a free Penthouse in it at all.Do you not see a difference between those two scenarios? It's very odd, all these people who claim not to be able to tell the difference between "buying A and then having the morally objectionable B automatically attached to the purchase of A," vs. "buying A from a company that happens to sell B to someone completely unrelated to me."

JohnYour most recent comment simply restates your position, it doesnt address the reasons Ive put forth to explain why the first option you mention does not fully comprehend or describe what the employer is actually doing. I get the feeling we have played out the string, at least on this thread (ha, I crack myself up). Nevertheless, I appreciate the civility with which you express your opinion.Matthew--I think Mr. Time has clearly shown that your comment indicates that youve not yet really grasped the argument. Like Jim, I would like to hear the many reasons you believe the mandate could be opposed, assuming you are free to do so on this blog.And if you insist that I not accept your apology, I will comply with your wishes.

"Assuming you are free to do so on this blog." You want to know what trolling is? That's trolling. You are done doing that on this thread, Mark. You're all out of punches on your troll card.

You'd better stop spending money, Mr. Time, because you've just ruled out most financial relationships in a complex economy.

No, I haven't. I think the two scenarios I described above are very different. And they are. And the first scenario does not describe most financial relationships.

GrantI gather from your comment you though I was making a veiled accusation of censorship, but that was not my intent. In a team environment, it is often the case that differences of opinion are hashed out behind closed doors but once the team breaks the huddle, everyone is expected to speak with one voice, for the good for of the team. That happens when charities decide where to allocate donations, football coaches devise a game plan, parents decide what is best for their children, etc. I simply thought that might be the case here. I am sorry it came across as trolling.

Jim,Let me answer your question first. I'm opposed to the contraception mandate because contraceptives are a regular, predictable expense incurred as the result of a behavioral choice. They are therefore not the sort of thing that health insurance ought to cover; they are certainly not the sort of thing that all health insurance ought to be required to cover. Nor do I believe the federal government has a compelling interest in making contraceptives free to everyone who wants them (especially when it does not use its regulatory powers to make inhalers and insulin shots free to anyone who needs those things).The government may have a compelling interest in making contraceptives affordable to everyone who wants them, but it could do this by subsidizing contraceptives directly, or by allowing the pill to be sold over the counter, thereby allowing the market to force down the price. (And, yes, I know: there's more than one birth-control pill, and many birth-control pills are also used for purposes other than birth control. When the pills are used for those other purposes they should obviously be covered by health insurance.) Birth control is not covered by Canada's single-payer health insurance system, but it's much cheaper there because the government is not beholden to the pharmaceutical industry. One could also argue that the U.S. government already provides contraception to those who couldn't otherwise afford it through Medicaid, which the Affordable Care Acts expands considerably.Now, to the well-named Wasting Time:Your analogy fails in several ways, but let's play along. The Catholic employer is much more like someone who gives a friend a gift certificate to Barnes & Noble, even though he or she knows that Barnes & Noble offers a free copy of Penthouse to all its customers. The giver of the gift certificate may regret this fact but not worry too much about it because he or she expects, or hopes, that the friend will simply decline the offer.Or the giver of the certificate may refuse to do any kind of business with Barnes & Noble because he or she disapproves of the store's free-Penthouse policy, and/or because he or she worries that some of the money from the gift certificate is going to pay for those complimentary copies of Penthouse, which presumably some customers choose to accept. In this case, the giver of the gift certificate could simply buy a card from a bookseller with a different policyor he or she could simply give her friend something else. Books and DVDs are nice, but not necessary.Health care is necessary. Everyone needs it. The importance of making sure everyone has access to it may outweigh many other considerations in a way that the gift certificate to Barnes & Noble does not. And, unlike the Barnes & Noble example, there is not an alternative, precisely because the HHS mandate requires all insurance providers to cover contraceptives.

Matthew -- your arguments are all very compelling, except the ones in response to me. :) That is, you still haven't given me a reason to think that the moral objections to the following are exactly the same:1. I buy product X from a company that sells objectionable product Y to completely different people. Mr. Gallicho is right insofar as he suggests that if I object to this, I'm objecting to most expenditures of money on anything whatever.2. I buy product X from a company that automatically makes product Y available for "free" along with my purchase (although we all know that Y actually costs money and that the cost is somehow being built into the price I pay for X, or else the company would be losing money on selling me X). I thus object to having my purchase made part of increasing the availability of Y, and to increasing the demand for Y (and the profitability of the company that made Y in the first instance). Again, perhaps the situation would be easier to understand if one imagined a product that one actually found morally offensive (I'm getting the feeling that many Commonweal readers think that objecting to contraception is silly, and therefore they are inclined to ignore or slight the claims of conscience here.). So let's say that we're talking about a racist caricature of Obama as a monkey. That's evil, right? Imagine if such a a caricature were, by law, automatically attached to any of your purchases as a "free" accompaniment. Even if it truly were free and/or optional at the option of some third party, would you be happy about having your purchases in any way 1) associated with such racist caricatures, 2 used to make them more widespread throughout society, and 3) used to increase the profitability of the company that made them?(Please, no objections that such a scenario is unrealistic. Much of moral theorizing consists of imagining admittedly unrealistic scenarios, such as runaway trolleys or kidnapped violinists, so as to shed light on whether you really believe in the principles that you claim to neutrally resolve the moral question.)

My insurance company reimburses $150 of my health club duesThey figure they will save more than $150 if I exercise and stay healthy.Because they took a fixed amount of money to pay for my health care, whatever it costs them. It's their money.

My insurance company charges me $500 for a policy. It realizes that the cost of a gym membership (contraception) is only $150, and will lower their costs to $300. So they take $150 of the premium I pay them and use it to buy me a free gym membership (contraception), lowering their cost to $300, and increasing their profit by $50.Who can deny Im funding the free gym membership (contraception)?

Contrary to your example, the employer and the employee are not the same person. The Employer did not authorize the insurer to provide the contraception. The cost of the contraception was paid from the insurance company's money. Its money comes from many different sources - not just that one employer.

Its money comes from many different sources not just that one employer.So Employer (Archdiocese) A not only funds contraception for its own employees, it funds contraception for Employer (Archdiocese) B? Even in a world where that could happen, I would think Archdiocese A would rightfully conclude that its religious freedom has been violated.

"So Employer (Archdiocese) A not only funds contraception for its own employees, it funds contraception for Employer (Archdiocese) B? "No. It bought gas from a gas station that has a condom vending machine in its men's room (see my earlier post)

Mr. Hayes -- you're describing a situation where Person X buys gas, and the gas station has a condom machine there, and then Person Y might buy a condom in a transaction that really and truly is separate (Person Y doesn't work for Person X, didn't participate in or contribute to X's purchase, and rather than X's purchase having been used as the precondition for making the condom available at all, Y is able to get the condom with no reference to X's purchase). That situation, however, has no resemblance whatsoever to the contraceptive mandate. Point is, there's a difference between 1) transactions that really are separate, and 2) transactions that are intricately tied together from start to finish. Merely saying that the latter are "separate" doesn't make them so. Wishful thinking.

Mr. Wasting Time, I take it that your remaining concern is not money but that by providing non-contraception insurance for the employee the employer allows the employee to meet the requirement for free contraception from the insurance companyI discussed that in my 3:05pm post on the 23d, so I won't repeat it here.

Wasting time proposes this analogy: "I check out from Barnes & Noble; B&N says, Oh, since youre here, were automatically giving you a free copy of Penthouse with your purchase. But dont worry, its totally free to you; sure, were paying Penthouse out of our general funds, but that money is fungible; all that you need to know is that it comes totally free with your purchase."... and then Matthew improves it: "The Catholic employer is much more like someone who gives a friend a gift certificate to Barnes & Noble, even though he or she knows that Barnes & Noble offers a free copy of Penthouse to all its customers. The giver of the gift certificate may regret this fact but not worry too much about it because he or she expects, or hopes, that the friend will simply decline the offer."... and now I will attempt to improve it even more: the gift-giver goes to and arranges to have a book shipped to the friend as a Christmas gift. requires the friend's email address as a condition of completing the transaction; and will email the friend a URL making all Penthouse content available for free. The gift giver objects to being the "trigger" for making pornography so easily accessible and affordable, and so looks to switch her patronage to - only to discover that has exactly the same requirement. Every single online bookseller has the same requirement. Even more amazingly, if the gift giver decides not to give a gift - the federal government will levy a very large fine.Matthew, thanks for sharing your reasoning on the contraception mandate. Cogent and interesting stuff.

It bought gas from a gas station that has a condom vending machine in its mens room (see my earlier post)No, the insurance company took the money the Church had been paying for maternity services, used those funds to buy a condom machine, and set up the machine for free in the back of the Church.

The insurance company took money from its bank account and used those funds to buy a condom machine and set it up "for free" someplace where it was accessible to the employees, but not on the employer's property. We could go on trading these back and forth indefinitely, so I'll stop here.

And the condom fairy deposited the money in the insurance companys bank account? That why the greedy insurer decided to provide the coverage for free?

I see that Franck has responded again at First Things, so the beat goes on. His point about intention deserves some thought, istm.

He says "But I had not previously thought that intention can be adequately translated as what I really subjectively want to accomplish by this act that has its own objective meaning I choose to ignore.I think what he's pointing out is that, in your last example, you can't ignore that sending your friend a gift book will result in his receiving free access to Penthouse.Then you weigh the advantages of sending or not sending the gift book. It is a prudential judgement so you might decide you should still send the book. If you knew that the consequence of sending a particular book were that secret police would be sent to the house to assassinate your friend, that would be a different situation. I think he is right that good intentions don't justify ignoring the consequences of what you do. But I don't recall Paul arguing that they do.

For some reason, the Stanford URL is not working for me (even though, when I searched Google for "Stanford Plato Double Effect" the very same link was returned to me), but the Wikipedia article on Double Effect distinguishes between intention and foresight. FWIW, I have thought for some time that a Catholic institution could make use of the accommodation according to the principle of double effect: the intended good of providing a health care benefit (health care for one's employees) could be construed as outweighing the unintended but foreseen bad effect (increased sinful contraception usage). I suspect that this is how Bishop Morlino thought through his prior decision to abide by the Wisconsin state contraception mandate.

Try this link:'s the Australian mirror. In 2010, Bishop Morlino's diocesan newspaper said:"The Diocese of Madison had looked into self-insurance options but found them too costly. The diocese felt it was a matter of justice to provide affordable access to quality health care for those who work for the Church." recall a letter from the bishop himself going into more detail - but I couldn't find it just now. In that case, the diocese and hospital had to buy insurance that covered contraception. There was no accomodation of the HHS kind. They could have avoided this by self-insuring but the cost would have been more than they felt they cold afford. It was. Prudential judgement.