George on the Substantial Burden/Material Cooperation Point [UPDATED]

Robby George has a post up at Public Discourse detailing what he thinks is wrong with the Obama compromise on the contraception rule. After some ground-clearing, the heart of his argument is as follows:

Both would, however, requirematerial cooperation. And that material cooperation would havesubstantially similar bad effects. After all, before and after the change, employees would have coverage for contraceptives and abortion drugsby virtue of their religiously affiliated (or religiously observant, or morally conscientious) employers insurance contracts. Before and after, employers who oppose these drugs would nevertheless be required to select, contract, andlets drop the charadepay for plans by which their employees obtained coverage for them.Either way, then, the mandate would violate religious liberty and freedom of conscience:First, it would dramatically compromise the mission of religiously affiliated institutions to give witness to the moral teachings of their faith. People would wonder, for example, how serious the Catholic Church couldreally be about the idea that abortion takes innocent life, if it contracts with companies that offer coverage for abortion drugs and even pays (directly or indirectly) for that coverage. If the Church violates by purse what it professes by word, how seriously can we take its word? The same could be said of individual Catholic employers or self-consciously Catholic business firmsand not only the Catholic ones.Second, the involvement of thousands of religious institutionsby signaling moral indifference and providing fundswould (eventually) lead tomore acts of the sort that the faith condemns as morally wrongful and even, as with abortion, gravely unjust. Religious groups involvement would thus multiply what they regarded as serious moral and other harms. And it would eliminate none of these effects to add an easy middle step between an institutions purchase of a policy, and the employees use of it for abortion or contraception.

Let's assume, reasonably, I think, that George is right that the two proposals do not differ in terms of their effectiveness at reducing the financial burden of obtaining contraception. George believes that this means that both plans must either rise or fall together. (Of course, if one thought that the first proposal did not require morally impermissible cooperation with evil, then the fact that there is no difference between the two is largely irrelevant. But let's set that to the side.) I think the first of the negative effects he identifies undermines (at least to a significant extent) his suggestion that there can beno meaningful difference between the two proposals from the standpoint of cooperation with evil.

My doubt stems from the fact that the first of the harms he identifies in his post revolves not so much around the way in which the two proposals reduce the financial burden of contraception but rather the way in which he thinks they reduce people's apprehensions about using it. That is, he thinks both the original proposal and the compromise plan would create some degree of misapprehension on the part of consumers that, because employees of Catholic institutions (or individuals) enjoy contraceptive coverage "by virtue of their religious affiliated . . . employers' insurance contracts," the Church does not really mean what it says when it characterizes contraception as a grave evil. This misapprehension point seems to be the totality of the first harm he specifies and a significant part of the second harm. (I'll get to the other half of the first harm -- funds -- in a moment.)Surely, though, the creation of the somewhat byzantine mechanism for employees of Catholic institutions to receive the contraceptive coverage under the compromise proposal has some communicative significance. Indeed, this seems to be its primary purpose. Employees of religious institutions will have to jump through several hoops to get the same coverage automatically enjoyed by employees of secular employers. These hoops, however easily navigated, convey at least some information to observers and participants alike about the (subjective) seriousness of the hierarchy's views on contraception. That is, no intelligent person looking at the mechanism created by this compromise (not to mention the public discussion that sparked it) would think that somehow the Church's hierarchy endorses or winks at the use of contraception. And nothing in the proposal would prevent religious employers from telling their employees exactly that in no uncertain terms. For example, this is what the Madison, Wisconsin, archdiocese did. It even threatened to terminate employees who it learned violated Church teachings on contraception. (The fact that most of those employees are already likely using contraception further undermines George's claim that their beliefs about the Church hierarchy's views on contraception have much affect on their behavior in that regard.)The second harm George identifies includes a separate point -- the religious institution's provision of funds will be used to purchase insurance that will, in turn, increase the use of contraception by lowering contraception's cost to the individual consumer. I agree with George that it doesn't really seem to matter how this proposal is structured (whether as the insurance company providing a separate policy for contraception, a contraception rider, or simply agreeing separately with the insured to pay for contraception under the existing policy without a separate rider), but I reach the opposite conclusion he does about the degree of cooperation this proposal entails on the funding front.This is because, in my opinion, it is not obvious that Church funds are going towards contraception any more under the compromise (or even the original proposal) than they would in the total absence of an employer mandate. To see why, imagine a situation in which, instead of mandating employer provision of insurance, the health care law omitted an employer mandate but retained an individual mandate. Let's say that the law did not require qualified plans to cover contraception, but did require companies to offer to cover contraception at cost if the insured requested it (cost is, apparently, zero or close to it). Most of the religious institution's employees would choose contraception coverage, using their wages (funds from the religious institution that employs them) to pay their premiums. Indeed, even in the absence of insurance coverage, most of them would use their wages to purchase at least some contraception. Insurance coverage may reduce the burden of contraception by letting them buy more (at least this is what George's argument seems to assume). But it may also reduce the burden of obtaining contraception in the sense that it lets them buy the same amount for less and then use the savings for other purposes. (Only the former mechanism involves more contraception occurring. But we can't know which is at work without some actual data.) Presumably, employers who did not choose to offer coverage to their employees as part of their compensation package would have to pay their employees more so they could go out and procure health coverage (including coverage for contraception) on the open market. What is the difference in terms of facilitation of contraceptive use between this case and the current compromise? At a minimum, the argument that there is a difference seems to me to rest on highly debatable empirical assumptions that undermine the argument that this is some kind of slam-dunk case of first principles of religious liberty.UPDATE: Two more points. First, it seems to me that George's first harm (let's call it the appearance-of-endorsement harm) suggests a principled basis for distinguishing between religious institutions and individual Catholic employers. This is obviously not something George or the bishops would agree with. But, as far fetched as it seems to me that people will consume more contraception because, as a result of this mandate, they think the Catholic Church isn't serious about opposing contraception, the argument really sputters when we turn to private employers. Applied to such employers, this appearance-of-endorsement point depends on an extremely implausible causal mechanism -- who takes the lead from their employer in deciding (as a moral matter) which medical services to consume (unless their employer also happens to be their church)? Religious institutions have a unique position in this regard, one not shared with other kinds of employers, and the compromise recognizes this (as did the original proposal, to a lesser extent) by providing it with special opportunities to distance itself symbolically from the provision of contraception. By focusing on this appearance-of-endorsement point, George's argument brings this difference into stark relief in a way that hadn't occurred to me before.Second, I wanted to highlight this excellent article by David Gibson on the Religious News Service. I think he spells out the material/formal cooperation point very clearly and includes some interesting (anonymous) quotes by theologians. (Thanks to Marty Lederman for the link.)

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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