Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, February 15, 2012

"Moral Theology 101"

David Gibson quotes a theologian "who, like several others interviewed, spoke on condition of anonymity for fear of angering the hierarchy," and says that the bishops (and the hundred or so "culture warriors" who have signed the George / Glendon / Garvey "unacceptable" letter) "fail their church's own moral reasoning" and, in essense, flunk "moral theology 101."  

First, it is quite mistaken to dismiss all of the signers of that letter as "culture warriors"; the signers include people whom I know Gibson would, on reflection, concede are very serious Catholic thinkers.  But, let's put that aside.

Obviously, the bishops and the letter's authors are closely familiar with "[t]he category of moral reasoning . . . called 'cooperation with evil.'"  It is useful for Gibson to educate his readers about this category, but wrong, in my view, to assert or conclude that the bishops and their advisors have failed to "[think] all the way through" the matter.  This (very important and valuable) way of handling and analyzing hard cases, it seems to me, provides a way to frame the engagement, but it will not, by itself, answer every hard question.  The bishops, and the letter writers, know all about -- as does Gibson, who I think is a smart writer -- the distinctions between "formal" and "material" cooperation, and between "immediate" and "mediate" material cooperation.  They reason through the problem, employing these categories, differently.  (See, for example, Robby and Sherif Girgis's pieces here and here.)

It should also be emphasized that the "cooperation with evil" analysis does not resolve the question whether the mandate illegally or needlessly burdens religious freedom, or undermines the integrity and witness of religious institutions, or creates scandal.  But, that's a matter for another time. . .

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/moral-theology-101.html

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If Catholic moral theology mandates the approval of the farce going on down in Washington, then there is something seriously wrong with Catholic moral theology.

Posted by: Brian English | Feb 15, 2012 1:16:02 PM

Brian English,

On the other hand, if Catholic moral theology forbids providing health insurance that covers contraception, the "evil" being done voluntarily by most companies is very large indeed, and the Catholic organizations who have complied with state mandates over the past 10 years must be condemned as cooperating with evil.

Posted by: David Nickol | Feb 15, 2012 2:36:43 PM

"and the Catholic organizations who have complied with state mandates over the past 10 years must be condemned as cooperating with evil."

You appear to operate under the impression that Catholic organizations in states that had mandates without broad exemptions had to comply with the mandates. They did not. They could drop prescription coverage or self-insure. The federal mandate provides no escape route. You either comply, or else you drop health coverage and pay a fine of $2,000 per employee.

Posted by: Brian English | Feb 15, 2012 2:49:32 PM

Not every Catholic agency could avoid compliance with the state mandates. Many were too small to self-insure, could not afford to try to qualify their plan under ERISA, or there were no alternative insurance plans reasonably available in their marketplace. Others were bound by union contracts.

Involuntary cooperation with evil is not sinful. Coercing another to involuntarily cooperate with evil is a very grave sin.

Posted by: Jack Swan | Feb 15, 2012 3:36:40 PM

Brian English,

From the New York Times:

N.Y. Law on Contraceptives Already in Place, and Catholic Institutions Comply
By JOSEPH BERGER and THOMAS KAPLAN
Published: February 10, 2012

Although Archbishop Timothy M. Dolan of New York has vociferously argued that a national requirement for religiously affiliated institutions to cover birth control in their insurance plans is immoral and unacceptable, some Roman Catholic organizations in his own backyard have for 10 years been grudgingly complying with a state law making them do precisely that.

Some students at St. John's University in Queens go to Planned Parenthood for contraceptives.
Some New York Catholic institutions — including the Archdiocese of New York, led by Archbishop Dolan, and the Diocese of Brooklyn — chose to self-insure rather than pay for contraception after New York State adopted a requirement in 2002 that any insurance policy with a prescription drug benefit provide coverage for birth control. The requirement has a narrow exemption that applies to policies provided by houses of worship, but not to most other religiously affiliated employers.

But some Catholic institutions now offer health insurance plans that include contraceptive drugs among the services they cover for employees and students, though with caveats. . . .
http://www.nytimes.com/2012/02/11/nyregion/catholic-institutions-reluctantly-comply-with-ny-contraceptives-law.html?_r=1&scp=3&sq=contraception%20catholic&st=cse
***************

As far as I know, there is no good information on how many Catholic organizations provided contraceptive coverage on their own, how many complied with state regulations, how many self-insured to avoid providing contraceptive coverage, how many simply dropped prescription drug coverage, how many dropped insurance. But we do know that some major institutions ( Fordham, Georgetown, and DePaul universities) all offer insurance that covers contraception.

Posted by: David Nickol | Feb 15, 2012 4:03:22 PM

"Fordham, Georgetown, and DePaul universities) all offer insurance that covers contraception."

Yes, some Catholic institutions have abandoned their Catholic identity. Why should that be held against those that still want to retain that identity?

Posted by: Brian English | Feb 15, 2012 4:53:49 PM

David Nickol:

The remainder of the Times story doesn't really support the lede. It appears that a number of dioceses and other institutions "complied" with the law not by providing insurance covering contraception, but rather by self-insuring and thereby escaping the state mandate. As a Catholic who imposes the HHS mandate, I was cheered and rather impressed by how strongly the majority of Catholic institutions in New York had resisted the state mandate.

Posted by: Jim Christiansen | Feb 15, 2012 6:19:21 PM

This would be a very interesting issue if we were living in (communist) Poland in 1960. But, we are not. The mandate violates the essence of our freedom so the "cooperation with evil" issue should never come up. It is hard to see how some can be so blinded by their ideology not to understand the basics of what it is to be an American. While I usually find academic debates to be at least mildly amuzing, the wording of the letters circulated by the Bishops suggest that they are also shocked that our leadership has fallen to this level. And the issue has nothing to do with the culture wars, health care, or socialism. If conservative Catholics are not free to act on their moral convictions in their private market transactions, then is anyone's freedom safe from government whim? And that future government may not be liberal.

Posted by: malcolm coate | Feb 15, 2012 7:39:28 PM

Brian English,

Are you suggesting that Catholic institutions that comply with state mandates or the federal mandate are actually doing evil? Is the only moral choice to refuse to comply and/or drop insurance coverage for employees altogether rather than provide coverage of contraception? We know that Bishop Robert Morlino of Madison, after attempting self-insurance to avoid complying with the Wisconsin mandate, found it too expensive and then bought insurance for employees that covers contraception. Has the Diocese of Madison abandoned its Catholic identity?

It is perfectly understandable that Catholics would fight the new mandate, but it is too late for their slogan to be "Just say no!"

Posted by: David Nickol | Feb 16, 2012 10:55:53 AM

Exactly, Jim. It is preposterous to suggest that because some Catholics decide that offering contraception coverage is OK, that justifies forcing all of them and all non-catholic objectors too to do so, just like it is ridiculous to suggest that because some Jews don't eat kosher, that somehow justifies forcing all of them to break kosher. It simply does not follow.

Posted by: Matt Bowman | Feb 16, 2012 10:56:44 AM

Matt Bowman,

It does follow, however, that those who claim complying with the mandate would be unacceptable because it would be material cooperation with evil are in effect accusing those who comply with the mandate of materially cooperating with evil. When someone like Bishop Zubik of the Diocese of Pittsburgh says, "We can't comply and we won't comply. There's no way we can. It's a matter of conscience," he is implicitly condemning those who have complied or will comply. You can't take such a categorical stand and then say, "Well, if other's disagree with me, of course they have a right to their own opinion."

That some Catholic institutions have already complied, and that so many Catholics use contraception, is a problem for those who object to the mandate, even if only a PR problem.

Posted by: David Nickol | Feb 16, 2012 12:26:25 PM

"It is perfectly understandable that Catholics would fight the new mandate, but it is too late for their slogan to be "Just say no!"

How does that follow? If Bishop Morlino made a bad decision, why should that affect the validity of the objections of any other Catholic entity or individual?

Posted by: Brian English | Feb 16, 2012 12:26:53 PM

Brian English,

Are you willing to say whole dioceses have "abandoned their Catholic identity"?

Posted by: David Nickol | Feb 16, 2012 12:37:34 PM

"When someone like Bishop Zubik of the Diocese of Pittsburgh says, 'We can't comply and we won't comply. There's no way we can. It's a matter of conscience,' he is implicitly condemning those who have complied or will comply."

Wait, other dioceses have complied with a federal contraception mandate promulgated by HHS rulemaking pursuant to the preventative care provisions contained in the Affordable Care Act? Unless they have, you are implying that none of these cases are distinguishable, which seems like either a rookie mistake or bad-faith talking point.

Posted by: Mike | Feb 16, 2012 1:06:43 PM

"It does follow, however, that those who claim complying with the mandate would be unacceptable because it would be material cooperation with evil are in effect accusing those who comply with the mandate of materially cooperating with evil."

Even if this is true, so what; it is none of the government's business what implicit judgments people make about each other. But it is not necessarily true, because you posit a universe in which there is no room for reasonable disagreement--REASONABLE, meaning one side can't justifably cudgel the other with a government mandate, which is what Obama and his liberal Catholic defenders are doing.

The only "problem" that exists for morally conservative religious people, by the existence of morally liberal religious people, is when the latter and their political ovrelords use the state to punish the former because they disagree with liberal religious people.

Posted by: Matt Bowman | Feb 16, 2012 1:20:55 PM

"Are you willing to say whole dioceses have "abandoned their Catholic identity"?"

What supposedly compelling evidence have I been presented with that I should make that serious accusation?

"Unless they have, you are implying that none of these cases are distinguishable, which seems like either a rookie mistake or bad-faith talking point."

Nickol is not a rookie.

"That some Catholic institutions have already complied, and that so many Catholics use contraception, is a problem for those who object to the mandate, even if only a PR problem."

So if Catholics fail to comply with the Church's teachings, the teachings are invalidated? What religious denomination do you belong to where all of its followers are so pure?

Posted by: Brian English | Feb 16, 2012 3:52:49 PM

Mike, Matt Bowman, Brian English,

I am not quite understanding your points. What I am saying is that if categorical statements are made by some that Catholic organizations simply must not, may not, and cannot comply with the mandate, then those who already do what the mandate requires, whether on their own or because of a state mandate, are being condemned as doing that which must not, may not, and cannot be done.

If we can agree that providing coverage for contraception is a prudential decision for each Catholic organization, then I have no quarrel with that position. I am saying only that those who insist providing contraceptive coverage, no matter what the circumstances, is unjustifiable cooperation with evil are accusing those who provide contraceptive coverage with unjustifiable cooperation with evil.

Brian English says: "If Bishop Morlino made a bad decision, why should that affect the validity of the objections of any other Catholic entity or individual?"

Did Bishop Morlino make a bad decision? Or did he make a good, prudential decision that the expense of self-insuring to avoid a mandate was too great, but giving up insuring employees altogether was unacceptable, so complying with the mandate was, regrettably, justified?

Posted by: David Nickol | Feb 16, 2012 4:24:30 PM

For what it's worth, I found the original proposal objectionable, and although I found the "accommodation" acceptable for organizations that purchased insurance from an insurance company, I believe the whole thing will fall apart, and I will not support it, if the problem of the self-insured cannot be solved.

Posted by: David Nickol | Feb 16, 2012 4:29:36 PM

Mike,

You say: "Wait, other dioceses have complied with a federal contraception mandate promulgated by HHS rulemaking pursuant to the preventative care provisions contained in the Affordable Care Act? Unless they have, you are implying that none of these cases are distinguishable, which seems like either a rookie mistake or bad-faith talking point."

I think it is reasonable to compare (1) cases of state mandates that require religious organizations to comply with few if any exemptions to (2) cases where the federal mandate would require religious organizations to comply with few if any exemptions. I would say, however, there is enough room for prudential decision in complying with either state mandates or a federal mandate that each organization should be able to make its own decision. My point is that categorical statements that providing insurance with contraception coverage is so evil that it must be resisted at any cost—civil disobedience, dropping insurance coverage, closing down the organization—are implicitly condemning those who already provide coverage of contraception.

"either a rookie mistake or bad-faith talking point"

I appreciate Brian English saying I am not a rookie, but I guess that must mean I am writing in bad faith.

Posted by: David Nickol | Feb 16, 2012 4:42:02 PM

So, No. Other dioceses have *not* complied with a federal contraception mandate promulgated by HHS rulemaking pursuant to the preventative care provisions contained in the Affordable Care Act. Got it.

Posted by: Mike | Feb 16, 2012 5:34:08 PM

"Did Bishop Morlino make a bad decision? Or did he make a good, prudential decision that the expense of self-insuring to avoid a mandate was too great, but giving up insuring employees altogether was unacceptable, so complying with the mandate was, regrettably, justified?"

This is not something subject to an exercise of prudential judgment. Morlino should have dropped the employee coverage. But what point are you trying to make? Morlino made an error; does that invalidate all opposition to the federal mandate? Should every bishop be put in Morlino's position by the federal mandate? Sr. Keehan thinks the "accommodation" is wonderful? Does that mean all of the bishops in the country are wrong?

"I appreciate Brian English saying I am not a rookie, but I guess that must mean I am writing in bad faith."

Can't slip anything by you.

Posted by: Brian English | Feb 16, 2012 6:15:18 PM

Mike,

You say, "So, No. Other dioceses have *not* complied with a federal contraception mandate promulgated by HHS rulemaking pursuant to the preventative care provisions contained in the Affordable Care Act. Got it."

I am not sure what your point is, but you are making it very aggressively.

Since the date for religious organizations to comply with the federal "contraceptive mandate" is August 2013, obviously no Catholic organization has complied with it. I believe every diocese is exempt under the federal mandate. However, the Wisconsin mandate had no religious exemption at all, just an exemption for those who self-insured. Bishop Morlino tried the self-insured route and found it too expensive. So the Diocese of Madison has complied with the Wisconsin mandate—a stricter mandate than even the unmodified federal mandate—and is offering insurance with contraception.

One *might* argue (though I am not) that if there is any entity that definitely should not comply with a contraceptive mandate, it is a DIOCESE (or archdiocese) under the direct control of a bishop (or archbishop). The Catholic Church is putting up a very fierce battle not to comply with a contraceptive mandate, and surely it must at least raise eyebrows everywhere that the Bishop of Madison himself has decided to offer insurance that covers contraception.

Posted by: David Nickol | Feb 16, 2012 7:36:38 PM

Brian English,

You say, "This is not something subject to an exercise of prudential judgment. Morlino should have dropped the employee coverage. But what point are you trying to make?"

I just *hate* it when people say this to me, but you are proving my point, which is if you say, "This is not something subject to an exercise of prudential judgment," you must be critical of anyone who complies. So as you and Mike might say, either Bishop Morlino made what is to you clearly an error, or he has deliberately done something evil.

I would give Bishop Morlino the benefit of the doubt and say he made a prudential decision that the greater good would be to provide employees with insurance (even though it covers contraception) rather than to deprive them of insurance altogether. But because of your "just say no" position, you have no choice but to say Bishop Morlino has done something wrong.

Posted by: David Nickol | Feb 16, 2012 7:48:49 PM

My point is exactly what it was before: The situation of which Bishop Zubik is complaining is readily distinguishable from any other one you present--including, but not limited to, the situation in Madison. Thus your "implic[ations]" from "categorical" statements by the Bishop are flawed insofar as you're not properly grasping the relevant category. I don't see why this is so difficult.

Posted by: Mike | Feb 16, 2012 8:23:21 PM

"I would give Bishop Morlino the benefit of the doubt and say he made a prudential decision that the greater good would be to provide employees with insurance (even though it covers contraception) rather than to deprive them of insurance altogether. But because of your "just say no" position, you have no choice but to say Bishop Morlino has done something wrong."

Bishop Morlino did do something wrong. He took the easy way out.

If, God forbid, the federal mandate goes through, the Church affiliated individuals and entities will have to drop their insurance coverage and then refuse to pay the draconian fines. Then we will get to see the government seizing bank accounts and seizing and selling-off the property of these individuals and entities. Maybe seeing jack-boot totalitarians at work will finally wake people up.

Posted by: Brian English | Feb 17, 2012 8:41:26 AM

Brian,

You say: "If, God forbid, the federal mandate goes through, the Church affiliated individuals and entities will have to drop their insurance coverage and then refuse to pay the draconian fines."

Dropping insurance coverage and paying the "draconian fines" ($2000 per worker for business of over 50 people) would be a money-saving proposition for businesses:

**********
The average annual cost of employer-sponsored family health insurance was $15,073 for 2011 – with, on average, $4,129 of that paid by workers, and $10,944 of that paid by employers. Workers contribute on average 18% of the premium for single coverage and 28% of the premium for family coverage.
http://blog.ehealthinsurance.com/2011/09/are-employer-health-insurance-costs-increasing-yep/
**********
One of the arguments against "Obamacare" is that it makes it attractive for employers to drop health care coverage and let employees purchase their own health insurance.

Posted by: David Nickol | Feb 17, 2012 10:08:52 AM

Brian English:

You say: "Bishop Morlino did do something wrong. He took the easy way out."

It's interesting that I am defending a bishop and you are criticizing him. I would wager that even here on Mirror of Justice, where conservative opinion is well represented, your opinion about Bishop Morlino is a minority one. I cannot imagine that the majority opinion here is that Bishop Morlino did something wrong, and made a choice he had no right to make.

Posted by: David Nickol | Feb 17, 2012 10:23:16 AM


"One of the arguments against "Obamacare" is that it makes it attractive for employers to drop health care coverage and let employees purchase their own health insurance."

You mean go into the government program. And if you don't see that as the goal of much of this, you are not paying attention.

Posted by: Brian English | Feb 17, 2012 11:44:39 AM

"It's interesting that I am defending a bishop and you are criticizing him. I would wager that even here on Mirror of Justice, where conservative opinion is well represented, your opinion about Bishop Morlino is a minority one. I cannot imagine that the majority opinion here is that Bishop Morlino did something wrong, and made a choice he had no right to make."

Why is that interesting? You think I approve of every action by every bishop?

And as far as whether my opinion is the minority or the majority, that is a prime example of how you appear to regard right and wrong on moral issues as subject to determination by opinion polls.

Posted by: Brian English | Feb 17, 2012 11:48:48 AM

Brian English,

You say, "And as far as whether my opinion is the minority or the majority, that is a prime example of how you appear to regard right and wrong on moral issues as subject to determination by opinion polls."

No, I don't believe right and wrong can be determined by opinion polls. But I believe the contributors and readers of Mirror of Justice are very knowledgeable about morality theology and about the law. Many are also much more conservative than I tend to be on matters of morality and individual conscience. It is my guess (and of course it is purely a guess) that virtually all of the contributors here (including Robert George and Rick Garnett) would not say Bishop Morlino did something wrong. I think they would say he made a prudential decision, and while it is perfectly legitimate to disagree with him, he did not do anything clearly and objectively wrong.

Posted by: David Nickol | Feb 17, 2012 12:36:47 PM

Brian English,

Let me put it another way. In saying that I think most of those from Mirror of Justice would disagree with you, what I mean to say is not necessarily that your position is wrong, but that it is extreme.

Posted by: David Nickol | Feb 17, 2012 1:38:21 PM

David you're not listening to my point. The issue is not whether opposition to contraceptive coverage is categorical or prudential. The issue is that THAT QUESTION IS THEOLOGICAL, NOT GOVERNMENTAL. It is none of the government's business to choose between Charles Chaput and David Gibson, and punish whoever doesn't agree with Gibson.

Posted by: Matt Bowman | Feb 17, 2012 3:14:52 PM

Matt Bowman,

I am not arguing with you over legalities. I am arguing with Brian English over what no doubt is a question of moral theology. But I don't think it is an irrelevant question.

I do have a question for you, however. Will it be a slam-dunk to get the Supreme Court to declare the contraceptive mandate unconstitutional if it comes before them? Or is there a possibility that by the standard set in Employment Division v Smith, a mandate for all groups (aside from the ones already exempted) to buy a certain kind of insurance would not be declared a violation of the First Amendment? I have read some opinions that the Court would not declare the contraceptive mandate unconstitutional (unless they depart from their own precedent), and I have heard speculation that the Court would decide the issue 5-4, with Kennedy casting the deciding vote either way. But I have not heard anyone argue that there is a virtual certainty the Court would declare the mandate unconstitutional. This seems to be why some people are pinning their hopes on the Religious Freedom Restoration Act.

Posted by: David Nickol | Feb 17, 2012 4:11:31 PM

RFRA requires strict scrutiny, even if the First Amendment claim does not, which it does because this law isn't generally applicable under Smith. RFRA is a statute that provides this requirement totally separate from what the First Amendment requires. The broadest reading in the world of Smith would not take strict scrutiny away from RFRA's application to this Mandate.

Posted by: Matt Bowman | Feb 17, 2012 6:05:10 PM

...the Mandate is not generally applicable because there are lots of categories of people it does not apply to for a variety of secular and religious reasons.

Posted by: Matt Bowman | Feb 17, 2012 6:07:27 PM

The Mandate is applicable to every insurance company, including those insurance companies that for a variety of secular and religious reasons do not want to provide contraception in their plans or any insurance company in the future that does not want to provide contraception in their plans. In fact, what this mandate does is guarantee that those who for a variety of secular and religious reasons do not want contraception to be part of their insurance plan, will be forced to choose between an insurance plan that provides contraception or not being insured.

Posted by: N.D. | Feb 19, 2012 8:55:34 AM