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.

Friday, February 17, 2012

Morals and Mandates: Question 2

Yesterday I posed a first question prompted by Robby's and Sherif's compellingly argued Morals and Mandates (MM). That question was whether formal and material involvement in wrongdoing, upon the distinction between which MM trades, jointly exhaust the class of morally relevant harms that a mandate might occasion.  The reason I asked was because it seemed to me that the answer might well be no, and that a possible third form of harm, which what I have been calling HHS 'Mandate 1.0' seemed to me to inflict upon regiligiously affiliated institutions, might not be wrought by some possible renditions of the thus far not fully specified Mandate 2.0.  That prospect, in turn, struck me as important.  For it would seem to entail that those of us who were troubled by Mandate 1.0 might (a) have good reason to have been thus troubled, and yet (b) not have the same reason to be troubled by at least some possible forms that Mandate 2.0 might take.  

Thus far, of course, those considerations constitute but a proper subset of the full set of possibilities that I take it we must query in determining how, morally and legally speaking, to regard Mandate 2.0.  For, even granting that (a) and (b) as just articulated might ultimately convert from cases of 'might' to cases of 'do,' such that there were good reasons to reject Mandate 1.0 that do not carry over to all possible renditions of Mandate 2.0, we still would lack sufficient, as distinguished from necessary, conditions to deem any particular shape that Mandate 2.0 might take unobjectionable. 

This is all because, at the very least, the material form of required involvement in possible wrongdoing discussed in MM still could conceivably be occasioned by all possible forms that Mandate 2.0 might take.  In other words, even assuming that the the overall reply to my first question-cluster yesterday was yes, such that there were reasons to object to Mandate 1.0 that would not necessarily apply to Mandate 2.0, the most we could conclude from that is simply that one good reason for objecting to Mandate 1.0 - again, a reason sounding in institutional integrity or dignity - might not be present as a reason for objecting to some possible versions of Mandate 2.0.  It would not follow from this that the full set of possible renditions of Mandate 2.0 is not still objectionable on other grounds, sounding in material involvement in wrongdoing.  

And so I turn now to my second question occasioned by MM, as promised yesterday.  This is, as foreshadowed yesterday, a query having to do with causation.  

So, to begin with, I single out causation in owing to MM's characterization of material involement in wrongdoing's having to do with the rightness of choices in view of foreseeable beneficial and harmful effects upon all concerned parties.  Where there are effects, there are generally causes.  And so it seems we must look to the causal relations apt by any particular rendition of Mandate 2.0 to be brought into play between choices made by religiously affiliated institutions on the one hand, and harmful actions/events that take place in the world on the other hand.  What such actions or events might transpire, and what causal relations between religiously affiliated institutional choices and those actions or events might some rendition of Mandate 2.0 itself cause? 

(Note, by the way, before we proceed, that there might be something metaphysically problematic about speaking in terms of 'caused' 'actions' - in effect the metaphysical face of that problematicity inherent in not taking individual contraceivers' morally responsible decisions as decisively severing the effects of those decisons from their employers.  But problems of this sort seem to me at least on cursory consideration apt to be surmountable via plausible accounts of joint fault and the capacities of some agents to influence choices made by other agents, so it is probably safe to sidestep them for present purposes, in order to keep our eyes fixed on the present ball.)

The actions/events in question, I take it, would include primarily the following: (a) more occasions of contraception by employees of religiously affiliated institutions; (b) more occasions of contraception-induced abortion by such employees; and (c) dilution or even outright 'scrambling' of the teachings and attitudes of the religious communities in question concerning the moral status of contraception and, possibly, even abortion. 

Our question, then, is whether all conceivable renditions of Mandate 2.0 are apt appreciably to increase the incidence, or perhaps the probability of incidence, of actions/events of these sorts. 'Increase' here, for its part, can be understood relative to either of two baselines.  One is, relative to actions/events wrought or rendered appreciably more likely by Mandate 1.0.  The other is, relative to actions/events apt to be taken or to occur absent any such mandate at all.  It will be convenient to proceed by reference to the second of those baselines first. 

(It also turns out to be unobjectionable, for reasons that soon will be clear, to leave out of our present account such benefits as are wrought by the two mandates.  The short-playing version is that no benefits turn out to be necessary in order for some conceivable renditions of Mandate 2.0 to be found unobjectionable, while no benefits seem apt to be beneficial enough to justify Madate 1.0's particular harms.)

Does either Mandate 1.0 or 2.0 seem apt appreciably to increase the incidence of actions/events of type (a)?  This isn't clear to me.  Certainly more in the way of empirics than I am able to offer right now will be necessary to answer with great confidence, but from here in the armchair it would seem that contraceptives are in general sufficiently widely available, and at sufficiently low cost, that insurance coverage of the same might not make much if any difference to the frequency with which they are purchased or employed.  If more or less the same incidence of contraceptive decisions and actions would be found absent a mandate as would be found in the presence of a mandate - particularly if it were the same people making the same decisions in both cases - then the mandate would not seem to be causally efficacious in the manner required to damn it pursuant to a material involvement in wrongdoing analysis.  

Where actions/events of type (b) are concerned, matters would seem to me likely to be much the same as, even if perhaps not quite identical to what, they were in the case of type (a).  At least that seems so given that 'Plan B' type pharmaceuticals cost around $40 or $50 per dose, if my quick web check is to be trusted.  In view of how costly (to speak crassly - but then, we are considering crass decisionmaking here almost by hypothesis, aren't we) a preganancy and then parenting are, it does not seem beyond the pale to suggest, again from the armchair, that most if not all who would purchase contraceptives for abortive purposes under mandated insurance would do the same absent such insurance.  Again, though, real empirics are called for, and I'm more than ready to be corrected. 

How about effects of type (c)?  Here it is not at all clear to me that there could be no plausible rendition of Mandate 2.0 pursuant to which religiously affiliated institutions' affiliated faith communities' teachings remain clear.  Does it not send a very clear signal to all, for example, that a faith community strongly disapproves of contraception, when employees of an institution affiliated with that faith community must transact separately with an insurance provider to procure contraceptives, apart from and after transacting with their employers for all other forms of coverage?  And is this not so under a multitude of forms that the separate 'transacting' might take? 

In a way, it almost seems to me that the separate transacting requirement might even afford an additional opportunity for the faith community in question to make plain its objection to contraception, precisely by dint of the stigmatization that the separate transation requirement exerts upon the transacting for contraception coverage.  Again, there might be something that I'm overlooking here, but as things presently stand in my poor tired head, it almost looks as though some possible renditions of Mandate 2.0 might actually serve to render contraception (and abortion) more stigmatized, and faith communities' teaching in respect of those matters more clear and more widely publicized, than is the case absent any mandate at all.  (I promise I'm not saying this with a view to being gratuitously ironic or waggish.  Things truly look to me this way at present.)

Now I turn to the Mandate 1.0 rather than the no mandate baseline.  As I do so, however, please recall something from yesterday.  In yesterday's 'Question 1' post I noted that MM's equating Mandates 1.0 and 2.0 presented us with a two-edged sword.  For if they both really did implicate material involvement in wrongdoing alone such that any good argument contra Mandate 1.0 carried over to Mandate 2.0, then by contraposition the refutation of arguments against Mandate 2.0 would suffice to refute arguments against Mandate 1.0.  If MM is correct in equating the two Mandates, then, and if the possibilties countenanced just above, to the effect that renditions of Mandate 2.0 might cause no material changes in employees' behavior at all and might even enhance faith communities' moral signaling opportunities, then it would seem that even Mandate 1.0 is unobjectionable. 

I am not, however, inclined to believe that Mandate 1.0 was unobjectionable; quite the contrary.  And that is essentially for reasons that I provisionally laid out yesterday.  But now, as it happens, for those same reasons I am inclined to find Mandate 2.0 superior to Mandate 1.0, even under the aspect of material involvement in wrongdoing as defined by MM.

Here is what I mean:  Where actions/events of types (a) and (b) qua types (a) and (b) are concerned (explanation of the 'qua' here to come), I agree that there is no appreciable difference between Mandates 1.0 and 2.0.  That is to say, apart from matters having to do with effect type (c), neither Mandate seems apt to induce more incidents of contraception or abortion than the other. 

When we bring effects of type (c) into the picture, however, it seems to me that there is indeed a critical difference between the two Mandates.  For in the first, which required religiously affiliated institutions to go ahead and purchase for their employees insurance policies that included coverage for contraception and, therefore, potentially some abortions as well, the magisterial message of the faith communities with which those institutions are affiliated could indeed be compromised.  And that very compromise, moreover, I think to be intimately bound up with the 'integrity'/'dignity' objection to Mandate 1.0 that I raised yesterday.  For the assault on insitutional integrity or dignity is precisely the forcing of an institution in effect to 'say,' through its deeds, something quite contrary to what it actually stands for and means through its witness to say.   

If you combine with this observation that fact that the 'scrambling' of the magisterial message might also be expected to result in an appreciable increase in the incidence of contraception and even abortion on the part of religiously affiliated institutions' employees - action/event types (a) and (b) - I think, you are led to draw several provisional conclusions.  

One such conclusion is that, even if we reply 'yes' to yesterday's query whether formal and material involvement in wrongdoing exhaust the possible grounds of objection to the mandate, and even if we accept MM's suggestion that both Mandate 1.0 and Mandate 2.0 implicate the material involvement concern alone, it might still be the case that Mandate 2.0 in some forms is quite acceptable (even, perhaps surprisingly, preferable to the no mandate baseline!) while Mandate 1.0 is not.

Another such conclusion, carried over from yesterday, is that formal and material involvement in wrongdoing might not exhaust the class of grounds upon which Mandates 1.0 and 2.0 can be morally evaluated.  There might be other such grounds, having to do with institutional integrity or dignity, which (a) are not captured by the formal/material involvement partition, and (b) afford additional grounds to damn Mandate 1.0 but not all renditions of Mandate 2.0 - grounds additional to those found above, even if connected to those found above.

Finally, a third such conclusion, given that first, as noted yesterday, my dignity/integrity objection might be cognate with some form of objection sounding in formal involvement in wrongdoing, and second, as just suggested, the same objection might also link up with an objection sounding in material involvement, is that this dignity/integrity objection that I attempted to articulate yesterday might itself constitute a sort of bridge between formal and material involvement in others' wrongdoing.  I'll try to elaborate a bit more on this in the form of a 'Question 3' tomorrow.

Thanks again to all who are taking part in this conversation.             



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