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.

Saturday, February 18, 2012

Morals and Mandates: Question 3

I mentioned both Thursday (while elaborating Question 1) and yesterday (after elaborating Question 2) that there are at least three questions raised by Robby's and Sherif's very stimulating Morals and Mandates ('MM') piece posted earlier this week.  I now turn to the third of those questions.  This one is more purely 'theoretical' than the previous two, in that those latter were, so to speak, 'mixed' theoretical and practical in character.  But it might nevertheless be of interest to all of us, not least because it speaks to a possible 'bridge' or 'missing link' between the formal and material modes of involvement in wrongdoing upon the distinction between which MM trades.  And insufficient attention to some such bridge in the wider debate over the HHS mandate might even be what rendered my first two questions salient - assuming that they were, in fact, salient.

So, first briefly to contextualize, recall that MM drew attention to the distinction between formal involvement in wrongdoing, which sounds in intention, and material such involvement, which sounds in effects.  Against the backdrop of this distinction, MM suggested that there might be no morally relevant distinction between HHS Mandates 1.0 and 2.0, since both induced solely material involvement in possible wrongdoing by religiously affiliated institutions, and neither induced qualitatively or quantitiavely different degrees of such involvement.  

In Question 1, I queried whether there might not be some other harm inflicted upon religiously affiliated institutions by Mandate 1.0 - some harm that (a) was not captured by the formal/material involvement in wrongdoing distinction as that distinction was articulated in MM, and (b) might be avoided by some conceivable renditions of Mandate 2.0.  In Question 2, I queried whether, even granting that Mandates 1.0 and 2.0 required only material, not formal, involvement in wrongdoing by religiously affiliated institutions, Mandate 1.0 might actually have been likely to cause significant material harm while some conceivable renditions of Mandate 2.0 might not be apt to cause any such harm - and might even operate to the contrary by affording a new opportunity for religiously affiliated institutions to signal their disapproval of contraception.

The tentative replies to those first two queries upon which I provisionally settled both turned out to involve a common factor - a factor that seemed both (a) to be left out of account by MM's particular articulation of the formal/material distinction, and (b) to account for the significant difference in harms that seemed apt to be wrought by Mandate 1.0 but not necessarily Mandate 2.0.  That factor was what I called the 'integrity,' or 'dignity' interest of religiously affiliated institutions, which seemed to me to be directly assaulted by Mandate 1.0 in a manner that would need not occur under some possible renditions of Mandate 2.0.  

The difference between Mandates 1.0 and 2.0 in respect of that integrity factor, it seemed to me, was such that Mandate 1.0 would be morally problematic even apart from any further ('material') consequences, in the form of contraceptive use, that it might occasion, while conceivable renditions of Mandate 2.0 would need not be problematic at all on that account.  Then in addition, I noted, this same assault upon institutional integrity wrought by Mandate 1.0 which was problematic in and of itself, might also render Mandate 1.0 more objectionable than Mandate 2.0 on more remote-consequentialist (material effects) grounds.  For the direct assault on institutional integrity also would compromise or 'scramble' the religiously affiliated institutions' magisterial message to the effect that contraception is wrongful, thereby rendering more contraceptive behavior in the world ultimately more likely.

I now want to suggest that the fact that this integrity factor seems to distinguish Mandate 1.0 from some possible renditions of Mandate 2.0 not only materially (remote-effect consequentially), but also more than materially (by dint of the per se objectionability of governmental attack upon institutional message-integrity), might well mean either of two things that probably boil down to the same thing: viz., that there is a space - either (a) a formal or (b) a sort of 'quasi-formal' space - between formal involvement in wrongdoing and material such involvement as those are characterized by MM.

Here is the key, I think, to the door that has thus far obscured that space:  A common error made by people who either uncomprehendingly mock or cynically abuse the venerable doctrine of double effect ('DDE') is to assume that a posterior remote intention somehow obliterates an anterior proximate intention.  One who commits this error might say, for example, that President Truman's decision to deploy nuclear weapons against civilian targets comported with the requirements of morality per the DDE, on the putative ground that 'what he intended was to bring the war to a more rapid close, not to kill thousands of innocent civilians.'  That would-be defense of Mr. Truman is erroneous, of course, because Mr. Truman intended both - intending the first as a means to fulfilling the second.  And the DDE's second, 'proportionalist' step upon which this 'defense' trades only kicks in once the first step, which prohibits all wrongful intentions, is satisfied.  Let's call this 'the Truman fallacy' for present purposes. 

Now of course none of what I have just said is to say anything that Robby and Sherif don't already know far better than I - indeed I am immeasurably more likely to blunder in moral analysis than are they, in view both of their expertise on the one hand and of my correspondingly comparative tyro status on the other.  But I think that the same characteristic of the structure of intention - namely, that one often, and indeed typically, intends to do one thing as a means of doing yet other things that one intends - as renders the Truman fallacy fallacious also underlies that space I'm provisionally positing between formal and material involvement in wrongdoing as those are described in MM.  

Why do I say that?  I say it because, given that handing to someone an insurance policy that includes contraception coverage is wrongful (which we assume for present purposes that it is), and given that such 'handing' is intentional action just as is communicating an order to bomb Hiroshima with nuclear weaponry (is it not?), it would seem to follow that Mandate 1.0 required that religiously affiliated institutions commit intentional wrongs - MM's suggestion that intentions (in the guise of formality) are out of the picture in both Mandates 1.0 and 2.0 notwithstanding.  It required them actually to commit  intentional actions that were transparently inimical to their institutional messages, hence actually to intend, even if not to desire, those message-inimical actions.  

And it is here, I believe, that we find the explanation for that acute sense of shock - of profound violation if not outright violence - that many of us experienced in response to Mandate 1.0 but might not experience in response to some possible renditions of Mandate 2.0 - a sense of shock that MM, overlooking as it seems to me to do this relevant space of intention, suggests that we've misdiagnosed.  And it is this space of intention also, I think, that accounts for what struck me in yesterday's post as a likely material difference apt to be made by Mandate 1.0 but not all imaginable renditions of Mandate 2.0.  For it is precisely an institution whose agency itself, in respect of one of its own core messages, has been conscripted - hence whose integrity has been violently disintegrated - in the manner that Mandate 1.0's forcing of dissonant intentional action did, that is apt no longer to be taken seriously by those whom it purports to teach and to guide.

If what I am suggesting here is at all plausible, then it seems to me we are left with but one more relevant practical question.  That is whether there are not indeed certain imaginable final forms that Mandate 2.0 might take, which do not conscript religiously affiliated institutions' intentional agency in respect of their own core messages in the way Mandate 1.0 did.  It seems to me that requiring would-be contraception insurance beneficiaries to seek that insurance directly from their insurers, without involving their employers any further, takes one significant step in that desirable direction.  We can walk even further that way, and at no cost to the putative public interest in widespread availability of contraception insurance to those who wish it, however, by further formalizing the change in the form of a rider or separate policy.  I believe we should be pressing for that.  

It seems worth noting that this can even be done in a manner that does not involve costs' being passed along under the table to religiously affiliated employers.  For if I understand the process of health insurance company decision-making correctly, these institutions typically find it to be worth their while to afford contraception insurance coverage quite literally free of additional charge any time that they provide pregnancy and childbirth (let along abortion) cost coverage.  Why?  Because the latter are much, much more costly than contraceptive coverage, such that insurers accordingly find it to be in their interest to minimize all such 'accidental' pregnancies as they can.

One final point:  Both here and in Question 1, I noted that much rides on the meaning of 'handing,' as that word figures in such locutions as 'handing a pornographic magazine to one's own children' (in the Question 1 post), or 'handing insurance policies to one's employees' (above in this post).  The reason for that is that I've described the intentional actions that intruders or governments might force, to the detriment of integrity or dignity, in those very terms.  Given that, then, might religiously affiliated employers' required entry into insurance arrangements with firms that their employees then separately contact or contract itself amount to such reqired 'handing'?  

Somehow it doesn't strike me so, any more than required tax payments that then finance other perceivedly objectionable activities do - especially if the employees' separate contacting take the form of separate contracting.  This perception of mine, which seems to be shared by many others who were troubled by Mandate 1.0 but are hopeful about what form Mandate 2.0 might ultimately take, might be dismissed as mere 'heuristics.'  But that criticism would seem misdirected.  For, yes, heuristics are ultimately more intensional than extensional, more connotative than denotative - they are about meanings.  But where matters moral, political, and theological are concerned, it seems to me meanings are just about everything.  Indeed as yesterday's post ('Question 2') suggested, they even are causally efficacious, to the point that they render some conceivable renditions of Mandate 2.0 fully as materially (i.e., extensionally) superior to Mandate 1.0 as they are formally.


Thanks again to all who are taking part in this critical discussion.           


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