As my colleague Sarah Posner recently reported, it looks increasingly likely that several of the Catholic plaintiffs who are objecting to the use of Form 700 to notify their insurance carriers of their intent to opt-out of the ObamaCare contraception mandate are unlikely to be satisfied by any alternative the administration comes up with: a letter to the Department of Health and Human Services, a waggle of the finger, smoke signals.
Priests for Life, Catholic University and St. Thomas Aquinas College are now asserting that not only would the notification mechanism make them morally complicit in the provision of contraception, but so would “offering health plans through an insurance company or third-party administrator authorized to provide contraceptive coverage to students and employees.”
In other words, even if they don’t have to pay for the coverage, arrange the coverage, or let the carrier know they won’t provide the coverage, they are asserting that the fact that employees or students are able to access contraception under a plan they offer is a “religiously impermissible course of action.”
This may be good legal strategy because the courts have been reluctant to wade into questions of sincerely held religious belief—as was the case with claims in Hobby Lobby that emergency contraception is a form of abortion—but it doesn’t hold water in terms of Catholic moral theology.
As I’ve written before, the Catholic principle of cooperation is a well-established way for Catholics to participate in a secular world full of things the church finds morally impermissible. There are several important aspects of cooperation: the moral weight of the act involved, the intent of the cooperator, and the distance from the act.
Generally Catholic institutions haven’t been prohibited from cooperating in the provision of contraception, which the church considers less morally serious than abortion, as long as there is a proportionately good reason to do so, such as improving access to health care. Catholic HMOs provide contraception and even the Archdiocese of New York covers birth control for some employees. That’s why it’s been important for the Catholic plaintiffs to assert that the mandate forces them to cover abortifacients.
The second important element, which seems most relevant here, is intention. Formal cooperation occurs when the cooperator intends the outcome of the forbidden act and is prohibited. But mediate cooperation is when the cooperator doesn’t intend the outcome and can be permissible. One of the most famous examples is when Pope Benedict, who was the Vatican’s chief moral theologian when he was Cardinal Ratzinger, said it would be OK for a Catholic to vote for a pro-choice candidate if they did it for proportionate reasons other than the candidate’s stance on abortion.
Since the institutions that are objecting to the contraception mandate clearly don’t want or intend for employees or students to have access to contraception, any cooperation would be mediate. Exactly how they notified the government or their insurers of their intent to opt out would be irrelevant, and since the insurers would be providing the coverage without their approval, they wouldn’t be morally complicit.
The final important element is distance from the forbidden act. Since the Catholic institutions would only play an indirect, tangential role in the provision of contraception by filling out a form—or whatever the eventual notification mechanism is—that’s remote material cooperation, which is permissible.
But there’s another element that affects the permissibility of cooperation: scandal. According to the Catholic Church’s rules governing cooperation with various health care acts:
The possibility of scandal must be considered when applying the principles governing cooperation. Cooperation, which in all other respects is morally licit, may need to be refused because of the scandal that might be caused.
The church’s definition of scandal is the appearance of wrong-doing that may lead others to sin. But it can be construed more broadly as anything that publicly undercuts the authority of the all-male leadership—especially on sexuality-related matters. The Catholic bishops increased the emphasis on preventing scandal, even if other aspects of cooperation were satisfied, in 2001 after a number of “creative compromises” made the news that were forged to allow the provision of reproductive health services at merged Catholic and secular hospitals.
So what this really comes down to is the fact that the bishops are powerless to stop Catholic women—and by extension all women—from using birth control and can’t stand to have it rubbed in their faces by women accessing contraception through health plans offered by Catholic institutions. There is no doctrinal reason that Catholic institutions can’t cooperate indirectly in the provision of birth control. The bishops don’t want them to because it makes them look bad. They are asking the courts to do what their ecclesiastical clout can’t—save them from embarrassment at their own impotence.