What ‘Little Sisters’ Contraception Ruling Gets Wrong

The Supreme Court’s Friday evening ruling on the Little Sisters of the Poor indicates that the court is taking seriously the argument that signing a form makes the nuns complicit in the provision of services that are illicit under Catholic doctrine and is therefore a violation of their religious freedom (despite the court’s assertion that the ruling shouldn’t be taken as a statement on the merits of the case).

Mark Rienzi, the Becket Fund lawyer representing the nuns, has repeatedly called the form the sisters must sign to self-certify as exempt from the mandate a “permission slip for abortion drugs and contraceptives.” Becket argues that the form serves as “trigger” for a third-party provider to provide contraceptives so it’s the same as requiring the nuns to provide contraceptives themselves.

From a Catholic point of view, this is a neat theological sleight of hand because it collapses various degrees of potentially permissible cooperation with an act considered immoral by the church into one insurmountable prohibition.

“Cooperation” is a principle of moral reasoning that recognizes that Catholics must sometimes take a role in acts the church considers immoral as part of their participation in the larger world. There are six degrees of cooperation that provide guidance on how far a Catholic must be from a sinful act to escape sinning themselves. Though not widely understood by most Catholics, cooperation is used extensively by Catholic health care providers because they operate in a secular, commercial marketplace and must sometimes determine how far they need to distance themselves from services prohibited by the church. They use it to answer questions like: Is it OK for a Catholic hospital to lease office space to a doctor who provides birth control?

The degree of cooperation depends not only on how close someone is to an immoral act, but on the intent of the “cooperator” (in this case the Little Sisters), and to some extent what the immoral act is. The church considers cooperation with abortion a much bigger deal than cooperation with contraception.

Cooperation falls into two broad categories: formal or material. Formal cooperation is the big bad. It’s direct participation in another’s immoral act, like helping someone rob a bank by driving the getaway car. To make things even more complicated, there are two degrees of formal cooperation, depending on whether or not the cooperator intends the outcome, but either way it’s prohibited.

Material cooperation, which is less serious, is when the cooperator takes some part in an immoral act but doesn’t approve of the outcome. It may or may not be acceptable depending on the circumstances. There are four types of material cooperation. In immediate material cooperation, the cooperator’s actions are necessary for the immoral act to occur, even if the outcome isn’t intended, such as someone coerced into driving the getaway car in a bank robbery. (Material cooperation can be morally acceptable if it occurs under duress, like have a gun held to your head.) 

That brings us to the most relevant type of cooperation for the Sisters case: mediate material cooperation. That’s when the cooperator plays only a tangential role in the immoral act, such as selling someone a gun that’s used in a robbery. Mediate cooperation is sub-divided into proximate and remote, which depends on whether the cooperator’s actions are directly or indirectly causal to the sinful act. Both can be allowable if the cooperator doesn’t intend the sinful act and the cooperation contributes to a greater good. 

It’s hard for me to see how the Little Sisters’ signing and filing of a form to exempt themselves from the contraception mandate is anything other than remote material cooperation. The form only tangentially involves the sisters in the provision of contraception, it does not serve as a trigger for the provision of contraceptives, as the lawsuit contends. The sisters sending a copy of the form to their insurer doesn’t magically make contraceptives begin to flow, nor does it authorize or instruct the insurer to provide contraceptives or “deputize a third party to sin on [the sisters] behalf” as Becket asserts in its response to the Obama administration. (Take a look at Form 700 here.)

It only states the sisters’ intent to not cooperate in the provision of contraceptives. It completely ends their involvement with the process, putting a firewall between them and the sin of contraception. It’s the insurer who then has to take active steps to arrange coverage, notify employees of the availability of coverage, pay for the contraceptives, and devise an accounting scheme to keep contraceptive money from touching any other money in the plan.

The insurer does this under the instruction and regulatory authority of the Department of Health and Human Services, i.e., the U.S. Government. (We’ll leave aside for now the argument that the sisters’ insurer, the Christian Brothers Employee Benefit Trust, also can’t provide contraceptives since that’s a different argument and the Obama administration is arguing that it can’t make the plan do anything because it’s a self-insured church plan.)

The sisters are making only an indirect causal contribution to the provision of contraception, which is remote material cooperation. This isn’t simply allowable under Catholic moral theology, it’s what makes participation in a secular world possible for Catholics. Otherwise they’d have to refuse to pay their taxes if any of their money went toward abortion (which some still can), or an unjust war, or the death penalty. 

Becket appears to be trying to throw a monkey wrench into the self-certification mechanism, and therefore the whole contraceptive accommodation, by arguing that no degree of cooperation with the contraceptive mandate is morally allowable. The court may be reluctant to wade into the weeds of Catholic theology, but in this case it’s essential to understanding the sisters’ claim that their religious freedom is violated by a form.