Contraception Mandate and Formal Cooperation

Christendom College Theology Professor Explains Moral Implications for Catholics

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By Ann Schneible

WASHINGTON, D.C., MARCH 16, 2012 ( Catholic schools, hospitals, and charities throughout the United States are facing the possibility of being forced, by law, to violate Church teaching under the Obama administration’s Health and Human Services Mandate.

Under the HHS Mandate, most Catholic institutions will be required to pay for abortifacients, contraceptives and sterilization in their employees’ health insurance plans.

William H. Marshner is professor of theology at Christendom College in Front Royal, Virginia. He recently spoke with ZENIT about the moral implications that the mandate could impose upon American Catholics.

ZENIT: To start off with, why is contraception morally prohibited by the Catholic Church, and why is it immoral for us to pay for others who wish to use it?

Marshner: We can’t justly be forced to pay for it because that means that we’re cooperating with it. So the question is, why is the act immoral? I mean, if it weren’t immoral, we’d be okay to cooperate with it formally or otherwise.  Why is it an immoral act? Because it is a willful violation of a key part of a woman’s health, and a man’s health. Fertility is part of health. Pregnancy’s a healthy development. You cannot call contraceptive practice a medical service; it’s not aimed at a medical problem.

There’s a fundamental dishonesty about performing acts per se act for the procreation of children, and then covertly doing something to undermine those acts so that they can’t have that effect. It’s as though I said, let’s go off and play golf. I bet I can beat you. And unbeknownst to you, I have gone around and filled up the little holes so your ball can’t go in. This is a dishonest golf-game.  It’s also similar to saying, well, I’m going to play poker but I’m not going to lose any money.  How am I going to ensure that? Ace up the sleeve. A contraceptive is like an ace up the sleeve.  I’m going to play, but pregnancy’s not going to happen.  Why?  I’ve got an ace up my sleeve. It’s an internal chemical thing, or it’s an IUD, or whatever it is.  But contraception is a falsification of an act which ought to be a marital act.

ZENIT: Regarding the HHS mandate, a great deal has been said about religious freedom. Is the immorality of contraception being adequately addressed in these discussions?

Marshner: No, quite frankly, because I have yet to hear a clear public discussion of the issue of formal cooperation. Granted, a Catholic organization that insures itself, buys an insurance policy that provides coverage for contraceptive «services» is not itself engaging in a contraceptive act. The question is whether the institutions’ cooperation with those who would use that coverage to perform such acts is formal cooperation.

Formal cooperation is distinguished from merely material cooperation, and the basic nub of the distinction is this: material cooperation does not involve your sharing, in any way, the intention of the person who does wrong, whereas formal cooperation arises when you do share in that intention.

I would say that if an insurer provides coverage to pay for a drug, device, or procedure intended to be used to render infertile the sexual acts that the user intends to perform, then the insurers’ cooperation with that immoral act is formal. It you pay for a person to have x, you intend the person to use x. And if x is described as a contraceptive, you intend it to be used as such; if you pay for it as such, you intend it to be used as such. Moreover, the government has removed any ability for insurers to say that they don’t have this intention, because the US Federal government is now mandating… insurers to provide coverage for everyone under the description «contraceptive services.» At the moment, only houses of worship are exempt – that would be parishes. But any Catholic hospital, school, or charity would come under this mandate.

Now, many Catholic hospitals, schools and charities are self-insured. In other words, they don’t go out to an outside insurance provider; they provide the benefits internally – in other words, they don’t go out to an outside insurance provider – they provide the benefits internally, from their own funds. Will the mandate apply to these self-insured religiously-identified institutions. Well, apparently it will. Senator Collins of Maine sent a letter to secretary of HHS [Kathleen] Sebelius, asking for clarification of this very point, and Sebelius refused to provide it…

So, the self-insured are going to be using their own money to pay for these services; they become the people who pay. And what you pay for somebody to have, you intend for them to use. I’m not going to buy you a hat if I don’t intend for you to wear it. I’m not going to buy you a condom if I don’t intend for you to wear it. If my coverage provides you aspirin bottles, I intend for you to take the aspirin. What’s it supposed to do, sit around your closet for decoration? I intend for you to take the aspirin. Ditto for birth-control pills, inter-uterine devices, and sterilization procedures, and all the rest of it.

These insurers and the government often use the term «reproductive health services.» But by that they explicitly include contraceptive services, and say so. And so, if Church related institutions have to pay out of their own self-insurance programs for this kind of coverage, they are made to be formal cooperators in these immoral acts.

Now then, it is central to any sound understanding of religious liberty, that you are not to be made a formal cooperator in any actions of which you disapprove on religious / moral grounds. That has traditionally been the understanding in American law.

There was a piece of legislation that passed Congress: the employees of any unit of government – State, Federal, or Law – cannot be obliged to attend, or otherwise participate, in an execution if they are morally opposed to capital punishment. Suppose, a prison was a little short in its budget, and decided to make some money. We’re going to charge an entrance fee for everyone who comes to watch this murderer electrocuted, and we’re going to make that general policy. And suppose the government mandated that certain employees of the government had to attend to certify that [the execution was genuine], etc. Then, those employees would be compelled to pay to do what they consider immoral, namely attend, etc. And that’s exactly what’s being required of us now, contrary to existing law in the case of attending a capital punishment.

ZENIT: The Guttmacher Institute recently did a poll that showed 98% of Catholic women use contraception. In addition, some Catholic public figures are declaring publically that they use or support the use of contraception. What does it reveal about the State of the Catholic Church in America?

Marshner: Forty or 50 years of wretched pastoral care. There was substantial dissent within the Catholic population of this country, and also in the Catholic clergy of this country from Humanae Vitae, and that dissent was never adequately dealt with.

Now, the atmosphere of dissent within the clergy – especially the upper clergy – has diminished considerably over the long reign of John Paul II. We don’t have the kind of open dissent anymore that we used to. But still, the Catholic people are not regularly preached to or catechized about this. I don’t know what confessors are doing. I don’t know if these people even confess it anymore because they don’t personally consider it a sin, I don’t know. We do know that use of contraceptives in the Catholic part of the population is close to what it is in the non-Catholic parts of the population. But, 98% is preposterous. Not that many Catholic women are even in their reproductive years; it’s a ridiculous statistic pulled out of a hat. But it does point to a substantial pastoral mess.

ZENIT: In these recent months, we’ve seen the bishops uniting against the HHS mandate. Do you see h
ope for the future, or is there still room for improvement?

Marshner: There’s a lot of room for improvement, but the bishops’ response to the HHS Mandate was truly inspiring. Many of us have gotten a little cynical over the years, and we were very pleasantly surprised by how firmly the bishops came out. Unfortunately we haven’t had quite the same clarity in response to the administration’s phony compromise. Some people were taken in by that compromise – that’s understandable, when you take it at a first glance – but very quickly there should have been a thoroughly united second response that said «absolutely not.» Now, we have had leadership of that kind from Cardinal Dolan, but we haven’t had the same kind of unanimity exactly. I’m afraid that many bishops are kind of hedging their bets; perhaps they fear that the courts will not rule with them on the constitutionality of the mandate.

In the absence of backing from the court, the bishops believe that Catholic institutions are going to be stuck, paying for this, if not directly, than a little bit indirectly because they’re required to cover health insurance for their employees, they’re required to buy policies, and the policy writers are mandated to include this stuff. And they may feel that the national situation will become exactly what it is now in New York and California: they don’t have a choice, State mandate. You can’t buy an insurance policy that doesn’t provide coverage for this stuff. Then their moral doctrine is going to bring them to a very nasty-looking choice: either close any Catholic-related institution that isn’t covered – close the schools, close the hospitals, close the charities – or put up with this level of formal cooperation.

I don’t wish to give the hierarchy any encouragement to adopt that kind of a compromise. I do think that they could argue that if worse came to worse, the principle of double effect would apply, and their direct intent would not be that the policy holders use these benefits, but that simply that the direct intent is just to comply with requirements that employees have health insurance. And they can’t do anything about the bad part of that. So I think they could probably sooth everybody’s conscience in that way; but as I say, I don’t wish to encourage that. I think that a very determined, very public effort should be made to denounce this mandate for what it really is. And in that respect, the current debate has been good; I just want to see it sharpened up a little bit.

Yes, religious liberty’s under threat. In what way is it under threat? Am I forced to do contraceptive acts? No. Is the bishop forced to do them? No. So it’s not as though I’m being mandated by the government to perform an immoral act myself. But I am being obligated to cooperate with it informally. And when a religion is obliged to cooperate formally in activities with activities which it considers immoral, there is a violation of the freedom of religion. 

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