The U.S. Supreme Court has decided to hear the case of the Little Sisters of the Poor v. Burwell (Sylvia Burwell is Secretary of Health and Human Services). The Sisters want an exemption from the odious Obamacare contraception mandate. Presently, the Affordable Care Act (ACA) exempts only churches and their exclusively “religious” activities, and—since the Hobby Lobby case—closely held for-profit corporations. The Little Sisters of the Poor, like the vast majority of religious schools, hospitals and charities, are a religious non-profit organization with activities not deemed by the government to be exclusively religious. So no exemption.
But the government does offer them an “accommodation”. The Sister’s would have to fill out a government-issued certificate on which they would specify the name of their organization and the name and contact information of the person authorized to make the certification on their behalf (e.g., their General Superior). And then they’d sign it and submit it to their health insurance plan’s “third-party administrator”— a separate organization charged with managing aspects of the plan.
The submission would do two things. It would deliberately signal that the Sisters are unwilling to act as the plan administrator or claims administrator with respect to claims for contraceptive services. And it would unintentionally activate a process by which the third party administrator arranges for the provision of abortion drugs, sterilizations, and other contraceptives, free of charge, to any female employee of the Little Sisters of the Poor who wants them.
The Obama administration believes this sufficiently distances religious employers from wrongfully cooperating in the supplying of the objectionable services. But the administration’s belief is false. To assess moral cooperation, we don’t look at the “distance” between one’s own act and the evil in which one cooperates. We assess it by looking at what one intentionally chooses and unintentionally causes.
For example, consider a woman who is a branch manager in a big pharmaceutical company. The branch she manages oversees no objectionable services. But the company’s other branches do. Can she remain employed knowing she contributes to the overall success of a company engaged in evildoing? To answer this we first ask what she intends as her end and means in her decision (her choice) to be employed there. Her “end” is to support herself and her family; her means is to manage a department engaged in upright activity. Her intention therefore is upright.
But upright intent is not the only requirement for morally good action. We must also ask what evils or harms she unintentionally causes by being employed there. By supporting the company’s overall viability, she in some way, perhaps only minimally, assists it to carry out wrongful research and distribute objectionable drugs. Moreover, her employment over time may erode her own moral inhibitions against the evildoing; or it may involve her in relations of trust and obligation with wrongdoers that make the avoidance of future evils more difficult. Further, since she is known to be an upright woman, her employment may impart an appearance of legitimacy to the evildoing, be used by other less scrupulous members of the company to rationalize it (“See!, Sarah works here, and she is a committed Catholic.”); this may encourage further wrongdoing and provide material that causes the weak and doubtful to believe the company’s actions are not wrong.
As you can see, the moral analysis can become complex. To simplify it, we might say the following: if we know that our action will unintentionally cause evil, we must assess whether tolerating that evil would be consistent with at least three serious moral duties: 1) not to be unfair to anybody involved, especially those who are most significantly harmed by the evil; 2) to avoid scandal (i.e., causing others to sin by our example); and 3) to maintain a credible testimony to Jesus and the Gospel.
Let’s apply this to the Little Sisters of the Poor. They understand that by choosing to sign and submit the certificate, they intend something entirely upright: to opt out of the administering of the objectionable services. But they also understand that their action will unintentionally cause evil. It will authorize the third party administrator—the government’s deputy—to use the Sisters’ healthcare plan information and infrastructure to provide abortion drugs and contraceptive services.
The Sisters have said publically that they believe complying with the accommodation would be contrary to their faith. Can we identify more precisely what about the compliance might be objectionable?
The Little Sisters have not consulted me on this matter, and so my reasoning here should not be taken as coextensive with theirs. But when they say that compliance would be contrary to their faith, I take this to mean contrary to their duty to bear perspicuous witness to Jesus and to the values of his Gospel.
As a religious order, they vow themselves to the kind of celibate chastity that Jesus himself adopted. Because of this the Sisters are, in a sense, sacraments—living signs—signifying the chaste purity of Christ’s kingdom. The use of contraceptives and the mentality that fuels it are toxic symptoms and widespread causes of unchaste behavior. To cooperate, however unintentionally, in the government’s sordid purposes would be particularly unfitting for women whose lives bear this particular symbolism.
Moreover, as a religious community dedicated to the care of indigent elderly people, the Sisters have a special duty to bear witness to the dignity of every human life, especially life at its most vulnerable stages, and against those evils that disregard and violate human dignity. The destruction of innocent life caused by the drugs and other contraceptive measures (e.g., Plan B and IUDs) supplied and defended by our government are gross examples of that disregard and violation. The Sisters know that compliance with the “accommodation” would facilitate the spread of the evil. So they reject compliance as inconsistent with the witness to human dignity that God has asked them to give.
What if the Supreme Court rules against the Little Sisters? In that case, they will be faced with several intolerable alternatives: cease providing medical insurance to their employees and suffer punishing monetary penalties; shut down their 175-year-old ministry to the elderly; or comply under duress with the government’s unjust demands while continuing to publish their opposition to the situation and working to correct it. Let’s hope they never have to face this moment of decision.