As my colleague Joe Trabbic has pointed out, a “new Catholic debate” on the nature of the HHS mandate broke out when another colleague at AMU, Steve Long, and myself, in response to an article in First Things began to question the presupposition which seemed widespread, but not well supported, among Catholic moralists, namely, that an institution’s cooperation with the mandate would be merely “material” and not “formal.”  As this debate has been carried out across three blogs, I want to post here all of the relevant links. (See below.)

The latest twist in the discussion for me is captured in this exchange with a colleague in economics, Joe Burke, who posed this problem, which he deemed the “Smorgasbord Argument”:

In discussing this matter with a friend, I ran across this interesting argument to the contrary.

If I purchase a gift certificate for someone for, that person can use the gift certificate to buy a variety of goods, including some of which are illicit. But no one would claim that I was formally cooperating with evil if the person to whom I gave a gift certificate purchased pornography with my gift certificate, even though I knew this was a possibility. The gift certificate has a general use, not a specific one. Certainly if I gave the gift certificate then I participated remotely in the purchase of pornography, though I did provide the material.

In the same manner, a health insurance contract covers a variety of services, some of which are illicit. By analogy, then, is the employer only guilty of remote cooperation? Does the broad nature of the contract dilute the importance of single provisions or set of provisions?

I haven’t settled on a response yet. I’m interested to know what you think.

Before I could formulate a good response, my colleague suggested the following:

I think that I have a solution to the Smorgasbord Argument.

As I said, the difficulty comes from the fact that the health benefits plan covers a variety of services, or basket of services, in the words of Stephen Long (which he no doubt borrowed from an economist somewhere along the way).

In the example of the gift certificate that can be used to purchase pornography, we agreed that the giver was not formally guilty of cooperation. However, it seems that the employer who purchased health insurance is formally guilty. But, health benefits plans, like gift certificates, can be used to obtain a variety of goods and services, some of which are immoral. So what is the essential difference between these two cases?

Here is a counter example that illustrates the essential difference:

Let’s reverse the order, so the recipient of the gift certificate must first choose a basket of services, after which the giver promises to buy him a gift certificate to pay for it. The giver now knows how his gift will be used before he purchases the certificate. If the recipient chooses to put pornography into his basket, then the giver can no longer in good conscience give the certificate and follow through on the promise. In doing so he now would formally participate in the purchase of pornography.

The insurance case is more like this second example, given that the provision is explicitly agreed to in the contract. An employer must agree to finance these services for his employees through the insurance contract. In agreeing to do so on behalf of his employees, who will not doubt take advantage of these provisions, he formally cooperates in evil.

I thought the solution was good, but I proposed the following as even better:

Let’s try this. You have a friend who has a porn problem. You want to buy him a gift certificate for media. Certificate A allows him to buy porn. Certificate B does not. You are told you are not allowed to buy B, on the specific grounds that it’s good to use porn and it’s wrong to deny it to anyone. (Actually, anyone who receives A also gets solicitations for porn.*) So then can you buy A without fault?

*Obamacare requires counseling for contraception as part of ordinary medical care. –Admittedly exactly how this will be implemented is so far unclear. But it’s not unreasonable to presume the worst.

To which my colleague responded:

the provisions for contraception in the health benefit contract are specific in their use, not general. Unlike gift certificates, these particular provisions have no other purpose than obtaining illicit goods and services.

The specific and limited nature of these provisions also makes the analogy to the gift certificate inappropriate. A better analogy would be a gift certificate with coupons for free pornography attached to it.

(Let’s also not forget that not merely contraceptive services but also abortifacient drugs and sterilizations are included.)

So all of the relevant links are these:

The article in First Things by Fr. Joseph White and Rusty Reno which presupposed without argument material cooperation, “A Mandate to Disobey.”

My first posts suggesting that the cooperation might be formal and pointing out that those who hold otherwise have offered only fallacies to support that view:

Does the HHS Mandate Compel Formal or Material Cooperation?

But Is It Remote Material Cooperation (reply to Jeffrey Mirus)

A Formal, and Material, Fallacy

The Redoubtable Janet Smith on the Mandate

A clarification about what formal cooperation is:

Some Simple Mistakes about Formal Cooperation

The posts of Steven Long:

The Unthinkability of Compliance

Formal and Material Cooperation: Once More Into the Breach

The Dubious Guidance of the New Natural Law Theorists on “Cooperation”

The Question of Cooperation