The Curmudgeon Argument Against Notre Dame

By Joshua Schulz
January 20, 2014

Over at the Atlantic, Emma Green recently mused on what could motivate religious non-profits like Notre Dame, who have lost their legal suit to delay the enforcement of penalties for non-compliance with the HHS Contraception Mandate, to continue their legal battle with the Obama administration. What especially puzzles Green is the apparent stubbornness of “religiously affiliated” schools like Notre Dame to submit to the Mandate given the Obama administration’s benevolent granting of a partial exception to its requirements. “These groups,” she argues, “can, in fact, avoid paying for, administering, advertising, or otherwise dealing with the birth control coverage in any way” by transferring complete responsibility for the coverage to a third-party administrator contracted by the organization for just such a purpose. So they can’t be fighting for that. The only other real explanation for their behavior must therefore be the belief that “if they sign a form saying they don’t want to provide birth control coverage, they’re implicitly saying that it’s okay if someone else does.”

Green borrows this conclusion from Judge Phillip Simon, who wrote the District Court’s opinion against Notre Dame. Judge Simon argued that the school failed to distinguish between the government’s doing something that someone finds morally objectionable, the government compelling someone else to do something that violates their moral convictions. Since the “accommodation” allows Notre Dame to hire a third party administrator to provide reproductive services in place of the university’s doing so, Notre Dame’s objections to the Mandate, he determined, are akin to “a sincere religious objection to the size or color of the government’s filing cabinets.”

Rhetorically, Simon-Green’s argument is beautifully constructed. They poison the well by framing Catholicism’s moral objections to contraception and abortion as belonging to the same intellectual category as an absurd aversion to the use of colored filing cabinets–as if someone’s irrational abhorrence of a color could carry moral weight!–and by painting the government as the tolerant and benevolent guarantor of reasonable medical care who does its best to respect “sincerely held” albeit archaic superstitions. Nevermind the significant disanalogy between the color of filing cabinets and value of human life, say, with which Catholic objections to abortifacient forms of contraception are concerned. Simon-Green likewise draw a dubious but effective distinction (for liberals) between “moral” and “religious” objections to government action, as if God had nothing to say about whether one may kill, but volumes about office aesthetics. One might especially appreciate the distinction Green draws between “explicitly religious” institutions “like churches” and “religiously affiliated” institutions like schools named after Our Lady–a title sometimes linked with the Virgin Mary, mother of Jesus Christ.

Considered according to the canons of logic, however, Simon-Green’s argument fares less well. Theirs is an abductive argument to the best explanation: they are searching for what might be keeping the Fighting Irish fighting in the absence of rational motives. Green mentions the desire to avoid scandal and sheer stubbornness as contenders, but clearly sides with Simon’s discovery of Catholicism’s conspiratorial desire to keep everyone unhappy by denying them access to condoms. Unfortunately, arguments to the best explanation can be shown to be uncogent simply by producing the real explanation–in this case, Catholicism’s real (rather than supposed) objection to the “exception” to the Mandate.

Complicity


The Catholic grievance with the HHS Mandate does not in fact derive from a desire to deprive non-believers of access to contraception or abortion, both of which Catholics believe to be grave moral evils. Rather, the objection stems from our moral obligation not to participate in the objectively evil acts of others.

Following St. Alphonsus Maria de Liguori, the Catholic tradition holds that one can cooperate with someone else’s evil act in two ways. One can formally cooperate with an act by intending what the wrongdoer intends, or materially cooperate in the act by assisting in the action itself. The two kinds of cooperation are distinct because just as one can wish for an action to be done without contributing to its performance, so too one can contribute to an evil action without wishing it. While formal cooperation with evil is always wrong, material cooperation is sometimes, but not always, wrong, depending on one’s knowledge of or foresight about the evil action, one’s intent, the voluntariness with which one cooperates, and so on.

Consider a textbook example of the distinction. Suppose Paul kills Peter while Mary watches. Suppose further that Mary wants Paul to kill Peter, and will be glad he’s dead. While Mary may do nothing to assist Paul, and therefore is not materially complicit in Paul’s death, she nevertheless does do something: she formally cooperates in Paul’s death by wishing that Peter succeed. Since Catholics believe that one can sin in both intention and in act–remember that Christ himself told us that lusting after a woman is as bad as real adultery–both Mary and Paul do something wrong to Peter, even if one uses a gun and the other uses her mind.

Now let’s change the example slightly. Suppose that Mary hired Paul to kill Peter. While it is still the case that Mary and Paul are doing different things, now what Mary does (taking out a contract on Peter’s life) causally contributes to what Paul does (killing Peter). Paul wouldn’t have had the reason he had to kill Peter without Mary; her action explains Paul’s action. Mary’s level of involvement in Peter’s death has therefore changed: she has become materially as well as formally complicit in the act. (This is precisely what happens in most cases of abortion, of course, in which a pregnant woman like Mary hires an abortionist like Paul to kill an infant in Mary’s womb, like Peter.)

Does the situation change in principle if we add more people to the causal chain explaining Peter’s death? Consider a more difficult case. Suppose Mary borrows money from James in order to pay Paul to kill Peter. To what extent is James responsible for the death of Peter, given that his money is part of the explanation of Peter’s death, that is, a contributing factor without which Peter wouldn’t have died at the hands of a paid assassin? While the example might seem more complex, in fact all we need to do is to make the distinction between formal and material complicity again. To what extent, we want to ask, did James knowingly and willingly give money to Mary to hire Paul to kill Peter? If James was lied to, or blackmailed, and so on, this is evidence that he was not formally complicit in Peter’s death, and if so, then he is not morally guilty for Peter’s death. We would reach the opposite conclusion if James was Mary’s father, say, and not only gave her the money for her abortion but encouraged her to have one for the sake of her career. Clearly, the situation has not changed in principle; the same distinction between formal and material complicity is as fruitfully applied to James as it was to Mary. Causal complexity is not the same as moral complexity, something Simon-Green and the Obama administration have forgotten, but which we must keep in mind with our final, target case concerning Notre Dame.

What if Mary pays Paul to kill Peter with money provided by Mary’s insurance company for this purpose, and the insurance company either (1) pays Mary with money collected from Mary’s employer, who in turn collected the money from Mary’s co-workers, or (2) is explicitly contracted by Mary’s employer to pay Mary to pay Paul using money collected from taxpayers on the duplicitous grounds that it is cheaper to kill Peter than to pay for Peter to live? (That’s the actual justification the Obama administration gives for the HHS Mandate, page 39872.) Has the situation changed in principle? Not a jot. We can still ask of each link in the causal chain explaining Peter’s death whether the person or persons responsible for the decision to pass on the money did so knowing and intending that Mary use it to kill Peter. In both stories above–option (1) representing Obamacare’s preferred method of contract killing, and option (2) representing the “accommodated” method of contract killing–Mary’s employer is both materially and formally complicit in the death of Peter.

Some might object that this is not the case in scenario (2), since the “accommodation” only takes place if Mary’s employer first files an official objection to the payment. Isn’t that objection, duly noted, evidence that Mary’s employer is not formally complicit in Mary’s killing of Peter, since the purpose of the objection is precisely to note that the institution does not agree with, condone, support, respect, and will not “contract, arrange, pay, or refer” for, etc., Mary’s choice?

I think not–and I don’t believe Notre Dame believes so either. Intentions are proved by actions, not words. If your best friend swears to you that she has no designs on your spouse and sleeps with him or her anyway, you would rightly conclude your best friend was a liar, especially if she rented a hotel room in which the affair took place before she slipped your spouse a date-rape drug. If your employer swears to you that it does not condone the use of contraceptives or abortifacients or taking out contracts on the lives of your children, and then at your request hires a third party for the purpose that you may arrange to use contraceptives, abortifacients, and take out contracts on the life of your children, you may rightly conclude that your employer lied.

As Notre Dame argues in its suit, the key action convicting it of formal complicity in the death of Peter is the HHS Mandate’s requirement that it contract with a contraceptive administrator who will provide the offending materials to women like Mary. Indeed, the document employers use to register their objections to contraceptive coverage (the “self-certification” document) is the same document that authorizes the plan administrator to provide the coverage. That is the duplicitous and federally coerced behavior to which Notre Dame and other Catholics object.

If Simon-Green wanted to know what could motivate the continued, principled and reasonable objections to the HHS Mandate and its so-called “accommodation,” they could simply have asked.