Tuesday, February 14, 2012
A Response to Robby From Marty
Marty Lederman sends in the following response to Robby's column (Marty is having difficulty posting comments, and it seemed to me that this one is responsive more to Professor George's piece than to my post).
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes:
"Morality is fundamentally a matter of (a) your intentions—which, by definition, aren’t the issue in merely material cooperation, only in formal—and of (b) the fairness of your choice as judged by its foreseen good and bad effects upon all concerned. It is true that moralists draw a further distinction between 'proximate' and 'remote' material cooperation; but that is because material cooperation often has worse effects as a result of being more immediate. Of course, this doesn’t always hold. And even when it does, it is the additional harms—not the immediacy of your involvement itself—that make a difference (perhaps decisively) for moral evaluation. These additional harms include all the wrongs that would have been averted if you hadn’t played a role; their toll on others; and the false beliefs about right and wrong that people infer from your involvement, to name but three of many possible factors. With this framework in place, we can see that the Obama administration’s proposed changes would really change nothing that matters morally."
The key here is the assertion that the critical distinction "between 'proximate' and 'remote' material cooperation [is made] because material cooperation often has worse *effects* as a result of being more immediate." This strikes me as dubious as an empirical matter (i.e., remote material cooperation does not "often" have lesser effects), and it's not how I -- an interloper in such matters -- had understood Catholic understandings of material cooperation. I'd welcome insight on this question from others who know much more than I.
More to the point, think of the implications of this view: To be sure, it would mean that there's little or no moral difference between the "before" and "after" HHS proposals -- but then, there'd also be no difference between either of them and the compelled assessment of taxes. Since we know, to a 100% certainty, that our tax dollars will in fact be used, thanks to the decisions of others (legislatures, administrators, private actors), for activities that we believe to be immoral, we are just as morally culpable for those actions as we are for those that are done with our much more "proximate" material assistance. (I should add that the alleged "wrongs" would not "have been averted" in either case if the objecting employer played no role -- the employees in question will use contraception in both scenarios, and, indeed, that use will be subsidized by someone -- in part by the premiums the employees themselves pay, in part by the state (using tax dollar collected from, inter alia, Catholic employers), in part by insurance companies using funds collected from other customers, etc.)
Indeed, wouldn't this also mean that Catholic employers act immorally if they do not prohibit their employees -- on penalty of discharge -- from using the wages they receive for the purchase of contraception?
Am I missing something? If not, is this really what Catholic doctrine teaches and, if so, is it really something the state should accommodate?
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-response-to-robby-from-marty.html
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Marty asks: "Indeed, wouldn't this also mean that Catholic employers act immorally if they do not prohibit their employees -- on penalty of discharge -- from using the wages they receive for the purchase of contraception?"
No, because the agreement, in terms of salary, is between employee and his employer for wages in exchange for work. Those same employees--if they are Catholic--may even purchase meat to eat on Fridays during Lent. Once the wages are received by the employee, they are his dollars not the employers'. On the other hand, the health policy received by the employee is a result of an agreement between the employer and the insurance company. For this reason, what the employee receives is the result of a prior agreement in which he is not a party. Thus, this leads to two questions concerning.
Do religious-based organizations, such as Catholic hospitals and universities, and businesses owned by devout religious believers including Catholics, Evangelicals, Orthodox Jews, and Muslims, have the right under Obamacare to negotiate an agreement with an insurance company so that the insurance policy the employer offers to its employees does not include contraception, abortion, sterilization, etc.?
Does an entrepreneur under Obamacare have a right to create an insurance company that in fact meets the needs of such employers?
If the answer is "yes," then the problem is solved and the debate is over. But the answer isn't "yes." The answer both questions is "no." Thus, you still have the state requiring citizens to purchase something by which they materially cooperate with actions they find gravely immoral. Just as it would be wrong for the employer to ask the state to forbid his employee from purchasing from his own dollars meat for Fridays during Lent, it would be wrong for that employee to ask the state to forbid his employer from negotiating with his own dollars a contract that ensures that the employer not materially cooperate with that which the employer believes is gravely immoral.