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Persona y Bioética

versión impresa ISSN 0123-3122

pers.bioét. vol.22 no.1 Chia ene./jun. 2018

http://dx.doi.org/10.5294/pebi.2018.22.1.6 

Artículos de investigación

COOPERATION WITH EVIL, THE THEORY OF ACTION AND THE CONTRACEPTION MANDATE

COOPERACIÓN CON EL MAL, LA TEORÍA DE LA ACCIÓN Y EL MANDATO DE ANTICONCEPCIÓN

COOPERAÇÃO COM O MAL, A TEORIA DE AÇÃO E O MANDATO DE CONTRACEPÇÃO

Pau Agulles Simo1 

1 Universidad Pontificia de la Santa Cruz, Italia. agulles@pusc.it.

Abstract

The debate concerning the so-called U.S.Health and Human Services (HHS) Contraception Mandatehas been adequately framed, in the academic field, within the traditional ethical doctrine oncooperation with evil. This principle will allow us to conclude whether employers may ethically comply with the onerous existing law or not. The discussion has been quite heated, because the practical conclusions authors have reached vary widely, depending on which interpretation of the theory they rely on. In this paper, some of these explanations are addressed and analyzed from the standpoint of the Thomistic theory of action, which is now the most common point of view. This work concludes that, although theContraception Mandatewill most likely be repealed by the current U.S. administration, as things once stood, compliance with it may have been ethically licit in some cases.

Key words: HHS Contraception Mandate; Affordable Care Act; cooperation with evil; theory of action; per seconsequences of action; per accidensconsequences of action; Thomas Aquinas (Source: DeCS)

Resumen

El debate académico sobre el llamadoU.S. Health and Human Services (HHS) Contraception Mandatese ha enmarcado, adecuadamente, en el contexto de la doctrina clásica acerca de lacooperación al mal. Este principio ayuda a discernir si las empresas y los empleadores estadounidenses deberían o no, éticamente, obedecer a tal ley injustamente impuesta. La discusión ha sido muy acalorada, porque las conclusiones a las que han llegado los distintos autores son muy variadas, en función de cuál ha sido la interpretación de esta doctrina en cada caso. En el presente artículo hemos tratado de examinar y analizar alguno de estos intentos de explicación, desde la perspectiva de la teoría tomista de la acción -que hoy en día es el punto de vista más común-. El trabajo concluye que, aunque elMandateprobablemente vaya a ser derogado por el actual gobierno de los Estados Unidos, tal como estaban las cosas, la obediencia de esta ley podría haber sido éticamente lícita en algunos casos.

Palabras-clave: HHS Contraception Mandate; Affordable Care Act; cooperación al mal; teoría de la acción; consecuenciasper sede la acción; consecuenciasper accidensde la acción; Tomás de Aquino (Fuente: DeCS)

Resumo

O debate acadêmico sobre o chamado Mandato de Contracepção, do U.S. Health and Human Services (HHS), foi enquadrado, adequadamente, no contexto da doutrina clássica sobre a cooperação com o mal. Esse princípio ajuda a discernir se as empresas e os empregadores norte-americanos deveriam ou não, eticamente, obedecer a tal lei imposta injustamente. A discussão tem sido muito acalorada porque as conclusões a que diferentes autores chegaram são muito variadas, em função da interpretação dessa doutrina em cada caso. No presente artigo, buscamos examinar e analisar algumas dessas tentativas de explicação, a partir da perspectiva da Teoria Tomista da Ação - que, atualmente, é o ponto de vista mais comum. O trabalho conclui que, ainda que o mandato seja provavelmente revogado pelo atual governo dos Estados Unidos, assim como estavam as coisas, a obediência a essa lei poderia ter sido eticamente lícita em alguns casos.

Palavras-Chave: Affordable Care Act; consequências da ação per accidens; consequências da ação per se; cooperação com o mal; HHS Contraception Mandate; teoria da ação; Tomás de Aquino (Fonte: DeCS)

INTRODUCTION: WHAT IS THECONTRACEPTION   MANDATE?

In 2009, after years of discussion within the Democratic Party, President Obama decided to start a new reform of the health care system based on anindividual mandatemodel, which from 2014 onwards was intended to oblige the citizens who still did not have health care coverage to obtain it - assisted, in some cases by fiscal aid. Anyone who refused to do so would be fined/taxed.1The reform was finally launched by the federal government through thePatient Protection and Affordable Care Actand theHealth Care and Education Reconciliation Act, which together constitute theAffordable Care Act, definitively approved by the American Senate in March 2010 2.

Controversy arose following that approval. Was it constitutional to enforce citizens to purchase a commercial product, namely a health insurance policy? The Supreme Court answered that question by stating the individual mandate was not an order to acquire a commercial product but a tax, which certainly is within the constitutional limits of congressional power. Apart from that, at the beginning, the reform project was well received by most Americans: basic health assistance was considered, by many, as a citizen’s right rather than a privilege. But soon, during the congressional debate, some individuals and organizations - including the Catholic hierarchy - expressed concern about the way certain aspects of the reform project were taking shape. The final version of theAffordable Care Actspecified that all health insurance policies and programs had to cover some preventative services for women, which would be spelled out later by the Department of HHS. Indeed, in July 2010, that department made public a first list of those preventative services; the definitive list would be issued in the summer of 2011 3: #41728). There was an immediate reaction, since the list included some forms of abortion, contraception and sterilization. The complaint was grounded in the belief that these are not genuine health care services and, moreover, that compelling people to abide by such a mandate undermines the freedom of conscience of many American citizens who would be obliged to cooperate in evil actions (abortions, contraception, sterilizations) carried out by the recipients of the insurance they provide.

TheContraception Mandateis, thus, defined as the American state or federal rule or law that requires insurance companies or employers who grant this service to their employees to include contraception in their health care insurance plans. Although theMandatewill most likely be repealed by the current U.S. administration, I still find it very interesting to address this issue from an ethical point of view.

ETHICS AND THECONTRACEPTION MANDATE

In the ethical field, the debate concerning theHHS Contraception Mandatehas been adequately framed within the traditional doctrine on cooperation with evil. It has been characterized as the action of a third party that, in some foreseeable way, facilitates the primary agent’s performance of an immoral action the latter had already decided to carry out. The manualistic tradition has adopted different classifications of cooperation, doing so in an attempt to shed light on the moral accountability of that evil action to the person who somehow is making it possible. The starting point is a basic distinction between formal and material cooperation, depending respectively on whether the cooperator approves or disapproves of the evil action. In the case of material cooperation, the morally illicit action is tolerated or suffered without implying approval of the principal agent’s behavior; for example, when cooperation is derived from an action that had to be performed for whatever reason.

This raises the problem as to what extent effective, though involuntary -indirectly voluntary- cooperation with the evil action of another is morally licit. As the mere distinction between materiality and formality in cooperation offered no satisfactory answer to this question, further distinctions were coined within material cooperation. The first and most important is that which distinguishes betweenimmediateandmediatematerial cooperation. The former takes place when someone helps the primary agent, by participating in some way in his or her action. A very illustrative example, and one that is widely reported in the literature, is that of cooperation in an onanistic act performed by one’s spouse, when it is for proportionate reasons. Mediate material cooperation, on the other hand, occurs when someone makes an instrument available for another person to use for evil purposes, such as a pharmacist who gives alcohol to someone he or she knows will use it not to disinfect a wound but to get drunk. Sgreccia talks aboutimmediate or direct cooperationas that in which “the action of the cooperator is in operative unity with the action of the primary agent.” Whereas in mediate or indirect material cooperation, “there is a gap between the action of the primary agent and that of the cooperating agent such that the primary agent’s activity can have multiple aims and not a single and inevitable outcome” 4: p362). With the latter, the action of the principal agent may take different directions according to his or her free will, which plainly shows the cooperator’s action is not necessarily linked to it.

We can also talk about a further distinction; that is, one betweenproximateandremote. It is generically based on the physical or moral concatenation between the action of the cooperator and that of the primary agent. Immediate material cooperation, obviously, is always proximate; mediate material cooperation may be either proximate or remote. The owner of a gun shop who sells a gun to a well-known murderer is cooperating in a proximate way, inasmuch as the predictable outcome of that action is a crime. The CEO of a bank that gives a loan to the owner of the armory knowing that he sells weapons no matter who buys them cooperates in a more remote fashion. In practice, although a little bit vague, this distinction is not unimportant.

COOPERATION WITH EVIL AND THE THEORY OF ACTION

Some authors have rightly felt this criteriology may find a more suitable and synthetic expression in thetheory ofaction, focusing on themoral object of the act of cooperation itself. Indeed, in the pursuit of increased objectivity in the evaluation of cases of conscience, authors had been moving like a pendulum from consideration of the purely interior dimension - formal and material cooperation - to the merely exterior connection between cooperation and the evil actions themselves, looking rather to the effective causal influence: they increasingly had changed focus from the intentional level to the external level of execution. As a result, one may end up saying that it is not enough for an action to create an interiorconditio sine qua nonin order for it to be morally wrong (i.e., the will of the agent), but rather it needs to beefficaciter iniusta: only when an effective causal influence on the evil act is present, can one speak of participation in the illicit action. Hence, we realize the moral evaluation of cooperation oscillates between the suspicion of subjectivism, with a formal criterion that follows onlyvoluntariness, and the material criterion that stands for thephysicalcausal influence on the external act.

In the so-calledteleologisms, for example, the center of the action is situated in the external physical act, evaluated in relation to the rule, while the voluntariness of the subject is an element that is added later to establish accountability. From the perspective of theacting person, however, when needing to establish a criterion for cooperation, we should set the spotlight instead on the objective content of the acting subject’s behavior. This approach seems consistent with the point of view ofVeritatis Splendor, which states “the morality of the human act depends primarily and fundamentally on the ‘object’ rationally chosen by the deliberate will5: #78).2

In applying this perspective to our subject, we can use St. Alphonsus’ definition offormal cooperationas the act that “concurs in the evil will of the other and cannot be done without sin. Material cooperation, however, is that which concurs only in the evil action of the other,outside of the intentionof the cooperator [praeter intentionemcooperantis]” 6: 1. II, tr. III, Ch. I, dub. V, no. 63).3But what does St. Alphonsus mean when talking here aboutintention?Intention, in this case, is that toward which the will tends, in a general or broad sense, in a particular action. E. C. Brugger, in an essay in which he explains the difference betweendirect willing(orintending) and what is caused by the agent but does not pertain to his will 7, puts it clearly by saying: “oneintendsprecisely and only what one resolves (or sets oneself) to bring about by some piece of behavior. This includes two things: (a) someendfor the sake of which one acts - that which one seeks for its own sake; and (b) somemeans(call it aclose-inend) that one resolves to bring about as a way of realizing the end one seeks. Oneintends, as Aquinas clearly states, both one’s end and one’s means (as a close-in end). Together they form one’s intelligible proposal for action”.4

For instance, when I go running for the sake of staying healthy, both theintended end(“staying healthy”) and theintended means(“going running”) are the thingsdirectly intendedorwilled. The rest of what happens as an effect or consequence of that action, even if foreseen, caused immediately and unavoidable - although I may very much wish to avoid it - is beyond my will (praeter intentionem, or traditionally calledindirectly willed). An example is the leg pain I certainly will have after the hard workout I did in order to keep healthy. Brugger gives the helpful example of the loaded passenger airplane that gets shot down by an F/A-18 because it was being used by terrorists as a guided missile against civilian targets. Both the pilot and the Joint Chiefs had, as anintended end, “to protect Americans on the ground from the attack” and, asintended means,“to remove the plane from the sky by blowing it up,” because that was the only means at hand. Those two elements completely and satisfyingly describe the moral action they brought about. They did not at allintendthe death of those 235 innocent passengers, neither as an end nor as a means, although they certainly caused it. Forphysically causing is not always morally intending.5

Let us move on. Some authors speak aboutformal cooperationfrom the standpoint of the two modes of intending described above. This is understandable, becauseintention(in either sense) affordsformality- its ultimate moral sense - to an action. Indeed, Aertnys and Damen state that in formal cooperation what a cooperatorintendsis the sin of the principal agent and the manner ofintendingmay be two-fold: eitherex fine operantis(by the deliberate willing of the cooperator) orex fine operis(by the “inner purposefulness” of the action performed) 8: #398). Prümmer, along the same line, says the contribution of the formal cooperator to evil can be either, because the act of cooperation is sinful itself -ex fine operis-, orex fine operantis, by giving consent to the bad will of the evil doer, as when someone willingly helps a friend so he can sin more easily with his lover 9: t. 1, p. I, Tr. IX, Ch.. III, art. III, par. 2, n. 617).6

According to these authors, in material cooperation there is, at most, a continuity or connection within thephysical dimensionof the action. In it, the cooperator’s action should always have either a moral object - as an intended close-in (proximate) end - and an end that are different from those of the primary agent’s own action. Therefore, it is possible to set the conditions and limits of moral acceptability according to the doctrine ofdouble effectfrom which it ultimately flows. Formal cooperation, however, will always be illicit, because the act of cooperation is tainted by an evilfinis-operisoroperantis.In other words, the continuity or connection ascends to the level of theintention,to theformof the action - that which is recognized by reason and sought by the will as an end or as a means.

The general statement that can be made with regard to formal cooperation is that in it there isconsent or approval- as a generic act of will -of the evil actionof the primary agent. Prümmer himself, in the example on adultery reported above, can help us to understand that the role of intention in an act of cooperation has not always been properly explained. Formal cooperation lies inconsent(in a broad sense) to the evil action of the principal agent and not necessarily, as some try to claim, inidentificationbetween thefinis operantisof the primary agent and the cooperator. By bringing Nancy, who is married, into contact with his friend George, so they can commit adultery, John will cooperate formally if he approves of his friend’s evil action, but he may well not know or even may not consent to the end (finis operantis) that moves George in his adulterous act (for example, winning a bet). John’s very end itself may be multifarious: hurting the feelings of Nancy’s husband or buying a car with the money he receives in exchange for his collaboration. In any event, the element thatformalizeshis cooperation is a genericconsentto George’s adulterous action. Note, therefore, that informally cooperative actionwe will be able to equate, at most, theends(finis operantis) of the involved subjects although, as we have seen, not even this is necessary. Theobject ofactionorintention of the means(or theobject of choice) of the cooperator and the principal agent (finis operis) can never be the same. This is of great importance, but it has not always been understood well.

The USCCB, for example, stated in 1994 that “since intention is not simply an explicit act of the will, formal cooperation can also be implicit. Implicit formal cooperation is attributed when, even though the cooperator denies intending the wrongdoer’s object, no other explanation can distinguish the cooperator’s object from the wrongdoer’s object” 14: p382). This passage was removed in successive editions because it provided no easy interpretation. Indeed, implicit formal cooperation, as the authors above explain it, may refer to an evil object of action (finis operis), but one that is always different from the principal agent’s object. The action of the cooperator and that of the principal agent need to be different. Otherwise, we no longer would be able to talk about cooperation: we would then say they were carrying outthe exact same evil action. Melina makes the same mistake, but with a slight difference: he considers immediate material cooperation as that in which there is an identification of the objects of action on the part of the cooperator and the principal agent. Furthermore, he defines implicit formal cooperation in the same way, hence, stating that it is always illicit 12: p478). In addition to what has been said above, we must now argue that if this were so, we would never be able to talk about the possibility of the existence of elements that may justify, for proportionate reasons, performing an act of immediate material cooperation. As we all know, the traditional doctrine has always recognized them 15,7 6: V, tr. VI, Ch. II, no. 947).

Admittedly, the distinction between the types of formal cooperation, according to the ways of intending, is not at all free from danger. In any case, these attempts may be useful for realizing that the act of cooperation is not, as some suggest, the mere sum of an externalfieri,plus a subjective end. Rather, every human action, including the act of cooperation with an evil action, has a voluntariness that gives it a moral sense. These authors try to flee from the recourse to principles - such as immediacy, proximity or remoteness - which, by their tendency to cling to a merely external causality, push us away from the constitutive identity of the action in the intellect and in the will of the acting subject. Nevertheless, according to the different ways all of this is understood, we may reachvery different practical consequences of great importance, as evidenced by the disparate responses that have been proposed on the issue of theContraception Mandate. It is worth taking a look at them with the advantage time has given to the debate.

COOPERATION WITH EVIL AND THE  CONTRACEPTION MANDATE

Long 16, in a comment on an opinion Tollefsen 17 8offers about theHHS Contraception Mandate, notes what, as we have seen, many authors share; namely, formal cooperation may beimplicitwhen the cooperator’s action is itself constituted in an act that is evil by its very moral object. The formality of the cooperation lays in intending evil; furthermore,intending, as the natural act of will, extends both to theendand to theobjectof the act (the chosen means for the sake of an end, which includethe integral nature and per se effects of that which is chosen).

This statement is critical of certain authors who wrongly identify formal cooperation with cooperation through an evilend(finis operantis) and material cooperation with cooperation through an evilobject(finis operis). Indeed, as Long rightly seems to point out and as we have commented already, in the very object of action there is already a realformality. We are ready to arrive at this point through the classical hylomorphic distinction between the end-formof the action (finis operantis) and the object-matterof the action (finis operis). As the Thomistic theory would indicate,this matteralready has formality. Actually, it has been calledforma a ratione concepta19: q. 18, a. 10, c): the mere physical action, as understood by practical reason and willed, in the act of choosing, is informed and given moral sense, thus, being moved from the pre-moralgenus naturae(nonmoral mere physicality) into the realm of thegenus moris(full of moral sense) 20: lib. 3, d. 23, q. 3, a. 1, qc. 3, c;21: lib. 3, Ch. 8, no. 8;19: q. 20, a. 6, ad 2 and q. 24, a. 4, c;22: q. 2, a. 2, ad 13). Therefore, formality, as we demonstrate above, is found both in the end and in the object of an action.

There is one more step. As we have seen, for cooperation to beformal, there obviously has to be a reason for its formality: anintention(in a broad sense) towards evil. However, a proper act ofmaterialcooperation, as illustrated, really has to do with anindirectly voluntaryorpraeter intentionemeffect 21: lib. 3., Ch. 4, no. 2;19: q. 64, a. 7, c9) beyond intention, willed neither as an end nor as a means, that takes place in connection with an action that is good in itself and is to be accomplished because of some good that needs to be done or some evil that needs to be avoided. The main problem that arises here is discerning whether or not a certain act of cooperation with evil includes the foreseen evil in its veryobject,as part of the formal components of the action, the integral nature andper seeffects of that which is chosen. If we agree with the way the authors noted above explain all of it, this will guide us to the answer to a key question: is a particular act of cooperationimplicitly formalormaterial?

The National Catholic Bioethics Center, in being firmly opposed to theHHS Contraception Mandatebecause it is an unjust law, indicated that compliance was among the options available to employers when dealing with the Mandate, under legal and administrative duress, in pursuit of a greater and compelling good to be accomplished or a greater evil to be avoided 23.10In stating as much, I assume they were thinking the connection between the action of offering health insurance and the action of the person using that insurance for sterilization can be that of an action and itspraeter intentionemeffects; in other words, an action ofmaterial cooperation. Therefore, according to the NCBC statement, the use of contraception, through an insurance policy, may not be considered part of the integral nature andper seeffects of what is chosen when someone is offering that health care insurance, or else they would have never stated so. Long seems to suggest otherwise. According to him, those consequences are part of the essence of the intended object of the action of “offering insurance”. I tend to place myself on the side of the NCBC ethicists.

We cannot deny this is a classic, yet complex question. St. Thomas raised this issue when recognizing the distinction between the circumstances that are part of the essence of the object of action -conditiones- and those that affect the action in an accidental fashion -circumstantiaein a strict sense - 19: q. 18, a. 10, c;20: lib. 6, d. 16, q. 3 a. 2, ql. 3, ad 1). The difficulty theologians experience when attempting to properly define the essential objective matter - or theconditionesof the object - of that which is forbidden by the 5thor the 7thCommandments shows it is a question with no easy solution. For example, those essential circumstances constitute the objective difference between killing and self-defense, between stealing fruit and taking fruit from someone else’s tree to save a person who is starving.

There is an image that has been brought up several times and in the very context of the discussion we are dealing with. When we pay taxes weknowthat part of them will be directed to performing abortions, conducting research with embryos, and family planning. Moreover, these wicked actions arecertainlygoing to be performed by taking advantage of our taxes. So, we can say theyphysically includefunding these evil actions. Still, we currently continue to comply with the tax law because, when doing so, we are notintending(morally) some of the actions that will be performed by taking advantage of our taxes: the evil ones - such as abortions. This can be true if we acknowledge that a general tax law does not point,per se, towards abortion, but rather towards so many good things thattruly build the common good of societyand are accomplished thanks to our taxes. Then, we can say that those evil actions are only indirectly intended - they arepraeter intentionemor beyond our will. In other words, they are not an essential part of the intended act of “paying taxes” but rather an accidental part of it. My action in “paying taxes” is completely morally defined as “contributing to the common good of my society (end) by giving some of my money to the authorities (means)”. The wicked things some people will do with those taxes are not willed by me as an end in themselves or as a means to achieve that end, and they contribute nothing to those ends and means. They are unintended foreseen effects of an action that initselfis very good.

PER SEANDPER ACCIDENSEFFECTS OF CHOSEN ACTIONS

Only at this point, since I know there actuallyisan evil that is going to be committed as a consequence of mygoodaction, can I - and I should - think about whether there is aniusta causaor a proportionate reason to become one of the causes of that evil. In other words, I must consider whether there is an evil that has to be proportionately avoided by paying the taxes (helpless decadence of society, going to jail, large fines or other penalties) and/or a good to be proportionately pursued (the common good - the so many positive things the authorities can accomplish thanks to our taxes). If I had considered those foreseen evil effects caused by my taxes - abortions, etc. - as an essential part of the objective action of “paying taxes,” my last statement would make no sense: paying taxes would just be evil in itself and my cooperation with abortions, contraception and sterilization would be, at least,implicitly formalon account of the very evil object of my act of cooperation, which isformalizedby an intrinsic intention to bring about those evil effects. As far as I can understand, Long maintains this is what happens when offering a type of insurance like the “mandated” one. Citing Thomas Aquinas 19: q. 20, a. 5, and clearly again q. 64, a. 7, c), he uses the distinction betweenper seandper accidenseffects. The former, also known asin pluribus, are effects that necessarily follow the action because they are willed. They are the first consequence of the action, that which the action producesimmediately. The latter,in paucioribus, are the effects that are beyond the will of the agent, because of the particular circumstances in question. The action would be immoral if it caused the evil effectper se, because this would necessarily be the effect sought by the objective intention of the subject, hence, giving the action its moral species 19: q. 39, a. 1, c).11Long includes, in the primary act of cooperation (in its moral object), the described foreseen evil effects of the action of “providing insurance” because, as he would say, they areper sefollowing upon the action. Moreover, we can say they are certainly going to happen.

I am not so sure about such aper seconnection. I am convinced medical insurance of this sort does not point,per se,towards contraception. When I pay for a health care policy, theendI intend is “improving the health of my employees” or “contributing to an improvement in the health of Americans,” while themeansI intend, the essence andper seeffect of my moral action - which define what ahealth care insuranceis - involve “providing medical aid to my employees” or “guaranteeing medical assistance to cure my employees’ illnesses”. This is a very good thing. Otherwise, they would have no coverage and would not be able to afford certain important and even critical therapies. Some of my employees may use the insurance for wicked purposes; namely, committing suicide by overdosing on psychotropic substances or taking an entire pack of aspirin, killing someone by poisoning their champagne, doping while playing pro sports, or taking antibiotics when they should not (and all of this is covered by the insurance I provide!). Moreover, many Americans actually do these things every year. So, it is certainly going to happen. But all theseeffectsfollow upon my actionper accidens. They are not intended by me, either as my end or as the means I choose to achieve that end, and actually do not even contribute to them at all: they arepraeter intentionemorindirectly willedeffects.12

Furthermore, between the insurance offered by an employer and the eventual contraceptive action carried out by the employee there is an important intentional gap that makes, I would say, contraception anaccidental(rather thansubstantial) effect of the action of “providing insurance”. Employees can do thousands of things with that insurance and, as was mentioned earlier, when the evil effect is the fruit of a free choice made by a third party, it can be considered aper accidenseffect of the action. Such is the case, despite the fact that the insurancefacilitatesit. This intentional gap is the one Sgreccia referred to in the quote I brought up at the beginning of this essay to define whatmediate materialcooperation is.

Here is another helpful element. An employer does not necessarily knowwhoamong his employees will use the insurance for wicked purposes, if ever someone does. Nor does he knowthe numberof his employees who will do so: it may be a small number, because not all the employees of a company are women, and not all women use contraception. Moreover, among all theeffectsmedical insurance causes overall (basic medical supervision, basic treatments, surgical operations, complex treatments that otherwise would not be affordable, accident coverage, and many more things) abortion, contraception and surgical sterilizations are certainly a very small proportion. Is it still not the case that using an insurance to perform surgical sterilization is an in paucioribus effect of that insurance and, thus, susceptible to not beingintendedat all? Long, in his article, states that what an employer is providing with his or her insurance is mass access to those wicked actions. According to what I have just said, this clearly is not the case. He who does provide mass access to abortion, contraception and sterilization, with a heavy moral responsibility, may be the lawmaker or the President of the United States, but not the employer. Of course, the case would be different if the insurance was only or mostly directed towards evil actions. That would make those effectsin pluribusrather thanin paucioribusand, thus, the moral analysis would have to change: it would be much closer to an effect that is necessarily intended when choosing the action of “providing insurance”. But then, should we still call ithealth care insurance?

Let us look at it from a different point of view, while continuing to take advantage of the helpful hylomorphic approach to the theory of action. As we were saying, the chosen object in any free action plays a double role. On one hand, it is thematterthat will be informed by the agent’s end. However, on the other hand, the intentional dimension of the chosen object itself givesformto a certain matter -materia ex quaor the outcome of a mere physical description of an action. It is obvious that the object of action, as the close-in end (proximate,finis proximus) of the will, needs its ownmatterthat enters into the definition of what it is, thus, becoming themateria circa quam20: lib. 2, d. 36, q. 1, a. 5, arg. 5;19: q. 18, a. 2, ad 2). This matter isessentialfor the object of action: you cannot contracept or even engage in efficient cooperation with contraception without preventing fertilization or at least trying it, just as you cannot intend to build a skyscraper out of modeling clay. You need bricks or any otherproper matter. There has to be adebita proportiobetween themateria ex quaand thefinis proximus(object of the action).

Nevertheless, not all acts that cause the prevention of fertilization are due to intended contraception. An action may have othermaterial componentsthan the essential ones thataccidentallyfall onto the action. A case in point could be the unintentional, yet certain prevention of fertilization that occurs in a therapeutic hormonal treatment 25: #15). Using the examples I mentioned before, an accidental material component of going running is the leg pain I will have afterwards - even though I am sure it will happen - or the fact that there were innocent people on the airplane who died as a consequence of it being blown up. The essential material component for the plane example is only “destroying the airplane before it reaches its target”. I am convinced the matter of “contraception carried out by someone taking advantage of the medical insurance I am offering” falls within the category of a material accidental component, along with accidental effects such as someone committing suicide or killing his neighbor using the drugs covered by an insurance plan. These material components are not at allrequiredby the object of “providing a health care insurance,” just as causing the death of innocent travelers is not required by the object of “blowing up a plane before it reaches its target”. Contraception does not morally define what my insurance payment is. So, we simply cannot affirm that itessentiallyorsubstantiallycorrupts the act. If I had paid my employees’ insurancebecauseit covers contraception, then everything would turn around, and contraception would be an essential or substantial part of the definition of the object of my action of “providing insurance,” since the matter of “money that gets into their budget for contraception” would be informed by the evil election of my will that seeks contraception and, thus, becomes an illicit moral object (materia circa quam, intended effect). The same would happen if the shooterwanted to killthe innocent people on that plane because he hated them. Then, the matter would be an essential part of his chosen action and could no longer be intentionally defined as we did, but rather as the “killing of innocents by blowing up the plane they are on”. But returning to the case of providing insurance, let me go further: we may question again, in the case in which the evil itself - contraception - is willed in the act of providing insurance, whether it should then no longer be morally defined as “providing a medical insurance plan,” but rather as “paying for contraception.” To this, I would respond that such a change would, in fact, make sense.

For this to be right, we must not forget the classical doctrine on the moral responsibility for the consequences or effects of our actions. While we are responsible for the harmful consequences of our harmful actions, the evil consequences of our good actions - such as providing medical insurance - arenot necessarilyimputable to the agent. They need to be considered in light of the conditions of double effect or the rationale ofpraeter intentionemactions. Sometimes, they are morally accountable: after all, they are referred to asindirectly voluntary.

Long clarifies his position using some examples of what he considers to be analogous moral acts: “the one who murders [as an intentional election, as a means for the sake of some end, an object of action] were not,” “the one who offers to provide mass support for the pursuit of sinful actions, while wishing he were not,” the one who “crushes an infant’s skull to remove it from the birth canal and save the mother, and not because one wishes to hurt the child”. I think these examples are not comparable to the case we are studying. They are certainly much closer to effects intentionally followingper seupon an action and, as such, they are also much closer to becoming an essential part of the chosen action.

In this case, Long is raisingdifferentmoral discussions that do call into question some of the opponents he has here, but I would say in an undue fashion. Tollefsen, Girgis and George, the NCBC, and I are not talking aboutchoosing evil in order to obtain a certain good, because when materially complying with the Contraception Mandate the agentis not necessarilychoosing evil. As Brugger says, “A caricature of the account I am presenting is not uncommon in the literature. It summarizes my argument as follows: ‘All I need to do is mentally ‘direct my attention’ away from some effect of my action and, voilà, the actionbecomes‘unintentional.’ And, then I describe my act in terms of my wishful mental directing.’ But the view I am defending is not about mental self-persuasion. Intending is not mental directing, but ratherwillingin response to some intelligible proposal. One only acts on what one is interested in; and one is interested in some end for its own sake and some means one believes is suitable for bringing one’s end about. And one intends only what is part - really and entirely - of this ends-means nexus. What falls outside it ispraeterintentionem7.

Does what I have explained mean an action performed under the conditions describedcannotbe imputed to the cooperating agent in any sense? No. After all, the agent is providing an instrument a third person can use to carry out an immoral action more easily. I am not saying believing something is unintentional allows us to cause it with no further consideration.13Indeed, as I have stated above, thepraeter intentionemeffects of our actions enter into the field of [indirect] voluntariness, and this is why the causation of some evil may be judged as illicit, even when that evil is not intended either as an end or as an object of choice. What I am trying to say here is that the moral goodness of providing insurance, like the kind under study, can be evaluated adequately according to the classical Thomisticpraeter intentionemor double effect theory, which is behind the doctrine on material cooperation with evil, with all its premises. Important considerations here will involve analyzing whether there is aniusta causa- a proportionate or serious reason - for accepting the harm and performing such an action, the obligation to firmly oppose the unlawful Mandate and to avoid personal, institutional or religious scandal as one complies,14and so on.

Hence, complying with the Contraception Mandate under the extremely unlawful duress that was looming over American employers may have been a licit option for them. Moreover, we could come to the conclusion that it was not only licit but compelling; namely, the only course of action as they fought to improve the unjust law that made cooperation a moral obligation. Clearly, if the shooter and the Joint Chiefs could have gotten the plane out of the sky without causing death, they would have done so. But they judged they could not and they decided theyhad toget the plane out of the sky.

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PARA CITAR ESTE ARTÍCULO / TO REFERENCE THIS ARTICLE / PARA CITAR ESTE ARTIGO Agulles P. Cooperation with Evil, the Theoty of Action and the Contraception Mandate. pers.bioét. 2018; 22(1): 76-89. DOI: 10.5294/pebi.2018.22.1.6.

1What is described so far is the most well-known part of the reform, which would provide coverage to around 30 million Americans: “The majority of Americans – 197.2 million – purchase private health care coverage through their employer and 15.7 percent of Americans – nearly 49 million people – are not insured. Thanks to significant changes in the regulation of private health insurance, federal subsidies for low-income workers to purchase private health insurance, a mandate that requires individuals to secure and maintain health coverage, and the expansion of the Medicaid program, an estimated thirty- two million Americans are expected to be newly insured once the ACA is fully implemented. With these increases in coverage, the rate of insured citizens in the United States is expected to increase from 83 percent to 94 percent” 1: p89).

2Emphasis in the original.

3The translation is mine.

4Some of the italics are mine.

5Whether or not there is a proportionate reason to bring about the death of 235 innocent people (or cause my leg pain) is something that needs to be evaluated under the double effect reasoning, but we will speak about this later. What said is enough for the sake of what I want to explain now.

6McHugh and Callan perceive it in a similar way 10: p618). When talking about implicit formal cooperation, they say it may be explicitly formal, when “the end intended by the co-operator (finis operantis) is the sin of the principal agent,” and also implicitly formal when “the cooperator does not directly intend to associate himself with the sin of the principal agent, but the end of the external act (finis operis), which for the sake of some advantage or interest the cooperator does intend, includes from its nature or from circumstances the guilt of the sin of the principal agent.” Similar explanations have been put forth by Anselm Günthör 11: #330) and the Italian theologians Livio Melina 12: p473) and Lino Ciccone 13: p149), among others.

7In #59, Pius XI says: “Holy Church knows well that not infrequently one of the parties is sinned against rather than sinning, when for a grave cause he or she reluctantly allows the perversion of the right order. In such a case, there is no sin, provided that, mindful of the law of charity, he or she does not neglect to seek to dissuade and to deter the partner from sin.”

8Tollefsen, in his article, recalls a paper by S. Girgis and R. P. George on cooperation with evil 18.

9The latter is the most famous one in the context of self-defense.

10The same conclusions were drawn in the February 2014 issue 24, after giving full consideration to several new elements as the exchanges. Considering how they were offered at that time, these did not provide any relevant improvement from a moral point of view.

11Here, Thomas explains thatper seconsequences constitute the moral species of an action, not theper accidensones. In a different question of theSumma Theologiae(q. 43, a. 3, c) he further states, as we know, thatpraeter intentionemareper accidensconsequences of our actions.

12Indeed, one may argue that the examples given here are different from the specific case under study, because none of them arelegaloutcomes of a fair use of health care insurance. However, I believe they are useful all the same. They shed light on the argument ofmoral proximity or connectionbetween the act of cooperation and that of the principal agent.

13In this case, we could consider that application of the Contraception Mandate is now a changing issue. For instance, in the wake of a Supreme Court ruling, family-owned corporations were no longer required to pay for contraception coverage and just complying without taking into consideration if that ruling applies to one’s corporation could be an aggravating factor in a moral analysis.

14Here, the social context may play an important role. For example, compliance with the Contraception Mandate may be considered as an overall claudication to unfair impositions by an unjust legislative power. This could, in itself, be a justification for radical opposition to the Mandate on the part of USCCB and other institutions and citizens.

Recibido: 28 de Diciembre de 2017; Aprobado: 07 de Junio de 2018

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