Magazine article National Catholic Reporter

Cooperation in Evil at Issue with Mandate

Magazine article National Catholic Reporter

Cooperation in Evil at Issue with Mandate

Article excerpt

WASHINGTON * In some corners of the Catholic community, the Affordable Care Act contraceptive mandate is perceived as so onerous that it sets up a confrontation with the state comparable to those that once produced martyrs. The matter is so grave, others have said, that failure of the Supreme Court to overturn the requirement could result in the shuttering of the church's social services.

Dire predictions aside, Catholic entities have survived while providing the same services in health care plans that they have long opposed, if under protest.

The Supreme Court heard oral arguments March 23 in Zubik v. Burwell, which consolidates seven cases of various religious schools, colleges, hospitals and charities, notably the Little Sisters of the Poor Home for the Aged in Denver. Most reporting anticipates that the court, at eight members since the Feb. 13 death of Justice Antonin Scalia, will split evenly over the case. If that occurs, then lower court rulings rejecting the objections of religious groups will stand. The court is expected to rule by the end of June.

The case is the latest phase of the four-year dispute in which the Catholic church has been the loudest and largest of the religious groups opposing the Department of Health and Human Services' requirement under the Affordable Care Act that insurance plans offer all contraceptive services.

While the Obama administration, in the face of opposition, has made several accommodations that allow religious groups to remove themselves from any direct provision of insurance for contraceptives, some still argue that even taking the steps to avoid the requirement amounts to complicity with providing drugs and devices that church teaching considers evil.

Submitting an opt-out notice makes religious institutions "complicit in a grave moral wrong," Bishop David Zubik of Pittsburgh, the lead petitioner, told his hometown newspaper.

In an unexpected development, the court asked both sides on March 30 to file briefs explaining how employees might access contraceptive coverage through employer plans "but in a way that does not require any involvement" by employers.

According to The Washington Post, "The court went into unusual specificity in asking the parties to address how that could happen, and it outlined a scenario" in which an employer would tell its insurer that it would not offer contraceptive coverage. The insurance company, in ton, would notify employees separately that it would provide cost-free contraceptive coverage. Attorneys on both sides initially greeted the proposal positively.

In places like Hawaii and Vermont, where the church populations are too small to self-insure and the state requires that all such services be provided, the church has long contracted with commercial plans that provide the full range of contraceptive services.

In New York, the archdiocese's own health plan, Fidelis Care, operates as a commercial entity and, on its online presentation of drugs available this year through the plan, lists more than two pages of contraceptives, including intrauterine devices (IUDs).

At the core of the issue today is the concept of cooperation with evil, a moral construct that is dependent on whether one's cooperation is "formal" (intending to support and engage in an evil act), or "material," a less direct engagement with an evil end and for which there are varying degrees of cooperation.

According to an online paper of the National Catholic Bioethics Center, the principle acknowledges that "it would be impossible for an individual to do good in the world, without being involved to some extent in evil."

The central question in the current conflict is whether the accommodation the administration has made to religious groups still constitutes an unacceptable level of cooperation in evil.

The Becket Fund, a powerhouse law group specializing in religious liberty issues, contends that the mandate "forces the Little Sisters to authorize the government to use the Sister's employee healthcare plan to provide contraceptives and abortion-inducing drugs--a violation of their faith--or pay massive fines, which would threaten their religious mission. …

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