The HHS Mandate of the Obama administration has gone into effect, as of August 1st, 2012. All businesses that provide health insurance must include contraception and abortifacients in that coverage. There are numerous complicated conditions to this Mandate and to the Obamacare law. Some health plans can avoid offering contraceptive and abortifacient coverage, for a limited time. But the moral question remains as to whether a Catholic business owner (or any conscientious business owner) sins if he pays for a health insurance plan, for his employees, that includes contraception and abortifacients, as the HHS Mandate now requires.
According to Cardinal Burke, there is no way to justify cooperating with the HHS Mandate by paying for health insurance that includes contraception and abortifacients:
Cardinal Burke: “It is not only a matter of what we call ‘material cooperation’ in the sense that the employer by giving this insurance benefit is materially providing for the contraception but it is also ‘formal cooperation’ because he is knowingly and deliberately doing this, making this available to people. There is no way to justify it. It is simply wrong.” (Source)
The Magisterium does in fact teach that formal cooperation is intrinsically evil and always immoral: “Indeed, from the moral standpoint, it is never licit to cooperate formally in evil.” (Pope John Paul II, Evangelium Vitae, n. 74). However, I would argue that the cooperation of an employer who pays for health insurance for his employees is not formal cooperation, which is never moral, but rather material cooperation, which is sometimes moral, depending on the circumstances.
The USCCB Statement on Religious Liberty takes much the same position as Cardinal Burke. The HHS Mandate is deemed an unjust law, and the USCCB instructs the faithful that: “An unjust law cannot be obeyed.”
In the view, then of Cardinal Burke and the USCCB, Catholic business owners who are now paying for health insurance coverage, which includes the HHS Mandate requirements for contraceptives and abortifacients, are committing a grave sin. The matter is certainly grave, since it concerns both the thwarting of procreation and the commission of abortion. Are all such Catholic business owner morally obligated to refuse to comply with the Mandate, and face the loss of their businesses, heavy fines, and (eventually) a possible jail sentence?
No, they are not. In my theological opinion, the assertions by Cardinal Burke and the USCCB are examples of errors in a non-infallible teaching of the Magisterium and in prudential judgments. A Catholic may faithfully dissent from a non-infallible teaching and from particular judgments of the prudential order by the Church. We are not called to blind faith, nor to blind obedience.
The assertion by Cardinal Burke, that cooperation with the HHS Mandate is formal cooperation, is a judgment of the prudential order, applying the teaching of the Church to this particular set of circumstances. I believe that this judgment is in error.
If a business owner pays for health insurance, that includes coverage for contraception and abortion, he does not commit formal cooperation because he is not directly paying for contraception or abortion. He is only paying for health insurance, which covers very many different illness and injuries. The individual employee decides if he or she takes advantage of the immoral provisions of that insurance. If the business owner does not intend to cooperate with whatever is sinful in that insurance plan, then his cooperation is not explicit cooperation. Since the cooperation is neither explicit nor formal, all that is left is implicit material cooperation, which can be moral depending on the circumstances.
The teaching of the USCCB Statement, that an unjust law cannot be obeyed, is in error. An unjust law that requires one to sin cannot be obeyed. But some unjust laws can be obeyed without sin, under the principle of cooperation with evil. An example of this type of moral cooperation with an unjust law is given by Pope Pius XI in Acerba Animi, On the Persecution of the Church in Mexico, n. 16-17. Therefore, the USCCB assertion that an unjust can never be obeyed is an erroneous assertion. The Papal Magisterium teaches the contrary, that sometimes one may materially cooperate with an unjust law.
For a detailed explanation of the Church’s teaching on the principle of cooperation with evil, see my booklet:
Roman Catholic Teaching on Cooperation with Evil