A Mandate to Disobey

The Affordable Care Act mandates that employers offer and individuals buy insurance that provides free contraceptives, abortion-inducing drugs, and sterilization. It seems we have passed from a society that allows legal access to these drugs and services to one that insists that they must be free, subsidized by everyone’s insurance premiums. Catholics and others are no longer being asked to tolerate what we believe to be wrong; now we must participate.

The exemption from the contraceptive mandate is very narrow, releasing only houses of worship and other religious employers whose purpose is the direct promulgation of religious faith. All other employers with fifty or more full-time employees must either comply with the mandate or pay a stiff penalty.

Unless the courts deem otherwise, Catholic business owners and nonprofits founded and run by committed Catholics (and others who conscientiously object) cannot refuse to offer health benefits that provide free contraception, sterilization, and abortion-inducing drugs. The same holds for religiously affiliated hospitals, universities, schools, and publishing houses. Moreover, individuals who buy insurance will have no option but to pay premiums for policies that comply with the mandate. The net gathers up almost all of us.

This presents difficulties of conscience. Because providing and paying for the coverage is required, in one way or another the contraceptive mandate involves what moral theologians call “material cooperation with evil.” Of course, as taxpayers, voters, and loyal citizens, we inevitably are implicated in the goods and evils of American society. In some instances our material cooperation with illicit acts and moral evils, if indirect, may not be culpable, and moral theologians will rightly debate the details of material cooperation with the contraceptive mandate as it applies in various circumstances.

However, one principle is clear: We should always seek to withdraw support and reduce material cooperation when possible. The failure to do so sends a message. It suggests that our material cooperation flows from assent, all the more so when we do not take the available steps to disentangle ourselves.

Thus the challenge we face: How do we maintain and clearly communicate our fidelity to moral truth? The challenge transcends the contraceptive mandate. If contraception and sterilization can be mandated as “preventive care,” free abortion services”the ultimate “preventive care” for the “disease” of pregnancy”can be mandated. If, as supporters of the contraceptive mandate argue, it will pay for itself in reduced medical expenses, so will free embryo engineering and other eugenic services, including infanticide, doctor-assisted suicide, organ harvesting, and genetic manipulation. What our secular ethicists entertain as morally licit today all of us may be required to pay for tomorrow.

We must think creatively about ways to refuse to participate in the system being erected by the Affordable Care Act. With that in mind, we consider three possible responses for Catholic institutions, assuming the mandate comes into effect as written.

Option One : Direct civil disobedience that refuses to include contraception, sterilization, and abortion-inducing drugs in health policies provided by employers.

Pro : Refusing to provide coverage offers a very clear witness. Direct civil disobedience by Catholic institutions today underscores our moral integrity, giving clear expression to our determined refusal to be absorbed into a mandatory secular future. Offering this witness now will help us in the battles that are likely to come.

It is quite possible that Catholics, other Christians, and perhaps religious believers of many different faiths, will be forced to resort to civil disobedience in the future, if future mandates include doctor-assisted suicide (already legal in some states) and morally objectionable reproductive therapies (already legal in every state), or other moral evils. Saying no now helps strengthen our ability to say no in the future.

Con : No commercial company will offer noncompliant policies, and self-insured employers will be encumbered with large financial liabilities. Plans that do not comply with the mandate will be subjected to an excise tax of $100 per person per day. Moreover, the accruing tax will be largely invisible, reducing the effectiveness of the public witness.

Option Two : A more indirect civil disobedience involves opting out by not providing health policies to employees. Larger employers who do this will end up paying a penalty (up to $2,000 per employee per year, though in some circumstances much less). It’s a painful penalty, but it still leaves intact a substantial amount of what employers presently spend on health insurance. This money can be passed along to employees in the form of increased compensation, and a so-called cafeteria plan can be set up to allow employees to buy insurance on their own in a tax-advantaged way.

Pro : This allows employers to send a clear message of noncooperation with the contraceptive mandate, reducing the involvement of Catholic institutions and employers in the health-insurance system governed by the mandate.

Con : In most cases, the penalty will drain away money that could otherwise be used to subsidize health coverage for employees. Moreover, because individual polices must comply with the mandate, eventually employees themselves will have to pay premiums for coverage that includes free contraceptives, abortion-inducing drugs, and sterilization. Even if Catholic institutions reduce their material cooperation, individual Catholics do not.

Option Three : A passive legal obedience and active cultural disobedience. This involves exploiting loopholes in the law. Although the Affordable Care Act is very comprehensive, it is not in fact universal. Some health plans are not covered and are thus not subject to the contraceptive mandate. These include self-insured student plans, and more importantly self-insured association plans, which are group insurance schemes based on “association” rather than employment.

Both types of plans are rare, and self-insured association plans are presently permitted in only a few states, but they allow individuals to buy coverage outside the mandate. Through these plans, Catholics and others with moral objections can buy coverage that is morally acceptable

Pro : Expanding self-insured student plans and especially self-insured association plans provides an active witness. Developing self-insured association plans based on residency in a diocese or membership in organizations such as the Knights of Columbus will allow Catholics to begin to create an independent system for financing health insurance that can be run in accordance with Catholic teaching, a significant advantage over Options One or Two. Like parochial schools founded to fight against an anti-Catholic bias in public education, even the smallest success in establishing self-insured association plans will witness to the Church’s commitment to the truth of her own moral teaching.

Con : Establishing this option will not be easy. Since only a few states permit self-insured association plans, it will take significant political effort to expand their availability, as well as financial resources to make the self-insurance plans sound. Moreover, plans designed in accordance with Catholic moral doctrine will not satisfy regulations for qualifying coverage under the Affordable Care Act. Therefore, individuals who purchase this coverage will pay the fine (now redefined as a tax) for failing to comply with the individual mandate. If the self-insured association plans are developed, however, lobbying to craft rules allowing them to satisfy the individual mandate will be more likely to succeed.

Providing employees with the resources to buy decent health care is a genuine good. Self-insured association plans provide a basis for Catholics to develop and expand forms of health-care insurance that can function in accord with Catholic principles.

There are good reasons to believe that the mandate will be significantly limited or set aside. The courts may decide that, as currently formulated, it encroaches upon religious freedom. A new Congress or new administration may countermand it. But even if the mandate is overturned, in part or in whole, it reflects a social and political movement that will not stop pushing for coercive policies.

Progressives see the sexual revolution as an important moral achievement, and they want to institutionalize it as a genuine human good, indeed a fundamental human right. This requires more than legalization, for by their way of thinking freedom is not freedom without the ability to exercise it, unrestrained by financial or other limits. Catholics and others must not give in to a view of human health and well-being that sees dignity in terms of liberated personal desires rather than moral reality.

For many, the question of contraception seems an unimportant sideline, a “Catholic issue.” This is short-sighted. Our secular age is developing increasingly perverse views of health and care: pregnancy as disease, abortion as treatment, assisted suicide and sex-change surgery as kinds of medical care. The Affordable Care Act creates a nationalized, mandatory system for health-care financing. This necessarily nationalizes and makes more urgent the bioethical debates of our time.

We cannot presume that we will win these debates. We need to begin planning for the possibility of civil disobedience. And we certainly need to pursue the very small but promising loophole of self-insured association plans. Catholics often led the way in developing a system of hospitals and health-care delivery, and they did so in accordance with the moral imperatives of the gospel. It is time to defend and develop that legacy in light of contemporary challenges to the moral law and true human flourishing.

Thomas Joseph White, O.P., is director of the Thomistic Institute at the Dominican House of Studies in Washington, D.C., and R. R. Reno is editor of First Things.