Ethics center reflects on possible responses to 'unjust' mandate

By Michelle Bauman

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President Barack Obama laughs with HHS Sec. Kathleen Sebelius in the Grand Foyer of the White House, July 26, 2012. Credit: Official White House Photo by Pete Souza.

The National Catholic Bioethics Center has released “ethical reflections” on several possible employer responses to the federal contraception mandate that has begun to go into effect throughout the nation.

“The current administration has placed many citizens in a terribly difficult ethical quandary as they struggle to be true to their conscience and still provide for the health needs of those who work for them,” Dr. John Haas, president of the center, said in a recent statement.

The reflections were made public on Aug. 2, one day after the mandate started to require employers to offer health insurance plans that cover contraception, sterilization and abortion-inducing drugs.

While some religious organizations have been granted a “safe harbor” from the mandate for one year, non-religious businesses are subject to its requirements as soon as they begin or renew a year-long insurance policy.

Led by Dr. Haas, the ethicists of the National Catholic Bioethics Center warned against the choice to willingly assent to the demands of the mandate, providing coverage of the morally objectionable products and procedures in order “to ensure employee access to health care and business survival.”

This attempt to use a good end to justify illicit means amounts to “formal cooperation,” in which those who are acting share in the intent of the sin that they are helping to commit. The group explained that this type of cooperation is always unacceptable under Catholic moral teaching, regardless of the circumstances.
 
As a morally acceptable alternative, employers could provide an insurance plan that does not include the objectionable coverage, the ethicists said.

However, they acknowledged, doing so would subject the employer to penalties of $100 per employee per day. If paid, these fines could easily add up to millions of dollars, forcing the business to close and “causing significant harm to both the employer and the employees, who could end up losing both their livelihoods and their health insurance coverage.”

Choosing not to pay these fines would be a legitimate form of civil disobedience against the mandate but could lead to “hefty legal risks that could equally threaten the livelihoods of all involved,” they observed.

For this reason, the ethicists said, this plan of action is moral but may not be prudent, since business owners have “a duty of stewardship toward the individuals whose livelihoods depend on the organization.”

Another possibility for employers would be to drop all health insurance coverage, they noted. This approach could lead to significant fines beginning in January 2014 and could lead to employees and their families being uninsured or underinsured while they seek other affordable alternatives.

Justice requires that employees be given “fair compensation” for their lost benefits, the ethicists noted, taking into account that it could be virtually impossible for individuals to find similar coverage at a comparable cost without utilizing the lower group rates that employers enjoy.

Since virtually all plans are subject to the mandate, employees may be unable to find an acceptable plan as an alternative, they added.

But while the employer’s compensation may still end up funding an objectionable plan, it “would not be specifically established for such use” and would therefore be “remote material cooperation,” which does not share in the intent of the sin and would not be illicit under the circumstances, they said.

“As unfortunate as it is, this approach appears to be the most morally sound and fiscally survivable option for the employer at present,” the ethicists explained.

A final option would be to temporarily comply with the mandate on the grounds that one is unable to “replace his employees’ insurance coverage with fair compensation.”

The ethicists said they believe that temporary compliance with the mandate is a “morally tolerable option,” but only “as a last resort” and only when “coupled with active opposition by all reasonable and legal means available.”

In addition, they said, this compliance must end in 2014, when the new insurance exchanges will be available as an alternative for employees to obtain reasonable health care coverage.

In offering this evaluation, they stressed that insurance coverage offered by providers “is often a life-saving measure,” since many employees depend on access to medication and treatment to preserve their health or even their lives.

“To avoid putting underinsured employees at substantial risk when fair compensation is not feasible is a sufficiently weighty reason to tolerate cooperation through January 2014,” they said. Due to the “lack of just alternatives,” this option could be “licit mediate material cooperation” that would be taking place “by virtue of the coerced insurance coverage.”

Dr. Haas acknowledged that there “could well be other morally licit ways of dealing with this unjust mandate.” He welcomed “responses to our reflections” and voiced hope that they may help “some of our readers attempt to navigate their way through this unjust situation with integrity.”

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