The HHS mandate and intended evil

Recently, the U.S. Department of Health & Human Services (HHS) issued a legal mandate that would necessitate that the majority of employers’ health insurance plans must cover some particular medicines and procedures that are not permitted under Catholic teaching. (E.g. abortion-inducing drugs, sterilization and contraception: AID-S-C.)

A post in the CatholicVote blog by Janet Smith (a professor at a Catholic seminary) claims that a Catholic employer issuing a health plan including AID-S-C would not be formally cooperating with the mandate, but only materially cooperating. It’s very important to decide if complying with such a health plan is formal cooperation, because if so the mandate could not be agreed with, or acted on, under any circumstances.

In such cases, evaluating the type and degree of cooperation can sometimes be tricky and confusing to work out. It’s similar to when issues of double effect arise. It is well to realize that both of these issues are the detailed working out of a single principle: "You must never intend evil, whether as an end, or as a means."

That is a two-part principle. The first part is straightforward: for example, “I hate you, so I’ll kill you” makes murder as an end – something that someone is trying to achieve. The second part is intending evil as a means: for example, "I’ll steal money from a bank, so I can go on vacation."

Where evil is a means, it can sometimes not be as clear: "My wife has severe health problems right now, so we will use contraception." Someone claiming that may be entirely truthful that they would welcome children just as soon as the health problems are past, and quite correct that the purpose of using contraception is focused on preventing worse (perhaps fatal) health. But it is still true that they are using contraception as a means. The fact that an evil is definitely not intended as an end does not mean that it is not intended as a means.

In the context of the HHS mandate then, for the sake of concrete example, imagine a very simple health plan that is proposed (by a commercial health insurance company, say) for employees of a Catholic-owned company:

1. All Catholic-permitted doctor visits and treatments will be paid for.
2. All Catholic-permitted drug prescriptions will be paid for.
3. All sterilizations, contraception, and abortion-inducing drugs will be paid for.

A faithful Catholic owner can be happy with A and B, but not with C. His conversation with the health insurance company may go something like this:

Owner: "The health plan you offer is mostly good, but I don’t like C. I can't agree to pay for anything in C. Those things are wrong. Take C out please."

HI company: "Sorry, we can’t. It’s a federal law that it has to be there, and we’re going to comply with that law."

Owner: "But I don’t agree with C being in the plan."

HI company: "If you pick any of our plans you are entering into a legal agreement that will always include C. You can't get A and B without C. Your only other choice is to choose no plan. All our plans have C."

Owner: "And part of my payment for any plan will go to paying for C ?"

HI company: "Yes, of course."

And such a conversation demonstrates why choosing a health plan with C in it is intending evil. If the Catholic owner selects a plan, he is agreeing with it – not as a moral agreement, but nevertheless as a real signed legal agreement; it's a firm contract. He does not agree with any health plan that includes C as an end, because he is definitely against C. But he is agreeing with it as a means, because he can't get the good effects of A and B without agreeing to C.

Objection 1: But Catholics are required to pay taxes, and yet the government may choose to use those taxes for immoral purposes.

Reply 1: However, when we pay taxes we are not required to enter into a formal and explicit agreement with how those taxes will be used.

Objection 2: But Catholics are sometimes permitted, given enough proportionate reasons, to vote for a candidate whose platform includes a commitment to an explicit evil.

Reply 2: But when voting for a candidate, Catholics are not required to enter a formal and explicit agreement with any of the positions of that candidate.

Objection 3: The employer is not going up to the counter of a pharmacy and purchasing an abortion-inducing drug for an employee.

Reply 2: But when voting for a candidate, Catholics are not required to enter a formal and explicit agreement with any of the positions of that candidate.

In this post I have not used the technique on deciding whether cooperation is formal or material, but rather have directly focused on showing that evil is intended as a means.

Double effect and telling falsehoods

The situation

Here’s a situation: I’ve hidden some Jews in my house, and now the Nazis come to my door, asking if I have any Jews hidden in the house. Is it possible (i.e. without sin) to give them the reply: “There are no Jews in my house”?
That kind of question crops up regularly on the blogs, and in articles. Some of the more common answers given are:

1. no, because you can’t ever lie;
2. of course you can lie, because it would save lives;
3. it would be a sin to lie in such circumstances, but only a venial one.

And then (distressingly) people who give one of those answers will pointedly complain about the moral character of people who choose a different answer, rather than try to fully explain why one answer is (or is not) better than another.

So, what does Catholic teaching say about this? Is it possible to give that answer to the Nazis? Well, Catholic teaching has not yet given a precise answer. But broadly speaking, there are two threads that can be discerned in teachings over the centuries. One thread gives a very firm answer that lying is never permitted. But a second thread keeps bringing up various different kinds of circumstances in which a truthful statement is not always required.Can these two apparently incompatible threads be resolved?

I think they can — at least they can in the circumstances outlined at the beginning of this post.

Analysis

Step 1: Define what a lie is.

We need this step because otherwise the question is incapable of analysis. The definition I will use is given in the Catechism: A lie consists in speaking a falsehood with the intention of deceiving. Merely speaking a falsehood aloud is not sufficient to establish that a lie has been told — the intention of the speaker has to be examined.

In the given situation, we can quickly determine that the speaker’s statement (“There are no Jews in my house”) is a falsehood. But that is not sufficient to decide it is a lie.

Step 2: Specify when a lie is morally wrong.

A lie is always morally wrong, in all circumstances.

Step 3: Examine the speaker’s intentions.

[A lot of confusion can arise at this point if it is not recognized that intentions come in sequences (I put the key in the lock, so that I can open the lock, so that I can open the door, so that I can … : etc., etc.). I’ve discussed this elsewhere on this blog. One cannot pick one of these inter-linked intentions as somehow “the” intention. If someone sets under way a sequence of linked intentions, then each and every intention along the way must be good for the whole sequence to be good.]

Going back to the situation described at the top of the posting, I will now specify some more of the circumstances, so as to help focus on my overall point. In particular, let’s say that the only answer that the Nazis will accept to the question: “Are there any Jews hidden in this house?”, is either “Yes” or “No”, and that any other answer as will be taken to mean “Yes”. (This will avoid the complicated issues of equivocation or ambiguity, which are unrelated to the point I am aiming at.)

So, the Nazis have come to my house, where I have hidden some Jews, and the Nazis are asking: “Are there any Jews hidden in this house?”. What shall I reply? My goal is for the Nazis to go away without searching the house. This is a perfectly good intention. I will accordingly measure any possible reply I may make by what the Nazis will do after that reply.

If I say, “Yes”, then the Nazis will search the house. That is absolutely not what I want to happen, because it cooperates in the death of those innocent Jews. So I will not say that.

If I say nothing, or something like, “Heil Hitler!”, then the Nazis will search the house (since anything other than “Yes” or “No” is taken to mean “Yes”). That also fails to achieve my goal.

If I say “No”, then the Nazis will go away. That achieves my goal, so those words are what I will say.

The central point

Many people will claim that the fully correct description of what happens when I say “No” is this:

Description One: I said “There are no Jews in my house”, and these words caused the Nazis to be deceived, and therefore they went away.

Now if that is a fully correct causal description, then it would be true that the Nazis are caused to go away by a intentional deception — such that, if they had not been deceived then they would not have gone away. So, I would reach my intended goal of having the Nazis go away only by the intermediate intention of telling them a falsehood in order to deceive them. And that intentional deception — a lie — would be morally wrong.

But is it really the case that the Nazis only go away only because they are deceived?

Trust is an issue in relying on what someone says. And trust comes in varying amounts: we tend to have positive trust in what some people say (e.g.  family members or friends), negative trust in others (e.g. a detective interviewing an habitual criminal), or an absence of trust one way or another (e.g. a total stranger). When there is an absence of trust, it is not possible to be deceived.

Suppose then, that the Nazis have an absence of trust in me, such that when I say “There are no Jews in my house”, they neither believe nor disbelieve what I say. Hence, they are not deceived by what I say. Those words will not give them either any motivation to search the house, or any motivation not to search the house. Those words leave the situation unaltered.

(If this last point is not clear, think of it this way: before asking me the question, “Are there any Jews hidden in this house?”, the Nazis surely understand that some people will be telling the truth when they reply “There are no Jews in my house”, and some people will be lying. With an absence of trust, when the Nazis hear “There are no Jews in my house”, they will still have no idea if the speaker is telling the truth or not, and so they have gained no information one way or another about the presence of Jews in the house. That answer doesn’t sway their decision about what to do next one way or another, because of the absence of trust.)

Hence, Description One is not fully correct, since the Nazis can go away even when they are not deceived. I.e. deception is not necessary for them to go away. (Note: while it could happen that the Nazis are deceived, Description One is not fully correct because it contains the claim that the Nazis only go away because they are deceived, and we have seen that that is not always true.)

Hence we come up with a different description:

Description Two: I said “There are no Jews in my house”, and in the absence of trust those words gave the Nazis no additional motive to either search or not search my house.

This different description contains no deception, and hence no lie. Hence it can be moral to speak in that way.

At this point, we have Description One which is in error, and Description Two which, while it is not in error, does not fully explain what is going on the occasions when the Nazis are deceived. We need a fuller description.

Double effect

In the situation I described, there are two possible outcomes for the Nazis. If the Nazis have an absence of trust in me, then they will not be deceived. If the Nazis do have some trust in me, then they will be deceived. In either case, they have been given no cause to search the house.

The good that I am trying to bring about is a reply to the Nazis that will give them no cause to search the house. The harm that might result is that (if they have some trust in me) the Nazis may be deceived. But that harmful effect is not caused by the good effect.

This is a case of double effect.

Generalization

In those cases where there is some good reason for hiding information, then (depending on the exact circumstances) it may be possible to choose utter a falsehood, provided the falsehood is not relied on as the cause of deception. (With the added proviso that the falsehood must not be wrong for some independent reason: for example, if the falsehood were a blasphemy.)

Bouscaren: Chapter III, “Fundamental Principles”

In this chapter Bouscaren covers first the fundamental principle that the direct and intended killing of a person is always immoral (with the exception of those occasions where society must protect itself from some grave threat by the chosen killing of a guilty person).
He then covers the classic formulation of double effect, and directly addresses the suitable of double effect for what will be his proposed solution:

The principle of the double effect is, in its application, an extremely subtle principle. There are always some persons who are shocked by it, particularly when it is applied in difficult cases. Nevertheless, the principle is absolutely sound. It stands on its own feet, and justifies itself in the light of reason and conscience. If we have been at pains to examine the principle also in the light of two of the greatest authorities on Catholic moral theology, it is because it seemed necessary to place this principle on a basis, both of reason and of authority, which should be absolutely impregnable. Accordingly, if an objection to our solution of the problems of ectopic pregnancy be based fundamentally on a failure or a refusal to accept the principle itself of the double effect, then we simply say that that objection is in conflict with the whole trend of Catholic moral teaching for more than six hundred years. It is practically impossible to call that principle into question; and, as we have see, it may at times be applied to justify the permission of even the gravest consequences, such as the death of innocent persons.

Picking out one intention in a sequence?

Though intentions are linked sequentially (such that: I do something so that I can do something else so that I can do something else … and so on), is it possible to select just one of these intentions as “the” intention behind the sequence, with all the other intentions being somehow “unintentional” (perhaps by claiming them as some kind of “side-effect”)?

No — not for the purpose of deciding the moral rightness or wrongness for that sequence of intentions. An example: Say my child needs an operation so that they can walk again. So, I get a gun, so that I can kill someone, so that I can take their money, so that I can pay for the operation. No matter how psychologically focused I may be on the intention of allowing my child to walk again, it still remains that I intentionally murdered someone as part of the sequence in achieving my goal. That makes the sequence morally wrong.

Each and every intention of a sequence has to be morally good in order for the sequence to be a good moral choice.

Bouscaren: Chapter II, “Removing an Ectopic Fetus”

In the second chapter Bouscaren covers the history of the theological question about whether, when and how it might be possible to licitly remove an ectopic fetus. The history begins at around 1893, and finishes with the situation in 1933. The views of different theologians are summarized:

Lehmkuhl held that the removal of a fallopian tube containing an ectopic fetus was permitted when the mother’s life was in danger, and could be permitted under the principle of double effect.

Sabetti held that the fetus could be viewed as an unjust aggressor, and this permitted the direct killing of the fetus.

Aertnys held that removal of an ectopic fetus was not permitted, since it was direct killing, but allowed that if it was doubtful that the fetus was alive, then it might be removed.

Eshbach held that the ectopic fetus could not be removed, since it was a direct killing.

In 1898 and 1902 the Holy Office issued rulings that made it quite clear the direct removal of a fetus (wherever it is) was never permitted.

After that time, and up to the time that Bouscaren was writing (1933), there was no firm position held by the Church: theologians were divided as to whether the removal of an ectopic fetus was a direct killing, or whether there were some circumstances in which it would be indirect, and possibly permitted und the principle of double effect.

The linking of intentions

It is not immediately obvious how to specify what the intention was in choosing some particular act. For example, consider the act of driving to the airport to catch a plane that will take me to a relaxing seaside destination. This might be described as:

I open the front door, so that I can leave the house, so that I can get to my car, so that I can open the car-door, so that I can get in the car, so that I can start the car, so that I can drive it, so that I can get to the airport [etc. … etc.] so that I can have a seaside vacation.

So, then, why did I open the front door? So that I could leave the house, certainly. But also so that I could get to my car, and also so that I could get in the car. And also, any of the other subsequent actions that could only take place if I first opened the front door.

Putting it in a different wording: what was my intention behind opening the front door? That question could be legitimately answered by stating any one of the things that opening the front door subsequently allowed. Opening the front door was a means to each of the subsequent actions. Each of those actions (opening the front door, driving the car, etc.) was intentional. And any of the subsequent actions can be described as a goal behind the intention. None of these intentions can be singled out as “the” intention.

More generally then, intentions come in a series, and prior acts can be described as intentional for subsequent acts.

Can one of the intentions be specially selected? It might be claimed that the end goal of the sequence of events described was to get to a relaxing seaside destination. So surely “the” intention behind each action was "to get to a relaxing seaside destination”.

But then, the question can be asked: what was the intention in getting to a relaxing seaside destination? The series of intentions can be extended by adding in reasons why a relaxing seaside destination was chosen. (Because relaxation improves life. Because the seaside was the best location available within a price-range. Because my wife picked the destination. Etc, etc.)

So, the sequence of intentions that seemed to end with “the” intention “to get to a relaxing seaside destination” can be extended forwards.

How then can one intention be selected as “the” intention?

More on this later.

Bouscaren: Chapter I, “The Fight on Craniotomy and Direct Abortion”

In 1933 the Jesuit T. Lincoln Bouscaren published a book titled “The Ethics of Ectopic Operations”. In it, he addressed the problem of what to do when a fetus becomes implanted somewhere other than in the uterus (often in the fallopian tube). Since the medical prognosis of such a pregnancy is one of extreme danger to both mother and child, there is the urgent question of what to do about it, since direct abortions are always forbidden. Bouscaren carefully addresses this issue as an example of double effect, taking very great care to justify each step of his argument. Since this was — and still is — an important issue, I will describe his book in outline, chapter by chapter, giving some notes in a series of blog posts.

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In the first chapter Bouscaren gives an outline of the increasing use of abortion, particularly in the forms of embryotomy (the dismemberment of the fetus) and craniotomy (the fatal crushing of a fetus’s skull, so that the fetus can be removed) as surgical procedures became more and more widely used from the beginning of the 19th century.

Bouscaren points out two sources for defenses of the alleged licitness of these procedures. One source was some parts of the medical establishment, which claimed that the procedures were justified by the necessity of saving the mother’s life. Another source was from Catholic theologians, some even in Rome. who provided various arguments in favor of such abortions:

• that the fetus was an unjust aggressor against the mother, and killing the fetus was thus a justified defense against aggression;
• that craniotomy was justified by the application of double effect;
• that if there was a conflict of rights between mother and child, the individual with the stronger right should prevail;
• that since the fetus was doomed to die, it had no right to life, and could only have chosen for it a particular method of dying.

Bouscaren then points out that even though many advances have been made in medical procedures, an appeal is still made by some that such procedures are necessary and licit. (Bouscaren wrote in 1933. Nothing has significantly changed in the meantime.)

Given the claimed licitness of these procedures, an appeal was made in 1884 to the Holy Office (the Vatican office dealing with issues of doctrine), which gave a ruling which was to be the first in a series:

The cardinals of this congregation have carefully weighed the doubt proposed by your Eminence, as to whether it would be safe to teach in Catholic schools that the surgical operation called craniotomy is lawful, when on the one hand mother and child will die, if recourse is not had to the operation, and on the other, if such recourse is had, the mother will be saved at the expense of the child's life. After long and mature consideration, after close scrutiny of the views advocated in this matter by Catholic men of science and submitted by your Eminence to this congregation, we think it incumbent on us to answer that ‘It cannot be safely taught.'

Having settled the question of craniotomy, there were still some doubts as to other operations which were not craniotomies, but were somewhat like it. So another ruling was issued on August 19, 1889:

…We, the cardinals in committee assembled, have come to this" conclusion that in accordance with the declaration made on May 28, 1884, it cannot be safely taught in Catholic schools that the surgical operation known as craniotomy is lawful, and the same is to be said of whatever surgical operation aims directly at the killing of the fetus or of the pregnant mother…

Another ruling was then needed to deal with the case where the fetus was untouched, and removed alive, though it would later die. This was dealt with on July 24, 1895, and ruled that such an action was not allowed.

Bouscaren notes that, on the issue of craniotomy, “some of the greatest moralists in the Church, such men as Lehmkuhl, Ballerini, and Cardinal d’Annibale, did not hold that it was certainly wrong until forced to do so by the decrees of the Holy Office … Lehmkuhl admirably retracted his former opinion; but the very fact that this great theologian hesitated so long over the question is a commentary upon its inherent difficulty.”

Aquinas and self-defense

One of the classic discussions of double-effect is that given by Aquinas in answering the question “Whether it is lawful to kill a man in self-defense"? He says:

Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental as explained above (43, 3; I-II, 12, 1). Accordingly the act of self-defense may have two effects, one is the saving of one's life, the other is the slaying of the aggressor. Therefore this act, since one's intention is to save one's own life, is not unlawful, seeing that it is natural to everything to keep itself in "being," as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful…”

From what Aquinas says, we can reasonably infer that he thinks that:

1. Where two effects follow on from a single act, it is definitely possible to intend one of them, and not intend the other.
2. The act must be carefully calibrated so that it achieves the good effect, and no more — because anything different will either fail to achieve the intended good effect, or else unnecessarily increase the unintended evil effect, and thus blatantly contradict the idea that the unintended evil effect was genuinely unintended.

From the first of these points, it follows that the intentions of a double-effect actor can only be discovered by asking the actor questions. It’s no use looking at the act or effects themselves, because nothing about them will explain what the actor’s intention was.
From the second point, it may be possible to gain insight into the actor’s thinking by finding out the reasons that led up to the chosen calibration. This again means asking questions.