Catholic Ethicists: Immoral For Catholic Business Owners to Obey Obamacare

By Terence P. Jeffrey | September 26, 2012 | 1:01 PM EDT

President Barack Obama and HHS Secretary Kathleen Sebelius at the White House, Feb. 10, 2012. (AP Photo/Susan Walsh)

( - The National Catholic Bioethics Center has published an analysis saying that it will be immoral for a Catholic who owns a private business to purchase health insurance for his or her workers under Obamacare and its implementing regulations--which mandate that insurance plans bought by businesses and individuals must cover sterilizations and all Food and Drug Administration-approved contraceptives, including those that can cause abortions.

“Dropping all coverage appears to be the most morally sound approach,” the Catholic ethicists concluded.

They further said that Catholics have an affirmative duty to oppose the Obamacare mandate.

“Most importantly,” they wrote, “we are impelled to recall the distinct moral obligation of all persons of conscience, and especially Catholics, to resist unjust laws.

“This duty was outlined explicitly by our Holy Father, Pope John Paul II, in his encyclical Evangelium vitae: ‘There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection. … In the case of an intrinsically unjust law … it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favour of such a law, or vote for it’”

On Feb. 15, Health and Human Services Secretary Kathleen Sebelius—a Catholic whose bishop has publicly declared that she must refrain from taking communion—finalized the regulation designed to implement a “preventive services” mandate that was incorporated into the Obamacare law itself. Under Sebelius’s regulation--which President Barack Obama and First Lady Michelle Obama have been boasting about in recent speeches around the country--virtually all health insurance policies in the United States must cover sterilizations and contraceptives (including those that induce abortions) without charging any fees or co-payments.

The only health plans exempted from this regulation are those purchased by “religious” organizations, which the regulation itself narrowly defines as those that meet each of four criteria: 1) their purpose is inculcating religious values, 2) they primarily employ people of the same denomination, 3) they primarily serve people of the same denomination, and 4) they are organized under the section of the Internal Revenue Code reserved for churches per se.

While there has been significant reporting and national discussion of the fact that this “religious” exemption does not extend to Catholic hospitals, charities and schools, less attention has been paid to the fact that Catholic individuals are not exempted at all.

Under Obamacare, the federal government requires all individuals to purchase health insurance. Additionally, the law requires that all businesses with more than 50 employees must provide health insurance for their workers.

A business owner who has more than 50 emloyees and who does not provide a health plan for his workers must pay a $2,000 per-employee fine.  A business owner who does provide a health plan for his employees--but does not cover the mandated sterilizations, contraceptives and abortifacients--will be subjected to a confiscatory fine of $100 per day per employee.

Faced with this federal mandate, the National Catholic Bioethics Center sought to answer the question: What should Catholic business owners do?

First, the center concluded, suing the administration is a good thing. “We support and encourage the many lawsuits challenging this injustice and expect them to be successful before the Supreme Court,” the ethicists said.

They then explained that a business owner faced four possible courses of action that needed to be morally assessed. The business owner could “willingly assent” to the mandate and provide the morally objectionable insurance; the business owner could defy the mandate and provide insurance that did not to cover sterilizations, contraceptives and abortifacients; the business owner could drop all insurance coverage for his employees; or the business owner could temporarily provide the mandated coverage while doing everything possible to fight it and repeal it.

The ethicists weighed these options in light of traditional Catholic moral teaching on whether and when it is ever morally acceptable to cooperate with people or institutions that are doing evil things.

“We employ the standard categories of cooperation in our analysis,” they wrote. “A basic distinction may be drawn between formal cooperation, in which ‘one does … intend the sin whose external commission one is aiding,’ and material cooperation, in which ‘one … does not intend the since whose external commission one is aiding.’

“While both types of cooperation are sinful in principle, certain forms of material cooperation may be licit under temporary extenuating circumstances, so long as the cooperator manifests resolute opposition to the evil and takes all reasonable action to limit and ultimately eliminate that cooperation,” they wrote.

According to these ethicists, a Catholic business owner cannot ever willingly cooperate with the insurance mandate. “A willing assent to the mandate constitutes formal cooperation with the provision of contraceptives, mutilating sterilizations, and abortion-inducing drugs.”

The ethicist also stated that a Catholic employer cannot rationalize buying the mandated insurance because he wants to do good for his workers by providing them with a health plan—even though he objects to sterilization, contraception and abortifacient coverage. To accept this argument, would be saying that the end justifies using an evil means.

“Catholic moral teaching, which demands opposition to unjust laws that conflict with the natural law on which human laws are based, does not admit this form of cooperation as morally licit under any circumstances,” the ethicists wrote.

Quoting again from Pope John Paul II’s Evangelium vitae, the ethicists said: “‘This cooperation can never be justified by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it.’”

The ethicists then turned to the possibility that an employer could provide insurance that simply ignores the mandate by not covering sterilizations, contraceptives and abortifacients. This course of action, they said, might be morally acceptable, but “it would not appear in most circumstances to be prudent.”

“Providing an insurance plan that does not include the mandated coverage for contraceptives, sterilizations, and abortifacients would subject the employer to the exorbitant penalties of $100 per day per employee, as well as the potential legal actions taken by employees and by the federal government,” the ethicists said. “A business with only fifteen employees would face roughly half a million dollars in fines per year. If these fines are paid, many businesses will be forced to close, causing significant harm to both the employer and the employees, who could end up losing both their livelihoods and their health insurance coverage. If these fines are not paid, as a form of legitimate civil disobedience against the unjust government mandate, employers will face hefty legal risks that could equally threaten the livelihoods of all involved.”

The Catholic ethicists then analyzed the option of an employer not buying any insurance at all for his or her workers.

“Dropping all coverage appears to be the most morally sound approach,” they wrote.

But this option creates problems also: The employers would need to pay a $2,000-per-worker fine to the government, and the employees would be left without insurance. To help mitigate the latter problem, the ethicists argued that an employer who drops insurance altogether should increase the compensation paid to workers to make up for the loss.

“At a minimum,” they wrote, “justice would require fair compensation for lost benefits in the form of  a salary increase or other economic benefit and adequate notice to allow employees to find individual coverage before losing their employee-sponsored coverage.”

Yet, even if Catholic business owners abandon all health insurance for their workers and provide their workers with the full sum needed to buy their own health insurance in the individual market, that does not end the moral problem created by the mandate, because the individual workers themselves would still be forced to buy insurance that complies with the sterilization-contraception-abortifacient regulation.

“This course of action would shift the moral concern and awareness of conscience restrictions to individual voters, encouraging them to raise their voices in a way they might not if the more ‘impersonal’ business entity were left to suffer the undue burden on conscience and the free exercise of religion,” the ethicists wrote. “While the federal government has argued that a secular business cannot claim a substantial burden on its free exercise of religion, there can be no doubt that forcing individuals to pay for immoral practices does burden their free exercise of religion. Individual persons will now be forced to act against their own moral convictions and religious beliefs in order to obtain health insurance.

“This,” the ethicists conclude, “shows once again how the mandate unjustly uses the coercive power of the federal government to infringe on the free exercise of religion.”

Finally, the Catholic ethicists weighed the option of a business owner temporarily complying with the mandate while fighting to overturn it. This, they determined, could only be justified until Jan. 1, 2014, when Obamacare will be fully in force. At that point, unless the mandate has been reversed, no Catholic business owner can morally purchase health insurance.

The justification for temporary compliance would be a “prudential assessment” by the employer that he could not in the short-term fairly compensate employees for the loss of needed health-care coverage. “Employer-provided insurance coverage is often a life-saving measure, since employees can purchase better coverage at lower cost for their employees than employees can purchase privately,” the ethicists wrote.

“The ethicists of The National Catholic Bioethics Center believe that temporary compliance with the mandate, coupled with active opposition by all means available, is a morally tolerable option only as a last resort, provided that this compliance ends once the insurance exchanges are available to employees in 2014,” they wrote.

“Temporary compliance under active protest avoids the concern of abandoning employees before the exchanges are set up without permanently submitting to the unjust mandate,” the ethicists wrote. “Given the lack of just alternatives, it could constitute licit mediate material cooperation in an immoral action that would take place by virtue of the coerced insurance coverage. 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. Once the insurance exchanges are made available, however, the danger of employees being unable to obtain reasonable health care coverage elsewhere would come to an end. So too would compliance with the mandate. Beginning in 2014, employers of conscience would drop all coverage, and those with fifty or more full-time equivalent employees would pay the $2,000 tax per employee for not offering insurance as mandated under the PPACA.”

Boasting about the mandate that health-care plans must cover contraception without charging any fees or co-pay has become a standard element in the speeches that President Obama and First Lady Michelle Obama have been giving around the country in recent months.

"Today, because of the new health care law, affectionately known as 'Obamacare,' because of that law ... women have gained access to free preventive care like mammograms and contraception," Obama said in Charlottesville, Va. on Aug. 29.

"Barack didn't care whether health reform was the easy thing to do politically. That's not who he is," Mrs. Obama said on Sept. 23 in Princeton, N.J. "He cared that it was the right thing to do. And today, because of health reform ... insurance companies have to cover basic preventive care--things like contraception, cancer screenings--with no out-of-pocket cost."

The National Catholic Bioethics Center, which was founded in 1972, says on its website that it “pledges its fidelity to the magisterial teaching of the Church and to the bishops who provide leadership and pastoral guidance to clergy and laity on complex bioethical issues.” A majority the Catholic dioceses in the United States are affiliated with the center as members.

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