The HHS Mandate: Formal Cooperation?

There is a hot debate over whether or not compliance with the HHS mandate is "formal" or "material" cooperation. A lot depends on this distinction, because if compliance with the law is formal cooperation, it is to be avoided. If, however, it is material a case can be made that compliance is justifiable.

For a more thorough orientation on the debate check out this link: Is it Moral to Comply with the HHS Mandate? In her article, Prof. Janet Smith, references a couple other articles. Two stand out, those of Dr. Michael Pakaluk and Dr. Steven Long, both of whom are professors at Ave Maria University, my alma mater, and both of whom agree that compliance is formal.

I have a great deal of respect for Profs. Pakaluk and Long. The reason I think these two articles stand out is because Prof. Smith avoids arguing with them in favor of the material cooperation stance. She specifically says, "In a future column I will respond to Pakaluk's and Long's arguments that the cooperation is formal."


I am disappointed that she would respond at another time. If they are wrong and worth mentioning, why not refute them at the same time? Because of her avoidance, I would like to take a closer look at the situation that arises from the HHS mandate, and submit my own understanding. I concede that each of the aforementioned are smarter than I, but nevertheless, it is worth pondering.

Pakaluk explains the difference between formal and material cooperation by saying:

A clear example is the difference between the stagehands who set up the music stands and chairs on stage before a concert, and the musicians of the orchestra who follow next upon the stage and actually play the music.  Although the performance could not go on without the work of the stagehands, the stagehands cooperate only materially with it, whereas, say, the triangle player who just sits there and has no notes to strike in a piece nonetheless is cooperating formally with the orchestra’s performance, since he is a member and participant.  

If Dr. Pakaluk is wrong, his analogy should fail. So, I would like to play with his analogy a bit and see what comes of it.

I agree with this analogy, but it seems that business administrations who purchase insurance in compliance with the HHS mandate are more like the stagehands than the musicians. They set the stage for the participants, right? The problem is that business administrators have more participation than that. Maybe we can put it this way: The administrators are more like the owner of the opera house who commissions a piece of music to be written for the orchestra. The insurance company is like the composer who chooses what to write. The stagehands are like employees who work for the company but receive no benefits (they contribute to the mission of the company and its profit). The musicians are like employees who receive benefits.

If the owner of the opera house commissions a bad piece of music, the musician ultimately has the choice of playing the music or not. They stagehands contribute to the conditions that provide for bad music to be played, but have no actual participation in the performance of bad music. Both the composer and the owner have direct participation in the performance of the music, therefore their participation is formal. In which case, it should be fairly easy to agree with Drs. Pakuluk and Long, but the situation is still more complex than that.

Now, lets say that the state issues a law that says that all opera house owners if they choose to employ musicians and not just stagehands, must commission musical pieces that have at least several instances of  complete gut-wrenching discordance. The opera house owner may disagree with that idea. He believes that such discordance hurts people. He needs to provide music for his musicians, but if he does he will either harm people or break the law which results in him paying a fine. He is coerced. Ultimately, however, he can still choose whether or not to comply. Even if all composers start writing discordant pieces, he can choose to write his own or refuse to supply his musicians with music. He does have options. This seems to further imply that his cooperation with the musicians is formal. Even if the opera house owner desire for the composer to write good music and his musicians to play good music, but the composer does not in order to comply with the law and the owner knows this, his participation is still formal cooperation.

Does this make sense? Am I totally off? What are your thoughts? Set up your own scenarios with this analogy and we can talk about them.