The question on the table is, is compliance with the HHS mandate necessarily formal cooperation with evil? And while I strongly commend those who raise the question for raising it I think the answer is most likely that no, compliance with the HHS mandate is not necessarily formal cooperation with evil. I do have an important caveat in the closing paragraphs of this post, however.
I use the term “necessarily” because it is always possible to formally cooperate with evil, even without doing anything at all. Someone who in his own head says “good on her for getting that abortion” or “good for those people providing contraception” or “good for that judge clearing the way for Terri Shaivo to be starved to death” or “good on Bush for bombing that restaurant full of towel heads” has formally cooperated with mortally grave moral evil: he intends the evil act of another person or has shared in the evil intention of another person, and is morally condemned by that intention.
The plight of an employer faced with complying with the HHS mandate is similar to the plight of a legislator faced with a bill that restricts more abortions than are restricted now, yet still includes some exceptions – say the usual dark triad of rape, incest, and life of the mother. Evangelium Vitae tells us that not only is abortion itself intrinsically immoral; it is also morally wrong in itself to pass laws explicitly authorizing any abortion. It follows (my inference) that a legislator who specifically proposes the three exceptions in law, even if only as a means to the very laudable end of increasing legal restriction of abortion, does evil. You can’t specifically propose the three exceptions without intending the three exceptions as a means to some end: formal cooperation with evil. On the other hand, Evangelium Vitae also tells us that a legislator can licitly support such a bill, so long as his absolute rejection of all abortion – including by inference the three exceptions – is explicit and well known.
The situation with the good pro-life legislator is that he faces an omnibus choice: he does not support the three exceptions themselves and did not propose them himself, but if voting for the bill results in an overall better state of the law it is acceptable for him to vote for the bill. Similarly, the good employer does not support the provision of contraception and did not propose it himself. But he also faces an omnibus choice, where every option he chooses has bad – though unintended by him – consequences. It would be formal cooperation for him to propose and support evil provisions in the health insurance plan himself, as a means to any end; but it is not necessarily formal cooperation with evil for him to support the provision of health insurance that has many good benefits, even though it also provides, literally against his will, the material means for other people to do evil things.
There is a certain danger in this kind of thinking though. It is one thing to support a bill which increases restrictions on abortion across the board, even while retaining exceptions proposed by others (who are necessarily employing gravely evil means in so proposing, despite in some cases laudable ends). It would be another thing to support a bill which trades off restrictions: one which (say) introduced a previously closed exception for rape but closed an existing exception for incest. And it would be another thing still to trade off incommensurable evils: say, to further restrict some abortions while mandating sterilizations of certain individuals. It is far from clear that these “lesser of two incommensurable evils” calculations can avoid formal cooperation with the evil actions deemed “lesser”. I cannot therefore definitely conclude that compliance with the HHS mandate is not necessarily formal cooperation with evil (though I expected to conclude that when I started writing the post; so there you go).This seems reasonable to me. It would seem that it is not necessarily immoral for a Catholic employer to comply with the HHS mandate. This absolves the Archdiocese of New York, but leaves us with a new problem. If a Catholic can in good conscience comply with the contraception mandate, then upon what grounds can we claim that the mandate violates our religious liberty? If Dolan believes that complying with a similar plan in his archdiocese is not immoral, then how can he say with any legitimacy that the HHS mandate would require Catholics to violate their consciences? If the lawsuits against the mandate fail and the bishops decide that its not so bad after all to comply with it, then the Church will appear to be inconsistent and self-serving. In addition, great harm may be done to the relationship between confused laity and the flip-flopping clerics. Bishops such as Dolan are not necessarily hypocrites, but they may have made a bad situation worse.