In an earlier post we looked at the lawyer’s concept of proximate cause. We saw there is one kind of analysis that simply follows a causal chain and asks “but for X, would Y have happened?” Thus we saw a continuous chain that goes like this: Obi-wan gives the boat keys of The Force to inexperienced Luke / The Force hits and dislodges a dock / The Force and the dock drift with a tree to a narrow part of the river / the river is dammed / the river floods / distraught Leia swoons and falls off her balcony, suffering serious injury. So, “but for” Obi-Wan giving the keys to Luke, Leia would never have been injured. Accordingly, Obi-Wan’s act could be called an “actual cause” of Leia’s injury.
But something just doesn’t seem right about holding Obi-Wan accountable for Leia’s injury. We might call it equity or the light of nature, but something seems unjust about holding him responsible for her injuries. So, in order to give voice to that nagging sense of unfairness, we turn to “proximate cause.” Whereas we can say that Obi-Wan was an actual cause of Leia’s injuries we would deny that he’s their proximate cause.
But, of course, this is not tort law for the tort law’s sake. Using its concepts of causation, we looked at an application that should interest all of us: moral guilt and innocence.
For example, a taxpayer might, by way of funding, be an actual cause of any mischief a government might do, but since the taxpayer isn’t the proximate cause of government actions, the taxpayer doesn’t incur moral guilt for what it does. We could also say the noble Roman centurion of the New Testament wasn’t the proximate cause of all the Roman Empire did, Joseph was not the proximate cause of the Pharaoh’s injustice, and Daniel was not the proximate cause of wrongdoing in the Nebuchadnezzar “administration.”
Now let’s tiptoe up to the Obama administration’s HHS mandate under which employers must offer health insurance that covers contraceptives. Let’s do that by offering up a simple scenario: an employer who is a devoted member of the Catholic church believing contraception is sin is required to provide a health plan that covers contraceptives. Would it be sin – assuming for the sake of argument that contraceptive use is sinful – for that employer to provide such a health plan? Or, staying the course on the above analysis, is the employer the proximate cause of an employee using contraceptives?
Let’s first look at what hasn’t caused the Catholic’s employee to use contraceptives. The employee’s use isn’t in any sense caused by moral teaching of the employer or the employer’s church. It isn’t caused by the employer physically handing the contraceptives to the employee. Neither is it caused by the employer reviewing all the lawful health plans that could be offered and selecting one plan that covers contraceptives over one that doesn’t. So far there’s no culpability.
But the employer remains distraught. The employer might be thinking “but for” the employee working for him, the employee wouldn’t have insurance coverage for contraceptives. Here we’re still in the realm of actual cause rather than proximate cause. Actual cause is, of course, the simpler of the two to establish but even then it’s not so simple in this situation. It’s not so simple because the employee could get the same coverage working for most employers. If we just pull a number out of the air and say that 90% of employers will be obliged to provide plans with contraceptive coverage, that employee has about a 90% chance of having contraceptive coverage regardless of whether he works for the particular Catholic employer. So, yes, the employer would be considered an actual cause, but surely the primary actual cause is the government with its regulation.
Now let’s turn to proximate cause. Just to limber up our proximate cause gray matter, let’s consider a situation in which an employer wouldn’t be the proximate cause of an employee buying contraceptives. If an employee uses his paycheck to buy contraceptives without use of any insurance coverage we wouldn’t say an employer is the proximate cause of contraceptive use. It doesn’t matter that, “but for” the paycheck, the employee wouldn’t have purchased it. That decision to purchase contraceptives is a free act of the employee for which we wouldn’t hold the employer accountable.
Of course the employer will say it’s different when his health insurance plan covers contraceptives. But is it different enough to hold the employer morally accountable? Since the insurance coverage is mandated by the government and the employee makes the choice to purchase contraceptives through that plan, it’s difficult to see how the employer can fairly be blamed for the contraceptive use. The employer won’t even know if any employee is purchasing contraceptives. So if we think of a sliding scale of causation from, on one side, being a taxpayer and, on the other side, intentionally abetting an evil, providing contraceptive coverage looks more like paying taxes (here it’s very interesting that the Supreme Court calls Obamacare a tax.) In other words, it just doesn’t seem like the employer is the proximate cause of the employee purchasing contraceptives. And if, as I contend, the concept of proximate cause is useful for moral reasoning, the Catholic employer need not feel morally culpable for an employee purchasing contraceptives through a mandated insurance plan.