by Jaan Sidorov

First posted on Disease Management Care Blog 1/6/2014

Dr. Jaan Sidorov, host of Disease Management Care Blog

Dr. Jaan Sidorov, host of Disease Management Care Blog

Consider the classic “trolley car” thought experiment:

There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. Unfortunately, you notice that there is one person on the side track. You do not have the ability to operate the lever in a way that would cause the trolley to derail without loss of life (for example, holding the lever in an intermediate position so that the trolley goes between the two sets of tracks, or pulling the lever after the front wheels pass the switch, but before the rear wheels do). You have two options:

 (1) Do nothing, and the trolley kills the five people on the main track,

 (2) Pull the lever, diverting the trolley onto the side track where it will kill one person. 

Which is the correct choice?

While this thought experiment has lived on through countless variations and even more debate, the Disease Management Care Blog was taught in a long bygone ethics class that the choices boil down to a utilitarian argument (pull the switch because five lost lives is worse than one lost life) vs. the moral argument (don’t pull the switch because, in a situation for which you bear no responsibility, you have a personal duty to not sin by taking a life).

While the DMCB could ruminate on what the Fat Lady would advise, that’s not the point here. Rather, the DMCB points out that philosophical choices are unsettled and that there is plenty of room for intelligent argument on both sides.

Which brings us to the Little Sisters of the Poor and their appeal over the Obamacare contraception mandate.

As the DMCB understands it, this Catholic religious order wants to be exempted from the exemption process that requires the completion of a one-page “self certifying” form. The purpose of the self-certifying form is to allow organizations like Little Sisters to exclude birth control pills (the moral arguments on why it’s regarded as sinful can be found here) as a covered benefit for its insured employees.

Completing that form would oblige the insurer, not the buyer, to provide access to contraception services that are mandated by the Affordable Care Act. After checking out pages 39877 and 39878 of theFederal Register, DMCB understands that Washington DC defends this “accommodation” as a cost-neutral solution (fewer pregnancies underwrite the cost of the contraceptives) and as a “administrative” cost that is spread across the risk pool. Accordingly, neither arguably obliges a Catholic organization to meaningfully participate in (pay for) what it regards as a moral sin.

But, says the DMCB, signing the self-certifying form triggers the accommodation which, in turn, leads to coverage of contraceptives. The Little Sisters of the Poor are, in effect, being asked to pull the enabling trolley switch.  Sure, it’s not the death of innocents or the trading of lives, but the underlying parallels to the thought experiment still apply. These nuns are being asked to choose the lesser of what they regard as two sins and trigger the contraception coverage.

In simplistic terms, these nuns are instead choosing a classic moral answer.

From an ethics standpoint, the contraception mandate is far more murky than it appears.

Two additional thoughts:

1.  The contraceptive mandate is a trolley car conundrum of thegovernment’s making. They’re the ones that built the tracks and put the nuns – and other persons of conscience -  at the switch.

2. In that long bygone ethics class, the DMCB was confronted by a variation in the trolley care thought experiment. Supposed you were held at gunpoint and non-compliance also meant your death in addition to the death of five innocents?  The moral answer would be that your personal duty to do no harm to extends to yourself and you would need to take the bullet.

That’s why the DMCB fears that the Sisters are not going to cooperate even if the government legally prevails in overcoming their objections. They probably mean it and will go out of business.  To make a statement in the best tradition of civil disobedience, they could continue to provide services, refuse to pay the fines and go to jail.

Yikes.

CODA: It turns out that the particular insurer is also exempt from the contraception mandate. That makes much of the Little Sisters’ objections legally moot, but that’s not the moral point.