National Catholic Register

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‘Reluctant Compliance’

State Law Changes Church Rules at Hospitals

BY TOM McFEELY

CONTRIBUTING EDITOR

October 21-27, 2007 Issue | Posted 10/16/07 at 12:41 PM

 

HARTFORD, Conn. — A new Connecticut law attacked the Church on two fronts this month. The first front: the state’s Catholic hospital protocols for rape victims. The second: the freedom of the Church to set its own policies.

A state bill went into effect Oct. 1 requiring the Church to change its hospital protocols and adopt the state’s. The bishops issued a Sept. 27 statement that set a policy that one Connecticut bishop described as “reluctant compliance.”

The Connecticut law, “An Act Concerning Compassionate Care for Victims of Sexual Assault,” mandates that hospitals administer Plan B contraception to any rape victim who wants it. The drug delivers high doses of the hormones used in oral contraceptives. The drug can suppress ovulation, and therefore prevent conception, when given within 72 hours of sexual intercourse.

This use of Plan B as an “emergency contraceptive” for rape victims is not in conflict with Church teachings.

“It is not immoral to give a rape victim a contraceptive,” said Richard Doerflinger, deputy director of the U.S. bishops’ Secretariat for Pro-Life Activities. “That doesn’t violate the teaching on contraception; a rape is not a unitive or marital act, it’s an act of violence. And she has a right to defend herself against the rapist.”

Before the new law, whenever Connecticut’s four Catholic hospitals cared for rape victims, they administered a pregnancy test and an ovulation test before providing emergency contraception.

The pregnancy test indicates whether or not an embryo has attached to the woman’s uterine wall. The ovulation test indicates that a woman might be in the ovulation phase of her cycle. Catholic ethicists and doctors feared that the drug could work as an abortifacient by weakening the uterine wall, and so denied it to women who might be ovulating and therefore might have an undetected pregnancy.

After Oct. 1, Catholic hospitals will still administer a pregnancy test and withhold Plan B from women who test positive. But now they will comply with the law and also provide emergency contraceptives without regard to the results of an ovulation test.

In a Sept. 29 entry on his blog (BishopLoriBlog.org), Bishop William Lori of Bridgeport, Conn., elaborated on the bishops’ reasoning.

“In the course of this discussion, every possible option was discussed at length with medical-moral experts faithful to the Church’s teaching, with legal experts especially in the area of constitutional law, and with hospital personnel,” said Bishop Lori, who is chairman of the U.S. bishops’ Committee on Doctrine.

“In permitting Catholic hospitals to comply with this law,” he said, “neither our teaching nor our principles have changed. We have only altered the prudential judgment we previously made; this was done for the good of our Catholic hospitals and those they serve.”

The Register asked leading Catholic bioethicists about both the moral dimensions of the new practice, and the ethical implications of allowing the state to determine Catholic hospital protocols.


Difficult Science

The science of emergency contraceptives is at the center of the moral discussion.

Plan B works as a contraceptive by suppressing ovulation. The difficulty arises if Plan B is given to a rape victim who has just ovulated. What does the drug do then?

A lack of a scientific consensus left Connecticut’s Catholic bishops — Archbishop Henry Mansell of Hartford, Bishop Lori of Bridgeport, Bishop Michael Cote of Norwich and Bishop Paul Chomnycky of the Ukrainian Catholic Eparchy of Stamford — in a difficult position.

In their Sept. 27 statement, they said that although they and other Catholic leaders “believe that this law is seriously flawed,” the provision of Plan B pills without first conducting an ovulation test “is not an intrinsically evil act.”

Stated the bishops, “Since the teaching authority of the Church has not definitively resolved this matter and since there is serious doubt about how Plan B pills work, the Catholic bishops of Connecticut have stated that Catholic hospitals in the state may follow protocols that do not require an ovulation test in the treatment of victims of rape. … If it becomes clear that Plan B pills would lead to an early chemical abortion in some instances, this matter would have to be reopened.”

Internal medicine specialist Dr. Gerald McShane, a leading Catholic bioethicist, is chairman of the ethics committee at OSF Saint Francis Medical Center in Peoria, Ill. He points out that some scientific studies suggest that when taken during ovulation the drug may prevent implantation of an embryo in the mother’s uterine wall. Implantation occurs a week after conception.

That would mean killing a newly conceived human life. Such an action, if deliberate, is intrinsically immoral according to Church teachings.

But McShane said the science regarding this effect is not settled. Other studies have indicated that the drug doesn’t prevent implantation.

“I don’t think this is ever going to be resolved,” said McShane, who reviews all available medical literature on the question every six months to stay up to date with any new research findings.

McShane is one of the co-authors of the “Peoria Protocol,” which was formulated in 1993 to help Catholic hospitals deal with prescribing Plan B. The protocol calls for testing to see if a woman is entering the ovulation stage of her monthly cycle. If so, Plan B will not prevent ovulation, and the drug is withheld in order to protect against the possibility of causing an abortion.

Hospitals also give victims a pregnancy test. This test indicates whether or not implantation has occurred. Plan B is not prescribed if the pregnancy test is positive, as the drug cannot serve as an “emergency contraceptive” when conception has occurred already.

Dr. John Haas, president of the National Catholic Bioethics Center, said the Connecticut bishops are justified in making a prudential judgment that Catholic hospitals can comply with the Connecticut law.

Plan B won’t cause an abortion in the overwhelming majority of cases when given to rape victims. Pregnancy does not occur in most cases of sexual intercourse, and the potential abortifacient effect of Plan B could only occur in an unknown lesser percentage of the small minority of victims who do become pregnant as a result of the rape.

And since considerable scientific evidence indicates the drug does not interfere with implantation under any circumstances, Haas said it was not unreasonable for the bishops to make a prudential judgment that the required degree of moral certainty is present even in the absence of an ovulation test.

He said the relevant test that applies in this situation is not whether there is absolute certainty that an abortion will not occur because of the drug.

If that were the case, Catholic doctors would be unable to prescribe many other medications to any woman who might be pregnant, since there is a remote possibility those medications could trigger miscarriages under rare circumstances.

Haas said the requirement is for “moral certainty” that an abortion won’t occur, which is less strict.

“I’m not prepared to say that to administer this drug without an ovulation test is intrinsically immoral,” Haas said. “Prudential judgment will vary on this, and prudential judgment allows a variety of opinions.”

At the same time, Haas said, the National Catholic Bioethics Center believes that conducting an ovulation test is clearly a safer course because it increases the degree of certainty that an abortion won’t be triggered.

The U.S. bishops’ Secretariat for Pro-Life Activities also recommends Catholic hospitals use ovulation testing in conjunction with Plan B, to “add an extra level of confidence that you’ve done what you can to eliminate the possibility of an abortifacient effect,” Doerflinger said.

But he added, “I’ve seen blogs and so on in the Catholic world saying these bishops are violating what the Vatican says. The Vatican hasn’t said anything about this.”

Some pro-life critics charged that the Connecticut bishops had disregarded a Vatican warning against using the “morning-after pill,” published in 2000 by the Pontifical Academy for Life. However, Doerflinger noted that the academy’s short note on the matter is important, but is not a Church teaching document.

It also does not give any consideration to the specific question of whether Plan B can be administered as an emergency contraceptive without an ovulation test.

Bishop Michael Sheridan of Colorado Springs, Colo., discussed the issue in interviews with the Register and with Lifesite News Service.

He said Oct. 10 that given the scientific uncertainty about Plan B, he believes it is best not to administer it at all.

“My opinion on moral questions is to err on the side of safety, rather in the other direction,” Bishop Sheridan said.

If a law requiring provision of Plan B were passed in Colorado, Bishop Sheridan said he would consider closing Catholic hospitals in his diocese “if the state were going to force us to act contrary to Catholic teaching, to the Catholic conscience.”

But Bishop Sheridan noted that circumstances are different in Colorado, as state law there does not require Catholic hospitals to administer Plan B or to refer patients to other facilities to obtain it. They are required only to tell rape victims the medication exists.

The bishop said that whatever the local circumstances may be, Church leaders are always bound to follow Church teaching and natural law principles in choosing the best course of action.

But, he added, “As we try to do the best we can for the common good, we employ different strategies.”

“I suppose exception could be made to different strategies — I know in Colorado that they were,” Bishop Sheridan said. “When this legislation came out, we chose as a conference to take no particular stance on it or make no response, whereas many, many pro-life people wanted us to oppose even the fact that a patient should be told that this procedure exists.”

Bishop Sheridan agreed with Haas that moral certainty that it isn’t abortifacient, not absolute certainty, is the test for deciding if its use as an emergency contraceptive for rape victims is moral. He said it was difficult for any bishop to make a judgment on that scientific question, as bishops aren’t scientific experts.

“Unless a bishop were fortunate enough to also be a doctor or a scientist, we would have to rely on what we would consider the best medical opinion and medical science in the matter,” Bishop Sheridan said. “If that’s left up to the bishops, that’s a terrible burden to have to deal with.”

Further muddying the waters is the fact that most Catholic hospital administrators share the opinion that Plan B does not cause abortions.

“We are confident in that,” said Dan O’Brien, vice-president of ethics for St. Louis-based Ascension Health, which operates 65 acute care hospitals including St. Vincent’s Medical Center in Bridgeport, Conn.

In contrast, the Catholic Medical Association is aligned with a number of pro-life organizations in asserting that Plan B is definitely abortifacient.

In a 2006 press release about Plan B, the Catholic Medical Association said it “has been shown for over 30 years to alter the endometrium and prevent implantation of a human blastocyst.”

Some pro-lifers also insist that Barr Pharmaceuticals, which manufactures Plan B, has admitted on the company’s website that the drug prevents implantation. However, the website posting about Plan B does not say that it definitely prevents implantation; it states only that Plan B “may” have that effect in addition to its primary effect of preventing ovulation.


Religious Freedom Front

The Connecticut Legislature first tried to change the Church’s protocols on emergency contraception for rape victims in 2006.

The legislative push fizzled after State Victims Advocate James Papillo, a Catholic deacon, testified at a committee hearing that he had never received a complaint from a rape victim about being denied Plan B at a Catholic hospital.

However, backers brought the measure back to the Legislature again this year, with little opposition. It was signed into law last spring by Gov. Jodi Rell, a pro-abortion Republican.

Doerflinger decried a situation where legislators, “who know infinitely less about any of this than anybody else involved, say, ‘This is the way you must deal with this situation, by giving the drug in all cases.’”

Ascension Health’s O’Brien agreed it was a mistake for the state Legislature to involve itself in the matter.

“I think it’s unfortunate,” O’Brien said, “that legislatures feel, for whatever reason, it’s necessary to define what medical practice should be or what professional medical judgment should be.”

In an Oct. 3 statement on the matter, the National Catholic Bioethics Center said, “The NCBC objects strongly to state mandates, such as those passed by Connecticut and Massachusetts, that do not allow health care professionals and facilities to exercise their best medical judgment and which do not protect the consciences of all parties. We also object to state mandates that do not allow the victim of sexual assault to have all the information necessary for a medical intervention so that she might make an informed judgment.”

Added the statement, “However, the NCBC understands the judgment of the Connecticut bishops that the administration of a contraceptive medication in the absence of an ovulation test is not an intrinsically evil act. However, it is immoral to violate one’s conscience, including the corporate consciences of health care agencies, and the unwillingness of the state to allow an exemption of conscience makes the law unjust and onerous.”


Tom McFeely is based in

Victoria, British Columbia.