On June 24 the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization. The fallout has included joy, anger and not a little confusion about the future.

 

Sources of Confusion

Some confusion stems from varying approaches within the pro-life movement itself. “Pro-choice” activists tend to highlight “abortion abolitionists” — pro-lifers who are seeking an immediate end to all abortions, without exception — to the embarassment of less ambitious pro-lifers.

Some confusion may also be due to poorly worded pro-life legislation. Early in August, pro-life Kansans were crushed in a referendum over a confusingly worded constitutional amendment limiting abortion. At the end of August, a Louisiana woman named Nancy Davis was refused an abortion at a hospital because doctors could not decide whether her pregnancy met the legal standard of being “medically futile” — although the law’s author, state Sen. Katrina Jackson, then clarified that the law allows abortion in such cases involving a fetal anomaly.

There is further confusion about what constitutes an abortion: Pro-life activists often argue that delivering a previable child out of medical necessity is not “abortion,” whereas pro-choice activists usually hold that induction and delivery in such cases should be called “abortion” colloquially. Employing the term “abortion” in such cases might open a slippery slope for grisly elective procedures. But failing to clarify when an unborn child, in the fetal or embryonic stage, can legally be removed from a pregnant woman can lead to tragedy. Activists on both sides remember Savita Halappanavar, a dentist in Ireland whose miscarriage became septic. Her doctors failed to intervene, resulting in her death in 2012. Her story became a focal point for Irish pro-choice groups to change Ireland’s anti-abortion law.

 

Catholic Teaching and Double Effect

But pro-life ethics could have saved Halappanavar. Whether they assert that medically necessary inductions are not abortions or distinguish between direct and indirect abortion, religious pro-life activists tend to have a space in their ethical systems for dealing with medical emergencies.

In order to clarify in particular the Catholic position on medically dangerous pregnancies, the Register spoke to a number of ethicists about the Catholic tradition of double-effect theory, how that tradition intersects with medicine, and how best to frame laws so as to protect both mother and child.

Melissa Moschella, associate professor in philosophy at The Catholic University of America, with a specialty in natural law, biomedical ethics and the moral and political status of the family, said that Catholic ethics does not forbid intervention in life-threatening pregnancies. Indeed, Moschella argued that Catholic moral theology does not always necessitate employing the least invasive means in a life-threatening pregnancy situation; physicians should also protect the mother’s health. Moschella pointed out that there are scenarios like that of St. Gianna Molla, “where a mother heroically and out of charity sacrificed her own life for the life of her child; but the Church does not say that that is morally required. ... I don’t even think that a choice to sacrifice the mother’s life for the unborn child is always the morally heroic choice. Certainly in the case of a mother who has other young children dependent on her, the woman in that scenario has to take into account how her death will harm her other children.”

Catholic thought does not, then, draw a bright line forbidding any pregnancy intervention that might foreseeably result in an unborn child’s death. But Catholic thought does enjoin treating both mother and unborn child with dignity. These commitments can result in seemingly unnavigable situations. The usual key to resolving them is to consider the intention of the person acting and the means and end of their action — or, in philosophical terminology, to use the principle of double effect.

 

Direct and Indirect Intention

The groundwork for double-effect reasoning dates back to St. Thomas Aquinas’ theory of self-defense in the Summa Theologiae, and the Thomistic distinction between direct and indirect intention is alive and well today. Thus, for instance, in a 2010 document, the U.S. Conference of Catholic Bishops (USCCB) distinguished between “direct” and “indirect” abortion, applying the principle of double effect to a 2009 abortion performed at a Catholic hospital that was found to have violated the USCCB’s “Ethical and Religious Directives.”

The direct/indirect distinction is consistently significant in Catholic moral reasoning on abortion. Andrew Kim, associate professor of theology at Marquette University, says that it fundamentally changes the conversation: “It allows for a more prudential, case-by-case approach, because if you have the distinction between direct and indirect, then you have a category you can work with in situations like ectopic pregnancies.” It can facilitate an anthropological view in which, as Kim puts it, the mother and the unborn child have “a shared being in a certain way … a symbiotic relationship,” rather than being autonomous and conflicting rights bearers.

James Delaney, endowed director of professional ethics at Niagara University, suggests that one test of whether a medical procedure constitutes direct abortion is to consider the effectiveness of the procedure under other circumstances. For instance, removing a cancerous uterus is effective for fighting cancer, whether or not the woman with cancer is pregnant. 

Jason Eberl, director of the Albert Gnaegi Center for Health Care Ethics at St. Louis University, offers another test: Targeting a living child is a direct abortion, but physical procedures used in direct abortions, such as dilation and curtilage (D&C) or dilation and extraction (D&E), are licit when fetal demise has already been confirmed.

Professor Moschella offered another hypothetical: Currently, doctors cannot save the developing embryo in an ectopic-pregnancy situation, but if someday medical techniques allowed us to “detach and reattach the embryo in the right place, or into an artificial womb, we would.” Likewise, she argued that, “in a case where you have literally the mother’s life at stake and especially (but not only) in a case where the unborn child is actively dying or nonviable, it’s obvious that all the conditions of double effect can be met. … Procedures done in those cases aim not at the killing of the child, but at the removal of the child and the resolution of the situation with the mother. The death of the child is a known outcome but not part of the intent. And it’s obviously proportionate because either one or both would die.”

 

Illustrations of Catholic Moral Teaching

In Catholic moral theory, then, what makes an action morally good is neither solely the physical act nor solely the intention. Some actions are always wrong (e.g., decapitation of the innocent), and some intentions are always wrong (e.g., wishing to torture), but most actions are morally neutral and may be good or bad, depending on the circumstances and the intention. 

Philip Reed, professor of ethics and moral psychology at Canisius College in Buffalo, New York, offered a standard formulation of double-effect theory: In certain situations (end-of-life, self-defense, obstetric), “there could be an evil effect that’s brought about, but double effect says that you can’t intend the evil effect either as an end or means to bring [the good end] about.” 

Moschella explained that by the principle of double effect, “if you’re engaged in an action which is itself good and is aimed at something good, but which has a negative unintended side effect, that action can be permissible if the good that one is seeking is proportionate to the evil that one is avoiding.”

This may sound like hair-splitting; but double-effect theory is not limited to the high flights of academia, nor to people with religious commitments. 

Delaney describes the prioritizing of intention that occurs in double effect as something that “operates intuitively for most people.” When teaching, Delaney offers students the thought experiment of a father who spends time with a friend rather than with his son. In one case, the father intends to enjoy his friend’s company; in the other, he intends to disappoint his son. The moral difference lies in the intention: In the first case, a bad effect (the son’s disappointment) might be outweighed by a good intention (enjoying friendship); in the latter case, the bad intention (harming the son) sullies the indifferent action (spending time with a friend). As Delaney tells his students, “Intention matters.”

Eberl also argues that double effect is “ubiquitous.” Most people, he says, hold “some sort of objective inviolable moral principles: that murder is wrong; sexual violation is wrong; torture is wrong — things of that nature. And if you do hold any of these or any other objective moral principles,” then you run the risk of encountering a moral dilemma that demands double-effect reasoning. Eberl gives the example of driving a car: Exhaust is a pollutant, but we drive anyway, since our serious need to get to work or church or the store seems proportionate to the slight harm of a small amount of exhaust. This is double-effect reasoning.

 

The Danger of Utilitarianism

What Kim, Delaney, Eberl, Reed and Moschella describe is a theory in which competing goods — mother and child, autonomy and life, son and friend, emissions and survival —are weighed against each other, but the person acting does not seek the destruction of the good that is not chosen. But there are alternatives for weighing competing goods that do permit directly destroying a good — most notably, utilitarianism.

In utilitarianism, Delaney explained that “the only thing that’s morally relevant, the only thing that makes an action right, are the consequences,” whether those are pleasure, as for utilitarians like Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873), or preference, as for Princeton professor Peter Singer (1946-), or for some other good considered to be at the top of the hierarchy. Bentham and Singer in particular are notoriously led by utilitarian calculations to conclusions that are morally reprehensible by natural-law standards, such as, in Singer’s case, the conclusion that not only abortion but also infanticide is morally justifiable.  

Because in the natural-law framework of double-effect theory there is “something uniquely valuable about every good,” Delaney said, goods like knowledge, health, life, peace, friendship and duty can never be directly destroyed. But in a utilitarian context, if a “cost-benefit analysis of your decisions” suggests that “destroying one good is going to bring about a greater good, and that’s going to be the only way to bring about this greater good, then utilitarians would say that’s what needs to be done; that’s the right action.”

This means that utilitarians and double-effect theorists approach medical complications during pregnancy differently: A utilitarian focuses on the end goal of saving a life, even if that means taking a life, while an ethicist using double-effect theory will reject intentionally killing in order to save a life.

Each of these two ways of choosing involves an unpleasant psychological tradeoff. Honoring intention and the incommensurability of goods can render particular choices excruciatingly difficult. 

As Delaney put it, when deciding between writing a paper and playing with his son, “Regardless of which one I choose, one of those is going to suffer; one is going to be neglected.” On the other hand, the maximizing principle in utilitarianism can lead to consequences such as those Peter Singer famously outlined during the 1972 Indian famine, under which nearly any discretionary spending becomes immoral — for instance, spending money on unneeded new clothes when one is aware that others are starving a continent away. Under Singer’s theory, there is no longer any such thing as supererogatory charity; rather, so long as one is aware of an unmet need, one “ought to give the money away, and it is wrong not to do so.”

 

Struggles and Innovation

There is no psychological “free lunch” under either theory: Both struggle with moral dilemmas. And these dilemmas, Kim said (invoking ethicist Lisa Sowe Cahill’s “irreducible moral dilemma[s]”), can lead to “moral injury or moral residue” even when ethically handled. Outside obstetrics, COVID-19 has made these scenarios familiar, as when a critical-care nurse experiences moral distress because he or she cannot prevent patients’ suffering. Such people, Kim said, may “feel like they’re acting against their own values, even though when you do the moral math objectively, they’re not doing any wrong.” Similarly, Kim said, a nurse or doctor involved in a licit indirect abortion may feel as if they are “acting against their own deepest values, if they’re deeply committed to life.”

If the principle of double effect does not guarantee peace of mind, neither does it resolve all obstetric disputes among Catholic ethicists. Moschella describes “an area of active debate in the literature among faithful Catholic bioethicists who are all committed to the equal dignity of the unborn child. But there are disputes basically about the role that physical causality or the physical behaviors that you perform play in determining the object of your action and the intention of your action.”

The advantage of double-effect theory, then, is not that it always offers clear answers, nor that its users necessarily feel less bad than utilitarians. The point of double-effect theory is rather that, granting natural-law principles, it enables one to avoid willing the bad that utilitarians will as a means to good ends. And this school of the will — this refusal of double-effect theory to tolerate deliberate destruction of a good, such as the direct killing of an unborn child — could be part of promoting a culture of respect for all patients, which provokes concrete and beneficial medical innovations.

Such innovation has its historical parallels: In the field of natural family planning, the person-respecting restrictions of Humanae Vitae led Catholic doctors to important discoveries about fertility. Similarly, the Catholic nurse or doctor who uses double effect in navigating an ectopic pregnancy is also the nurse or doctor who will be invested in discovering better medical and surgical techniques, to the benefit of humanity in general, and in particular for the good of the pregnant mother and her unborn child.