Editor’s Note: Read Part 1 here.
Given the psychological, moral and even technological benefits that Catholic moral teaching can help to engender — which are, in turn, the fruit of literally centuries of thought about ethics — even secular health-care professionals might be well-served by a deeper understanding of natural-law principles and especially double-effect theory.
Ethicists Philip Reed and Jason Eberl both pointed out that Catholic hospitals have long avoided direct abortions, employing double effect to justify interventions when a mother’s life is at risk. Given this background, post-Dobbs pro-life activists might well look to Catholic hospitals and doctors when it comes to developing protocols for secular health-care institutions. Indeed, it might behoove Catholics pro-life activists to make ethics education a priority going forward.
Reed says that his impression is that medical schools currently treat ethics “peripherally,” such that “a lot of health-care providers tend to face [difficult moral questions] in the moment they get out of medical school. I do think, though, that maybe Catholic OBs, Catholic doctors are a little bit better. They know more of the philosophy and ethics than other physicians, and that’s partly because of their concern to respect Catholic moral tradition.”
Practical Challenges to Effective Legislation
But developing protocols and legislation for secular society is not as simple as inserting the language of Catholic moral teaching directly into law. Determining how to flesh out the critical role of intent in legislation can be particularly thorny, even though the law tries to account for intention in determining the gravity of a given crime (e.g., in distinguishing deliberate murder from unintentional manslaughter).
Most interviewees argued that pro-life law and policy can include intention, but all stressed the need for caution. Reed, pointing to the “moral tradition of the law taking [intention] into account,” noted that “there are cases where the intention I think is disputed, and Catholic bioethicists aren’t in agreement about what sort of treatments are appropriate in, for example, ectopic pregnancies.” At the same time, he observed that there is “widescale agreement in the case of, say, a hysterectomy where a woman is faced with suffering from cancer she’s unlikely to survive unless a hysterectomy is performed. There’s agreement that the intention in that case is not to end the life of the fetus, even though it’s foreseen that the fetus will die if the hysterectomy is performed.”
Reed suggests that rather than ruling out specific procedures, law or policy might look to the fact that “ethical and religious directives do say that it’s not licit to intentionally perform an abortion, that is to say, the direct killing of a fetus.”
In a similar vein, theological ethicist Andrew Kim, drawing an analogy to just-war theory, argued that, for some actions, intention can be inferred, albeit imperfectly. That being said, Kim also suggested that it could be problematic for pro-life activists to attempt a perfect alignment of law and morality, given the current polarization over abortion.
Kim also pointed out that even an ideal society might not be able “to legislate in a way that appropriately recognizes the nuance and just the granular realities of certain situations. … One of the arguments the [pro-choice] side has for not having the laws not be as restrictive is because it’s just so hard to account for the wide variety of situations that can present themselves.”
Professors Melissa Moschella and James Delaney also emphasized the difficulty of legislating intention and appealed to end-of-life analogies, citing a 1957 meeting between Pope Pius XII and the Italian Society of Anesthesiologists in which the Pope answered a conundrum: Could anesthetic drugs be given to a dying patient if they might hasten the patient’s death? The Pope argued, using double effect, that as long as the intention is not death but merely the relief of suffering, it is permissible.
Building a Culture of Life
The goal for Catholic pro-life activists, then, should be to hit the sweet spot between abortion exceptions so broad that they allow almost any abortion and exceptions so restrictive that doctors are reluctant to act to save women’s lives.
Moschella, for instance, observed that, in end-of-life cases, the law presumes good intentions on the part of both patients and doctors when it comes to removing life support, “because this is an action that might not be intentional killing and because there may be good reasons to determine it.” Likewise, she suggested, in the context of abortion, “If the law does specify more narrowly to prevent abuses — you have this with end-of-life-cases as well — you’re going to create a scenario where doctors are afraid to do things that they should do.” Avoiding this particular double bind demands, as Eberl put it, “nuance and clarity of definition in the laws.”
James Heaney, a pro-life blogger and advocate, suggested that one possible solution is for pro-life legislation to include a nonexclusive list of common life-threatening conditions.
“No doctor trusts any district attorney’s medical judgment about what is a serious threat to life,” Heaney said. “So as much immunity as you can give them from the district attorney in appropriate cases, that’s the line you should do. And, obviously, you shouldn’t limit it to that; you shouldn’t say, ‘These are the six cases and the only cases that are allowed.’ You should say, ‘the life of the mother, which may include — here’s a list of examples.’ And that at least gives you both a list of cases that are specifically excepted, and it gives both the doctors and the courts a better understanding of the legislative intent behind what ‘life’ means so they can cover those edge cases [where a pregnancy risk is not explicitly mentioned in the law] better and establish better precedents. … More clarity is good.”
Heaney pointed out that Ohio’s pro-life law already includes the usual language for medical exceptions (“life of the mother” and “serious risk of the substantial and irreversible impairment of a major bodily function”) and adds that these exceptions are automatically triggered by preeclampsia, inevitable abortion (when the cervix dilates during a miscarriage, but the miscarriage may be stalled) and premature rupture of the membranes.
Of course, crafting detailed exceptions may embroil pro-lifers in some bitter arguments about what counts as “serious impairment.” Before Dobbs, Heaney said, pro-life legislation was limited by the fact that “we haven’t had to have the arguments about what should actually count. Does retinopathy for diabetes count …? And [having these arguments] is going to be ugly, and that’s going to be politically costly; but I think that if, in the end, that saves women’s lives and children’s lives, we’re going to have to pay that price.”
Heaney also stressed that pro-life activists must proactively provide other help in “hard cases” where life-of-the-mother exceptions do not apply, such as the recent situation of the pregnant 10-year-old who could not receive an abortion under Ohio’s new pro-life law. Situations like hers, Heaney said, are difficult because, while it is politically unpopular to prohibit such abortions, “it’s also morally just, and it is currently also the law.” But such cases, Heaney argues, demand pro-life advocacy of comprehensive medical, financial and educational support for victims like the child in Ohio.
Heaney acknowledged that such support may be a tough sell in a society where many remain doubtful about the personhood of the unborn, especially in the early stages of pregnancy. He pointed out that while recognition of fetal personhood and 14th Amendment rights might be “the end goal,” not a single Supreme Court justice tipped a hat to the personhood argument that Robert George and John Finnis made in their Dobbs amicus brief.
Of course, there are other ways to build a culture of life. In addition to state-level legislation, Heaney points to a number of U.S. congressional acts — the Unborn Victims of Violence Act (2004), the Born-Alive Infant Protection Act (2002) and potential legislation like the Sanctity of Human Life Act and the Life at Conception Act, as well as the Graham Bill. A pro-life president could also recognize fetal personhood, for instance, Heaney suggested, by reinterpreting the 1940 tax case Wilson v. Commissioner of Internal Revenue, which currently prohibits claiming an unborn child as a dependent — although Georgia, for instance, allows such a claim at the state level. An executive reinterpretation of the decision would not end abortion, but it could, Heaney argued, be one of many steps toward helping people to think about the unborn as persons.
As Heaney puts it, “If one day we’re going to wake up and personhood is going to be here, it’s because a critical mass of states have made that move, and they’ve proved that it can work and that we can honor the rights of the mother and the child without harming either one.”
Pastoral Guidance for Catholics
For many Catholics, however, convictions about fetal personhood are not merely a voting matter: They are deeply personal. Families and especially women with children are sometimes challenged in their commitment to Catholic teaching on life issues.
Msgr. Stuart Swetland, president of Donnelly College in Kansas City, Kansas, where he is also professor of leadership and Christian ethics, told the Register that in such cases, parish priests can oftentimes be a good resource.
“In this area, I think the seminaries have been pretty good at forming clergy to at least know the basics of medical ethics and the basics of what’s behind the bishops’ ‘Ethical and Religious Directives’ for health care.” He also noted that priests can connect those facing more complex situations to diocesan resources or groups like the National Catholic Bioethics Center. Catholic health-care facilities will also usually have ethicists on staff.
There are some questions, however, that even Catholic bioethicists debate, such as the ethical treatment for an ectopic pregnancy (e.g., tubal removal, tubal section or methotrexate). In such cases, Msgr. Swetland encourages families to pursue a second opinion, to respect the most common opinion, and to make sure that they are consulting “with organizations and individuals who have shown consistency throughout their writings and their commitment to … what the Church teaches.”
Practicing a consistent life ethic cannot enable families to save every life that God entrusts to them. Women who suffer from complex disorders like ectopic pregnancy or uterine cancer may feel deep grief and even guilt, even when they have acted in accord with Catholic moral teaching.
Msgr. Swetland stressed that such women and families need to be “accompanied” not only through the decision-making period but also through its aftermath, as they mourn the loss of a child and oftentimes a loss of or reduction in fertility as well. Pastoral workers, Msgr. Swetland said, “have to help people deal with this loss, this mourning, just like we have groups that help people deal with other kinds of losses to be mourned appropriately.”
Msgr. Swetland also noted that too often Catholics focus on ethical conflicts only after they arise. He acknowledged that insurance plans and other real-world pressures can make it impossible for women to find health-care professionals who share their worldview; and he lamented the irony of advocating for choice while denying women the right to pick their doctors — a situation that can arise in states like California, where low- and middle-income families often are stuck within the one-size-fits-all Kaiser Permanente system.
For women who have no choice about their health-care provider, Msgr. Swetland recommends making one’s religious beliefs clear upfront. “Doctors know they have to respect the patient’s wishes. [So] I would, before there’s any crisis, be sure that it’s in my records that it’s clear that I’m a Catholic, that I believe what the Catholic Church teaches about ethical and religious issues related to health care, and that I never want anything done to me that would violate those principles.”
That being said, Msgr. Swetland urged pro-life women and families “to think a little bit outside the box” and seek out, when possible, OB-GYNS who share their commitments.
“The best time to deal with [ethical conflicts],” he said, “is well before there’s a crisis situation. … I think it’s important that, especially given the modern world, that we make more readily available lists of doctors who share our worldview, that share our faith, our commitment to life.”
He also encouraged all Catholics to be supportive of pro-life health care. “I was in another part of the country when a doctor I knew made that decision to go NFP only, and that doctor thought it would severely affect their practice negatively. It turned out not even in the medium run; in the very short run, it was a boon to business. But going into it, they didn’t know that; and they still chose to do the right thing. But we need to make it clear that there’s a market for this.”
What Msgr. Swetland asks of Catholics is, in short, that they make their theological and philosophical commitments to the pro-life cause concrete and practical.
Human Dignity and Solidarity
As professor Kim observed, pro-life moral reasoning “isn’t freestanding. It’s rooted in the commitments we have and the beliefs we have about who God is and who we are, about relationality.” Kim noted that, in contrast to the Kantian view of people as mere “ratiocinating, reasoning beings” or the modern legal view of people as “merely bearers of rights,” Catholic anthropology also stresses the solidarity and connectedness of human personhood.
This is most notable in the thought of St. John Paul II, who combined a metaphysics that derived from St. Thomas with the personalism of thinkers like Max Scheler, who argued that ethics is not an abstract fruit of pure reason, but rather is inevitably influenced by one’s particular personal obligations and lived experiences. For Kim, “what [John Paul II] does brilliantly is show how all these fundamental human concerns and driving questions are fundamentally connected to our relationship with God and our beliefs involving where we come from, what our lives are ordered to, what gives them meaning.”
In Veritatis Splendor, his 1993 encyclical regarding some of the Church’s fundamental moral teachings, John Paul II wrote, “In the question of the morality of human acts, and in particular the question of whether there exist intrinsically evil acts, we find ourselves faced with the question of man himself, of his truth and of the moral consequences flowing from that truth. By acknowledging and teaching the existence of intrinsic evil in given human acts, the Church remains faithful to the integral truth about man; she thus respects and promotes man in his dignity and vocation.”
For John Paul II, in other words, the Church’s prohibition of abortion, euthanasia, murder, torture and the like derives not from an extrinsic command of divine or human law, but rather from the nature of human beings themselves. This nature, when regarded through honest eyes, has an inherent dignity; and it is this experience that we all share of the human dignity of those around us — even the dignity of the “least of our brethren” — that ultimately shapes our habits of thought and life.