A Gap in "Double Effect"

There has been a news story widely reported recently (here and here, for example) about a nun, a bishop, and an abortion. Now, take your minds out of the gutter. This is about medical ethics.

Last November a woman was seen in a Catholic hospital in Phoenix. She suffered what the doctors called, "right heart failure," a symptom of pulmonary hypertension.  She was also eleven weeks’ pregnant.

Now, pulmonary hypertension is in and of itself a life-threatening condition. While there are treatments for symptoms, there is no cure. It raises blood pressure, makes it harder to breathe, and makes the heart work harder.

Which are circumstances it shares with pregnancy. And not only does pregnancy add these stresses to the body, but the stresses only increase as the child grows. So, if this woman had a life-threatening condition at eleven weeks, her doctors felt she would have a fatal condition before she could possibly bear this child.

The only definitive treatment would be to end the pregnancy. The woman was willing. But, she was in a Catholic hospital. Could the procedure happen there?

When that question arose, it was addressed to the hospital's Ethics Committee.  The Committee included a hospital administrator, herself professed religious. The Committee felt the procedure could happen – regrettable, perhaps, but possible. That was because of Directive 47.

Directive 47 is a principle stated in “Ethical and Religious Directives for Catholic Health Care Services,” from the U.S. Conference of Catholic Bishops. The Fifth Edition was published in November of last year, but Directive 47 was also in previous editions. Directive 47 is among the directives in “Part Four: Issues in Care for the Beginning of Life.” It reads,

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

This directive is a classic expression of the principle of double effect. In essence, the principle of double effect states that if a moral action is necessary and its intent appropriate, a second but unintended consequence may be morally acceptable. While the phrases “double effect” or “unintended consequence” do not appear in a search of “Ethical and Religious Directives for Catholic Health Care Services,” the principle does appear elsewhere, and specifically in Directive 61, dealing with pain management at the end of life, where it says in part, “Medicines capable of alleviating or suppressing pain may be given to a dying person, even if this therapy may indirectly shorten the person‘s life so long as the intent is not to hasten death.”

Interestingly enough, the principle was first articulated by Thomas Aquinas to address issues of self-defense. Defending oneself is a good end, as long as the means is proportionate (no swatting a fly with an atom bomb). If one intends to defend oneself, using proportionate means, without specific intent to kill the attacker, then if the attacker does in fact die the killing is not murder. (A good discussion of “double effect” is available as part of the Stanford Encyclopedia of Philosophy.)

It’s easy to see how this would apply in general in health care. Protecting life and health is good. Doing so might involve means that are proportionate, but that would be bad independent of protecting life and health – as in surgery, which slices into a body to heal and not to hurt. And good practice is to choose the least risky (read “most proportionate”) treatment available. So, even though it causes damage in its own right, and certainly pain, the incision is surgery and not assault. The “good effect” intended in treating the patient is more relevant than the “bad effect” of cutting the patient.

The question, of course, is how this would apply in following Directive 47, and in this specific case. Certainly, as far as we know neither the physicians nor the patient had as their intent ending the pregnancy. However, the continuing pregnancy, including the growth of the fetus and other changes affecting the patient, would, as the physicians and patient saw it, result in the death of the patient and so of her fetus as well. Her condition was too fragile to wait, and too fragile to transfer to another facility. So, there was no “more proportionate” action that would protect what life and health could be protected. So, why, then, would the bishop excommunicate the nun for per participation on the Ethics Committee?

The problem, at least within “Ethical and Religious Directives for Catholic Health Care Services,” is that while there was no “more proportionate” action to take, the action in question was an abortion. We need in that light also to consider Directive 45:

Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo. Catholic health care institutions are not to provide abortion services, even based upon the principle of material cooperation. In this context, Catholic health care institutions need to be concerned about the danger of scandal in any association with abortion providers.

And just to be sure that the word “never” means never, consider Directive 48: “In case of extrauterine pregnancy, no intervention is morally licit which constitutes a direct abortion.” In “Ethical and Religious Directives,” a footnote at Directive 48 refers explicitly and specifically back to Directive 45. While not usually as immediate a risk as primary pulmonary hypertension, an extrauterine (tubal) pregnancy can certainly be life-threatening. Taken together, while not common, there will be circumstances, then, when the life of the fetus is more important than the life of the mother, even when the life of the fetus can’t be saved. (Remember, best medical advice was that the patient’s pulmonary hypertension would kill the patient before this fetus might grow to be viable.) We might acknowledge that the Roman Catholic Church in a real sense applies moral personhood from the moment of conception, and say “child” instead of “fetus;” but it doesn’t change the real bind. It simply makes our clause, “the life of the child is more important than the life of the mother, even when the life of the child can’t be saved.”

I’m not a Roman Catholic, and do not work in a Roman Catholic facility; and so while I can understand the bishop’s logic, I can’t agree. I think the premises are flawed (specifically full moral personhood for a fetus, and preferring a fetal person over a born person). And some questions aren’t addressed in the news stories. If the procedure happened in November, why is it only being addressed now? Did communication happen at the time between hospital and diocese? How much did the bishop know when he made the decision to excommunicate the nun? Was his the “most proportionate” response? Is this affected at all by that last concern of Directive 45, “Catholic health care institutions need to be concerned about the danger of scandal in any association with abortion providers?” One has to ask whether the scandal wouldn’t have been just as bad – or worse – had the patient died in the hospital while the staff worried more about preserving her pregnancy.

The procedure happened, and the patient lived. She lost a pregnancy that we presume she wanted. The nun can be returned to the communion of the church, if not to her administrative position with the hospital. The bishop has taken his stand. The situation is over. At least until next time….