The National Catholic Review
Kevin O'Rourke
Responding to a bishop's disciplinary decisions
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Last December, the resident Catholic bishop of Phoenix, Ariz., Thomas J. Olmsted, declared that St. Joseph Hospital could no longer call itself Catholic because medical professionals at the hospital had performed a direct abortion to save a woman’s life. According to Directive 45 of the Ethical and Religious Directives for Catholic Health Services, direct abortion, which is “the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus, is prohibited in Catholic hospitals.”

On behalf of the corporation sponsoring the hospital, Catholic Health Care West, Carol Keehan, D.C., president and chief executive officer of the Catholic Health Association, the national organization representing Catholic hospitals and long-term care facilities, disagreed with the bishop. Both Sister Keehan and Catholic Health Care West maintained that the act upon which the bishop based his decision and disciplinary action was not a direct abortion.

Are there grounds for deciding that the procedure was a non-direct abortion, in which the death of the fetus was not included in the intention of the moral act but was a foreseen side effect?

The medical team at St. Joseph Hospital made its decision based on a judgment that both mother and child would die unless action were taken to remove the cause of the underlying medical problem. It seems that preserving the life of the mother was the intention of the act because the infant would die no matter what was done or not done. Its death during the surgery was foreseen but not intended and so a non-direct abortion. There are responsible Catholic theologians and medical personnel who maintain that in these circumstances (including an inability to save the infant from eventual death), the principle of self-defense justifies removing the fetus from the mother’s womb.

Despite a plea by Catholic Health Care West for a more prolonged theological study and a paper defending the thought of the ethics committee of the hospital, Bishop Olmsted issued a statement declaring that a direct abortion had been performed and imposed penalties: specifically that the hospital could no longer call itself Catholic and could no longer provide for the celebration of Mass or reserve the Blessed Sacrament. These penalties were in addition to an excommunication declared earlier by the bishop upon Margaret Mary McBride, R.S.M., the Phoenix hospital administrator who represented the hospital ethics committee in the medical decision that led to the death of the fetus.

On the Horns of a Dilemma

Later Sister Keehan seemed to change course. In a letter to Archbishop Timothy M. Dolan, president of the U.S. Conference of Catholic Bishops, she stated that the Catholic Health Association “has always said to sponsors, governing board members, managers and clinicians that an individual bishop in his diocese is the authoritative interpreter of the Ethical and Religious Directives.” The E.R.D. issued by the conference of bishops is the official guide for the delivery of health care in the name of the church in the United States. Was Sister Keehan contradicting herself? Not really, but a proper response to a bishop’s pronouncement in such a case is quite complex.

The situation was accurately explained in a statement issued a short time later by Archbishop Dolan: “I am convinced that Sister Carol believes she serves the bishops as much as she serves the hospitals.... She feels that the decision [of Bishop Olmsted] was terrible, but she knows that the bishop of the diocese is the authentic interpreter and implementer” of the U.S. bishops’ Ethical and Religious Directives.

This explanation demonstrates a well-known dilemma in regard to official teaching of the church and the reception of that teaching by the faithful: The diocesan bishop has the right to teach with authority, a right firmly established and affirmed by the Second Vatican Council, but that right is not without limitations.

In an article in Theological Studies in 2003, Thomas O’Meara, O.P., discussed these limitations. He argued that the grace of the Holy Spirit does not replace the need for study, learning and reflection on the part of bishops. This is an application of the insight of St. Thomas Aquinas that “grace does not replace nature but rather draws it toward fulfillment” (Summa Theologiae I,1,8). Father O’Meara also maintained that the doctrinal teaching of the magisterium calling for assent is not the same as a disciplinary statement requiring obedience—a distinction also made by Nicholas Lash in his article “Teaching or Commanding?” (Am., 12/13/10).

Conscionable Options

How can the people affected by a bishop’s decision respond? For a Catholic who respects the teaching of the church, there seem to be two possible ways of responding: (1) accept the statement and follow it as the rightful teaching of the church, even though one disagrees with it; or (2) accept the authority of the statement but disagree with its reasoning and so not follow it because doing so would violate one’s conscience. This second option is what the Board of Trustees of Catholic Health Care West and Sister Keehan seem to have done, and it prompted the letter of Sister Keehan to Archbishop Dolan.

The first response is not unreasonable. To accept a bishop’s judgment while disagreeing with it is not a suppression of conscience but rather an acknowledgement of other elements besides one’s personal conviction. It implies that the recipient of the teaching implicitly realizes that his or her objections to the teaching may not be as well reasoned as the teaching of the resident bishop and that the bishop has the assistance of the Spirit (charism) when teaching. Indeed, the virtue of faith impels Catholics to consider seriously this type of response.

The second response is more difficult to understand and apply. Volumes have been written on the role of conscience in relation to the teaching of the church. An instruction issued by the Congregation for the Doctrine of the Faith (5/24/90) and a commentary on the instruction by Avery Dulles, S.J., (Origins, 3/28/91) provide guidance. The following is a brief synopsis of the pertinent ideas in both the instruction and the commentary.

If a bishop acting in union with the pope states an infallible church teaching, then it must be accepted by Catholics. Were a resident bishop to declare, for instance, that abortion is contrary to moral law, his statement should be accepted by Catholics because that is “the constant teaching of the church.” But if a resident bishop states that a particular action was a direct abortion, that is not a constant teaching of the church. Usually a disciplinary statement of this nature should still be accepted, but there may be arguments to support a contrary decision.

Noninfallible Statements

Noninfallible statements are of two sorts: “reformable” or “prudential” statements. “Reformable” does not imply that the statement could be reversed but rather that in the future it might be better expressed, the better to be understood and to be more adequate to the truth it conveys. Reformable statements that are formal teaching should be accepted, in the words of the Second Vatican Council, with “religious submission of intellect and will.” This form of response is not an act of religious faith in revealed truth; rather it is an internal intellectual assent. One should follow church teaching unless one has serious reasons for offering only external respect for the teaching.

If the statement is a prudential application of church teaching based upon “contingent and conjectural elements,” it may be proven to be “not free of all deficiencies.” Then it may be challenged for objective reasons and in time even be reversed. Even prudential papal teachings have been reversed. At the press conference introducing the C.D.F. instruction in 1990, then Cardinal Joseph Ratzinger gave several examples of teachings that have been reversed: statements promulgated by the Holy See in regard to ecumenical activities, to relations between church and state, to personal freedom and the rights of conscience in choosing a religion and declarations of the Pontifical Biblical Commission made at the beginning of the 20th century.

If one follows this second type of response to a bishop’s noninfallible teaching, the instruction advises:

• Contrary opinions must be based upon objective historical and theological reasoning, not upon subjective “rights of conscience.”

• When people object to church teaching, “rights of conscience” often become more important than truth.

• Statements of the hierarchy should not be rejected because they are hard to follow.

• Decisions of individuals contrary to those of resident bishops should not be presented as normative for other institutions or individuals.

• Opposition to a statement of teaching or discipline should not be a “media event,” which may be harmful to the church, though opposition may be expressed in serious forums or journals.

• Responses of this nature, “when a person cannot give intellectual assent,” are called “personal difficulties.” Both Cardinal Dulles and Nicholas Lash indicate that “dissent” is not a fitting term for this type of response. Mr. Lash prefers to label them “disagreements.”

Conscience Formation

A well-formed conscience is an important part of one’s spiritual life. Thus, any decision of conscience that seems to be contrary to a statement of a church authority, for example, of a local bishop, should be made with caution and a clear view of the common good as well as the personal good of the individual. Authoritative statements of church officials are not mere opinions based on hearsay or weak evidence. Rather, the issuing authority seeks to found them on sacred Scripture, prior teaching of the church and a desire to foster the common good of the particular communities to which they are directed. Disagreements with such teaching must be based upon fact, not opinion. Hence, the first inclination toward official statements should be to follow the teaching or disciplinary statement, even if the teaching is not an infallible statement.

The church, however, admits that statements of church teaching are not all of equal authority. Infallible statements are not frequent. Most statements, especially those of local bishops, are in the noninfallible category. Moreover, the church admits that statements issued even by the highest authority may be subject to revision or correction. The document of 1990, referred to earlier, states: “One must take into account the proper character of every exercise of the magisterium considering the extent to which its authority is engaged…. The authority of the intervention becomes clear from the nature of the document, the insistence with which the teaching is repeated, and the very way in which it is expressed.”

In regard to a moral decision involving facts and challenges of contemporary society, it seems bishops should not make statements based solely on their own experience and knowledge. The people immersed in a particular moral situation may have unmatched knowledge valuable for a sound decision. This is especially clear in regard to moral questions arising in modern health care. In addition, the principle of subsidiarity opts for the right of people other than the bishop to speak to moral issues. The teaching authority of bishops is recognized by members of the church, but in order for that authority to be effectively exercised it must include the voice and expertise of other individual members of the people of God.

Kevin O'Rourke, O.P., is a professor of bioethics at the Neiswanger Institute for Bioethics and Health Policy at the Loyola University Chicago Stritch School of Medicine and a consultant for many Catholic health care corporations.

Comments

DENISE MATHES | 8/8/2011 - 4:12pm
I am at a loss to understand why an out of touch bishop would venture into this issue when it is clearly in good hands with Sr. Keehan and the ethics committee -especially when the diocese of Phoenix still has sexual abuse scandals to deal with.  The bishop is innocent and viable lives being jeopardized.
Michael Barberi | 8/4/2011 - 9:59pm
It is impossible to separate the issue of authority from the issue of the content and meaning of what is presented as authoritative. When authority affirms a revelation of truth, it must ‘ring true’ to our deepest capacity for truth, goodness and reason. It must not demand blind faithful assent, but the convictions of our minds, hearts and souls.

This does not mean that the informed conscience of the individual cannot err, but neither does it mean that the theology of the Papal Magisterium is always infallible and the absolute moral truth. It also does not mean that Catholics should embrace relativism or individualism or pick and choose the doctrines that fit their personal and relational circumstances. 

When it comes to complex ethical cases, such as the issue faced by St. Joseph's Hospital in Phoenix, one must use all means necessary to inform their conscience. This includes all the facts, sincere reflection and prayer, and respect for the Magisterium.  This means that one must understand fully how Church doctrine was formulated, both historically and in the most recent century. 

There is a deep divide over sexual ethical issues between most theologians, many priests and average Catholics on one side, and the Church Hierarchy on the other. The Church likes to describe this schism as the "dissenters" versus the "faithful".   Howver, when you have a "crisis of truth", theological differences between theologians and the Church Hierarchy must not be closed authoritately to debate. When this happens, as is the case, our Church stops becoming a listening and learning Church and does not benefit fromt the collective and evolving wisdom of Christianity.
C Walter Mattingly | 8/4/2011 - 2:44pm
Matvox,
My instinct is to agree with you. Here is a question that doesn't require Jesuitical casuistry. Imagine that the attending surgeon is Dr Jesus Christ. Can you state definitely that He would abort the life of that innocent unborn child, even in this circumstance?
Bless and guide us all on this one. 
Matthew Greco | 8/2/2011 - 8:24am
My late father, bless his soul, was a lawyer and might have loved this article. On the other hand, even he might have lacked the patience to read through the extra-legal nuances of a subject that is quite clear on its surface and suffers unnecessary obsfucatory confusion by an "over intellectual' analysis. 

While I respect Fr. O'Rourke's work on bioethics, a serious matter, the facts in this case are not in question. A concurrence of a medical bioethics staff concurrred that both mother and baby's life were in danger. Both natural and Catholic law and common state-of-the-art medical science led to one conclusion-save the mother. There is no need for undue complexity or for obsfucation here.

The problem is, quite simply, where you have an out-of-touch cleric in the 'chain of comman' who makes a decision that is, to put it kindly, all out of proportion to the facts of the case. This is the ethical problem for modern Catholics: How do you live ias a highly educated, independent, free-thinking adult in accordance with one's concscience as educated as a life-long servant of the church in a democracy where one's anciet religious institution acts more like the Roman Empire, or to put it charitably, like a dysfuncitonal military organization, in all contradistintion to widely accepted facts. Only an organization so unsure of itself, so snake bitten and so wobbly under its mantel ofinsecurity would excommunicate a saintly woman who has spent her life caring for the sick and the poor-as close a definition of the life of Jesus as one could imagine. Imitating a life of a lawyer under Canon law somehow does not come to mind as the imitation of Christ. In fact, quite to the contrary, it comes out more like an imtiation of the Pharisees.

This is obvious to anyone, Cathoic or not, with the slightest bit of common sense. It does not require Jesuitical high wire areobatics to align itself with the truth. The truth, the spirt of the church, has not been served. Nor will it be under present circumstances until it understands, at the highest levels, that it is hopelessly corrupt.   
2195045 | 8/1/2011 - 12:13pm
It seems that Father O'Rourke has used a weak argument to defend his stand on direct abortion; and he has misinterpreted the authority of the Bishops as well.  Regarding his fundamental principle of self-defense: "The principle of self-defense justifies removing the fetus."  This is a misreading of St. Thomas who speaks rather of an adult aggressor, not a fetus. (S.T. II-II,Q.64,Art.7)

Referring to the competence of the Bishops, Father O'Rourke states "The teaching authority of Bishops is recognized by members of the church, but in order for that authority to be effectively exercised it must include the voice and expertise of other individual members of the people of God." But Avery Cardinal Dulles says that the official magisterium pertains in the first place to the Bishops .... To be in hierarchical communion with the episcopal college is a necessary condition for the exercise of teaching power (Lumen Gentium #21) (A Church to Believe In, P.120)  Furthermore he states that theologians are quite capable of unfairly attacking the motives and competence of Bishops, Popes and curial officials; but these theologians might ask themselves periodically whether they sincerely acknowledge that the grace of office - charisma veritatis - is vested in the papacy  (Vatican I,DS #3071) and in the episcopacy according to Catholic tradition. (Vatican II, Dei Verbum #8)  Cardinal Dulles acknowledges that something has gone wrong when a theologian is basically distrustful of official teachers, and when non-infallible doctrines are treated as mere opinions without real binding force.  On the part of certain theologians he notes a passion to keep all questions open in the name of academic freedom, and to assume that when any condemnations are issued that there must be a lack of due process. (A Church to Believe In, p131)

The real question here is not whether Bishop Olmsted is competent to teach in the name of the church, but whether Father O'Rourke has misquoted his sources and skewed the truth.

C Walter Mattingly | 8/1/2011 - 8:09am
One of the problems with the "informed conscience" is that it is rarely as well informed as it thinks it is.
This is an excellent, much-needed summary of a really troublesome conundrum for many of the faithful trying to get a purchase on these tragic events. Fr. O'Rourke does a fine job of presenting an overview, and Fr. Haschke an excellent and remarkably succinct summary of the various and conflicting avenues to approach/solve the problem. It is the essayist and the respondent both functioning at a very high, practical level for the benefit of America's readers. 
Michael Barberi | 7/29/2011 - 5:28pm
The Catholic Healthcare West asked Theresa Lysaught of Marquette University, a moral theologian, to analyze this case and write a report for them. This report concluded that the act to terminate the pregnancy was an indirect abortion. However, Bishop Olmsted rejected it.

The report used Thomistic ethics to argue that the intention and proximate end of the will was not the killing of the fetus, but to save the life of the mother. The termination of pregnancy, foreseen to cause the death of the fetus, was foreseen but outside of intentions.  This problem is one of ethical method and definition of terms that have been debated for the past 50 years, without any theological consensus. 

Thomas Aquinas does not offer us explicit criteria for precisely determining the proximate and remote ends of the will. What he does offer is basic reasoning that a person can use for this purpose. Thus, there is disagreement between traditionalists and revisionists about what actions constitute the proximate and remote ends and those actions that are considered means to ends. Theologians also disagree over criteria that determine when the physical effects of material acts (i.e. natural ends) are outside of intentions.


There is also a specific problem with the definition of terms such as object and what morally specifies. Traditionalists assert that it is the object of the act that specifies its morality. But Janssens and other revisionists pointed out that Aquinas himself says that it is the end that morally specifies. “Traditionalist theologians (i.e., Servais Pinckaers, Martin Rhonheimer, William May, Germain Grisez, et al) say the answer primarily lies in S.T. I-II, q. 18. However, other theologians (i.e., Janssens, Selling) say the answer is found in S.T. I-II, qq. 8-17 and the two movements of the will: namely, formulate where you want to go (i.e.., S.T. I-II, qq. 8-12) and then figure out how you are going to get there (S.T.I-II, qq. 13-17)” (Selling 2008, 376).

Most theologians, including some prominent traditionalists like Germain Grisez and Martin Rhonheimer, do not support the Church's opinion in this and similar cases. When it comes to the informed conscience, how does one decide given the profound disagreement between theologians and the Church hierarchy about the objective moral criteria and its application to this case?

This case is just one example of the profound disagreement between most theologians and the Church hierarchy over many sexual ethical issues. What is perplexing to most Catholics is this: if these differences are authoritatively closed to debate, how does the Church continue to be a listening and learning Church?

With respect to complex ethical cases, the individual's informed conscience, emphasis on "informed", given respect to Church teachings, and being open to further education, is the ultimate guide to the truth and the good.

6466379 | 7/29/2011 - 4:04pm

It’s very thought-provoking, the term “rights” as in ”The Rights Of Conscience.” Maybe stupidly, but whatever my quandry  I’d nonetheless  be inclined to fall in line with Episcopal shot-calling, with the Bishop’s teaching authority. But it’s the word “rights”  in relation to conscience that  makes my curiosity bubble.


Conscience has “rights?” What is “conscience?”  What are the “rights” of conscience? Is it really the voice of God proclaiming Divine Law, the voice of objective morality expressing itself?  Or is it human voice subjectively acknowledging the transcendental  simply  the way the “I” sees it, not  an absolute?  Conscience seems to me to be a pretty messy package,  not tightly wrapped but with a lots of loose ends, packaged  as it were in wrinkled brown paper with inners hanging out - nothing neat about conscience! Are its “rights” more stable? Transparent and hard to hold on to, like gelatin firm under certain conditions, but easily returned to liquidity -  mysterious and  as playful as a cat, now you see it, now you don’t!


Call it conscience capacity whatever that means - this “conscience capacity,” nebulous or dense, loose, or in its own way for want of a better word “structured,” what is it? Is conscience an animate or inanimate entity? A nettle that stings, yet heals? It has “rights?”
What are they? Where are they found? Is this whole reflection absurd, crazy, or does it make sense? I have to leave that to heads far wiser than mine.


 

MICHAEL COLLINS MR/MRS | 7/29/2011 - 1:46pm

I must admit that Fr. O'Rourke has given me something to think about.  I had not considered this issue from the perspective which he presents.  Still, I must ask though, given that Almighty God has presented us with the ability, the resource, the talent to save at least one of those lives, would we not be remiss in so abstaining?  I ask this, mindful of the Parable of the Master with three servants to each of whom he gave a number of "Talents.".  Two of the servants exercised those talents and were rewarded.  The last chose not to exercise his talent.  We know what happened to him.  Assuming that all who were involved in this issue were people of good conscience, trying to do what was right, I have great empathy for them.  Suffice it to say that I am glad I was not the one who had to make that decision.  I fear that in the eyes of the good Bishop of Phoenix and perhaps the Church, I too, would have made the wrong decision.

VINCENT O'Reilly | 7/28/2011 - 1:13pm
This case, and how it was handled, highlights the need for the hierarchy to recognize that the Spirit may also be with the laity and theologians. Unless the hierarchy finds a way to honestly dialogue with theologians and the faithful, they will continue to find themselves marginalized and their legitimacy sidelined. And that is tragic.
Chris Thomas | 7/28/2011 - 12:11pm
I find another aspect of this case interesting and perhaps even more important, at least in numbers of people facing the same issue.  This young mother of three now knows that she can not physically bring new life to viability.  What are the two options facing her and her husband in regards to their marriage and use of birth control? 
1)  Accept the current teaching of the church and avoid any chance of pregnancy by avoiding sexual intimacy for the rest of their lives regardless of the harm this may cause to their relationship?
2)  Accept the authority of the statement against the use of birth control, but disagree with the reasoning and so perhaps understand that this most intimate act gives unity and life to their sacrament of marriage if not to a new human. 
 
The particulars of this individual couple are not known to me, nor do I believe they should be.  The question is asked with the reality that this same question is being addressed by thousands if not millions of couples around the world in any given season.   I would disagree with Mr. McKee about the relevancy of our clergy and religious being part of this discussion, I would also disagree with blocking married lay couples from the discussion.  Perhaps, at least at the moment, we are just not having the conversation at all but rather just acting according to our conscience.
Craig McKee | 7/28/2011 - 9:07am
BISHOPS and NUNS "decisions" on human sexuality as well as the PRIESTS who dissect and comment upon them are about as relevant as happily MARRIED, sexually active couples writing discourses on the JOYS of CELIBACY. Religious leaders AND politicians need to GET OUT of America's BEDROOMS.
David Haschka | 7/25/2011 - 5:04pm

I know I am probably wading into water that is over my head here, but this article and the presenting controversy has taken me back to my seminary days.


Unless I am missing something, this is precisely the case which has been endlessly discussed and argued in Christian Ethics seminars over the last several decades – what to do when a pregnancy threatens the life of the mother such that if the pregnancy is not terminated both mother and child will die. Consequentialist, deontic, even aretaic approaches each provide compelling logic, but propel toward differing conclusions. It is a painfully difficult case in which there is no painless conclusion.


My Ethics class, back in the mid-seventies, clearly preferred the consequentialist analysis (“save one rather than none.”) This is not unexpected given the general cultural disposition toward utilitarianism from which consequentialism is derived. However,  our professor made it crystal clear that formal Church teaching consistently favors the deontic (“there can be no justification for taking an innocent human life”) and even aretaic (“we hold each human life uniquely sacred”) approach to the issue. Ultimately, we are to surrender such life issues to the providence and sovereignty of God. Our professor also tried to allay our frustration by proclaiming that - given modern medical advances – such a case would almost never happen.


But, alas, it apparently has and, Sister Carol and her colleagues at St. Joseph Hospital apparently did rely on a consequentialist approach. Again, this is not unexpected given the general cultural disposition.  But, what then is her bishop to do given his responsibility to determine the official Catholic identity of a hospital in his jurisdiction? It seems to me not unreasonable that he – and everyone else for that matter - would expect that a hospital identified as Catholic would make such decisions precisely in accord with formal Catholic teaching.


If the Ethics board of the hospital cannot, in conscience, do that; then they must exercise that conscience, with integrity, by disclaiming a Catholic identity as the Bishop would define it. The bishop, for his part, must redouble his efforts to make the formal Catholic ethical teaching clear and compelling – not an easy task given the many contradictory voices.


It’s not, finally, about punishment, it’s about truth telling.

Leo Chaland | 7/25/2011 - 3:09pm
A thoughtful, helpful analysis. It is difficult for "loyal" Catholics to find a way to express disagreement with a Bishop's public decision, especially when one acknowledges that the Bishop is the proper authority to be making the announcement.

I believe that Bishop Olmsted is the person who is the authentic interpreter and chief implementer of the Ethical and Religious Directives regarding health care within his diocese. However, I believe his analysis in this situation is flawed and that more openness to statements of the specific facts by the medical team personally involved would have led to a different, more reasonable decision.

If I am wrong in my conclusions, I would greatly appreciate a more detailed statement from Bishop Olmsted that explains in some specificity what has led him to a view that appears to be counter to the views of most reasonable people who are loyal Catholics. Failure to provide this guidance simply leaves faithful Catholics to go along with the Bishop "because I say so." In other words, blind obedience is what is called for. I prefer informed obedience.