From Intuition to Moral Principle: Examining the Phoenix case in light of church tradition

The excommunication in March of Sister Mary Margaret McBride for having participated in a decision to terminate a pregnancy threatening the life of the mother has precipitated widespread discussion on the morality of her action. (Sister McBride, a member of the Sisters of Mercy, was vice president of St. Joseph Catholic Hospital in Phoenix, Ariz.) The discussion has been reflected in America articles, letters to the editor and in the media at large. In the following article, Kevin O’Rourke, O.P., continues a discussion he began in “Complications” (Am., 8/2).

—The Editors

Shortly after the case of Sr. Margaret Mary McBride became news, the Committee on Doctrine of the U.S. Conference of Catholic Bishops issued a statement concerning abortion. The statement was occasioned by the Phoenix case (see sidebar) but did not declare that a direct abortion had been performed and said nothing concerning the canonical penalty of excommunication. The statement did reaffirm the traditional Catholic teaching that “nothing can justify a direct abortion.” The purpose of this article is not to comment on the facts or decisions of the people involved in the Phoenix case, but rather to investigate whether there is a foundation for determining that termination of a pregnancy in such circumstances is an indirect abortion rather than a direct abortion.

Since the Phoenix case became public, I have asked scores of people involved in Catholic health care—doctors, nurses and hospital administrators—whether they would approve terminating the pregnancy of a nonviable infant if a competent medical team stated that “both mother and child will die unless the pregnancy is terminated, but the mother will live if the pregnancy is terminated.” As far as I could judge, the people questioned did not approve of abortion. Without hesitation, however, all said they would approve the procedure in order to save the life of the mother. One veteran nurse practitioner said, “That wouldn’t be an abortion.” An experienced administrator said, “Would you expect me to just sit there and let the mother die?” The responses were spontaneous, with no one asking for time to make a moral analysis. It seems there is an intuition that such an action would not be morally forbidden, would not be a direct abortion.

Intuition as a Moral Instrument

Intuition, when it is the apprehension of a particular good by an informed conscience, is a legitimate source of a justified moral decision. Christians believe such intuitions are often the result of virtue and the influence of the Holy Spirit. Indeed, it seems that many of the good actions people perform are the result of intuition, typically defined as a subconscious way of knowing. Some philosophers claim this is the only source of moral action. In the Catholic tradition, however, intuition alone is not a sufficient explanation of moral probity. Intuition must be supported by principle in order to provide a firm basis for moral action and application to similar cases.

In the history of Catholic moral theology, there is a famous case in which intuition led Catholic theologians to approve transplants of organs from one living person to another. When transplants between living persons first seemed possible 60 years ago, some Catholic theologians did not approve of such transplants. They maintained that the principle of totality, typically used as the basis for such transplants, allowed one to remove an organ to preserve one’s own life but not the life or well-being of another. A statement of Pope Pius XII confirmed this interpretation and thus ruled out transplants based on the principle of totality.

In 1956, however, Gerald Kelly, S.J., a pioneer in the field of bioethics, stated “that it came as a surprise to physicians that theologians should have difficulty with procedures which are performed with the purpose of helping others.” Kelly maintained: “By a sort of instinctive judgment we consider that the giving of a part of one’s body to help a sick person is morally justifiable.” Following this intuition, Kelly and other theologians searched for a principle that would support transplantation of organs between living people. They realized that the principle of charity, in this case a desire to help other people prolong their lives or at least live with fewer complications, would justify the transplants if functional integrity of the donor’s body were maintained. Functional integrity, as opposed to anatomical integrity, allows continued homeostasis of the body, even though an organ is missing. For example, one kidney from a donor could be transplanted to another person, provided the donor’s remaining kidney continued to function. The principle of charity is the basis for the Holy See’s encouragement over the years of the gift of life-prolonging transplants from one living person to another.

What if Both Mother and Child Will Die?

There seems to be an intuition that terminating a pregnancy that exacerbates pulmonary tension to such an extent that both mother and child will die unless action is taken to remove the source of danger would result in an indirect rather than a direct abortion. Is there a moral principle to support this intuition?

The eminent Catholic philosopher Germain Grisez has written that in some circumstances what seems to be a direct abortion may be performed if both mother and infant would die if nothing is done. In The Way of the Lord Jesus, Grisez lists four conditions that would justify removing a nonviable infant from the womb: 1) some pathology threatens the lives of both a pregnant woman and her child; 2) it is not safe to wait, for waiting will result in the death of both; 3) there is no way to save the child; 4) an operation that can save the mother’s life will result in the child’s death. Grisez uses as an example of a licit application of these conditions the case of craniotomy: “In such cases the baby’s death need not be included in the proposal to remove the child with an oversized head from the birth canal. The baby cannot remain where it is without ending in both the mother’s and the baby’s death.”

While Grisez’s opinion is not without merit, it does not seem to have carried the day. It has not been cited widely in papal statements or standard textbooks as an example of indirect abortion. Perhaps it is because the example he considers when applying the four principles, a craniotomy, does not occur frequently in the United States. Advanced imaging and caesarian-section deliveries enable physicians to circumvent the danger that might occur if the infant has an oversized head. At any rate, Grisez’s opinion cannot be rejected out of hand.

Fetal Death and Self-Defense

Another principle, perhaps more helpful in justifying the intuition in question, is that of self-defense. In his Summa Theologiae, Thomas Aquinas justifies the act of self-defense and in so doing explains the conditions that are the basis for the principle of double effect. (It seems Aquinas conceived of self-defense as an application of the principle we now call double effect.) Over the centuries a more explicit set of norms for this principle has been developed, but Thomas presented the essentials. When considering self-defense, he points out that one act may have two effects, one of which is intended and the other not. The intended effect is the preservation of life or well-being of a person in danger of attack; the unintended effect is the harm, even death, that is inflicted upon the person threatening grave harm. Aquinas adds that moral acts take their specific character from what is intended; the unintended effect is accidental and does not determine the morality of the act. Such acts of self-defense are morally acceptable because it is natural to keep oneself in being (alive).

In moral reasoning the person threatening serious harm to another is often called “an unjust aggressor.” Is it possible to consider an infant in the womb as an unjust aggressor in regard to the mother? Ordinarily no. But usually pregnancy is not an illness; with proper neonatal care, pregnancy is not life-threatening. But in the Phoenix case the effect of the pregnancy upon the mother is not “ordinary.” The activity of the placenta threatens the mother’s life.

Elsewhere in the Summa, Aquinas maintains that in some situations, factors that are usually circumstances of an act are no longer accidental. They become the principal condition of the moral object. In the case in Phoenix, the moral object no longer envisions a problem-free pregnancy but one that seriously endangers the life of the mother. Something that in most cases of pregnancy is a circumstance, namely the activity of the placenta, has become an essential element of the moral object.

Considering an infant who cannot reason to be an unjust aggressor seems to be an overstatement, but there is no thought that in analyzing the act of self-defense the aggressor must be rational. An irrational person or force of nature (a disease, for example) that attacks a person may still be resisted. The moral act in self-defense does not depend upon the personal qualities of the cause of danger. Perhaps it would be better to concentrate on the pathology as the aggressor rather than to consider the infant as an unjust aggressor.

If the cause of the harmful activity were localized in the placenta, the removal of the placenta could be a means of overcoming the danger to the woman. In the present day, of course, removal of the placenta also causes the death of the infant.

Finally, invoking the principle of self-defense is not a case of using an evil means to procure a good end, as prohibited by the statement from the U.S. Conference of Catholic Bishops’ doctrinal committee. In the act of self-defense, there is one human act, one moral object. True, the act has two effects; but there is only one intention. That intention is morally good: the prolongation of the mother’s life. The act of self-defense, as Aquinas explains, is a good, moral act. Avoiding personal harm becomes the principal condition of the act and thus specifies the human act in question.

As a result of this discussion it seems there is sufficient moral argumentation to support the intuition voiced at the beginning of this article. In cases similar to the Phoenix case, it seems reasonable to maintain that only an indirect abortion is involved.

The Phoenix Case: A Summary

In the fall of 2009, woman patient 10 weeks pregnant was diagnosed with severe pulmonary arterial hypertension. Pulmonary hypertension impairs the function of the heart and is exacerbated during pregnancy by increased hormonal activity of the placenta. In this case the medical records state that the mother had right heart failure and cardiogenic shock. The medical team caring for the woman informed her and the ethics committee of the hospital that both the mother and the child would probably die unless the infant were taken from the mother’s womb. The mother originally did not wish to lose the infant but consented to the surgery when she heard the pregnancy was life-threatening.

The ethical code for Catholic hospitals allows the early delivery of a viable infant for a proportionate reason. At 10 weeks, the infant is far from viable. The code also allows an indirect abortion, that is, when the direct effect of a procedure is the cure of a serious pathological condition, for example removal of a cancerous uterus, and the infant dies as a result of the procedure. The code does not allow a direct abortion, however, in which “the sole and immediate effect of the procedure is termination of a pregnancy before viability.” Think-ing that both mother and infant would die if nothing were done, Sister Mary Margaret McBride, speaking for the ethics committee, gave permission to the medical team to terminate the pregnancy.

Within a few months Bishop Thomas J. Olmsted of Phoenix, after learning that this procedure had been performed in the Catholic hospital, interviewed the chief executive officer of the hospital and Sister McBride, who had given permission for the surgery that terminated the pregnancy. The bishop declared that the sister had incurred an excommunication because she had cooperated in procuring a direct abortion.