Kevin O'Rourke
A Catholic hospital, a pregnant mother and a questionable excommunication
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By now most Catholics are well acquainted with the case of Margaret Mary McBride, of the Sisters of Mercy. In March the bishop of Phoenix publicly declared that Sister McBride, who is head of the ethics committee at a local Catholic hospital, had incurred an excommunication when she concurred with the hospital’s decision to abort the fetus of a gravely ill woman. The emotional furor following these actions was instigated and reported by Catholic and secular media outlets. The purpose of this article is not to add to the accusations directed at the various people and offices involved in the case. Rather, my intent is to consider the moral (bioethical) and canonical (legal) complexities of cases of this nature, to suggest how to avoid confusion in the future and perhaps to prompt some second thoughts.

In the fall of 2009, a 27-year-old woman with four children was admitted to St. Joseph Hospital and Medical Center in Phoenix, Ariz., because of her worsening symptoms of pulmonary hypertension. Knowing that she was about 10 weeks pregnant, she was advised, prior to entering the hospital, that the safest course was to terminate the pregnancy. She rejected this proposal. The fact that she chose a Catholic hospital for treatment suggests that she did not want an abortion.

As the woman’s condition deteriorated, a cardiac catharization revealed that she suffered from “very severe pulmonary arterial hypertension with profoundly reduced cardiac output” and “right heart failure” and “cardiogenic shock,” according to the report by the hospital’s ethics committee. In other words, the medical staff believed that both mother and child would die if the present situation were allowed to continue. Thus, termination of the pregnancy was recommended and agreed to by the mother. Because of the seriousness of her condition, she could not be moved to another hospital.

The Moral Case

In accord with hospital policy, the case was referred to the ethics committee of the hospital. The Ethical and Religious Directives for Catholic Health Services, issued by the U.S. Conference of Catholic Bishops, offers guidance for situations of this nature. Directive 45 states: “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….” Abortion may not be performed as an end nor as a means. To put it another way, physicians cannot intentionally kill one person to save another.

On the other hand, Directive 47 states: “Operations, treatments and medications that have as their direct purpose the cure of proportionately serious pathological conditions 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.” The most common example used to illustrate the meaning of this directive is the woman who is pregnant and is also diagnosed with cancer of the uterus. In order to preserve the woman’s life, the gravid uterus may be removed even though the infant will die as a result of the surgery. This would constitute an indirect abortion because the purpose of the act would not be to kill the infant.

The case in Phoenix calls to mind a debate I participated in 40 years ago regarding the proper treatment for preeclampsia in pregnant women. Church teaching said little on the subject; some ethicists held it was a direct abortion to evacuate the uterus. Ultimately it was decided that preeclampsia was a life-threatening infection of the endometrium and thus would justify evacuating the womb, even though the developing infant would die. In other words, we decided the recommended treatment was an indirect abortion.

Clearly, the case in Phoenix also calls for the distinction between a direct and an indirect abortion. This is the question the ethics committee had to wrestle with. Even though it is clear the surgery is recommended in order to save the woman’s life, would the surgeons be employing an evil means to achieve a good effect? In my view there is a difficulty in identifying the cause of pulmonary hypertension in this case and thus a difficulty in identifying the pathological organ. In the case of cancer of the uterus, it is not difficult to identify the pathological organ. It is the uterus. But, the cause of pulmonary hypertension is not clearly known.

Federal laws limit what can be divulged in regard to deliberations concerning patient care, but in a report later made to the bishop of Phoenix, the hospital’s ethics committee identified the pathological organ as the placenta. The placenta produces the hormones necessary to increase the blood volume in pregnant women; in this case, the additional volume put an intolerable strain on the woman’s already weak heart. Since the placenta is located in the uterus, perhaps it would have been more accurate for the ethics committee to designate that organ as pathological and thus compel its removal. The committee might have also investigated more closely the work of the moral theologian Germain Grisez, who has argued that the principle of double effect applies to cases in which both mother and child would die if the infant were not delivered prematurely.

The committee should consider writing up this case for future study by the Catholic bioethics community. There is nothing in the existing literature concerning treatment of pregnant women who suffer from acute pulmonary hypertension.

The Canonical Case

Sometime after the termination, word reached the bishop of Phoenix that an abortion had been performed a few months before in a Catholic hospital to save a woman’s life. How exactly he learned the details of a private medical case is still unclear. The bishop interviewed the chief executive officer of the hospital and Sister McBride of the ethics committee to ascertain whether she had approved the termination. Two weeks later, the bishop informed her religious superior that Sister McBride had been excommunicated because she had approved a direct abortion. Canon 1398 of the Code of Canon Law states an automatic penalty: “A person who actually procures an abortion incurs a latae sententiae excommunication.”

Yet questions remain. Did the bishop and his advisors clearly establish that a direct abortion had been performed? Did he or his advisors know the medical facts of the case, and did they know about the pertinent canons of the church for penal sanctions? Many people acquiring canon law degrees are well trained in the sections of the code concerning marriage law but seldom study in depth Section VII, “Of Sanctions in the Church.” I have been a canon lawyer for over 50 years and have to refresh myself on these canons whenever a case arises where they may be applicable.

Even if a direct abortion had been performed, the declaration that an automatic excommunication had been incurred is questionable. Canon 1321 states that the violation of the canon must be deliberate. Commentaries on this canon stress that the people concerned must knowingly and willingly violate the canon. Did the people involved in the Phoenix case, mother, ethics committee members, or medical personnel, act deliberately? Did they set out knowingly and willingly to violate Canon 1398? Or was their primary intention to save the woman’s life? Moreover, if a penalty is truly incurred, several of the following canons recommend exemption from or mitigation of the penalty depending upon the psychological state of the persons involved. And as Pope John Paul II ’s encyclical “The Gospel of Life” makes clear, few people “willingly and knowingly” procure an abortion. Finally, if a penalty has been imposed or declared, the person in question should be informed that an appeal is possible and that the penalty is automatically suspended while it is under appeal (c. 1353).

The ethical and canonical norms of the church are a safe guide for the many tangled problems individuals face today. But they are not known to all (per se nota). Research, consultation, discussion and patience are necessary to apply them well.

Kevin O’Rourke, O.P., J.C.D., S.T.M., 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 heal

Comments

Sues Krebs | 3/2/2012 - 7:34pm
It is sound to make children orphins, you never mention a support person for the mother of four. If she's a single mom which consequence is better orphinage for the children, or a mother who didn't die with the new baby. Pregnant women are not usually so hypertensive that they don't have the strength to deliver and if that's the case, the loss of one life is better than the loss of two lives.
Bain Wellington | 11/11/2010 - 5:09am
Very late in the day, but Fr. Orsy's epistolary intervention in "The Tablet" (quoted at comment 13 above) appears to proceed without reference to can. 1329 §2 which covers the case of "accomplices" - meaning those without whose assisstance the crime would not have been committed.  Discussion on whether Sr. McBride "procured" the abortion is, therefore, beside the point.
Paul Ferris | 8/17/2010 - 12:41pm

I have tried to make this case to some strong anti-abortion Catholics in my family but there is no listening.  I think the reason why I cannot reach them is because they cannot look away from the big picture of widespread abortion to distinguish any case by case issues.

KATHY WRAY | 8/15/2010 - 9:30pm
Assuming that the CEO and members of the Ethics committee of this Catholic hospital are also Catholics, why is it that Sr. Margaret Mary McBride's bishop saw fit only to attempt to excommunicate her and not the others?  I am working against the urge to see this story as yet another example of casting suspicious glances at U.S. women religious.  Am I overreacting?
Gary Peterson | 8/4/2010 - 5:12pm

The medical situation presented in this case is one that is very difficult to draw solid conclusion without extensive medical background.  I appreciate the article since it clearly articulated the challanges presented in making a simple decision.  As I have learned making decisions on morality get harder as we move away from the generalizations.

NICHOLAS CLIFFORD | 7/31/2010 - 11:58am
This is probably too long, and perhaps illegal, as a violation of copyright, in sending on material from another publication, so do with it what you will (but read it first!). It comes from The Tablet (London), and is an opinion by a highly respected canon laywer.

From the letters column of the Tablet, 19 June 2010

Canon law and abortion

The articles by Michael Sean Winters and Tina Beattie ("In the balance", 5 June) convey the complexity of the case of Sr Margaret Mary McBride whom the Bishop of Phoenix, Arizona, declared automatically, latae sententiae, excommunicated for allegedly cooperating in a crime of abortion. May I complete their reflections on morality by some clarifications in legality? The Code of Canon Law, following centuries of tradition, draws a sharp distinction between an act that is morally wrong, and a legal penalty that may or may not be attached to it. Thus, the correctness of the penalty must be judged by its own laws found in the code.

The term "excommunication" in modern canon law means that a person is prohibited from receiving the sacraments and from holding an office in the Church (cf. canon 1331).

According to canon 1321 § 1, "No one is punished unless the external violation of a law or precept committed by the person is gravely imputable by reason of malice or [grave] fault, ex dolo vel ex culpa." Excommunication is an extreme penalty; it condemns a member of the community to spiritual starvation. The Church, therefore, does not want to inflict it unless there is a deliberate act of defiance. Nothing that we know about the attitude of Sr Margaret speaks of defiance.

Canon 1398 states: "A person who procures an abortion that becomes effective, effectu secuto, incurs automatic, latae sententiae, excommunication." The key word is "procures", procurat. Common sense (or any dictionary) tells us that to give an opinion is not the same as to procure. However, there is more to it. Ecclesiastical criminal laws are of strict interpretation: their meaning is found in their true but narrowest sense. Now, the narrowest sense of "procuring" does not include "giving an opinion", certainly not when an answer must be given under pressure and the question makes even the experts tremble. Moreover, "to procure" means to do something actively in order to bring about the intended effect. Not a shred of evidence has ever been made public that would prove (or even hint) that Sr Margaret "procured" an abortion.

The Code of Canon Law contains nothing specifically and precisely (a "must" in criminal matters) about an automatic excommunication inflicted on "cooperators" in abortion (which does not exclude that their act could have been wrong and that they may suffer other punishment). It follows that no cooperator is automatically excommunicated unless the cooperation itself amounts to procuring the abortion. The Church's criminal law is based on an ancient and inviolable rule: whenever objective doubt exists, however small, as to whether or not a person has incurred an automatic excommunication, the person must not be held excommunicated. The rule is not canonical hair-splitting; it is for the defence of the accused. This rule binds every bishop and each of his flock.

The conclusion is compelling: to say the least, it is highly doubtful that Sr Margaret acted out of malice aforethought, or that she actively procured an abortion. Hence, she could not have been, and she was not, automatically excommunicated. The declaration of the excommunication by the local bishop, therefore, is null and void. In her case, canon 1324 § 3 is applicable, the accused is not bound by the automatic, latae sententiae penalty and, of course, no one is bound to respect it.  Final words: our canonical procedures may have deficiencies (they do) but there are times when, properly applied, they reveal the humanity of the Church and Church's intent to protect the innocent.

(Professor) Ladislas Orsy SJ
Georgetown University Law Center
Washington, DC, USA
James Caruso | 7/29/2010 - 7:24pm
Is the kind of questioning posed by Professor O'Rourke in a public forum useful?  Could it be harmful to the Church? Bishops can be wrong, and when evidence of their wrongful decisions comes to light, appropriate actions should be taken to rectify any injustice.  In this case, no evidence is presented that the Bishop and his advisors did not clearly establish that a direct abortion had been performed.  No evidence is presented that they did not know the medical facts of the case, nor the pertinent canons of the church for penal sanctions. 

Also, I am curious from the article whether the author is hinting that if a person's primary intention is to save a life, they are thereby justified in approving a decision to take an innocent life?  To date, I have never heard an approved Catholic defense for deliberately and directly taking innocent life.
LARRY | 7/29/2010 - 12:56pm
"But thus do I counsel you, my friends: distrust all in whom the impulse to punish is powerful." 
                                                                          -Friedrich Nietzske (1844-1900)
ROBERT KILLOREN | 7/28/2010 - 9:36pm
Kevin O'Rourke was talking about a hypothetic case from 40 years ago. Back then preeclampsia was known as toxemia and very litte was understood about it, thus one hypothesis was that it involved an infection of the endometrium. Since then much more is known about preeclampsia, except what causes it. Endometritis is also understood much better today. Preeclampsia no longer presents a great threat to the mother and child for the reasons you mention, but that wasn't necessarily true 40 years ago. We can also do a lot more medically today for premature babies than we could do 40 years ago.

Please don't use current medical knowledge to serve judgment on Fr O'Rourke's premise, those were the "facts" as they were known 40 years ago. Besides his reason for bringing it up was to demonstrate that based on what was known about preeclampsia 40 years ago their recommendation on the hypothetical situation was to perform an indirect abortion. It was an illustration of the fact that medical ethics boards are constantly challenged by new conditions that are not fully understood. Medicine does not have all the answers, and in cases of life and death one cannot wait around for more research or more analysis because the delays could result in two deaths instead of one. He does not suggest that this woman was suffering from preeclampsia so your clarification adds nothing to the discussion. The point he is making is that neither we nor the bishop have access to the medical facts the doctors and committee had at that time (under HIPAA we will never know) and that there appears to be sufficient reason to at least not condemn those involved since an indirect abortion could have been a justified response. In any case it was certainly not black and white enough to merit the bishop's immediate condemnation.
Katherine Schlaerth | 7/27/2010 - 4:36pm
Preeclampsia is not an "infection of the endometrium" and in most cases can be treated till viability as it is usually a condition of the third trimester. Please, father, get your medical facts straight. 
Michael Liccione | 7/27/2010 - 12:12pm
That's not what he's doing, Fr. Farley. O'Rourke continues his argument on the premise that we don't know whether the abortion was direct or indirect.
 
Gregory Kirsch | 7/27/2010 - 12:00pm

Rev. Dr. O'Rourke carefully, articulately and in keeping with the tradition of the Church using scientific, theological, canonical and philosophical matter arrives at the best of the Catholic tradition. It is most unfortunate when those charged with the care of God's people and responsibility to foster the tradition of the Church fail for those direclty involved and the universal Church with society harmed collectively. It seems political rhetoric, the appetite for power or fame and ignorance spread like wild fire and in the end harm God's holy people - the mother and her child (now in heaven), the hospital community, and all who have read about the vindictive nature of taking information to the press that belongs to those directly involved in the care of the patient. Has anyone considered the harm ravaged on the mother in grief because of her child's death and the words that have been thrown around in the press without accurate information.

When will we learn custody of the tongue and honor the dignity of the individual fully participating in society as a follower of Jesus in the Roman Catholic community. Thank you Rev. Dr. O'Rourke for restoring the dignity of this mom, her family, the health ministry in Phoenix and public discourse. Let us pray for all involved to experience God's wisdom and the need for respectful learning.

JOHN FARLEY FR | 7/27/2010 - 11:19am
Prof O'Rourke cannot say in the first paragraph "hospital’s decision to abort the fetus" and then continue his argument as if no abortion took place.
john fitzmorris | 7/26/2010 - 9:47pm
This article is why I read America.  Father O'Rourke's article was solidly reasoned and not the  "knee jerk" reaction that Catholics are so often treated to in this area of moral thought. Father O'Rourke is to be congratulated for a nuanced well-reason exposition of a complex and deeply human problem. We all owe him a thank you
Joseph Keffer | 7/26/2010 - 6:17pm
Weeks ago, in a comment, not published by either this journal or the N Y Times, I observed that the placenta is the diseased tissue as part of the uterus most commonly believed to promote the underlying induction of the pulmonary hypertension.  Thus, just as in the cancerous uterus analogy, the removal of the placenta would be justified morally even though the procedure would indirectly result in the loss of the pregnancy.   I shared that analysis with a prominent priest-moral theologian-bioethicist who agreed with my interpretation.  The academic bioethics community needs the detailed medical history to further study the complex medical aspects and the complex moral issues.  Then, the debate of the elements of this case for the guidance of the teaching magisterium can properly proceed.  I agee with Fr. O'Rourke.
J H Keffer, M.D.
 
Andrew Russell | 7/26/2010 - 5:13pm

Professor O'Rourke brings up many good questions about ethics and legality.  Outside the scope of this article perhaps, but does he (or other ethicists) think that this will cause other ethics committees to hesitate, second guess themselves, or judge differently in future cases? 

Mike Evans | 7/26/2010 - 4:35pm
Hasty judgment all around and unfortunately the church now has egg on its face. It's a shame such haste was needed and that a more discreet and private investigation was not embarked upon. Was the bishop just aching for a chance to blow this up into a public brouhaha? It does not seem to be a pastoral response to fire off a broadside in such a unassailable way just to make some point. Were the discussions with Sister McBride under the seal of confession?