The National Catholic Review
Kevin O'Rourke
The complicated reasons behind an abortion at a Catholic hospital
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By now most Catholics are well acquainted with the case of Sister Margaret Mary McBride. Last month the bishop of Phoenix publicly declared that Sister McBride, a sister of Mercy and the head of the ethics committee at a local Catholic hospital, had incurred an excommunication when she concurred with the hospitals’ 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 these few words 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, 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 ten weeks pregnant, doctors advised her that the safest course was to terminate the pregnancy, but 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 catherization revealed that she suffered from “very severe pulmonary arterial hypertension with profoundly reduced cardiac output” and “right heart failure” and “cardiogenic shock,” according to report later compiled 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 her serious 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 Ethics and Religious Directives for Catholic Health Services (ERD) offer 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 forty 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? I submit that 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. However, 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 is not delivered prematurely.

The committee should consider writing up this case for the future study of 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 are still unclear. The bishop interviewed the CEO of the hospital and Sister McBride of the ethics committee to ascertain whether she had approved the termination. Two weeks later, the bishop informed Sister McBride’s religious superior that she had been excommunicated because she had approved a direct abortion. Canon 1398 in the Code of Canon Law states an automatic penalty of this nature: “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 or 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 they are 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 (p.18). 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 individuals facing the tangled dilemmas posed by modern society. 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., is a professor of bioethics at the Neiswanger Institute of Bioethics and Public Policy, Stritch School of Medicine, Loyola University, Chicago, and a consultant for many Catholic health care corporations. T

Comments

Sues Krebs | 3/2/2012 - 7:21pm
Was he suppose to let the mother and the child die? And we don't really know if the pregnant women with four children had a husband to raise them if she died, do we?
I G | 12/19/2010 - 2:58pm
In countries where abortions are illegal, women are dying. The church is guilty of murder trying to live up to principles that are it's own inventions and NOT the Bible's.

In Exodus there is a verse that very clearly addresses this situtation.

Two men are fighting. They hit a woman who is pregnant and she either delivers early or loses the baby. The men are not killed for this - remember - murder was punishable by death. Instead, they pay a price to the husband as the judges decide. In other words, the husband can say, 'My child is worth three lambs and two goats from each of you.'

However, if the there is injury - and who was the one hit? The woman! and she dies, then they're stoned to death.

Again, children were very important in those days and the infant mortality rate was very high. Yet, an unborn child WAS NOT CONSIDERED ALIVE!




Michael Barberi | 11/5/2010 - 8:47pm
REVISION;

We are getting hung up with definitions and doctrinal principles and canon law that are taken to be infallible and under all circumstances not reformable and absolute. Even Acquinas believed that certain first principles of natural law are always true, but that secondary conclusions under certain circumstances can change (e.g., killing another human being in self defense).

While the Church does not promote proportionalism, there are many complex cases where the good must be weighted against the bad. It was not doing an evil (teminating the pregnancy) in order to cause a good to happen (saving the life of the mother). This was a case of doing a good (saving the life of the mother) that caused an evil (the termination of a pregnancy). The alternative was to do nothing that would have been dilberating committing a greater evil of allowing two human beings to die unnecessarily and irresponsibly!  Who among us would make such a decision and not be haunted by their consciences for the rest of their life? All other Christian religions and most non-Christian permit abortion to save the life of the mother.

Where is our common sense?
Michael Barberi | 11/5/2010 - 8:42pm
We are getting hung up with definitions and doctrinal principles and canon law that are taken to be infallible and under all circumstances not reformable and absolute. Even Acquinas believed that certain first principles of natural law are always true, but that secondary conclusions under certain circumstances can change (e.g., killing another human being in self defense).

In this case, we have two innocent human beings who are dead. One of them was a 27 year old woman with 4 children.  While the Church does not promote proportionalism, there are many complex cases where the good must be weighted against the bad. It was not doing an evil (teminating the pregnancy) in order to cause a good to happen (saving the life of the mother). This was a case of doing a good (saving the life of the mother) that caused an evil (the termination of a pregnancy). The alternative was to do nothing that would have been dilberating committing a greater evil of allowing two human beings to die unnecessarily and irresponsibly!  Who among us would make such a decision and not be haunted by their consciences for the rest of their life? All other Christian religions and most non-Christian permit abortion to save the life of the mother.

Where is our common sense?
Lynn Wilkinson | 8/16/2010 - 9:20pm

I have always been pro-life, but the actions of this bishop disgust me.  This woman of God who struggled with a horrible decision, (one which I would never want to make), decided along with the rest of the ethics committee to have the fetus aborted in order to save the mother's life.  For that, she was excommunicated immediately.   

May I ask this question - what about all the priests who molested little children and were moved from one place to another, not turned over to authorities to be punished by the law, not defrocked nor excommunicated.  Are they still doing it?  Are they still being protected by the Catholic church?  What for - money, to save face in front of all their parishioners, to save their "holy" priests?  Where is the Pope???  He has not acted decisively nor righteously with these perverts who committed these evil acts.  The compassion he has shown for the victims has been too little too late.  What a cover-up!!!!!!!!! 

I took the RCIA class and was confirmed in the Catholic church in April of this year, and I think I made a huge mistake.  I cannot support a church that would cruciify a nun for what she felt was the necessary, compassionate thing to do, and yet give out free cards to those degenerate priests.   

Bain Wellington | 7/6/2010 - 4:37am
No, David, the underlying condition is PHT which remains.  The pregnancy aggravates it, but it did not cause it.  It is the USCCB ERD no.48 which speaks of an intervention which has the purpose of "curing" the underlying condition.  An intervention that did not cure it but halted its progress or greatly palliated it might be acceptable, but the intervention (and its outcome) must be proportionate to the death of the fetus.
David Nickol | 7/5/2010 - 8:41pm
Bain,
In the case of cancer of the uterus, the "underlying condition" that is removed by a hysterectomy is cancer. That is clear. But in the case of an ectopic pregnancy, the "underlying condition" that is removed would seem to be the pregnancy itself. If it is credible that in the case of ectopic pregnancy, a salpingectomy is merely the removal of a damaged tube that unfortunately happens to contain an embryo, the in seems credible to me that in the case of pulmonary hypertension, a procedure can be performed to remove the placenta that is secreting hormones damaging to the mother but which just happens to be vital to the survival of the embryo (as the fallopian tube is vital to the life of the embryo in an ectopic pregnancy). We're probably never going to agree on that, however.
I have come across an argument that I find interesting that challenges the reasoning of permitting a salpingectomy in the case of ectopic pregnancy. The salpingectomy is allegedly to remove a damaged tube, not to remove the growing embryo. However, a current treatment for ectopic pregnancy is to administer the drug methotrexate, which kills the growing embryo. When this treatment is used, there is no need to remove the damaged tube. So the question arises as to whether the tube is so damaged that it needs to be removed. Yes, if an ectopic pregnancy continues to the point where the tube ruptures, the life of the mother is in immediate danger. However, at the time when ectopic pregnancy is treated by salpingectomy, the danger to the mother lies sometime in the future. So one might very well raise the question as to whether a salpingectomy to prevent a future threat to the life of the mother is not really the termination of a pregnancy rather than the removal of a damaged tube. Also, according to Wikipedia, "If left untreated, about half of ectopic pregnancies will resolve without treatment." So performing a salpingectomy immediately upon diagnosing an ectopic pregnancy might be thought of as killing an embryo when there is a 50-50 chance that if left alone, no intervention would be necessary.
You seem to be assuming that in order to be licit, medical intervention on behalf of the pregnant woman that is going to harm the fetus must cure the pregnant woman of some condition. I do not understand why this should be so. Suppose there were a drug that produced dramatic improvements in pulmonary hypertension but did not cure it. Suppose that the drug was free of side effects in all cases, except in pregnancy, in which it was fatal to a developing fetus. I do not see any problem at all with administering such a drug to a pregnant woman near death from pulmonary hypertension, even though the embryo would die and the woman would continue to suffer from pulmonary hypertension. One would not (I hope) expect a pregnant woman to refuse lifesaving treatment during pregnancy that would be utterly uncontroversial if she were not pregnant. 
Let me make it clear that I absolutely support intervening at the earliest possible stage of an ectopic pregnancy to ward of risk to the mother. I am giving the counterarguments to the current majority Catholic position because I believe criticism of the arguments by Sister McBride and the Phoenix ethics committee are also criticisms of the currently approved approach to salpingectomy in the case of ectopic pregnancy. I think the two cases stand or fall together, and I believe they both stand. 
Bain Wellington | 7/4/2010 - 6:47pm
David, my main point was that the procedure adopted at St. Joseph's Hospital did not resolve the mother's underlying condition - unlike the various procedures (some of them illicit) for terminating tubal pregnancies - therefore it can only have been a direct abortion.  The "removal of placenta with a baby attached" argument stands self-condemned as a wholly false description of reality and, in any event, no re-arrangement of the furniture will make a PHT case equivalent to tubal pregnancy precisely because the mother still has a fatal and progressive disease despite the abortion.
 
As for your "abnormal pregnancy" argument, I am not sure that I introduced into my argument any unqualified claim that we are dealing with a "normal pregnancy".  I wrote about a normally functioning placenta, and about a healthy pregnancy (in the sense that the fetus is healthy) which progressively aggravates an underlying pathological condition of the mother.   In a very true sense, it is because the pregnancy is normal that there is a threat to the mother's life.  An ailing fetus or a malfunctioning placenta would not pose such a threat.  The idea that a pregnancy cannot be healthy if (whatever the condition of the fetus) if it threatens the mother's life, is just another way of assuming that a pregnancy  - in the very early stages, let us assume - is all about the mother's health.
 
I thank God I am not in any position to decide such matters.  But medical prognoses are notoriously pessimistic, and although I have seen it written that in this case the mother was almost 100% certain to die without surgical intervention to abort, we will probably never know if that was the actual prognosis, and will certainly never know if it was correct. 
 
Turning to your last paragraph, I will add that Catholic moral theologians and Catholic ethicists will necessarily have to qualify any opinion (and that is the limit of their work, for it is not they who decide anything relating to faith and morals) by using qualifiers such as Germain Grisez employed when offering his opinion about the liceity of fetal craniotomy (Living a Christian Life, chapter 8, footnote 85 - a work you cited in another thread in America):-
 
"If the analysis proposed here should lead in practice to a judgment in conflict with the Church's teaching, I would follow and urge others to follow the Church's teaching.  If the teaching is open to refinements in respect of its application, these must be completed by the magisterium."
David Nickol | 7/4/2010 - 5:25pm
Bain W,

I am still reading and pondering, but in the absence of any significant debate among moral theologians, medical ethicists, and canon lawyers, I am at somewhat of a loss to pursue this issue. I am still of the opinion that it is no more a false distinction to claim to target the placenta and not the embryo in the case of life-threatening pulmonary hypertension than it is to claim to target the fallopian tube and not the embryo in ectopic pregnancy.

It seems to me that contending that a "normal" pregnancy is taking place in a woman who will die as a result is a strange way to look at things. It assumes that a pregnancy is something that merely happens to a woman, like an infection, and her only involvement is passive. But of course a woman's body changes dramatically to create and sustain a pregnancy. So I see the point of Cathy F's analogy that an ectopic pregnancy is similar to a pregnancy in a woman suffering from pulmonary hypertension. In the case of ectopic pregnancy, the fallopian tube is incapable of sustaining a full-term pregnancy. I the case of pulmonary hypertension, the woman's circulatory system is incapable of sustaining a full-term pregnancy.

The irony that it is impossible to escape is that to do the "correct" thing according to Bishop Olmsted, in order to respect the inviolability of innocent human life, one must stand by and let not only that innocent life perish, but also the innocent life of the mother. It actually seems to me that this approach is not about the value of a human life, but about the command that no one has a right to take a human life. This would perhaps be easier to bear if there were not so many, many exceptions to the commandment against killing.

So my personal opinion is that it is hasty to say with any degree of certainty that Sister Margaret McBride and the ethics committee were wrong. What is going to determine whether or not they were wrong (within Catholic thought) is not the opinion of Bishop Olmsted, and not the document issued by the USCCB (which I still believe stops short of answering the question), but the collective opinion of moral theologians and medical ethicists who ponder the reasoning of the ethics committee and arrive at some degree of consensus. Even a solid minority, as I understand these things, would allow other ethics committees and individuals to make the same choice. I say this because the "official" position from Rome is still against intervening in an ectopic pregnancy, and yet the consensus is such among moral theologians and medical ethicists that intervention in ectopic pregnancy is now routinely given as one of the classic examples of the application of the principle of double effect. In 1902, this question was put to the Holy Office, ""Whether it is at any time permitted to extract from the womb of the mother ectopic fetuses still immature, when the sixth month after conception has not passed?" The reply was "in the negative." I don't believe there is any authoritative document from the Holy Office, or its successor, the CDF, that reverses or refines that opinion. It took thirty years until T. Lincoln Bouscaren viewed the issue from another perspective and came up with a life-saving rationale for justifying salpingectomy. I think we have to give Sister McBride and her ethics committee more than a few months before declaring them wrong. 
Bain Wellington | 7/4/2010 - 7:27am
At risk of monopolising the tail, but in case David is still reading and pondering, I offer a last thought on the strategies for resolving tubal pregnancy.
 
As we know, the three main interventions are: (i) salpingectomy – a surgical procedure already in use in the late 19th century – where the tube is cut away; (ii) salpingostomy, where a slit is made in the tube and the fetus pressed out; and (iii) administering methotrexate, a very recent medical procedure which detaches the fetus.  "Fetus" here includes embryo or zygote.
 
The historical development demonstrates (a) an increase in medical efficiency and the progressive elimination of surgical trauma for the mother, and (b) the preservation of the mother's full fertility.
 
Medical science has not yet approached the stage of being able to transplant the fetus into the wall of the womb – and I do not know if it is even trying to reach that stage – but the historical trajectory so far is deliberately and consciously vicious (in a technical sense) with regard to the life of the fetus.
 
Since no other factors are involved in (iii) beyond elimination of the fetus, it is an abuse of language to say that its destruction is an unintended consequence of that procedure. The indications are that most moral theologians concede the licitness of (i) at an advanced stage of implantation into the tubal tissue (and certainly if there is haemorrhaging), but that there is less agreement on (ii).   
 
I am not aware that the magisterium has pronounced on any of these procedures as such.  See USCCB ERD's nos. 44-49.
Bain Wellington | 7/3/2010 - 3:14pm
Ho hum.  Trust Cathy F to latch on to the one part of my argument that was irrelevant to the main issue. 
 
My remarks were an attempt to dismantle David's stumbling block.  A placenta attached to the wall of the uterus is still a life-support system even if it is not functioning at full capacity; a fallopian tube is biologically and structurally not a viable alternative to the uterus, as we all know.
 
In a tubal pregnancy it is precisely the attempt of the trophoblastic cells to initiate a placenta which injures the wall of the tube.  See the article taken from the NCBC website to which I referred David:-
 
" . . the trophoblastic cells (those cells which lead to the formation of the placenta and the chorionic and amniotic membranes), by exercising their proper function of establishing nutritional contact with the maternal tissue, injure the lining of the tube.  The developing embryo rapidly erodes through the lining and grows into the adjacent layers of the tube (extra luminal growth). Eventually, this causes hemorrhaging and rupture of the tube."
 
It would seem easy enough to distinguish that case from a normally formed and functional placenta receiving even low levels of oxygen from the maternal blood supply.  Since it would appear that the placenta is not fully integrated with the mother's circulatory system until completion of the first trimester, this part of Cathy F's argument is tenuous with reference to an 11 week-old fetus. 
 
**
 
Because the placenta secretes hormones which cause the mother's lungs to be rendered incapable of delivering oxygen to the baby's bloodstream.
 
If the mother's blood is not oxygenated by the time it reaches the placenta, the mother, surely, is dead.
 
Cathy Fasano | 7/3/2010 - 1:05pm
The comparison is false because the fallopian tube (unlike some other sites at which ectopic pregnancies occur) is biologically and structurally incapable of providing life-support for the embryo.
 
Contrariwise, the comparison is true precisely because the placenta in a woman with PHT is biologically incapable of providing life-support for the embryo.  Because the placenta secretes hormones which cause the mother's lungs to be rendered incapable of delivering oxygen to the baby's bloodstream.  The end result being that the placenta is unable to deliver oxygenated blood to the baby's blood vessels.
Bain Wellington | 7/3/2010 - 6:13am
David, my over-hasty citation of the NCBC article was only partly helpful at best, since the second Part is accessible only via a subscription, so I offer this further response.
 
The complications are: (a) uterine cancer, (b) PHT, and (c) tubal pregnancy (almost all ectopic pregnancies are tubal and discussion so far has been around tubal). 
 
The first distinction I make is between (a) and (b) on the one hand [healthy, pregnancies occuring in a woman with an underlying medical condition not caused by the pregnancy, although the pregnancy can be a fatally aggravating condition], and (c) on the other [an abnormal and non-viable pregnancy which in itself is a pathological condition].
 
The second distinction is between (a) and (c) on the one hand [where medical intervention resolves and eliminates the threat to the life of the mother], and (b) [where the mother's PHT is neither cured nor mitigated by terminating the pregnancy; PHT is progressive and fatal if left untreated].
 
The third distinction arises within case (c) where various medical procedures exist, all of which resolve the underlying condition, but in different ways. 
 
Since the procedure employed at St. Joseph's did not resolve or cure the mother's underlying PHT, it is unnecessary to explore the moral distinctions between the various procedures for correcting tubal pregnancies (the majority of which self-correct through spontaneous abortion).
 
Although it is irrelevant to my argument, your stumbling block, as I understand it, is that you consider one such procedure (salpingectomy, which the magisterium permits) to be indistinguishable from removing the placenta in a PHT case because (to paraphrase you) both offer life-support to the fetus.  The comparison is false because the fallopian tube (unlike some other sites at which ectopic pregnancies occur) is biologically and structurally incapable of providing life-support for the embryo.
 
Peace
Bain Wellington | 7/2/2010 - 8:22pm
Please, Cathy F - nobody can spell out every last element of an argument in a combox.  Sure, a placenta must eventually be removed after parturition but that has nothing to do with the case.  Also, a modicum of common sense and charity would enable you to see that discussion in this thread (and not just by me) of the "cancerous womb" analogy proceeds on the basis that the cancer is sufficiently aggressive to imperil the mother before the fetus is viable - if not, then the fetus can be delivered by induction and the uterine cancer can be dealt with separately. On tubal pregnancies, see my response to David, below.
 
David, as for the analogy which has so exercised you, I can add nothing to the lengthy discussion of the medical and moral issues in the National Catholic Bioethics website (part of which is quoted in the website you yourself accessed: scroll down to the comment by James - i found the whole thread very informative, uplifting and challenging, especially the last few posts).  Of course, you and Nancy Powers are right: this is not a "rules" game or a school debating contest; lives (and souls, may I add) were, are, and will continue to be at stake.
***
I would not want to end my contribution to this thread without expressing sympathy for all those involved at St. Joseph's Hospital in this case.  Like David, I have never thought the administration or medical staff were blasé about what happened.  Had they wanted to engage in "verbal gymnastics" they would have attempted (as they very pointedly did not) to paint the procedure as falling within ERD no. 47. 
Also, I have no idea where people get the idea that Sr. McBride (who has been consistently and impressively silent) considered the abortion was "indirect".  The indications rather suggest that she felt the case fell within duress of circumstances such as is covered by CCL can. 1324 §1, 5° (as in her reported question to Bishop Olmsted: "What would you have done?").  Fr. Thomas Doyle OP hastily toured some of the issues in an article in ncronline.org to which Dr. Ed Peters (the well-known and respected canonist) responded in his blog at http://canonlawblog.blogspot.com/
And so it goes.  Many of us (me included) have surely enlarged our understanding of the theoretical issues surrounding the case (even if the details have remained obstinately obscure) and of the teaching of the Church, Mater et Magistra.
 
Deo gratias
JOHN DUFFEY | 7/2/2010 - 3:20pm
I've found it disturbing that the debate has been silent about the pregnant woman's moral responsibilities to her four already-born children. As a mother, I worry about my own health and well-being primarily because I want to live to raise my children to adulthood. I feel a duty to buckle-up, get mammograms, exercise, etc. because God requires that I take care of the body He gave me, but also because my young children need me.
The discussion of what constitutes direct and indirect abortion is useful if it lends clarity to decisions, but as all the back and forth above (about licitly removing fallopian tubes versus illicitly removing placentas) makes clear, there's not much clarity here. At some point finetuning our thinking can begin to look like hair-splitting scrupulosity more worthy of the Pharissees than the Gospel.
The mom in Phoenix was 27 and had 4 kids. How old could the youngest be? Not very. Brain research in the last decade has shown dramatic neurological and developmental impact of early maternal attachment and caregiving. Losing one's primary caregiver as a young child can have life-altering psychological impact. (I know this from hard experience raising an adopted child with reactive attachment disorder.) It turns out that kids' brains are not nearly as resilient as once thought. Losing a mother is not something young kids just "get over."  To consider the Phoenix abortion out of context of the many lives affected by the mother's death is, I think, an injustice to the other still-vulnerable and developing children in the family.
It seems to me the mother in Phoenix made a horrible and yet arguably responsible moral decision to stay alive to care for her other four children. It was highly unlikely that anyone could save the life of her unborn child, but there was a way to save the life of four children's mother and in the process, greatly increase the likelihood that those four children would thrive.
In the face of this very real effect on five lives, I think it trivializes human life to argue about the morality of indirectly killing a child (by allowing the mother to die) versus directly aborting the child. One undesired end-the unborn child died-was going to happen regardless of the means, so how is the child's life and dignity honored by quibbling over the "right" means by which s/he would die in the womb?  If the unborn child were capable of conscience and moral choice, would s/he not choose to accept abortion, if that would save his/her mom and siblings, rather than to die with his/her mother?
The toughest moral choices in life are those where there really are no good options-something sacred is lost no matter what the decision. Moral, responsible people don't always get to opt out of making these grey and messy decisions.  I am not saying that most abortion choices fall into this category, but this extreme case does seem to be one where the letter of the general law is not very helpful to specific decisions.
I think that Jesus would have cried for the unborn baby but shown compassion for the mother and her four young children so that they would have life and have it abundantly.
 
Cathy Fasano | 7/2/2010 - 2:12pm
'The embryo in the case of cancer of the uterus is, in a certain sense, irrelevant. The exact same surgery would be recommended for cancer of the uterus if there were no embryo present. The difference between a hysterectomy to remove a cancerous uterus from a woman without cancer and a woman with cancer is that the pregnant woman "happens to be pregnant." '
 
I think you CAN make the same argument in the case of the pulmonary hypertension, by considering the case of the gravely ill mother who has just suffered a miscarriage.  In that case, the mother is no longer pregnant, the placenta is still secreting lung-stimulating hormones for hours/days longer, and the mother is so gravely ill that those hormones may well kill her even over that short a time frame.  So in that case the exact same procedure (getting the placenta out post-haste) would be recommended for the not-pregnant woman as was recommended for the pregnant one.
 
Taking a step backwards and looking at the moral calculus that the Church has constructed here, I have to judge that it is deficient because nowhere does it appear in the calculation whether actions taken or not taken to avoid harming the baby are futile.  In the case of the cancerous uterus, the two courses of action are that the mother delays treatment of her cancer, at great peril to herself, in order to give the baby some probability of survival, or she goes ahead with an immediate hysterectomy.  So, in this case the Church has said that a mother is not required to gravely endanger her life to save her child.  But now, Bishop Olmstead has told us, a mother is required to lose her life (not just gravely endanger it) under circumstances where her child has 100% probability of ending up just as dead as if she had not sacrificed her life.
 
The concept of futility appears all over other places in Catholic medical ethics.  For example, it is normally a grave evil to remove a feeding tube from a patient who cannot eat.  However, some patients as they die undergo a progressive systematic collapse of various organ systems over a matter of days, and their digestive systems shut down while they are still alive.  At that point such a patient can receive no benefit from the feeding tube, and pumping food in there just makes those final hours miserable.  Or you have a patient who has massive head trauma satisfying the concept of "brain death" who is hooked up to "life support" machines which "breathe" for him, but he's still dead.  In the case of a person whose digestive tract functions, it is immoral to remove the feeding tube.  In the case of the patient who is still alive but needs the ventilator, it is immoral to remove it.  Our ethical systems allow us to distinguish between utility and futility in those cases - why does this appear nowhere in the case of an unborn child who is doomed by the imminent death of his/her mother?
David Nickol | 7/2/2010 - 7:43am
Bain W,
 
I would agree that it is difficult or impossible to argue that if it is permissible to remove a cancerous uterus from a pregnant woman, it is permissible to remove a placenta in the case of pulmonary hypertension. The embryo in the case of cancer of the uterus is, in a certain sense, irrelevant. The exact same surgery would be recommended for cancer of the uterus if there were no embryo present. The difference between a hysterectomy to remove a cancerous uterus from a woman without cancer and a woman with cancer is that the pregnant woman "happens to be pregnant." 
 
However, ectopic pregnancy seems to me another matter entirely, and it does make sense to me to argue that if you can remove a fallopian tube in the case of ectopic pregnancy, you can remove a placenta in the case of life-threatening pulmonary hypertension. In the case of cancer of the uterus, the presence of the fetus is irrelevant when deciding on the treatment (hysterectomy), but in the case of ectopic pregnancy, it is the growing embryo that is the problem. You can't argue that in the absence of a growing embryo, the treatment for ectopic pregnancy would be the same. There would be no need for treatment. 
 
My understanding is that the majority of Catholic ethicists agree that there is no need to wait until there is an immediate threat to the life of the mother to operate. So it would seem to me that there is a good argument that "removing a damaged fallopian tube" could be considered a polite fiction for "terminating a pregnancy." The "damaged" tube, in early ectopic pregnancy, does not need to be removed. The problem is not the tube. The problem is that the embryo is going to continue to grow. It is the embryo that is the problem, not the tube, especially in early ectopic pregnancy. It seems to me an even stronger case can be made that the placenta (not the embryo) was the problem in the Phoenix case than that the fallopian tube (not the implanted embryo) is the problem in the case of ectopic pregnancy, and particularly early ectopic pregnancy.
 
I came across this blog post regarding a 1902 decree from the Holy Office regarding ectopic pregnancy:
http://zippycatholic.blogspot.com/2009/01/breaking-news-magisterium-explicitly.html
 
What I am trying to get at here is what is permissible and consistent within Catholic moral theology, and it seems to me that if we take the case of cancer of the uterus in a pregnant woman as the model of how double effect is applicable to pregnancy, then the Phoenix abortion was impermissible. However, if we take immediate salpingectomy in the case of even the earliest ectopic pregnancies as a model, then I do think a very strong case can be made that the Phoenix abortion was an "indirect abortion" and a licit intervention to save the life of the mother.
 
It troubles me that in discussing these kinds of matters, we often do not acknowledge that real lives of real women are at stake. Sister Margaret McBride made a life-or-death decision. Very likely, without the abortion in the Phoenix case, there would have been *two* deaths - the death of the mother and of the unborn infant. Even those who believe the Phoenix abortion was illicit, before condemning Sister Margaret McBride, should ask themselves what they would have done had they been in her place. Or better yet, all of the *men* should ask themselves what they would do if their wife (or daughter, or anyone they loved) were coping with a life-threatening pregnancy.  We should also take note of the fact that Sister McBride was - I do not doubt - acting in good faith. She did not say, "This woman needs an abortion. What kind of verbal gymnastics can we come up with to justify it?" 
 
Someone asked me what Jesus would have done in Sister McBride's case, and my response was, "Jesus was a Jew. He would have opted to save the life of the mother, since that has been the clear position of Judaism from time immemorial." Of course, in this case (and most others) the what-would-Jesus-do question is not really helpful. But it is helpful to remember that other religious traditions that value life just as highly as Catholicism would favor saving the life of the mother in a case like the one we are discussing.
Cathy Fasano | 7/2/2010 - 12:32am
"The removal of the healthy placenta from a healthy pregnancy is not in and of itself a good (or neutral) act whereas the removal of a cancerous womb or a damaged fallopian tube is."
 
To deconstruct:
1) The removal of a placenta, healthy or unhealthy, whether the pregnancy is healthy or unhealthy, is always eventually a good act.
2) The removal of a cancerous womb is only a good act if the individual mother is genetically in danger from the particular cancer in her womb.  If she is not, then said removal is not just an abortion but also a depraved mutilation of her body.  Whether or not the cancer cells are dangerous to her is completely dependent upon those cells' action in other parts of her body outside of her uterus, since a uterus is not a vital organ.
3) If a placenta is secreting cells which will destroy an organ that the placenta needs to survive, then I vigorously dispute any assertion that the placenta is "healthy."  That is closely analogous to the case of a cancerous uterus, which is diseased precisely because it will secrete cells into one or another vital organ, which will then be compromised in function enough to kill the body of the woman, and the cancer cells in the uterus will be killed along with the rest of the woman.  Just because we don't understand the details of the mechanisms of pulmonary hypertension or pre-eclampsia as well as we understand the mechanisms of cancer doesn't mean that we don't understand the essentials of the disease process, and that those essentials are the same.
4) Suppose a woman with pulmonary hypertension has a spontaneous miscarriage not caused by anyone, or perhaps caused by the low oxygen levels which are the essential disease process of the pulmonary hypertension.  The death of the baby will not save the mother's life - that only happens when the placenta stops secreting the hormones into her bloodstream that are causing her lungs to fail.  Competent and responsible medical professionals will act with great haste to get the placenta out of her body, not waiting for the normal hours-often-days process of miscarriage to complete naturally.  Looked at this way, it becomes quite clear that removing a "healthy" placenta from the body of a woman with pulmonary hypertension is in and of itself a good act.
5) Fallopian tubes with babies implanted in them ectopically are not removed when they are "damaged" - because if you wait that long mom is hemorrhaging, baby is dead, and it's too late to save either of them.  Unless you go for a much lower standard of "damaged" - and in that case, a placenta which has had as its sole source of oxygen the lungs of a woman with pulmonary hypertension is certainly "damaged" too.
 
On order to determine whether the specific case in Phoenix in November was a direct abortion as Bishop Olmstead claims, or was an indirect abortion, as Sr. Margaret and the ethics committee ruled at the time, you have to compare the characteristics of the particular situation with the characteristics of the known examples.  Starting from the conclusion that it was a direct abortion and then asserting that it therefore has characteristics that it does not have and does not have characteristics that it does have, and then going on to assert that the usual examples have characteristics that they do not have and do not have characteristics that they do have, is simply assuming your conclusion, and nonsense.
Bain Wellington | 7/1/2010 - 3:06pm
Cathy F.,  despite the fact that a pregnant woman's PHT is not capable of being cured by the termination of her pregnancy, you seem fundamentally at sea over the distinction pointed by ERD's nos. 45 and 47, so I shall try another tack.
 
The morality of an act cannot be defined merely by what the agent (perpetrator) says the intent was, or by what you speculate it might or could have been. It is not open to us as moral agents unilaterally to describe our acts in whatever way seems most convenient to avoid blame. 
 
The principle of double effect is not about re-arranging the linguistic or even mental furniture: four conditions must be met, and the first is that the act, viewed in itself, must be morally good or (in a refinement of the principle) neutral. 
 
The removal of the healthy placenta from a healthy pregnancy is not in and of itself a good (or neutral) act whereas the removal of a cancerous womb or a damaged fallopian tube is.
 
Abortion is defended by some on the grounds of "no intent to kill" the fetus.  The spurious argument is that the intent is to empty the womb and what kills the expelled fetus (if unviable, and on the very large assumption that the fetus was not previously killed in utero) is medical science's inability to keep it alive. 
 
Frankly, all such arguments are pernicious since they are destructive of all morality.  The attempt to cloak such arguments under double effect merely demonstrates ignorance of the principle. 
 
Peace
Bain Wellington | 7/1/2010 - 2:49pm
To forestall objections and to reduce if not eliminate possible future confusion, I had expected it to be obvious (and, if it is not, I confirm) that, from the end of my comment @48 onwards, I use "abortion" to mean "abortion as defined in Evangelium vitae s.62" - compare the terminology in CCC 2271 and 2272.
 
Bain Wellington | 7/1/2010 - 12:48pm
Cathy F.   OH dear!  For sure I am not claiming the Church's teaching or Bishop Olmsted's statement is wrong!   What is not permitted under any circumstances is choosing one innocent life over another. That is what I wrote, that is what I stand by, and that is what the Church teaches unequivocally.  I have written nothing here that begins to justify your travesty of my beliefs. 
 
For some reason your mind appears to be blocked on the issue.  I suggest you read or re-read the Church's teaching as succinctly presented, for example, in the USCCB ERD's (no. 45 concerns abortion, and no. 47 which does not concern abortion) and elucidated in the statement of 23 June 2010 by the USCCB's Committee on Doctrine. 
 
Actually, Bsihop Olmsted's statement of 14 May 2010 is equally succinct and equally authentic a presentation of the Church's teaching.  A much fuller account is given in the Encyclical of Pope John Paul II, Evangelium vitae (1995) at ss. 52-62. 
 
The error is to think that because medical science gave the medical staff at St. Joeseph's a practical choice in this case, they were justified in exercising it (compelled, even, to exercise it) in favour of the mother by terminating the pregnancy.  The Church's teaching, which I uphold, is that that choice is not for humans to make.
 
Nor is a negative choice (to allow the mother to die) indistinguishable from making a positive choice (to kill her).  Standing by and allowing a life-support machine to run down (because of some irreparable mechanical defect, for example) is not the same as turning it off, even if the end result is the same - although separated (it may be) by minutes, or seconds.
Cathy Fasano | 7/1/2010 - 11:30am
'" the treatment necessary to save the mother's life required the termination of an 11-week pregnancy ". The truth is that two innocent lives were involved, and one was sacrificed to save the other. That is not permitted under any circumstances.'
 
That description - " the treatment necessary to save the mother's life required the termination of an 11-week pregnancy " - is a quite accurate description of removing the cancerous uterus of a pregnant woman, or removing a fallopian tube that contains an ectopically-implanted child.  If you are claiming that the Church is wrong, and that removing a cancerous uterus or ectopic pregnancy is "not permitted under any circumstances", then that is a completely reasonable and consistent philosophical position, just not the position taken by the Church.  You need to make very clear that you are defending your own beliefs, and that the Church believes differently.
 
'...it would not have been licit to turn off a life-support machine "which happened to have a neo-nate attached" '
 
If, for a moment, we constrain ourselves to considering only the life of the unborn child, allowing the mother to die is, in fact, almost indistinguishable from turning off a life-support machine which happened to have a patient attached to it.  The only real differences are that the mother (aka the baby's life support) is an ADDITIONAL life terminated, and it would be more analogous to destroying the machine rather than turning it off (since a machine turned off can be turned back on.)
Bain Wellington | 7/1/2010 - 7:00am
Cathf.  The hospital's press statement included this: " the treatment necessary to save the mother's life required the termination of an 11-week pregnancy ".   The truth is that two innocent lives were involved, and one was sacrificed to save the other.  That is not permitted under any circumstances.
 
You over-dramatise what is already a drama by saying the placenta (which, yes obviously, was removed) was "spewing out hormones" or "malfunctioning" (cf. your post @45).   The pregnancy – for all we know – was normal but, as a result, the mother's life was at risk.  The search here is not for a convenient form of words, and yours ("removing a placenta which happened to have a baby attached") is a grotesque distortion of reality.
 
In any event, since it would not have been licit to turn off a life-support machine "which happened to have a neo-nate attached", how can it be licit to remove a placenta with or without "a baby attached"?  The ban on withdrawing nutrition and hydration from a patient in a permanent vegetative state is directly in point.
 
The giving and disposing of life belongs to God.
 
Abortion is never just about weighing medical options: all actors in the drama are scarred – even by becoming inured to it, whether by taking refuge in semantic quibbles or by any other means whatever; and society is scarred too (as the phrase "culture of death" tries to remind us: see Evangelium vitae, passim esp. at s.59). 
 
It is because perception of the gravity of the evil has become obscured by wide-spread legalisation that abortion was made one of only seven delicts in the 1983 Code of Canon Law incurring excommunication latae sententiae.
Cathy Fasano | 6/30/2010 - 2:56pm
"As for the removal of the placenta, that was not the course pursued."
 
I am confused - you have some information about the precise procedures that were followed?  According to the hospital statement, the mother and baby were near death and could not be moved, even to an operating room.  About the only plausible scenario is that they did a suction abortion, which is quite consistent with the description as "removing a placenta which happened to have a baby attached."  Unless the hospital is not telling the truth about the gravity of the mother's condition, the fact that the mother is alive argues that they got the placenta out post-haste.  Unlike the typical childbirth, abortion or miscarriage situation where getting the baby out is Job One and the placenta can wait a bit, the only way to save this mother's life was to remove the placenta which was spewing out the hormones that were killing her.
 
Which is, of course, the precise argument.  The baby was not killing the mother, the placenta was.  The procedure that they were doing was directed at removing the placenta, and the death of the baby was an unfortunate, if completely foreseen, indirect effect.  In the future, (especially if Obamacare is repealed) perhaps pharmaceutical researchers will develop some drug which will counteract these hormones that the placenta is secreting without having to disturb the baby.
Bain Wellington | 6/30/2010 - 10:59am
The press statement issued by St. Joseph's Hospital in Phoenix included this:-
 "We have always adhered to the Ethical and Religious Directives for Catholic Health Care Services as we carry out our healing ministry and we continue to abide by them."
 Precisely because it self-identifies as a Catholic hospital, it subjects itself to the oversight of the local ordinary.
Precisely because it invokes the USCCB directives, it is subject to the bishops' interpretation of them. 
The fact that Margaret McBride is a member of an institute of religious life is neither here nor there, but as a lay woman she has the same obligations as are imposed on all of us: to preserve our communion with the Church at all times (can. 209 §1).  I would add can. 212 §1 were it not for Mr. Bindner's evident animus on the subject.
Michael Bindner | 6/30/2010 - 10:20am
I'd like to offer additional points about the role of the bishop. The first is that the woman's condition was deteriorating quickly, so that there was not time to contact the bishop. The second is that the bishops do not have authority over the Order - neither the diocesean bishop or the USCCB as a whole. It frankly should not matter that the local ordinary was not contacted, since it was not a diocesean hospital. The directive saying that it is a direct abortion to save the mother's life is wrong. The directive that says the bishop should have been contacted is also wrong when the hospital is not under his jurisdiction.

As long as the USCCB operates under the supposition that religious orders must obey them, which is not the case, they will continue to make fools of themselves. This was true in both this instance and in the invitation to President Obama to speak at Notre Dame's commencement. They need to remove the mote from their own eyes (condoning sexual abuse of minors) before they ever touch the speck in the eyes of the religious orders.
Bain Wellington | 6/30/2010 - 10:19am
David, your comments are always courteous and thoughtful, but I still consider you to be wrong-headed. 
 
To take your last point first, excommunication under can. 1398/ 1329 is not a judgement on the moral culpability of Sr. McBride, it is a fact arising automatically from facts.  
 
I have addressed only the case of Sr. McBride, whose involvement and liability under cann. 1398/ 1329 are both clear.  They are not made unclear because you raise extraneous issues relating to other actors in this tragic human drama, nor are they made unclear by canonists who address only can. 1398 without any regard to can. 1329.
 
As for the removal of the placenta, that was not the course pursued.  According to the hospital's press statement, the pregnancy was terminated (and precisely because it "threaten(ed) a woman's life").
 
This press statement undercuts your assertion that there is some question whether the abortion was "direct" or "indirect".  The term "direct abortion" is explained in Evangelium vitae 62 as "abortion willed as an end or a means".  The reasoning is equally limpid: human life from conception to natural death is sacred and cannot be subjected to the vagaries of human decision-making processes.
 
There are no special circumstances in which abortion, so defined, is permitted.  Very many people (Catholics, even) wrongly consider that an abortion to save the mother's life is permitted.  It is not.  In this case, the abortion was carried out (the pregnancy was terminated) to save the mother's life.    The abortion here was not ancillary or subsidiary to any other procedure (making it even potentially "indirect"), so the principle of double effect is excluded.
 
People can argue that the application of this rigid principle is illogical, unfair, unjust or wrong, but that has no bearing on the applicability to Sr. McBride of cann. 1398 with 1329.
 
Peace
David Nickol | 6/29/2010 - 12:52pm
Of course, I don't want to argue that there should be no medical intervention in ectopic pregnancy, but to comment briefly on what Cathy F says, the argument that it is licit to perform a salpingectomy (removing part or all of the fallopian tube along with the developing embryo) is that it is the fallopian tube that is damaged or "infected," and the tube must be removed to heal the woman. However, the fact that it is generally accepted that the surgery can be performed as soon as ectopic pregnancy is diagnosed seems to me to indicate that it's more a matter of preventing further growth of the embryo than repairing the tube. If the embryo were going to remain implanted and never grow, there would be no need to "repair" the tube. 
 
I do not see a major difference between removing a uterus with an embryo enclosed, and a placenta with an embryo attached. I have encountered arguments that the placenta is part of the embryo, but I do not find that argument credible. To those who argue that the placenta is essential to the embryo's survival, the appropriate response seems to me to be, "So is the fallopian tube in an ectopic pregnancy, and the womb in the case of cancer of the uterus." As to the argument that the embryo in an ectopic pregnancy is going to die no matter what, so was the embryo in the Phoenix case.
STOHBAPT@DOM.ED | 6/29/2010 - 12:44pm
What a gift Fr. O'Rourke and his clear, compassionate thinking are to the Catholic community-and particularly to those in the demanding field of health care. For those in the Chicago area, please join us at Dominican University on September 23 to hear Fr. O'Rourke's lecture on ethical issues at the end of life. More information at www.siena.dom.edu
Cathy Fasano | 6/29/2010 - 11:47am
It is just as "clear" that removing the tube and the baby it contains in the case of an ectopic pregnancy is also a direct abortion.  In fact, the scenario of the removal of the malfunctioning placenta that just happens to have a baby attached is much closer to the scenario of the removal of the malfunctioning (cancerous) uterus that just happens to have a baby contained in it.
 
In the case of the ectopic pregnancy, the tube is functioning in a way that is completely normal - a tube is not supposed to be able to contain something the size of a baby.  So the removal of the tube is directly targeting the baby, because it is the baby's physical presence in the wrong place which will kill both mother and baby.  In the case of the pulmonary hypertension, the problematic organ is the placenta, which is spewing out hormones which are causing the mother's lungs to fail and which will kill both mother and baby.
 
What is "clear" is that if it is permissible to remove a cancerous uterus which contains a baby, and it is permissible to remove a fallopian-tube-sized fallopian tube that contains a baby, then it is also permissible to remove a killer-hormone-emitting placenta which is attached to a baby.
 
Or, to run the logic the other way, if it is a direct abortion to remove the placenta from a pregnant woman near death from pulmonary hypertension (something that is vanishingly rare) then it is ALSO a direct abortion to remove the fallopian tube from a pregnant woman with an ectopic pregnancy (something that happens fairly frequently.)
David Nickol | 6/29/2010 - 10:33am
Bain W,
 
I understand your viewpoint, but it seems to me both the issue of whether the abortion in question was direct or indirect, and the issue of whether an ethics committee approval constitutes assistance without which the abortion could not have taken place, are both open to debate. I don't think any one person's opinion can settle the issues, unless the pope chooses to speak ex cathedra!
 
The idea of targeting the placenta in the case of a problem pregnancy seems no more dubious to me than the idea of targeting the fallopian tube in an ectopic pregnancy. It seems to me these are matters that have to be resolved by debate among moral theologians. 
 
Issues of strict and broad interpretation of canon law are also going to be seen differently by different authorities. We have already seen conflicting opinions from canon lawyers. Is the nurse that hands the instruments to the doctor as responsible as the doctor? Is the person who sterilizes the instruments as responsible as the nurse? No doctor would perform surgery without sterile instruments, so one might (implausibly) argue that those who sterilize instruments are essential to the surgery. And what about the manufacturer of the instruments. I had eye surgery not long ago, and there were a whole host of people without whom the operation would not have taken place. 
 
I personally think the USCCB Committee on Doctrine did not discuss the specifics of the Phoenix case because it raises novel issues and falls into a grey area, and the bishops wisely did not want to make a definitive statement one way or another lest further debate contradict them. Also, I don't know whether there will be any further matters involving canon law in this case. There have been speculations that Sister McBride can make some kind of appeal. A statement by the USCCB that Bishop Olmsted is right and Sister McBride is wrong would be highly prejudicial. And note that the Committee on Doctrine said, "Most Reverend Thomas Olmsted, the Bishop of Phoenix, has judged that this procedure was in fact a direct abortion and so morally wrong." No matter how strongly you feel the rest of the document upholds Bishop Olmsted's judgment, the bishops did not say he was right. The bishops were a lot more cautious in writing and promulgating their document than a great many of the people who have sat in judgment of Sister Margaret McBride.
Bain Wellington | 6/28/2010 - 8:06pm
David Nickol @39 and 42, you are missing the point both of double effect and of the latest clarification by the USCCB Committee on Doctrine (dated 23 June 2010) which, as you say, repeats existing Catholic doctrine (cf. Evangelium vitae which I cited in a previous post.)
The Doctrine Committee set out the scenarios in such a way as to include the McBride case which motivated the clarification although, indeed, the particular facts of that case are not in terms entered into. 
We know, however, that the mother in the McBride case had an underlying health issue (pulmonary hypertension) which was NOT addressed by the abortion.  The surgery targeted the life of the unborn child because the pregnancy, inter-acting with the pulmonary hypertension, threatened the mother's life.   Therefore the McBride case falls within scenario (1) and was illicit.  Even to save the mother's life, a direct abortion is illicit.
The second scenario (illustrating the principle of double effect) is the case of a cancerous womb.  The surgery targets the diseased organ and therefore addresses and resolves the underlying health issue.  As a necessary and foreseen but unwanted consequence, the unborn child within the diseased womb either will not survive the surgery or, if it does, will not survive outside the womb.
It is really that simple.
***
As for the strict interpretation of can. 1329 §2, a person becomes an accomplice "if, without their assistance, the delict would not have been committed".  If the reference to the ethics panel meant anything, it was for the purpose of getting the abortion signed off.  Thus, without the approval of the ethics committee the abortion would not have taken place.  Any Catholics on the ethics committee who voted for it therefore fall squarely within can. 1329 §2. 
Your understanding (that the surgeon and mother fall within can. 1329 §2) over-interprets "accomplice" and manages to ignore the main provision.  The surgeon and whoever else operates the implements which effected the abortion (the abortionists properly so-called) certainly fall within can. 1398.  The mother (or whoever gives consent on her behalf) falls within either can. 1398 or 1329 §2.  To my mind, and as a matter of language, the mother (or whoever consents on her behalf) actually procures the abortion rather than gives assistance for it to happen.
David Nickol | 6/28/2010 - 11:29am
DJP says: ". . . the Doctrine Committee of the USCCB issued a clarification and offered support to Bishop Olmstead. Now, how many times has this happened?"
 
Those who already agree with Bishop Olmstead interpret the statement by the USCCB Committee on Doctrine as support for his position. However, the document does not discuss the particulars of the Phoenix case and merely reiterates Catholic teaching on abortion. There is nothing new in the document, whereas the rationale of the hospital ethics committee was indeed new - or at least a new application of the very old principle of double effect. In 1902, the Holy Office forbade intervention in cases of ectopic pregnancy until the sixth month. However, by the 1930s, Catholic moral theologians had come up with a rationale for removing the fallopian tube (or part of it) in which the embryo had implanted. It is now considered a classic example of how the law of double effect can be employed for life-saving intervention which results in the termination of a pregnancy. Time will tell whether the reasoning of the hospital ethics committee will be accepted or rejected by medical ethicists and moral theologians. It can't, however, be rejected based merely on the opinion of a single bishop, or on the document from the Committee on Doctrine, particularly because the argument of Sister McBride and the ethics committee has not actually been addressed. 
Dino Pantoni | 6/27/2010 - 6:43pm
She would not had  broken any confidentiality agreements if she only specified the case and not the person's name. While this sister probably knows more when it involves medical issues, she obviously needed assistance when trying to understand the ethical nature of such a procedure especially if one is performed at a Catholic Hospital, where doctors were giving their medical advice and she was there giving her advice as a spiritual leader of the hospital. In this case, she had a duty if not a responsibility to contact her bishop given the seriousness of this situation. BUT SHE DIDN'T. More so, this very local event has had such an impact upon the entire church that the Doctrine Committee of the USCCB issued a clarification and offered support to Bishop Olmstead. Now, how many times has this happened?
 
Theologians and canon lawyers who fail to see the seriousness of this abortion and their subsequent failure to understand the bishops -are not working rightly within the framework of how the church operates and governs itself. Instead, they appear to create different frameworks which the bishops do not recognize only to confuse other ethicists like this sister. And if others listen to the theologians and canon lawyers, they could find themselves in a similiar situation - excommunicated. Theologians and canon lawyers too have a responsibility and sometimes when they issue intrepretations they act as if they are in a US Court when in fact they are operating in a court of ecclesial law where the Pope and his designee is the absolute intrepreter.
While I understand that some do not want to take the bishops seriously in their roles as pastors, their failurre to do so will only create more scandal and unnecessary hurt for those like this sister who refused to dialogue with her bishop.
Certainly, we can agree that both the sister and the bishop have particular rights and responsibilities when it comes to how a Catholic hospital makes decisions in cases such as these.
People are upset that she was excommunicated but there should have been a dialogue beforehand and there wasn't. This is what happens when Catholics become the long ranger; their failure to respect the nautre of what we call communion.
Eileen T | 6/26/2010 - 2:03am
Thank You for Fr. O'Rourke for rising above the emotional turmoil and laying out the premise for this incident based on Canon Law in a logical and complete manner and the implications that the HIPAA Law (Federal Law in the United States where Phoenix is located) had on Sister McBride's ability to communicate with the Bishop.
For those splicing just parts of this article, you have already made an unrational decision not consider this impartial article in its entirety. While some contend that Fr. O'Rourke's article is tortured, the reason could be that Canon Law is based upon several hundred years of decisions and is probably as convoluted as the IRS code which is only several decades old.  While one could argue that these laws should be simplied, I am not familiar enough with Canon Law to make that bold suggestion.
As to Greta's response that the same bishops, who have secretly paid hundreds of millions of dollars of the faithful's money to settle the pedophile scandals without the faithful's knowledge while closing grammar schools for poor children, "to stomp out dissent and save souls, is severely flawed. Isn't stomping out dissent what the nazis did in the 1930s and 1940s.
As John so beautifully states, "Law untempered by mercy often results in cruelty and injustice." It would do us all good to remember that Jesus placed more of an emphasis on "Let Love, Mercy and Kindness Prevail" rather than punish those who did comply with all mandates.  
While most Catholics are busy making desicions as to which SUV to purchase or other materialistic decisions, God Bless Sister McBride and others in her profession who struggle to make the correct decisions for patients and resolve the conflicts arising between medical technology and persons of both the Catholic and other Faiths.
The unanswered questions that I have: "Was Sister McBride punished as a message to the Mercy Sisters who have the nerve as females for maintaining their own healthcare sytem?" "When is the Church going to realize that fifty percent of its members are females?" "Would the Bishop have created this scandal if a priest, and not a nun, had made the same decision?" Some of my questions, as some of your comments on either side, are emotionally premised and that is why I applaud Fr. O'Rourke for rising above such arguments and providing a potential resolution to this incident.
David Nickol | 6/25/2010 - 11:40am
Bain W,
 
You raise an interesting point about Canon 1329 §2. I am not a canon lawyer, but here's what I think the answer is, although admittedly it is not in accord with a great deal I have read about abortion and latae sententiae excommunication.
 
Canon 1398 states:  "A person who procures a completed abortion incurs a latae sententiae excommunication."
 
Canon 1329 §2 states: "Accomplices who are not named in a law or precept incur a latae sententiae penalty attached to a delict if without their assistance the delict would not have been committed, and the penalty is of such a nature that it can affect them; otherwise, they can be punished by ferendae sententiae penalties."
 
However,  Canon 18 states: "Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation."
 
One often sees a very broad interpretation of "accomplices" in discussions of latae sententiae excommunication for abortion. So it has been assumed by many that the woman in the Phoenix hospital who consented to the abortion was automatically excommunicated, the medical team that performed the abortion was excommunicated, and the seven members of the ethics panel (including Sr. Margaret McBride) that approved the abortion were excommunicated. However, interpreting Canon 1329 §2 narrowly would, it seems to me, limit the automatic excommunication to the woman who consented to the abortion and the doctor who performed it. 
 
While writing the above, I found an article in the National Catholic Reporter in which several experts in canon law give differing opinions as to whether Sr. Margaret McBride was a true accomplice to the abortion that was performed. See
http://ncronline.org/news/faith-parish/gray-areas-excommunication
 
There are, of course, differing opinions as to whether the abortion was direct or indirect. If it was an indirect abortion to save the life of the mother, then it was licit, and the whole question of excommunication becomes moot. 
Tamzin Simmons | 6/24/2010 - 9:11am
Excellent article by the way.
Tamzin Simmons | 6/24/2010 - 9:10am
Possibly the reason why the Sister didn't contact the Bishop beforehand is (as I think one person also mentioned above) the issue of patient confidentiality or privacy. I'm not sure what US law says about that (I'm from the UK) but unless the Bishop is a relative or close friend of the patient, or a medical professional, the idea of his being asked for advice in the particulars of a case, and his opinions given such weight as to decide the outcome seems somewhat ill-advised. Bishop Olmsted may be Sister McBride's superior religiously, but it is highly probable that she might know more about medical care than her Bishop.
Dino Pantoni | 6/23/2010 - 7:42pm
Why didn't the sister contact the bishop's office beforehand considering the seriousness of the situation? Wouldn't it have been better if she would have contacted experts in this field before making such a recommendation for this woman to terminate human life? Everyone would agree that when abortions are performed at Catholic hospitals they are going to be controversial and questionable and that the circumstances surrounding this abortion really raised legitimate moral issues. Was this sister really capable and informed morally to make such a recommendation?
Sister McBride owed it to everyone involved to get more opinions before she made such a recommendation, and she didn't. Why didn't this professional, well caring individual, a devoted women religious, and a well respected women of faith contact her bishop outlining the problems that this woman faced? Why? Did she already know his response and took the chance that he would never find out?
Whatever happened to dialogue? Certainly, it must be a two way street.
It just seems to me that she made this decision based upon the opinions of a few theologians, and forgot that she belongs to a local church whose bishop should have been contacted beforehand.
 
Bain Wellington | 6/22/2010 - 6:08pm
At least two prominent American priests and academics have disputed the rectitude of Bishop Olmsted's 14 May 2010 statement in letters or articles appearing in "America". 
 
On 17 June, Fr. James Martin S.J. posted on the group blog a letter first published in London's "Tablet" from Fr. Ladislas Orsy, S.J., Professor of Canon Law at Georgetown.  His main points are (a) the governing word is "procure" in CCL can. 1398 (his para.4); and (b) there is no provision in Canon Law "about an automatic excommunication inflicted on 'cooperators' in abortion" (his para.5).
 
The Father Professor has evidently not considered can.1329 §2 which is the very provision he asserts is lacking.  It follows that it was not necessary for Sr. McBride to "procure" the abortion herself; her liability arose from the fact she was "an accomplice . . without [whose] assistance the crime would not have been committed" (can.1329 §2).
 
 ***
 
Then, on 21 June, appeared this article by Fr. Kevin O’Rourke, O.P., Professor of Bioethics at Loyola University, Chicago, raising these (among other) questions:-
 
 (a) "Did the bishop and his advisors clearly establish that a direct abortion had been performed?"   [St. Joseph's Hospital admitted it in a press release]; and
 
 (b) "Did [the people involved in the Phoenix case, mother, ethics committee members, or medical personnel] set out knowingly and willingly to violate Canon 1398? Or was their primary intention to save the woman’s life?" 
 
Again, no recognition that the McBride case concerns can. 1329 §2, and no recognition of the teaching of the Magisterium that abortion is evil whether as a means to avoid a mother's death or as an end (JP II, Encycl. Evangelium vitae, 1995, nn.58, 62).
 
None of the 21 combox comments to Fr. Martin's post and none of the 34 combox comments here have noticed can. 1329 §2.  Nor (I dare say) would the editors of "The Tablet" or "America" have published such material had they known it was based on an error of law.
 
Am I missing something?
Mark Kolakowski | 6/18/2010 - 9:13am
Regarding religious leaders who impose heavy burdens on others but do not lift them with their own hands (see comment 18, which cites Luke 11:46-47), one wonders how willing the local bishop would be to give witness to his teaching by placing his own life on the line in tandem with that of the unfortunate mother.
Greta Green | 6/18/2010 - 2:54am
The nun knew she was flying in the face of the ban on abortion and she therefore should pay the price.  What the bishop did was correct and he should be supported for his action.  The bishops should do this far more to stomp out dissent and save the souls of those who clearly need leadership that teaches the truth of the Catholic Church. 
The nun who gave Obama cover in his pro abortion healthcare plan should face the same results.  Note Cardinal George talked with her prior to her actions and she ignored him and all the bishops.  Dissent in supporting those who promote abortion as the democratic party does along with support of gay rights and marriage is also against a clear teaching of the Catholic Church. 
Carolyn Disco | 6/16/2010 - 8:56pm
Thank you Rev. Larry Hansen, Nancy Rowles, John and others of similar mind here. You give me hope for the People of God.
John Hess | 6/16/2010 - 7:52pm
I am not a learned man when it comes to the complex points of our doctrine, so forgive me if I am simpleminded and must fall back on a prayerful conscience. 
Sister McBride seems to have made her decision based upon mercy.  Bishop Olmsted seems to have made his decision based on canon law.  Law untempered by mercy often results in cruelty and injustice.  The people of the Church are crying out for for clergy to be good shepherds whose hearts shine with Christ's love and compassion.  But why, oh why, do we so often instead get cold hearted legalism?       
Nancy Rowles | 6/16/2010 - 1:27pm
One may parce canon law and the ERDs better than Pharasees to arrive at justification for the actions of the bishop in this case and yet not arrive at a humane resolution because missing is the truth experienced in the heart.  The question arises - what would one do if this were one's wife, mother, sister or daughter?
I too am a member of our Catholic Hospital's ethics commitee.  And if a beloved relative were the patient in such a case, please that she not go to a Catholic hospital in the first place if there were any danger of losing her to this kind of heartless acedemic discussion since she could not be moved to another medical facility where decency prevailed.  
 
LAWRENCE HANSEN | 6/16/2010 - 12:19pm
I can't help seeing a poignant connection in the inclusion of this rather disembodied and theoretical analysis in the same issue as a review of a new biography of Dietrich Bonhoeffer, who wrote, "When a man (sic) takes guilt upon himself in responsibility, and no responsible man can avoid this, he imputes this guilt to himself and no one else; he answers for it; he accepts responsibility for it.  He does not do this in the insolent presumptuousness of his own power, but he does it in the the knowledge that this liberty is forced upon him and that in this liberty he is dependent on grace.  Before other men the man of free responsibility is justified by necessity; before himself he is acquitted by his conscience; but before God he hopes only for mercy" (from "Ethics" [MacMillan, 1955, p. 248].  Perhaps in the face of such terrible choices, one might look for mercy from leadership, particularly leadership which, in the aggregate, has been so tolerant of the destruction of God-knows-how-many other children's lives by men under their authority.
Jack Anliker | 6/16/2010 - 10:22am
How many pedophile priests and brothers have been excommunicated?
Scott Tiernan | 6/16/2010 - 12:51am
Please do a bettter job of editing.
David Nickol | 6/15/2010 - 7:55pm
Bruce says: "Would not a moral certainty be required to take a life, even indirectly?"
 
The answer is no. 
Grace Yawson | 6/15/2010 - 3:27pm
Thank you Fr. O’Rourke for bringing light to this disturbing medical/ethical case. Thank you Fr. Broderick for clearly pointing out to us what Jesus Christ said: “Let him who has not sinned before - be the first to cast the stone”.

I shudder at those comments suggesting that Sister Margaret did not consult Bishop Olmsted. I do not know the Bishop’s jurisdiction over decisions made by the Ethics Committee. Probably there is a connection in the chain of command that the Bishop should have been given details of someone’s medical condition, a woman who is not his relative (or his wife - God-forbid). Was the Bishop part of the medical team? What happened to the Health Insurance Portability & Accountability Act (HIPAA) which is supposed to protect personal health information? Rather, what we have is a circus over what Sister Margaret did or did not do to appease the Bishops and the anti-abortionists.

As many comments above have noted, being involved in this decision-making could not have been easy. Many forgot that there was a husband and four other children affected by whatever decision that was made by the Ethics Committee. Certainly, a 10-week pregnancy is not viable no matter what the ultrasound pictures tell us.

And by the way, did the priest-molesters inform the Bishops of their intentions/actions before or after the effect? Yes, it is a man’s world and we are all paying for it by the decisions made by the same Bishops. Churches, schools and hospitals are being closed adding to the unemployment. Someone mentioned New York facilities. The school my children attend was closed. Most of the employees are good Catholics who paid their tithes and contributed to the Archbishops’ Annual fund raisings among other contributions. I do not hear the Bishops crying foul.

I pray and believe that Sister Margaret has peace knowing that as difficult as the case was, a husband and four (4) children were not left to mourn the incomprehensible. Yes, Sister Margaret, I support you and the medical team and I pray that God will give you the peace that man cannot give.

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