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

Colin Donovan | 6/15/2010 - 12:47pm
Oddly, or perhaps not so, many assume the Sister to have exercised care but the Bishop not. I think the facts are the opposite.
While Fr. O'Rouke gives the first plausible justification for indirect abortion, it seems that it relies on a mere possibility that the placenta was the cause of the hypertension. Would not a moral certainty be required to take a life, even indirectly? The lack of consultation with the bishop, or even with the NCBC, seems a species of willful ignorance - which does not excuse.
Lori Amann-Chetcuti | 6/15/2010 - 11:33am
Thank you for a clear explanation on the moral and medical issues involved. 
Catherine Hosea | 6/15/2010 - 10:55am
Jim Belna says: "It is hard to imagine a more serious and potentially scandalous situation than an abortion being performed in a Catholic hospital."
 
Imagine our priests sexually abusing our children.  Imagine our bishops covering it up.
There comes a time when we must say, "I'll let God be the judge."
john vercellone | 6/15/2010 - 10:35am
by a 35 year plus tradition some Catholic organizations cloud the issue with extremely rare events ss this.i have no question that the woman is in poor health and by the old fashioned American medicine ethics the type that i was part of as a health professiona student and professionals thre decades ago that the health providers that her judgement is altered by her poor health and yes indeed the health professional must do her some of her thinking for her,yes the saving of her life should not throw the termination of her pregnancy as an abortion..why dont so called Catholic ethiciits concentrate on the 1.2 million plus abortions a year that are motivated out of "convenience""??/no that would make a lot fow work and criticism.and why was the Catholic communioty of USA NOT EVEN SLIGHTLY CRITICAL OF HOW 7 OUT OF 8 catholic hospitals in new york city were clsed in one year..not even a peep..and in my personal exeperience why isnt the US CAtholic community equally curious why 20per cent of american doctors are immigrants and how A GREAT DECLINE IN THE catholic doctors to US catholics has been on going for more than 40years??not even the slightest inquisitivness...
Catherine McKeen | 6/15/2010 - 10:23am
When I think of those male bishops splitting all those canonical hairs about the lives of women, I invariably remember my 95-year-old mother who gave birth to five children who lived: Said she, if the men had the babies, there would be only one in every family.
Aloysia Moss | 6/14/2010 - 7:32pm
Our dear Creator gifted us humans with medical knowledge through the human intellect .  Sure , it is limited as are we . 
Why then are we to toss it away and always bend to all circumstances ? Giving in to the so-called inevitible .
It takes guts to wrestle with ethical dilemnas when we live in an imperfect world . 
No bishop in his right mind would ever take on the responsibility of another person ' s choices .   Nor would anyone involved in any situation expect a bishop to do so .
The young woman had welcomed four children and was looking forward to her fifth .  In all likelihood her heart must have broken , torn between orphaning the babies at home or taking care of her damaged heart . 
No compassion for Sister Margaret Mary either .  No following of the Law regarding her canonical rights " law " to which the Bishop of Phoenix seems so devoted .  Is she appealling her condemnation ? 
No matter how much " scandal " is given absolutely none has to be "taken ".  The fear which seems to pervade the hierarchy is ill founded .  The message really is that the laity are a bunch of blithering idiots .  Yes , we are fools but fools for Christ whose Wisdom is the Cross . 
Thank you , Fr. O' Rourke !
 
 
 
 
 
 
RICH BRODERICK | 6/14/2010 - 6:19pm
I found the story of the excommunication of Sister Margaret McBride, announced by the bishop of Phoenix, upsetting, and it represents the worst of institutional religion. Jesus castigated religious leaders who imposed heavy burdens of law on others and did nothing to lift their burdens.  How does the suffering and death of an unborn and mother give glory to God? The decision was to save the life of a mother of four where two would have died.  No mention was made of the anguish  in the hearts of the mother and sister McBride, who ministered to her, having to make such a decision? Where is the compassion that Jesus showed to every sinner and suffering person? If an evil choice cannot be made for a specific good, why is this bishop, and so many other bishops complicit by their silence about the evils of war, for the supposed good of National security?  If I were to be judged by Jesus in this matter, I would rather stand in the skin of this nun and mother, than in the skin of those who have condemned her. I pray that her religious community will stand firmly behind Sister McBride.


 
Winifred Holloway | 6/14/2010 - 5:19pm
"I want to avoid becoming an abstract exercise for the speculations and torturous reasonings of bishops and theologians."
 
Well said, Carolyn.  Catholics risk damaging the reputation of the Church by making these repellent how- many -angels- on- the- head of a pin- arguments.  I try to take seriously all positions put forth by those I disagree with.  However, when I find comments regarding the Phoenix story on this blog and other Catholic blogs that support Bishop Olmstead's actions, it makes me queasy. Support first for the Magesterium.  Who are these people who would support doing nothing to save this woman's life?  Most are men.  Do they have wives, daughters?  Chilling. 
MaryBridget Bolt | 6/14/2010 - 4:59pm
i cited the wrong poster:  it was "Jon", not "Kathleen."  apologies.
MaryBridget Bolt | 6/14/2010 - 4:56pm
Kathleen C. Berken touched on what i believe is called Divine Providence.  Abx is a commonplace evil.  i can't help but wonder if advanced medicine and the premium placed on our earthly life didn't sway some involved in the decision.  All the intellectual brilliance and polished medical talent in the world is still not above the Mind of God. or rather, if we don't think so, why be Catholic? Thanks Kathleen for reminding us Whose ultimately in charge.     
MICHAEL COLLINS MR/MRS | 6/14/2010 - 4:04pm
I am quite confused about all of the hoopla over this issue.  I am anti-abortion, but I fail to see the ethics or morality of allowing two people to die when at least one has a fairly good chance of being saved.  I do sort of get the distinction between direct and indirect abortion but even there it seems to me is an element of "hair-splitting."
And if I may, I have one unrelated comment to America Magazine.  Please do something about getting your comment editor debugged.  It seems to have a mind of it's own.
Jonathan Hay | 6/14/2010 - 3:35pm
I am surprised, but not too surprised, that this article mentions nothing at all about a husband. Additionally, just because we can do something doesn't mean we should do something. We are a society of instant gratification. Often, we leave little room for God to work in our lives because we won't wait for and/or have faith in his love for us. We feel we must do everything ourselves, now. Would she have died? Maybe, but maybe not. We'll never know because we took matters into our own hands and didn't trust in the Lord. Is this being simple minded? Possibly. But, isn't that really what's at the heart of being a person of faith. Either, God is who he says is and we trust him or we should take our ball and go home.
Kathy Berken | 6/14/2010 - 2:54pm
Carolyn,  you have summed this up perfectly. My thoughts and feelings exactly. 
And, to Anushree, yes, it is disturbing "about the fixation of bishops on the avoidance of scandal versus an act itself as the source of the problem." Very disturbing, indeed.
Francis O'BEACHAIN | 6/14/2010 - 2:51pm
I found the article  quite helpful since the original reports showed the bishop to be callous in his comment - let the mother die- and I did not see any in-depth explanation of the actual story. I am also not happy with the way excommunication is used and abused over abortion, communion and now this case. The Church laws are quite precise as is moral theology. which topics are  not well-served in an evening news story which turned the shepherd into an uncaring  moral despot and insulted both mother and Sister McBride. Thanks Father O'Rourke  people like you should be interviewed front and center. How can we keep the insensitive official commentaries off the air from  R Arroyo on EWTN to  the pro-abortion propagandists  allowing both groups to have  a field day with this one and further damaged the Church's pastoral sensitivity.
Andrew Russell | 6/14/2010 - 2:44pm
If only this were a hypothetical case, and these were discussions in a classroom....
It seems that canon 1398 is directed at those who procur a successful abortion, it is not directed at those who approve or advise that action. Sr. McBride did not procur the abortion, she approved the ethical reasoning behind the action. Perhaps she was thinking like Grisez when she approved an action that had the forseeable, but unintended consequence of abortion. She only approved the ethical thinking, she did not procur or participate actively in the action. If the bishop wishes to impose a penalty, it is his right to do so in the proper way. Regardless of whether Sr. McBride was right or wrong in that difficult situation, it seems obvious that she did not incur an automatic excommunication.
David Pasinski | 6/12/2010 - 10:39pm
In the same vein as David Nickol's remarks... Imagine the chaplain, physicians, nurses, administrator, and ethics committee member standing at the bed of the woman who has just died and obviously the unborn child as well and their wondering how each will answer the anguished husband who queries, "Did you do everything possible to save my wife and mother of our four children?" Explain your decision making at that point...
Carolyn Disco | 6/12/2010 - 7:23pm
Thank you, David Nickol, for outlining entirely probable results, and for exploring a key point:
"Further investigation by the press delves into whether Catholic hospitals will honor patients' wishes in things like advanced directives. Catholics (and others) quite reasonably wonder what kind of care they will receive in Catholic hospitals and begin to avoid them."
I have spoken to my husband that I do not want to go to a Catholic hospital, and am about to put it in writing through my lawyer. Understanding that a Catholic hospital can and does choose to ignore advanced directives conscientiously set in good faith is a sobering realization. I want to avoid becoming an abstract exercise for the speculations and torturous reasonings of bishops and moral theologians.
There is a compelling discussion of Catholic health directives on Commonweal at http://www.commonwealmagazine.org/blog/?p=6127&cpage=1#comment-60873

snip:
"Directive #71:
“The possibility of scandal must be considered when applying the principles governing cooperation. Cooperation, which in all other respects is morally licit, may need to be refused because of the scandal that might be caused.”
There is something disturbing about the fixation of bishops on the avoidance of scandal versus an act itself as the source of the problem. I can’t help thinking of cover-ups and worse, given the record of diocesan bishops in holding “final responsibility for assessing and addressing issues of scandal…”
Anushree Shirali | 6/12/2010 - 1:25pm
"Ultimately it was decided that preeclampsia was a life-threatening infection of the endometrium"
It may be that 40 years ago, this was the line of thinking about preeclampsia, but we know better today.  Preeclampsia is not an infection of the endometrium, but a syndrome of maternal hypertension and protein excretion in the urine (which is abnormal) whose pathogenesis is likely in the placenta.   If progressive, it that can lead to eclampsia, a conditon with likely maternal and fetal morbidity and mortality.  I appreciate the extent to which ethicists and theologians seek to understand the medical facts, but in this case, it should be noted that the sentence above would not be valid today.
David Nickol | 6/12/2010 - 12:36pm

Jim Belna says: "It is hard to imagine a more serious and potentially scandalous situation than an abortion being performed in a Catholic hospital."
 
Actually, it is easy to imagine a more serious and potentially scandalous situation. Suppose the hospital ethics committed decided unanimously that an abortion was necessary to save the life of the mother, and furthermore, they had sound reasons for considering it an indirect abortion. Suppose then someone had notified the bishop, he overruled the ethics committee, and the pregnant woman died. Then suppose the story got written up in the press, the family sued for wrongful death, and the members of the ethics committee testified against the bishop. 
 
I think that's enough, but suppose furthermore the finding of the courts is that the hospital, under the bishops orders, is responsible for the wrongful death of the pregnant woman. A few outspoken bishops (one of them being, say, Archbishop Chaput) make strong statements that Bishop Olmsted was faithfully following Catholic teaching and made the only decision permissible. Meanwhile, it becomes known that the majority of ethicist in Catholic hospitals are in disagreement with Archbishop Chaput and Bishop Olmsted. Numerous cases within the grey area of the Phoenix case come to light. There is an internecine war within the Catholic medical community. A handful of outspoken bishops continues to back the line taken by Archbishop Chaput and Bishop Olmsted, while the vast majority of bishops remain silent on the issues. Further investigation by the press delves into whether Catholic hospitals will honor patients' wishes in things like advanced directives. Catholics (and others) quite reasonably wonder what kind of care they will receive in Catholic hospitals and begin to avoid them. Jodi Picoult writes a bestselling novel loosely based on the Phoenix case (and my comments here). 

Charles Acker | 6/12/2010 - 11:46am
Ironic on several levels that it took a Dominican to straighten out a Jesuit Magazine. Just kidding as it is obvious the editors were on the case. Ignore previous blog!
james belna | 6/12/2010 - 1:42am

In the Phoenix hospital case, there has been a great deal of discussion over the Ethics and Religious Directives that deal directly with abortion. But there is an equally relevant directive that should be part of the debate as well: “#67: Decisions that may lead to serious consequences for the identity or reputation of Catholic health care services, or entail the high risk of scandal, should be made in consultation with the diocesan bishop or his health care liaison.” It is hard to imagine a more serious and potentially scandalous situation than an abortion being performed in a Catholic hospital. 
 
Sister Margaret Mary McBride made a deliberate decision not to consult the bishop of Phoenix before authorizing an abortion in a hospital under his jurisdiction. More significantly, she didn't even tell him about it after the fact. Under the circumstances, it is hard to avoid the conclusion that Sister McBride knew that the bishop would have disapproved the abortion, and chose to sanction it behind his back.
 
Whether or not the operation can somehow be defended post facto as an "indirect abortion", there is no excuse for her failure to inform and consult with Bishop Olmsted beforehand. I don't know if that merits a decree of excommunication, but it definitely means that she can no longer be trusted to serve in a position of responsibility, much less on the ethics committee of a Catholic hospital.

Michael Bindner | 6/11/2010 - 3:33pm
While one may voluntarily take heroic risks to carry a pregnancy to term, it must not be made mandatory just because one has care in a Catholic hospital. Imposed martyrdom is simply persecution and murder.

This incident demonstrates a rather tragic pathology in the Church - a moral cowardice that believes God would somehow damn someone for saving the life of a mother. Directive 45 is wrong on this point. This issue points to a belief system which has ethics for God's benefit rather than for human benefit. Such a belief system permeates our doctrines in a way that belies the statement that they are based on natural law. This is especially the case where sexuality is discussed and it leads to quite uncharitable teachings which result in, rather then ameliorate, human misery.

Most importantly, one can either be a good shephard or govern the diocese by press release. The Bishop cannot have it both ways - either he must afford Sister Margaret full judicial process under Canon law or he can make statements about whether he believes she is excommunicate - which she can resolve with her confessor. He cannot have his cake and eat it too and he should not ignore her rights under Canon Law simply to score points in the pro-life coalition.
David Pasinski | 6/11/2010 - 12:36am
Father O'Rourke's ethical analysis based on the ERDs and basic Catholic principles is valuable and welcomed. Yet isn't there something inherently flawed when it takes this kind of torturous analysis to say the following:
1. It was medically extremely probable that the patient's condition  of pulmonary hypentension- somehow caused through the complications of the pregnancy - would have resulted in her death.
2. The patient;s death would have meant the death of the 10 week old fetus which in no way could have have been viable at that point.
3. Therefore, the termination of the life of the fetus - which had the effect of saving the life of the mother - was an unfortunate action that is a type of ontic evil. When contrasted with the action of allowing nature to take its course and both to perish, the option of allowing them both to die when one could be saved through this action, was a reasaonable, if excruciating, moral choice.
The choices in this complex world make us shudder and submit our actions to the mercy and judgment of God when all we can do is choose to where we allow ourselves to tremble.
 
Stephen O'Brien | 6/11/2010 - 12:14am
Father Kevin O'Rourke maintains that section 18 of the encyclical Evangelium vitae "makes clear" that "few" are the people who "willingly and knowingly" procure an abortion.  On the contrary, what Pope John Paul II actually says is that "circumstances can mitigate even to a notable degree subjective responsibility and the consequent culpability of those who make these choices which in themselves are evil."  John Paul II does not say that this "notable" mitigation of subjective culpability occurs in the overwhelming majority of cases, nor does he contend that this lessening of guilt negates the fact that an unborn child has been willingly and knowingly killed.

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