What Happened in Phoenix?: The complicated reasons behind an abortion at a Catholic hospital
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.
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.
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.
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.
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).
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.
"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
“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…”
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.
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.
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.
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.
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 !
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."
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.
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.
The answer is no.
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.
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?
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.
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?
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.
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
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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.
"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.