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Kevin O'RourkeJune 21, 2010

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.

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Stephen O'Brien
14 years 1 month ago
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.
David Pasinski
14 years 1 month ago
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.
James Lindsay
14 years 1 month ago
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.
james belna
14 years 1 month ago

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.

Charles Acker
14 years 1 month ago
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!
David Nickol
14 years 1 month ago

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). 

Anushree Shirali
14 years 1 month ago
"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.
Carolyn Disco
14 years 1 month ago
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

"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…”
David Pasinski
14 years 1 month ago
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...
Andrew Russell
14 years 1 month ago
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.
14 years 1 month ago
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.
Kathy Berken
14 years 1 month ago
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.
Jonathan Hay
14 years 1 month ago
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.
14 years 1 month ago
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.
MaryBridget Bolt
14 years 1 month ago
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.     
MaryBridget Bolt
14 years 1 month ago
i cited the wrong poster:  it was "Jon", not "Kathleen."  apologies.
Winifred Holloway
14 years 1 month ago
"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. 
14 years 1 month ago
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.

Aloysia Moss
14 years 1 month ago
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 !
Catherine McKeen
14 years 1 month ago
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.
john vercellone
14 years 1 month ago
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 Hosea
14 years 1 month ago
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."
Lori Amann-Chetcuti
14 years 1 month ago
Thank you for a clear explanation on the moral and medical issues involved. 
Colin Donovan
14 years 1 month ago
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.
Grace Yawson
14 years 1 month ago
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.
David Nickol
14 years 1 month ago
Bruce says: "Would not a moral certainty be required to take a life, even indirectly?"
The answer is no. 
Scott Tiernan
14 years 1 month ago
Please do a bettter job of editing.
Jack Anliker
14 years 1 month ago
How many pedophile priests and brothers have been excommunicated?
14 years 1 month ago
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.
Nancy Rowles
14 years 1 month ago
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.  
John Hess
14 years 1 month ago
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?       
Carolyn Disco
14 years 1 month ago
Thank you Rev. Larry Hansen, Nancy Rowles, John and others of similar mind here. You give me hope for the People of God.
Greta Green
14 years 1 month ago
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. 
Mark Kolakowski
14 years 1 month ago
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.
Bain Wellington
14 years 1 month ago
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?
Dino Pantoni
14 years 1 month ago
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.
Tamzin Simmons
14 years 1 month ago
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.
Tamzin Simmons
14 years 1 month ago
Excellent article by the way.
David Nickol
14 years 1 month ago
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
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. 
14 years 1 month ago
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.
Dino Pantoni
14 years ago
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.
David Nickol
14 years ago
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. 
Bain Wellington
14 years ago
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
14 years ago
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.
Cathy Fasano
14 years ago
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.)
Mary Stohrer
14 years ago
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
David Nickol
14 years ago
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.
Bain Wellington
14 years ago
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.
James Lindsay
14 years ago
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
14 years ago
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.

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