Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 31, 2010

Anscombe, abortion, and related matters...



I am grateful to Michael P. for introducing the thread on the work of Elizabeth Anscombe and Professor Kaveny’s use of her work regarding the abortion issue and the Phoenix case. I am further grateful to other MoJ contributors who have engaged in this particular discussion.

Professor Kaveny has also offered some important insights by relying on the work of Germain Grisez. This necessitates on my part the need to point out that his, i.e., Grisez’s, method that Professor Kaveny relies on—asking the question “why?—must be raised for both humans, meaning the mother and the child, not just one, meaning the mother.

In doing so, I fail to see where the Kaveny appropriation from Anscombe asks this question on behalf of the child’s interest while it is raised on behalf of the mother’s interest. This is an incomplete appropriation of Anscombe and of Grisez. Having said this, I’ll use the methodology that Professor Kaveny proposes in the context of a person dealing with, let us say, cancer. Then we might understand more about the nuances that Professor Kaveny attempts to present.

So, let me posit a first case. Here, patient Alpha has lung cancer. Alpha’s doctors notify the patient that the cancer has not metastasized to adjacent organs or tissue. This is good. But, the doctors recommend removal of the lungs, both of which are affected by the cancer. Their gaze is focused on the lung cancer. Following the line of consideration offered by Kaveny, the surgeons performing surgery on Alpha have asked: “what are they doing and why are they doing this?” In response to what they are doing, they are intending to remove the cancer-infected organs, i.e., the lungs, in order to remove cancer from Alpha’s body. Why? Well, the answer is obvious: to remove the cancer that threatens Alpha’s life. After all, “an intentional act is a purposeful act.” Moreover, the doctors will supplement their response with the sage position that “[w]e do not...intend every consequence caused by our action—even if we foresee that they will occur.” Taking NyQuil, which a doctor recommends for a cold or the flu will give a patient a “buzz” but will also help, here: the intended act, to relieve the symptoms of the cold or flu. Relief rather than buzz is intended.

So, back to Alpha. The doctors intend to remove the lungs that are infected with the cancer. Why? To remove the cancer and prevent it from spreading. Fine. But according to the plan proposed by Professor Kaveny, the doctors do not intend every consequence of their action even though they foresee that they will occur. Only the intended act, i.e., the removal of infected tissue, the lungs, is intended. The fact that Alpha will die since Alpha no longer has lungs—a foreseen consequence—is immaterial to the Kaveny analysis since this result is not intended.

Let us take a second case. Patient Omega has lymphatic cancer. Omega is informed by Omega’s doctors that a plasmapheresis is needed. Why? The infected plasma must be eliminated because of its infiltration by cancerous cells. The doctors remove all of Omega’s blood. They extract all the offending plasma, which is discarded, and they return the platelets to Omega. The doctors’ intention, once again, is to remove the offending tissue, the plasma. They know that a consequence of their action will be the death of Omega, since Omega needs plasma as well as platelets, but their intention remains pure—to eliminate the cancer-bearing tissue. This is their intention, nothing more, nothing less.

So now I must return to the Phoenix case. I submit that there is something that is fundamentally missing from the Kaveny appropriation of Anscombe and Grisez reasoning here. The acts that are proposed by both Alpha’s and Omega’s doctors are intentional and purposeful. They know what they are doing, but do they really understand why? I suggest that they do not because they do not look beyond the limited purpose they pursue because, in spite of the known and foreseeable consequences of inevitable death, they proceed with killing their patients even though that is not their objective. They need to look beyond the limited purpose and ask: are they saving human life or not?

In the context of the Phoenix case in which this thread originated, are the doctors and their hospital asking the question: are they saving human lives? Apparently only one of the two involved. The questions “what” and “why?” must be comprehensively rather than narrowly asked here. The procedure contemplated must cover all patients involved and affected by the procedures, not just one. If doctors should be able to understand that the functions of lungs are important to Alpha and that the presence of plasma is important to Omega even though removal is their only purpose, the procedures and their accompanying intentions conflict with the broader purpose of saving their patients’ lives, should other doctors, let’s say in Phoenix, be able to extend the same inquiry to the two human patients involved in the Phoenix case? Professor Kaveny’s suggestion that “In a situation where both mother and baby otherwise would die, ... one could make a strong case that it is fair to go ahead with the procedure” is missing some essential consideration of the questions: what is being done?, and why is it being done? Her answer to these vital, yes vital, questions, is lacking. She concludes by stating: “In a situation where both mother and baby otherwise would die, ... one could make a strong case that it is fair to go ahead with the procedure.” This may well be the case if one considers only the welfare of the mother. But what if we also consider the welfare of the child?

If I may draw from Shakespeare, an abortion by any other name would be the same: an abortion. Why do I suggest this?

The reasoning employed by Professor Kaveny is applied to only one of the patient’s interests, not both. Sadly, it is not applied to the interests of the child in the same way that it is applied to the mother. Both of their lives are truly important; both are at stake. When viewed from the perspective of the child, the surgical separation procedure is not an unintended side effect; rather, it is something that should not be done.

The unborn child is Alpha and Omega.

But, what if one were to consider the separation of the mother from the child, and the child becomes the primary concern? When the tables are turned—but the Kaveny analysis is still employed—would the result of Kaveny’s reasoning process and its acceptance be the same?


RJA sj



Araujo, Robert | Permalink

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