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.

Saturday, May 29, 2010

Dear Richard, Part 2

[Please take a look at this too:  Michael Liccione, blogging at First Things on May 21:]

For approving an abortion at an Arizona hospital late last year, Sr. Margaret McBride has incurred excommunication latae sententiae—meaning that her actions have caused her to excommunicate herself. Or so, at least, her bishop, Thomas Olmstead of Phoenix, has announced. And the bishop’s announcement has ignited something of a firestorm among Catholic commentators.

The moral principle of Double Effect plays a role here. Catholic teaching condemns only “direct abortion”: abortion in which the death of the child is either directly willed in itself or directly willed as a means to some specific end. The Church does not condemn “indirect abortion”: abortion that is a foreseen but unintended side effect of a medical procedure designed to preserve the mother’s life, which is not wrong, at least not merely as such. (The most common example is an ectopic pregnancy, in which the Fallopian Tube must be removed to save the mother’s life, but the resulting death of the child is not directly willed.)

And that, apparently, was the defense McBride offered to Bishop Olmstead. He rejected it, apparently believing that the abortion was direct and thus immoral. And under Church law, all who procure or otherwise “formally cooperate” in direct abortion excommunicates themselves.

But the question is whether he is indeed right, and that is not clear even to some orthodox Catholics. The mother-to-be had pulmonary hypertension, a condition putting her at high risk of the life-threatening eclampsia that giving birth can cause in women with chronic high blood pressure. And so, one could argue, the purpose of the abortion was not the death of the child (either as an end or as a means) but merely the removal of the child from the womb to save the mother’s life—an indirect abortion, in other words, and thus justified.

There is a canonical problem to consider here: Can somebody excommunicate herself for making what she believes was the right call according to the Church’s own moral norms? McBride is a well-informed Catholic—so well-informed, in fact, that she was considered an authority on medical ethics by her (mostly) Catholic colleagues at the hospital. Yet she and her bishop differed in this case.

Now if Olmstead had excommunicated McBride ferendae sententiae—by his own juridical act—this question would not arise. It would be a case of disagreement between two professionals, one of whom is in authority over the other; and the excommunication could be removed, in principle at least, by a pastoral resolution of the disagreement.

But, according to Olmstead, this is a case of excommunication latae sententiae: The offender has excommunicated herself by approving, and thus formally cooperating in, a direct abortion. And yet, the offender does not appear to believe she approved a direct abortion—only an indirect one, which is ordinarily permissible. Is it really possible to excommunicate oneself not for intentionally violating Catholic moral teaching but for doing something one believes to be fully in accord with such teaching?

The most pertinent canon does not seem clear enough to resolve the question. Canon §1398 reads: “A person who procures a completed abortion incurs a latae sententiae excommunication.” Yet McBride did not even “procure” the abortion; as an ethical consultant, she merely “approved” it as indirect, for what she believed to be good reasons in accord with Church teaching.

Nevertheless, let us grant that such approval was formal cooperation in the abortion, and that her approval can be considered procurement in the terms of the canon, whether the abortion itself was direct or indirect. So if McBride has indeed excommunicated herself, that would be because her conscience was not merely mistaken in this case, but culpably mistaken on a matter of grave moral significance. In other words, given her status and background, she ought to have known the abortion would be direct and thus immoral, and so had no excuse for judging otherwise.

How, as a pastor, Olmstead could confidently make such a judgment in this case is unclear. Going just on the publicly known facts of the case, one could say he has gone too far in making his announcement. The resulting controversy, even among some conservative Catholics, suggests that many would agree with this.

Perhaps, though, Olmstead considers the question of subjective culpability irrelevant. Church law, after all, stipulates excommunication not for acting in bad conscience, but merely for procuring or formally cooperating in abortion. If subjective culpability is indeed irrelevant here, the philosophically interesting question then becomes whether the object of the act in question makes the act morally evil regardless of whether the agent intended the act.

That question has ramifications beyond a dispute between a nun and her bishop.

One learns what the agent intends by eliciting her good-faith answers to the questions “‘What are you doing?”’ and “‘Why are you doing it?” in the sense of ‘‘What for?” If the answers do not describe anything it is intrinsically immoral to do under such descriptions,, then the agent cannot be said to be doing something intrinsically immoral. In McBride’s case, she cannot be said to be aiming at the death of a child either as an end in itself or as a means to saving the mother’s life. The principle of double effect thus applies and exculpates her.

But that by no means settles the matter.

One of the most intense debates among orthodox Catholic moral theologians these days is over whether the morally significant “object” of a human act is only what the agent intends, or whether it can also be something beyond what the agent intends—something that is subject to moral evaluation all the same.

One school of Catholic theologians argues that the object does not make the act evil regardless of the agent’s intention. In some cases using the philosophy of action developed by the late Elizabeth Anscombe (a Catholic) in her influential 1957 book Intention, they argue that one may not regard as the morally significant object of a human act something that the agent cannot be said to intend by the act.

Elizabeth Anscombe seems to have thought the latter, holding that some voluntary acts, although not strictly intentional in her sense, may nonetheless be praiseworthy or, more typically, blameworthy.

That’s the issue, for instance, in the debate over waterboarding. Granted that torture is intrinsically immoral, does it actually matter whether waterboarders intend to do that which makes torture immoral? Some would say not. Even if they don’t consciously intend torture, and even if they intend to gain life-saving intelligence, or whatever it is that makes torture immoral, they have no excuse for not knowing that torture is what they’re engaged in—and thus torture can be said to be the object of their waterboarding even though not its ultimate purpose. Waterboarding would thus be blameworthy as voluntary torture even when not intended as torture.

Another example is that of married couples using condoms to prevent HIV transmission. The Vatican certainly thinks such a practice imprudent, but has not gone so far as to characterize it as immoral per se. Some Catholic moralists argue all the same that it actually is immoral per se, that it is always and necessarily wrong even when the couple act without contraceptive intent and only intend to prevent the uninfected partner from getting the disease.

These moralists’ argument’s point of departure is basic Catholic teaching: The only morally acceptable sexual acts involving orgasm are “conjugal” acts. Citing a 1948 ruling by the Holy Office, they go on to claim that such acts require deposition of semen in the vagina; so, by intending something other than a conjugal act, however laudable the purpose, the couple using condoms for purely prophylactic purposes are engaged in an act whose object is immoral per se—even if they devoutly wish it could be otherwise, and even if they don’t believe themselves to be doing anything wrong.

Perhaps Bishop Olmstead thinks Sister McBride is making a similar error. She almost certainly believed that the abortion she approved was indirect—justified by the principle of double effect—because it forestalled the real, developing risk of a life-threatening condition in the mother. But her intention, the bishop seems to have decided, does not change the reality of her act.

There is, certainly, no a priori reason to believe that such a reason is always sufficient; one needs to ask how much risk there is, and how imminent. And if one’s answers to those questions are both mistaken and used to justify abortion by invoking the principle of double effect, it is at least arguable that participation in the subsequent abortion is blameworthy inasmuch as it was voluntary. If McBride’s reasons for approving the abortion were objectively insufficient in this case, then her formal cooperation in the abortion was a case of an act that’s immoral per se, even assuming neither she nor anybody else nobody intended the death of the child.

If this is what Olmstead had in mind, and if he is right, then, yes, McBride’s excommunication latae sententiae stands even if she was not culpable for judging as she did.

And yet, the bishop’s ability to make such a confident judgment in this case seems very unclear—to me and to many others. Moreover, the public outrage over the Phoenix case illustrates the dangers of making politically significant announcements on the basis of moral reasoning that not many people can follow and that even theologically well-educated Catholics disagree about.

Michael Liccione has taught philosophy and theology in several Catholic
institutions and is currently working on a book about the development of
doctrine. He blogs at Sacramentum Vitae and What's Wrong with the World


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