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

One case that's not about scandal

There is, I believe, a lot to criticize in the post by Lisa Fullam that Michael P. shared with us. But what I take to be her fundamental theoretical point is sound enough:  it is possible to cause scandal in the very effort to prevent scandal, and that is obviously something very much to be avoided.  I will, however, point out one significant error because it is such a fine example of the logical fallacy petitio principii.  Professor Fullam says:

"Similarly, when the magisterium refuses to strongly support the use of condoms by HIV sero-discordant married couples, they avoid the scandal that people might think that the Church no longer opposes birth control. (In fact, this is a clear case of classic double-effect.)"

Now, as a logical matter, the magisterium's judgment that contraception is wrong and its judgment that condomized sex between spouses (irrespective of motive) is wrong could be mistaken.  (I happen to think that the magisterium's teachings on these matters are not mistaken, but the propositions asserted by the magisterium, even if true, are not analytic or self-evident truths.)  Perhaps Professor Fullam thinks the first of these teachings is mistaken.  She definitely thinks the second is mistaken.  Where she clearly goes astray---straightforwardly begging the question against the magisterium---is in what she supposes or suggests about the ground of the magisterium's teaching regarding the wrongfulness of condomized sex, even when motivated by a desire to prevent infection.

Professor Fullam seems to be presupposing that the magisterium's teaching against the use of condoms (even by couples seeking to prevent the transmission of disease) is based on the view that their use always constitutes contraception.  But the use of condoms does not always or necessarily constitute contraception (Professor Fullam is right about that), and the magisterium is perfectly well aware of that fact (Professor Fullam is wrong to suppose or suggest otherwise).  If the magisterium's objection to condomized sex in the type of case Professor Fullam has in mind were rooted in its rejection of contraception, then it would not object to condomized sex in those cases in which the spouses know with certainty that conception is impossible (for example, where the wife is pregnant or has had her uterus removed).  There is nothing that anyone can do to make an act a contraceptive act in a case in which he knows that the prevention of conception is impossible for the simple reason that conception itself is impossible.  (It is impossible for someone to prevent me from jumping twenty-six feet in the air, or flying to Saturn, or bilocating, because it is not possible for me to jump twenty-six feet into the air, fly to Saturn, or bilocate.)  If a man knows that he or his wife is infertile, then his wearing a condom---or five condoms, or fifty, on top of each other---would not constitute contraception.  He is not preventing conception or trying to prevent conception.  He knows he cannot prevent conception because he knows that conception is impossible.

But imagine that a man and his wife know that a particular act of sexual intercourse might well result in conception.  Further imagine that the husband is HIV positive and the wife is not, and he quite reasonably wishes to avoid the danger of infecting her.  So he wears a condom. Is that an act of contraception?  No, it is not.  (Again, that is the point Professor Fullam is right about.)  The contraceptive effect of wearing the condom is foreseen and accepted but not willed.  Double effect.  Does the magisterium suppose otherwise?  No, it does not.  The magisterium knows that a device or pharmaceutical product that can be used as a contraceptive might also be used for reasons not involving the willing of the sterilization of a sexual act. (What an act of contraception is, is a performance done for the sake of sterilizing a sex act.)  That is why the magisterium does not object to a woman's taking the pill popularly known as "the birth control pill" where her motive is not the prevention of conception, but treating endometriosis or some other health problem.

Now, Professor Fullam might object. She might say that she did not suggest, or at least did not mean to suggest, that the magisterium believes that using a condom is always or necessarily an act of contraception.  She might insist that she was merely saying that the magisterium opposes the use of condoms by married couples even to prevent infection because to approve their use even for that purpose would mislead people into thinking that the Church has abandoned its historic teaching against contraception.  But even if we interpret her in that way, her assumption about the basis for the magisterium's teaching is off the mark.  The bishops are perfectly willing to say that the use of "birth control pills" for non-contraceptive purposes is morally unprobelmatic.  They don't shrink from saying it for fear that it will scandalize people by leading them to suppose that the church "approves the pill."  This should be a signal to Professor Fullam and others that they've misidentified the basis of the magisterium's teaching.

However we interpret her, Professor Fullam begs the question against the magisterium as a result of this misidentification.  The magisterium, whether its teaching is right or wrong, has neither made an elementary mistake about double effect, nor taught imprudently and unsoundly in a misguided effort to avoid scandal.  The ground of the magisterium's teaching on the subject is that a marital act is an act of one-flesh union, viz., an act in which spouses, as a consummation or actualization of the multi-level (biological, emotional, dispositional, rational, spiritual) sharing of life that is their marriage, fulfill the behavioral conditions of procreation, whether or not the nonbehavioral conditions of procreation happen to obtain.  Where a sex act has been condomized, whatever the reasons, it is not an act that fulfills the behavioral conditions of procreation. So it cannot be a marital act.  Condomization, by preventing insemination or at least the biological union of sexual organs, vitiates the marital quality of the act.

Now, if she likes, Professor Fullam could attack the magisterium's teaching on three possible grounds.  (1) She could deny the Church's teaching that every genital sexual act, including those between spouses, must be marital acts in order to be morally good.  (2) She could accept that teaching, yet argue that fulfilling the behavioral conditions of procreation is not necessary for an act of spousal sexual union to be a marital act.  (3)  She could argue that, despite condomization, a sexual act can fulfill the behavioral conditions of procreation.  Readers would then have to assess the validity of her arguments, whatever they were, on the merits.  (A few years ago, Fr. Martin Rhonheimer, a priest of the Opus Dei prelature and an exceptionally subtle and gifted thinker, generated quite a lively and interesting debate on (2) and (3) in an effort to show that the use of condoms by married couples in cases like the one Professor Fulham is interested in is not necessarily wrong.  My own view, for what it's worth, was that Fr. Rhonheimer's arguments were not successful.  Anyone who is interested, though, should have a careful look at them and at the critical literature they generated.) 


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