Direct and Indirect Abortion in the Roman CatholicTradition: A Review of the Phoenix Case

Gerald D. Coleman S. S.

Published online: 29 March 2013

� Springer Science+Business Media Dordrecht 2013

Abstract In Roman Catholic Moral Theology, a direct abortion is never permit-

ted. An indirect abortion, in which a life threatening pathology is treated, and the

treatment inadvertently leads to the death of the fetus, may be permissible in pro-

portionately grave situations. In situations in which a mother’s life is endangered by

the pregnancy before the fetus is viable, there is some debate about whether the

termination of the pregnancy is a direct or indirect abortion. In this essay a recent

case from a Roman Catholic sponsored hospital in Phoenix is reviewed along with

the justifications for and arguments against viewing the pregnancy termination as an

indirect abortion. After review of several arguments on both sides of the debate, it is

concluded that termination of the pregnancy itself as the means of saving the mother

cannot be considered an indirect abortion and that the principle of ‘‘double effect’’

does not justify the termination. In addition, the importance of a breakdown in

communication between the local bishop and the administration of the hospital is

shown to have contributed to the ultimate loss of Catholic sponsorship of the

hospital.

Keywords Direct abortion � Indirect abortion � Ethical and Religious Directives

for Catholic Health Care Services � Roman Catholic hospital sponsorship �Principle of double effect

G. D. Coleman S. S. (&)

Daughters of Charity Health System of the West, Los Altos Hills, CA, USA

e-mail: colemanatcarmel@aol.com

G. D. Coleman S. S.

Santa Clara University, Santa Clara, CA, USA

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HEC Forum (2013) 25:127–143

DOI 10.1007/s10730-013-9211-7

Presentation of the Case

In May and June 2010, Catholic Healthcare West (CHW),1 the parent company of

St. Joseph’s Hospital and Medical Center (SJHMC) in Phoenix, published

statements about the November 2009 ‘‘termination of pregnancy’’ at the medical

center.2 The following history summarizes these statements.

A 27-year-old woman with a history of moderate but well-controlled pulmonary

hypertension was seen on October 1, 2009 at her pulmonologist’s office for

worsening symptoms of her disease. The results of a routine pregnancy test revealed

that in spite of her great efforts to avoid it, she had conceived and was then seven-

and-a-half weeks pregnant.3 The pulmonologist counseled her that her safest course

of action was to end the pregnancy, since in the best case, pregnancy with

pulmonary hypertension carries a 10–15 % risk of mortality for a pregnant woman

trying to carry to term, and because of the severity of her disease, her own prospects

were closer to 50–50. After consultation with her family, the woman, a Catholic

with four children, decided not to terminate.

On November 3, the woman was admitted to St. Joseph’s Hospital and Medical

Center with worsening symptoms.4 A cardiac catheterization revealed that the

woman now had ‘‘very severe pulmonary arterial hypertension with profoundly

reduced cardiac output,’’ as well as ‘‘severe, life-threatening pulmonary hyperten-

sion,’’ ‘‘right heart failure,’’ and ‘‘cardiogenic shock.’’ She was informed that her

risk of mortality ‘‘approached 100 %,’’ was ‘‘near 100 %’’ and was ‘‘close to

100 %’’ if she continued the pregnancy. Surgery is absolutely contraindicated.

Sister Margaret Mary McBride, RSM, Mission Leader and liaison to the

hospital’s ethics committee, brought this case to the committee for consultation on

November 3. The committee consulted several physicians and nurses as well as the

patient’s record. On the same day, Sister McBride indicated that the committee

recommended the termination of pregnancy if the mother wanted it. This conclusion

was deemed appropriate since the goal was not to end the pregnancy but save the

mother’s life. The termination was performed on November 5.5

1 Since 2012, Catholic Healthcare West is a non-Catholic health system whose new name is Dignity

Health. See Archbishop George H. Niederauer, ‘‘Catholic Health Care West Becomes Dignity Health,’’

http://www.sfarchdiocese.org.2 CHW Press Release, ‘‘St. Joseph’s Hospital and Medical Center: Termination of Pregnancy and ERDs

45 and 47,’’ a May 10, 2012 letter to Thomas J. Olmsted, Bishop of Phoenix, from Judith Carle, RSM,

Chair of the CHW Corporate Board and Lloyd Dean, President/CEO of CHW, and a letter to every bishop

where CHW hospitals are located across California, Arizona and Nevada, signed by Bernita McTernan,

Senior Vice President, Mission Integration and Philanthropy and Carol Bayley, Vice President, Ethics and

Justice Education.3 The pregnancy resulted from an IUD failure.4 She was admitted to SJHMC because of its excellent reputation dealing with pulmonary hypertension,

and this woman was a transplant candidate at the hospital.5 Consideration had been given to transferring the patient to another hospital. This suggestion was

rejected due to the patient’s deteriorating condition. The abortion took place in the patient’s room rather

than a surgery suite for fear that moving her would further aggravate her precarious health.

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All Catholic hospitals are regulated by the Ethical and Religious Directives forCatholic Health Care Services [ERDs] (U.S. Catholic Bishops 2009). In coming to

its recommendation, the ethics committee relied on two pertinent directives:

45. 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.

47. Operations, treatments, and medications that have as their direct purpose

the cure of a proportionately serious pathological condition 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.6

The committee considered Directive 47 most relevant in this case and understood

the moral question to be whether the treatment—in this case a D&C7—had as its

direct purpose the cure of a proportionately serious pathological condition of the

pregnant woman. They concluded that it did since the ending of the pregnancy was

inextricably linked to the treatment of the proportionately serious pathology of the

mother. Her physicians believed that due to her right heart failure, she would be

unable to survive unless the pregnancy were ended. In other words, the purpose of

the D&C procedure, removing the 11-week old fetus, was to cure the immediate

threat to the mother’s life that the pregnancy inflicted, thus allowing her serious

pulmonary hypertension to be controlled.

Directive 47 does not explicitly anticipate the situation in which the pregnancy

itself is the pathological condition. In a healthy woman, pregnancy is not a

pathology. The ethics committee, SJHMC and CHW believed, however, that in a

woman with severe pulmonary hypertension, the heart is unable to pump

effectively, and the pregnancy becomes a pathology. As the fetus grows, the blood

volume in the mother increases by up to 50 % by the second trimester, which this

woman was entering. What was manageable with medication became life-

threatening. In other words, the pregnancy itself was killing the mother and the

only way to save her life was to end the pregnancy.

Linda Hunt, the President and CEO of SJHMC defended the hospital’s decision,

‘‘Consistent with our values of dignity and justice, if we are presented with a

situation in which a pregnancy threatens a woman’s life, our first priority is to save

both patients. If that is not possible we will always save the life that we can, and that

6 ERD 49 reads, ‘‘For a proportionate reason, labor many be induced after the fetus is viable.’’ Viability

refers to a point in fetal development at which the fetus may survive outside the womb. Statistics

demonstrate that 35 % survive at 23 weeks, 50–70 % at 24–25 weeks, and more than 90 % survive at

26–27 weeks. When the mother was admitted to SJHMC, the baby was at 10 1/2 weeks with no

possibility of survival outside the womb.7 Dilation and curettage (D&C) refers to the widening (dilation) of the cervix and surgical removal of

part of the lining of the uterus and/or contents of the uterus by scraping and scooping (curettage). More

commonly used are suction curettage procedures of manual and electric vacuum aspiration. The World

Health Organization recommends D&C as a method of surgical abortion only when manual vacuum

aspiration is unavailable. In her moral analysis, Lysaught wrote that the D&C procedure occurred without

fetal dismemberment.

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is what we did in this case. We continue to stand by our decision… Morally,

ethically and legally we simply cannot stand by and let someone die whose life we

might be able to save.’’8

Bishop Thomas J. Olmsted

Several months after the termination took place, Thomas J. Olsmsted, Bishop of the

Diocese of Phoenix, learned of the case. Two documents situate the Bishop’s role in

his Diocese. The Code of Canon Law indicates that ‘‘no association is to assume the

name Catholic without the consent of the competent ecclesiastical authority…’’

(Code of Canon Law 1983). If an association’s statutes or policies fail to comply

with ‘‘Catholic expectations,’’ a bishop can remove ‘‘Catholic’’ from its name.

Secondly, the ERDs specify that since Catholic health care expresses the healing

ministry of Christ in a specific way within a local church, ‘‘the diocesan bishop

exercises responsibilities that are rooted in his office as pastor, teacher, and priest.

As the center of unity in the diocese and coordinator of ministries … the diocesan

bishop fosters the mission of Catholic health care in a way that promotes

collaboration among health care leaders, providers, medical professionals, theolo-

gians, and other specialists… As teacher, the diocesan bishop ensures the moral and

religious identity of the health care ministry in whatever setting it is carried out in

the diocese.’’9

In light of these responsibilities, in a news release on May 14, 2010, Olmsted

stated: ‘‘I am gravely concerned by the fact that an abortion was performed several

months ago in a Catholic hospital in this Diocese. I am further concerned by the

hospital’s statement that the termination of a human life was necessary to treat the

mother’s underlying medical condition… An unborn child is not a disease. While

medical professionals should certainly try to save a pregnant mother’s life, the

means by which they do it can never be by directly killing her unborn child. The end

does not justify the means… The unborn child’s life is just as sacred as the mother’s

life, and neither life can be preferred over the other… The direct killing of an

unborn child is always immoral, no matter the circumstances.’’10

A complete understanding of Olmsted’s response is found in his November 22,

2010 letter to Lloyd Dean, President/CEO of CHW. He wrote that the ‘‘position of

CHW is that discerning minds can disagree,’’ thus ‘‘asserting that there is no single

‘correct’ answer to the question of whether the procedure… was morally

permissible… In effect, you would have me believe that we merely have to agree

to disagree. But this resolution is unacceptable because it disregards my authority

and responsibility to interpret the moral law… (I)t is ultimately the authority of the

bishop as teacher and pastor that is determinative.’’ The letter goes on to state that

there is little hope that SJHMC will see that the abortion was in direct violation of

the ERDs, no. 45.

8 www.stjosephs-phx.org/Who_We_Are/Press_Center/211990.9 ERDs, op. cit., General Introduction.10 rdefrancesco@diocesephoenix.org.

130 HEC Forum (2013) 25:127–143

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Olmsted asked CHW to agree by December 17, 201011 to the following

requirements, or he would take canonical action against the hospital: acknowledge

that the procedure violated the ERDs and this will ‘‘never occur again,’’ submit to a

review and certification process conducted by the Medical Ethics Board of the

Diocese to ensure full compliance with the ERDs and Catholic moral teaching, and the

medical staff must be given ongoing formation about the ERDs, to be conducted by

the Diocesan Medical Ethics Board or the National Catholic Bioethics Center.

‘‘Failure to fulfill these requirements will lead me,’’ Olmsted wrote, ‘‘to decree the

suspension of my endorsement of St. Joseph’s Hospital… as a ‘Catholic’ hospital.’’12

Lloyd Dean’s December 16, 2010 reply to Olmsted affirmed the Bishop’s moral

authority. Dean stated, however, that while SJHMC was in compliance with the

ERDs, ‘‘our original presentation of the moral justification for the procedure was

inadequate.’’ Dean references the analysis by Lysaught (to be detailed shortly) as a

‘‘fuller explanation of our position,’’ leading to the judgment that ‘‘we believe that

our action to save the mother’s life was an ethically acceptable decision in current

Church teaching.’’

Olmsted announced on December 21, 2010 that SJHMC was no longer a Catholic

Hospital.13 He further asserted that the ‘‘person responsible for this tragic decision’’

was Sr. Margaret McBride, RSM, and declared that she incurred an excommuni-

cation by her formal consent to the direct taking of the life of this baby. The Bishop

cited canon 1329:2, ‘‘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…’’ In other words, reasoned Olmsted, McBride

excommunicated herself by facilitating the abortion, and as Bishop he declared this

fact to be so.14

M. Therese Lysaught

After learning of the abortion at SJHMC, Bishop Olmsted requested CHW to attain

a ‘‘moral analysis of the intervention,’ ‘a specific and detailed response, based upon

11 This date was later extended by a few days.12 Olmsted also made clear that CHW was in non-compliance with the ERDs in its administration of

Chandler Regional Hospital, and its partnership in Mercy Care Plan. While these two concerns aggravated

the relationship between Olmsted and CHW, this paper will not deal with them in order to focus on the

abortion case itself. However, it should be noted that on September 21, 2010, the USCCB’s Task Force on

Health Care noted that ‘‘non-Catholic hospitals that are part of Catholic Health Care Systems should

abide by the Ethical and Religious Directives… We believe Catholic Health Care Systems, being

Catholic, are obliged to follow the ERDs even in health care institutions they own or manage that are not

Catholic.’’13 Origins 40:31 (2011), 505–507 and 507–509.14 This action on the part of the Bishop elicited numerous responses, most of which indicated that he

misrepresented the meaning of canon 1329:2. See, e.g., James A. Coriden (1986), ‘‘Opinion,’’ Roman

Replies and CLSA Advisory Opinions. Coriden argued that this 1986 opinion does not apply to this case

as ‘‘someone in her [McBride’s] role in the decision-making process… is simply not envisioned by the

canon…’’ Coriden concluded that Olmsted erred in declaring that McBride’s excommunication was

automatic. See also O’Rourke (2011).

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the objective and universally valid moral principles in play…, ‘moral principles…consistent with, in particular, the teaching of Veritatis Splendor and EvangeliumVitae.’’15

On August 13, 2010, CHW asked M. Therese Lysaught, Associate Professor and

Director of Graduate Studies, Department of Theology, Marquette University, to

provide this analysis. In her response of October 27, 2010, Lysaught concluded,

‘‘…the procedure performed… cannot be properly described as an abortion. The act,

per its moral object, must accurately be described as saving the life of the mother.

The death of the fetus was, at maximum, non-direct and praeter intentionem(outside the moral intention). More likely, the fetus was already dying due to the

pathological situation prior to the intervention; as such, it is inaccurate to understand

the death of the fetus as an accessory consequence to the intervention… (I)t was

clear that the child had begun the dying process…’’

Lysaught’s lengthy assessment includes a medical description of pulmonary

hypertension as a serious illness that becomes progressively worse; it is not curable

but it can be treated, easing the symptoms; and it is sometimes fatal. Pulmonary

hypertension is a type of high blood pressure that affects only the arteries in the

lungs and the right side of the heart. The arteries and capillaries in the lung become

narrowed, blocked, or destroyed.16 One consequence of this restricted flow is that

the heart’s lower right chamber (the right ventricle) has to work harder to pump

blood into the lungs, which eventually causes the heart muscle to weaken and fail.

She specifically notes that the normal physiologic changes accompanying

pregnancy—increased blood volume (40 %), increased cardiac output (30–50 %

by 25 weeks), and slightly decreased systemic blood pressure (10–20 % by

28 weeks)—exacerbate pulmonary hypertension, leading to the increased risk of

mortality for the mother.

Applying this description to the woman at SJHMC, Lysaught pointed out that

two negative physiological outcomes resulted: (1) the failure of the right side of the

mother’s heart whereby the heart was no longer able to pump blood into the lungs so

that the blood can be oxygenated, without which the body’s organs and tissues

quickly begin to die, and (2) cardiogenic shock, ‘‘a state in which the heart has been

damaged so much that it is unable to supply enough blood to the organs of the body.

She concluded that the physiologic changes accompanying the pregnancy at

10 weeks initiated the emergency situation. These changes not only put the

mother’s life at risk; rather, they put the mother’s life in peril. Moreover, the life of

the fetus was equally in peril due to the pathologies of right heart failure and

cardiogenic shock.

Therefore, she opines, on November 5, 2009, mother and fetus were both in the

process of dying. The fetus had become terminal, not because of a pathology of its

own but because of a pathology in its maternal environment. There was no longer

any chance that the life of this child could be saved: ‘‘this is crucial to note insofar

as it establishes that at the point of decision, it was not the case of saving the mother

15 Veritatis Splendor (1993) and Evangelium Vitae (1995) are encyclical letters on morality by Pope John

Paul II.16 Lysaught’s medical facts are largely taken from the Mayo Clinic website.

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or the child. It was a matter of choosing one life or the other… The child’s life,

because of natural causes, was in the process of ending.’’

Lysaught argues that there was a chance that the life of the mother could be saved

by ‘‘treating and reversing the pathology of the emergent conditions of right heart

failure and cardiogenic shock. The intervention… was to eliminate the cause of the

increased blood volume and increased demand for cardiac output. The cause of this

increased blood flow and cardiac demand was not the fetus but rather the placenta—

an organ in its own right… (T)he placenta not only initiated a threat to the mother’s

life; it also became the immediate/presenting cause of the inevitably fatal threat to

the fetus… (T)he death of the fetus in se would have no physiologic effect on the

mother.’’

Citing a number of Catholic theologians,17 Lysaught states that in church

teaching a procured abortion is a deliberate and direct killing. On the contrary, she

argues, the termination of the pregnancy in Phoenix was not a deliberate or

intentionally-willed act, rather an indirect and morally permissible abortion. She

proposes that the ‘‘object’’ of an act is that which is deliberately chosen by the will,

in conformity with reason. She indicates that the moral object includes the ‘‘exterior

act,’’ but derives its properly moral content first and foremost from the proximate

end deliberately chosen by the will: ‘‘(T)he moral object of an act is not equivalent

or reducible to its physical/material component… The physical/material action is

not irrelevant to the determination of the object, but it is also not sufficient.’’

Catholic Health Association

Sr. Carol Keehan, President of the Catholic Health Association (CHA), issued this

news release in December 2010: ‘‘Catholic Healthcare West and its system hospitals

are valued members of the Catholic Health Association. Their long and stellar

history in the protection of life at all stages is well known.’’ She further indicated

that SJHMC correctly applied the ERDs in regard to the abortion: ‘‘St. Joseph’s

Hospital and Medical Center has been confronted with a heartbreaking situation.

They carefully evaluated the patient’s situation and correctly applied the Ethical and

Religious Directives… to it, saving the only life that was possible to save.’’ Keehan

later clarified this statement by stating that the ‘‘difference of opinion’’ between the

CHA analysis and Bishop Olmsted should not be interpreted as calling into question

the Bishop’s right to interpret the ERDs in his own diocese.18

In response to questions raised about the authority of the local bishop in the

interpretation of the ERDs, conversations took place in January 2011 among Sister

Carol Keehan, Archbishop (now Cardinal) Timothy Dolan of New York, president

of the USCCB, Bishop Robert Lynch, a member of the CHA Board of Directors,

and Bishop Kevin Vann, episcopal liaison to the CHA. In her January 26, 2011 letter

to Archbishop Dolan, Sr. Keehan affirmed that ‘‘publicly and privately, CHA has

17 Murphy (2008), Rhonheimer (1993), and Grisez (1972, esp. 470–503).18 http://www.lifesitenews.com/home/print_article/news/27953.

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always said to sponsors, governing board members, managers and clinicians that an

individual Bishop in his diocese is the authoritative interpreter of the ERDs.’’

In response, Archbishop Dolan applauded Sr. Keehan’s ‘‘acknowledgement that

the local bishop is the authoritative interpreter of the ERDs in his diocese [as this] is

a welcome and crucial component in understanding what is authentic Catholic moral

teaching… (A)ny medical case, and especially one with unique complications,

certainly requires appropriate consultation with medical professionals and ethical

experts with specialization in the teaching of the Church… Where conflicts arise, it

is again the bishop who provides the authoritative resolution based on his teaching

office. Once such a resolution of a doubt has been given, it is no longer a question of

competing moral theories or the offering of various ethical interpretations or

opinions of the medical data that can be legitimately espoused and followed. The

matter has now reached the level of an authoritative resolution. Thank you for

making it clear that the CHA and the bishops share this understanding of the

Church’s teaching.’’

Theological Commentaries

Two eminent theologians, Austriaco (2011) and Magill (2011) commented on this

case. Austriaco points out that the exact medical procedure that was performed was a

placentectomy, the removal of the placenta, the organ that links the unborn child to his

mother. Austriaco comments that ‘‘everyone involved … at the time’’ understood that

both mother and child would die without medical intervention. He reasons that ‘‘when

the doctors chose to remove the child’s placenta to save his mother’s life, they

necessarily also chose to kill him, because they were choosing to remove a vital organ

of an innocent human being in a manner that would end his life.’’

Disagreeing with Lysaught’s analysis, Austriaco argues that in the Thomistic

tradition the moral object of an act as it is specified by the acting person stands in

relation to the physical structure of that act. Both constitute the substance of the

human act by the will in the same way as form and matter constitute a substance.

Consequently, a physician who chooses to extract the placenta of the unborn child

before viability is also necessarily choosing the death of the child ‘‘as an object of

his action.’’ Austriaco further explains that the placenta is an integral and not an

extrinsic organ of the fetus. It is the organ that the fetus uses to allow nutrient intake,

waste elimination, and gas exchange, via the mother’s blood supply. It is also a

transient source for serotonin, a neurotransmitter that is important for fetal brain

development. Consequently, ‘‘attacking the placenta is attacking the fetus,…dismembering the placenta is dismembering the fetus.’’

Finally, Austriaco argues that pulmonary arterial hypertension (PAH) is a

pathology of the mother and not that of her unborn child. He concludes that ‘‘it is

inaccurate to say that the immediate/presenting cause threatening the life of the

unborn child of a woman with PAH is his hypoxic placenta rather than his mother’s

pathological circulatory system.’’

Magill takes a different medical and moral approach by insisting that ‘‘the

placenta is not an integral part of the fetus’’ and the purpose of the termination at

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SJHMC was ‘‘to remove the placenta as the organ exacerbating the pulmonary

hypertension that both created and maintained the imminent threat to the mother’s

life… Removal of the placenta was the necessary intervention to resolve the

pathological condition.’’ Citing the same theological resources as Lysaught, Magill

maintains that ‘‘the moral intention’’ focused on saving the mother’s life while the

death of the fetus ‘‘in these circumstances (was) a ‘non-intentional side effect’ that

occurs praeter intentionem.’’ In other words, the direct moral object (the ‘‘act in

itself’’) was saving the life of the mother while recognizing that the death of the

fetus was unavoidable. Magill argues that the traditional Catholic distinction

between direct and indirect moral action as enunciated in the Principle of Double

Effect can be adopted to resolve this case.

Magill’s moral argument is that the threat to the mother’s life came first from the

placenta, a shared organ with the fetus. Since the threat to the mother did not come

from the infant, the unborn child did not pose a danger to her. Based on this

judgment, Magill argues that the removal of the placenta was the direct purpose of

the surgery and thus the death of the child was an indirect and thus morally

acceptable abortion.

The National Catholic Bioethics Center

When Olmsted requested CHW for a moral assessment of the JSHMC case, he

separately sought an assessment from the National Catholic Bioethics Center

(NCBC).19 On December 24, 2010, the NCBC published a ‘‘public comment’’ on

this case. The NCBC began its comments by giving special recognition to mothers

who face ‘‘extraordinarily dangerous situations’’ and underlined the responsibility of

Catholic health care to always care for both mother and child but ‘‘never directly

take the life of an innocent human being as it cares for both patients.’’

The commentary explains the Principle of Double Effect and concludes, unlike

Magill, that it ‘‘cannot be applied to the… case [where] a mother is suffering from

hypertension which is not caused by any pathology of the reproductive system but

aggravated by the pregnancy.’’ The NCBC states that three double effect principles

were violated in the Phoenix case: (a) the immediate action performed by the

physician was the destruction of the child; (b) the physician intended the death of

the child as a means toward a good end; and (c) evil was done.20 The NCBC

specifically notes that ‘‘the hospital was not in consultation and communication with

the bishop regarding the appropriate interpretation and application of the Ethicaland Religious Directives.’’

19 The National Catholic Bioethics Center (NCBC), established in 1972, conducts research, consultation,

publishing and education to promote human dignity in health care and the life sciences, and derives its

message directly from the teachings of the Catholic Church.20 See NCBC website, ‘‘NCBC Commentary on the ‘Phoenix Case.’’’ Distinguished Senior Fellow of the

Ethics and Public Policy Center in Washington, DC, Weigel (2010) gave this Commentary high praise.

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Committee on Doctrine

On June 23, 2010, Archbishop (now Cardinal) Donald Wuerl, Chairman of the

United States Conference of Catholic Bishops’ (USCCB) Committee on Doctrine

sent a letter to all Bishops in the country: ‘‘Because of the interest that has arisen

concerning the pastoral issue in the Diocese of Phoenix, the Committee on Doctrine

was asked to address the distinction between direct and indirect abortion.’’ The

Committee’s statement cited official Church teaching about direct abortion (never

permissible) and indirect abortion (which may be permissible in some situations).

The statement offers two scenarios to demonstrate the distinction.

In the first one, ‘‘a pregnant woman is experiencing problems with one or more of

her organs, apparently as a result of the added burden of pregnancy. The doctor

recommends an abortion to protect the health of the woman.’’ If performed, a direct

abortion occurs as the ‘‘surgery directly targets the life of the unborn child.’’

In the second one, ‘‘a pregnant woman develops cancer in her uterus. The doctor

recommends surgery to remove the cancerous uterus as the only way to prevent the

spread of the cancer. Removing the uterus will also lead to the death of the unborn

child, who cannot survive at this point outside the uterus,’’ This is an example of an

indirect abortion as the ‘‘surgery does not directly target the life of the unborn

child.’’

While this statement does not specifically relate these scenarios to the Phoenix

case, it is clear that in the differential presented, the abortion at SJHMC fits the first

scenario and constitutes a direct abortion.

Olmsted employed the double-effect principle to indicate that it did not apply in

the case at SJHMC. He argued that ‘‘There was not a cancerous uterus or other

grave malady that might justify an indirect and unintended termination of the life of

the baby to treat the grave illness… In this case, the baby was healthy and there was

no problems with the pregnancy; rather, the mother had a disease that needed to be

treated. But instead of treating the disease, St. Joseph’s medical staff and ethics

committee decided that the healthy, 11-week-old baby should be directly killed.’’21

Religious and Secular Analyses

Religious commentators largely used traditional theological analysis to substantiate

their conclusions. Notre Dame University’s Professor of Law and Theology

Cathleen Kaveny, recalled a foundational principle of Catholic moral and social

thought: ‘‘It is never permissible to kill an innocent human being.’’ (Kaveney 2011)

She argued that this principle is foundational in two ways: (a) it extends across the

spectrum of social activity, e.g., the old, the weak, non-combatants in war time, and

(b) it is a floor and not a ceiling: that is, ‘‘We have an obligation not unfairly to

impose a risk of death on others—even if we’re not intentionally killing them. We

have an obligation to help others in their distress. But as a floor, the principle

safeguards the basic level of respect owed to each and every human being.’’ In

21 http://www.stjosephs-phx.org/Who_We_Are/Press_Center/212144.

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Catholic moral analysis, embryos and fetuses are equally protectable human beings

from the moment of conception.

Consequently, she argues, ‘‘It is not enough to simply look at the isolated

physical act and judge from there.’’ In most cases, ‘‘the medical procedure called

‘abortion’ involves the intent to kill the baby… There are some rare situations,

however, where this is not the case. The immediate aim (object) of the procedure is

simply to separate the baby from its dependence on the mother’s system, not to kill

the baby… The baby’s death does not contribute to saving the mother—the

separation does.’’ Kaveny concludes, ‘‘In a situation where both mother and baby

otherwise would die, I think one could make a strong case that it is fair to go ahead

with the procedure. In the Arizona case… it was a surgical separation of the mother

from baby, with the foreseen, terrible, and unwanted side effect of causing the

baby’s death. And without the procedure, both mother and baby would die.’’

Gonzaga University’s Professor of Religious Studies Patrick McCormick

characterized the abortion case as ‘‘a grave pastoral problem’’ (McCormick

2011). He cites Bernard Haering who argued that ‘‘the tragic termination of a

pregnancy to save the life of the mother is justified not by the ‘indirectness’ of the

medical procedure, but by the fact that the grave threat to the mother’s life can be

resolved by no other means. No one ‘intends’ to kill a fetus in this case, only to save

the one life that can be saved.’’

In ‘‘A Fatal Conflict,’’ John F. Tuohey, regional director of the Providence Center

for Health Care Ethics in Oregon, comments that the Phoenix case ‘‘raises the

question of the relationship between religious liberty and Catholic identity in health

care’’ (Tuohey 2011). He writes that cases like this have been termed ‘‘a vital

maternal-fetal conflict,’’ a medical crisis in which ‘‘no procedure can save both

mother and child,’’ and ‘‘only one procedure can save the mother, and that

procedure entails ending the pregnancy.’’ Tuohey proposes that in such a conflict

case it ‘‘might it be possible… for the [Catholic health care] ministry to appeal to

the church’s teaching regarding self-imposed limitations on its own exercise of

religious liberty… rather than merely insisting that its religious freedoms trump the

patient’s right to life-saving treatment.’’

Tuohey concludes that ‘‘it would be tragic to realize only after a patient has died

that religious liberty does not justify the absolute exercise of religious freedoms—

and that Catholic identity in health care requires not merely following moral

precepts to their logical conclusion, but also having the wisdom to discern when not

to.’’

Kevin O’Rourke addressed the Phoenix case in three separate articles (O’Rourke

2010a, b, c). Initially, he seemed to side with the ethics committee of SJHMC which

‘‘identified the pathological organ as the placenta,’’ concluding that what took place

was an indirect abortion: the ‘‘primary intention [was] to save the mother’s life.’’

He later suggested that moral intuition justified this abortion. Intuition is the

‘‘apprehension of a particular good by an informed conscience’’ and is a ‘‘legitimate

source of a justified moral decision.’’ He wrote: ‘‘There seems to be an intuition that

terminating pregnancy that exacerbates pulmonary tension to such an extent that

both mother and child will die unless action is taken to remove the source of danger

would result in an indirect rather than a direct abortion.’’ He concludes, ‘‘…it seems

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reasonable to maintain that only an indirect abortion is involved’’ in this case. He

maintained that the medical team at SJHMC made its decision based on a judgment

that both mother and child would die and ‘‘that preserving the life of the mother was

the intention of the act because the infant would die no matter what was done or not

done. Its death during the surgery was… a non-direct abortion… and the principle

of self-defense justifies removing the fetus from the mother’s womb.’’

In a philosophical analysis of the case, Bernard G. Prusak writes that ‘‘unless

there is merit to the claim that the pathological organ in this case was the placenta, it

seems that the ethics committee’s decision to permit an abortion cannot be justified

under the Principle of Double Effect’’ (Prusak 2011). He suggests that the principle

of choosing the lesser evil presents a more cogent way of assessing this case.

In an important historical note unrelated to the Phoenix case, Boston College’s

James F. Keenan offered an important historical perspective regarding directly-

willed abortion (Keehan 2010). While assessing the manual writings of Thomas

Slater (1855–1928), Keenan points out that Slater declared ‘‘the direct procuring of

abortion as an intrinsic evil’’ but he noted that ‘‘a pregnant woman may appropriate

life-saving means even if that means were indirectly to cause the fetus’s death.’’

Slater argued against the direct killing of a fetus to save the mother’s life, ‘‘even if

otherwise both child and mother were certain to die.’’ Keenan comments that ‘‘his

position is historically interesting inasmuch as it had been held until the end of the

nineteenth century that a woman could defend herself against a fetus which

threatened her life.’’22

Slater wrote that ‘‘in no sense can it be allowed that the child is an unjust

assailant of a mother’s life; it is where nature placed it, through no fault of its own,

and it has the right to be there and to be born… This doctrine is now theologically

certain after the repeated declarations of the Holy See that no operation which tends

directly to the destruction of the life of the fetus is lawful.’’23 This same conclusion

was reached by the Congregation for the Doctrine of the Faith in its 1974

Declaration on Procured Abortion: ‘‘…perhaps in quite a considerable number of

cases, by denying abortion one engenders important values to which it is normal to

attach great value, and which may sometimes even seem to have a priority… It may

be a serious question of health, sometimes of life and death, for the mother… We

proclaim that none of these reasons can ever objectively confer the right to dispose

of another’s life, even when that life is only beginning’’ (no. 14).24

Secular analyses of this case tended to be rather one-sided condemning the

Church’s position that seemed to favor the child over the mother in a fetal crisis

situation. Bioethicist and medical historian Jacob M. Appel published, for example,

a provocative article ‘‘After St. Joseph’s: Are Women Still Safe in Catholic

Hospitals?’’25 The same question was raised by several commentators. Appel argued

that the American debate about abortion applies to elective procedures where the

life of the mother is not in serious jeopardy. In contrast, this controversy concerns

22 See Kelly (1959).23 Ibid., 17.24 http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19741118.25 http://www.huffingtonpost.com/jacob-m-appel/after-st-josephs-arewome_b_578086.html?view=print.

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‘‘the right of a woman to choose her own life over that of a fetus or embryo…’’ He

concluded that ‘‘I would not feel comfortable with a woman I cared about seeking

obstetric services at a Catholic hospital. In fact, I would not want a pregnant woman

I cared about obtaining any medical treatment at a Catholic hospital…’’ In light of

‘Catholic extremism’ exhibited in this case, it is now time ‘‘to reconsider the

relationship between the Catholic Church and our healthcare system.’’

A different perspective came from Dr. Paul Byrne, Director of Neonatology and

Pediatrics at St. Charles Mercy Hospital in Toledo, Ohio.26 He disputed the claim

that an abortion is ever a procedure necessary to save the life of the mother. Byrne

insisted that an unborn child at 11 weeks gestation would have a negligible impact

on the mother’s cardiovascular system and that pregnancy in the first and second

trimester would not expose a woman with even severe pulmonary hypertension to

any serious danger. He concluded that the mother’s medical condition could have

been treated by such things as eliminating salt from her diet, exercising, and losing

weight. At the time of viability, the baby could then be removed from the uterus and

live.

New York Times columnist Nicholas D. Kristof twice addressed the Phoenix

case.27 He characterized church leaders as ‘‘rigid, dogmatic [and] out of touch,’’

especially seen in Bishop Olmsted’s excommunication of Sr. Margaret McBride. He

quotes Dr. John Garvie, chief of gastroenterology at St. Joseph’s: ‘‘Everyone I know

considers Sister Margaret to be the moral conscience of the hospital. She works

tirelessly and selfishly as the living example and champion of compassionate,

appropriate care for the sick and dying… [She] is the living embodiment of God in

our building.’’

Lisa Miller of Newsweek characterized the case under the heading of ‘‘female

troubles’’ and wrote that ‘‘at a time when the Catholic Church most needs women, it

has launched a frontal attack on its nuns.’’ This type of refrain was expressed

elsewhere, for example, ‘‘the Catholic Church… has shown no concern for its

children, women, or any of the vulnerable populations it ostensibly serves.’’28

USA TODAY warned, ‘‘What happens if you end up in one [a Catholic hospital]

and your health care wishes clash with Catholic ethics… (T)he Phoenix case could

make you question who has final say in life-and-death decisions: you, or the local

bishop?’’29 Journalist and author Angela Bonavoglia suggests: ‘‘Have your own

ethical and moral directive saying: Do Not Take me to a Catholic Hospital,’’30 while

Lawrence Krauss names the Phoenix case as ‘‘faith and foolishness’’ and the

Bishop’s judgment ‘‘irrational’’ and ‘‘harmful.’’31

Writing in The Tablet, Tina Beattie, Director of the Digby Stuart Centre for

Catholic Studies at Roehampton University, suggested that this case demonstrates

that pregnancy ‘‘entails a commitment to martyrdom if necessary—the martyrdom

26 http://www.lifesitenews.com/Idn/printerfriendly.html?articleid=10051712.27 http://www.nytimes.com/2010/05/27/opinion/27.kristof.htm?pagewanted=print. Also, Kristof (2011).28 http://msmagazine.com/blog/blog/2010.05/18/if-sister-margaret-mcbride-is-no-catholic-neither-am-I/.29 Grossman (2010).30 http://www.huffingtonpost.com/angela-bonavoglia/reproductive-crisis-do-not_602086.html?view=print.31 Krauss (2010).

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of a woman who accepts a pregnancy which poses a potentially deadly threat to her

own life.’’32

Finally, Brigitte Amiri, senior staff attorney with the ACLU Reproductive

Freedom Project, alleged that ‘‘religious hospitals’ refusals to perform life-saving

abortion is in violation of the federal Emergency Medical Treatment and Active

Labor Act (EMTALA) as well as the Conditions of Participation of Medicare and

Medicaid (COP)… The lives and health of pregnant women seeking medical care

should be of paramount importance… No woman should have to worry that she will

not receive the care she needs based on the affiliation of the nearest hospital.’’

Conclusions

Several points distinguish this case, making it a landmark in the moral analysis of

abortion. First, the major concern centers around a proper understanding of what

constitutes a ‘‘moral object.’’ In Veritatis Splendor,33 John Paul II addressed this

question in ‘‘The Object of the Deliberate Act.’’ (nos. 76–83) He wrote that the

‘‘morality of the human act depends primarily and fundamentally on the ‘object’

rationally chosen by the deliberate will… The object of the act is in fact a freely

chosen kind of behavior.’’ He cites the Catechism of the Catholic Church which

teaches that ‘‘there are certain specific kinds of behavior that are always wrong to

choose, because choosing them involves a disorder of the will, that is, a moral evil.’’

(no. 1761) The Pope concludes that ‘‘no evil done with a good intention can be

excused.’’

The reason why a good intention is not itself sufficient is that a correct choice of

actions is also needed: ‘‘…the human act depends on its object, whether that object

is capable or not of being ordered to God… An act is therefore good if its object is

in conformity with the good of the person with respect for the goods morally

relevant for him.’’ Veritatis Splendor argues that ‘‘the primary and decisive element

for moral judgment is the object of the human act… Consequently, without in any

way denying the influence on morality exercised by circumstances and especially by

intentions, the church teaches that ‘there exist acts which per se and in themselves,

independently of circumstances, are always seriously wrong by reason of their

object.’’ Direct abortion is cited by the Second Vatican Council as an example of

such an act (Gaudium et Spes, no. 27).

In other words, even though one’s intention is to protect the welfare of an

individual, it is always wrong to directly do something which of its very nature

contradicts the moral order: ‘‘a good intention or particular circumstances can

diminish their evil, but they cannot remove it… Consequently, circumstances or

intentions can never transform an act intrinsically evil by virtue of its object into an

act ‘subjectively’ good or defensible as a choice.’’

Second, what was the moral act chosen by SJHMC? CHW emphasized the

woman’s ‘‘very severe pulmonary arterial hypertension with profoundly reduced

32 Beattie (2010).33 Op. cit. Origins 23:18, 298–334.

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cardiac output.’’ CHW stated that the goal of the ethics committee ‘‘was not to end

the pregnancy but save the mother’s life.’’ This choice was protected, CHW argued,

by ERD no. 47 ‘‘because the D&C had ‘‘as its direct purpose the cure of a

proportionately serious pathological condition of a pregnant woman.’’ In this way,

the mother’s serious pulmonary hypertension ‘‘was controlled.’’ CHW explained

that because of the woman’s condition, the ‘‘pregnancy is a pathology.’’ It was ‘‘the

pregnancy itself that was killing the mother and in the physicians’ medical judgment

the only way to save the woman’s life was to end the pregnancy.’’

Third, Lysaught agreed with this analysis: ‘‘the act, per its moral object, must

accurately be described as saving the life of the mother. The death of the fetus was

… non-direct.’’ The ‘‘procedure performed… cannot be properly described as an

abortion.’’ She consistently argued that the fetus had become terminal ‘‘because of a

pathology in its maternal environment… The cause of [the] increased blood flow

and cardiac demand was not the fetus but rather the placenta.’’ She concluded her

moral assessment by stating that the moral object cannot be reduced to its physical

component. While ‘‘the physical/material action is not irrelevant to the determi-

nation of the object,… it is also not sufficient.’’ She stated that ‘‘the death of the

fetus is ‘to be considered a purely physical evil caused praeter intentionem… (T)he

intervention is a legitimate medical therapy and not an abortion.’’

Fourth, this moral analysis of CHW did not reflect official church teaching of the

Church as interpreted by the local Bishop—a point of authority not relevant in a

non-Catholic setting. Bishop Olmsted argued that the placenta is an organ within the

uterus by means of which the growing fetus is attached to the wall of the uterus. Its

primary purpose is to provide the fetus with nourishment, eliminate its wastes, and

exchange respiratory gases. The placenta grows throughout the pregnancy and

remains connected to the uterine wall on one side and connects to the fetus through

the umbilical cord. In the Phoenix case, the placenta was acting normally. It was not

pathological. It is incorrect, he argued, to insist that the direct purpose of this

abortion was to cure this woman’s serious pathological condition, identified by the

hospital as a ‘‘pathology in its material environment,’’ that is, ‘‘the placenta.’’

Fifth, it is medically impossible to remove the placenta without at the same time

destroying the fetus. During the course of the pregnancy, the fetus is dependent on

the placenta to perform its necessary functions that help regulate and maintain the

pregnancy. The moral argument put forth by the hospital, CHW and Lysaught state

that the goal of the ‘‘procedure’’ was to save the life of the mother, it seems more

accurate to state that the object was to remove a non-pathological organ with the

awareness that an innocent fetus would necessarily be destroyed.

Sixth, Veritatis Splendor insists that the primary and decisive element for moral

judgment is the object of the human act. While intention and circumstances play an

important role in moral analysis, e.g., by diminishing culpability, there are certain

acts in the church’s teaching that can never be directly chosen because they

contradict the moral order. They are always seriously wrong despite circum-

stances—that is, they are wrong because of their moral object. The intention of the

physicians at SJHMC was to save the life of the mother. However, the action by

which this intention was achieved was the direct destruction of a human life. A

direct abortion is never a legitimate medical therapy.

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Seventh, in Catholic moral theology, there are morally acceptable cases in which,

if the pregnancy is not terminated, both the mother and the nonviable child would

die (Leies 2010). Examples include cases of septic uterus and eclampsia that have

been badly managed medically and are, as a result, out of control. In these life-

threatening cases, an expulsion from the womb which does not involve an attack

directly against the child can be justified morally under the Principle of Double

Effect, provided that it is medically certain that continued intrauterine life support

would be useless for bringing the child to viability.

John Paul Slosar offers another example (Slosar 2010): an expectant mother at

20 weeks gestation with preterm premature rupture of membranes causing leakage

of amniotic fluid, a condition that puts the life of the preterm fetus at serious risk

and puts the mother at risk for a life-threatening infection. Intravenous antibiotics

are administered, but the mother develops a life-threatening infection. In order to

eliminate the infection source, the patient and her physician consider inducing labor.

The direct intention [the moral object] is to evacuate the infection, an infection that

in this case can only be treated through the removal of amniotic fluid. This treatment

outcome can be accomplished if labor is induced, a course which would result in the

death of the baby who has not yet reached viability. In this case, ERD no. 47

properly applies because the intention is to eliminate an infection that is threatening

the mother’s life and because other treatments have not been successful. The baby’s

death is a foreseen, but unintended, consequence.

The difference between these examples and the Phoenix case is the presence of a

pathology which is the moral object of the surgery, that is, attacking the septic

condition of the pregnant woman, or addressing the problem of the rupture of

membranes. In the Phoenix case, neither the child nor the placenta were

pathological. However, because the placenta was causing increased blood flow to

the heart, its normal function during pregnancy, the moral object was the removal of

the baby and its maternal environment for the intention of saving her life. While the

intention is understandable, the means used amounted to a direct abortion.

Seventh, as the theological analyses have demonstrated, this case is very complex

and deserves careful scrutiny. We do not know all the intricacies of the case. We

only know the facts as they have been publicly presented. We do not know, for

example, if other alternatives were considered such as giving the mother

prostaglandins to control her severe hypertension. What we do know is that the

ethics committee believed in good faith that ERD no. 47 applied in this case, a

judgment disavowed by Bishop Olmsted.

Keane (2011) has wisely written that ‘‘the ethics program of any Catholic

hospital… must include an element of ongoing dialogue with the local church,

particularly the local bishop… (D)iscussions with diocesan bishops need to take

place in a true spirit of dialogue, openness and mutual trust. Many potential

problems can be avoided if this climate of respect and trust can be maintained.’’ It

seems that mutual dialogue and respect had broken down between CHW and Bishop

Olmsted, evidenced in the fact that the Olmsted did not learn of the abortion until

several months after it took place, and then only indirectly. If communications on

both sides had been kept alive and trusting, perhaps the contentiousness of this case

would have been eliminated and the Bishop would not have been brought to a point

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that St. Joseph’s Hospital and Medical Center could no longer consider itself a

Catholic institution.

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