Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies [1 ed.] 9780813217772, 9780813217185

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Copyright © 2009. Catholic University of America Press. All rights reserved. Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009. Catholic University of America Press. All rights reserved.

Vital Conflicts in Medical Ethics

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009. Catholic University of America Press. All rights reserved. Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Martin Rhonheimer

Vital Conflicts in Medical Ethics A Virtue Approach to Craniotomy and Tubal Pregnancies Edited by

Copyright © 2009. Catholic University of America Press. All rights reserved.

William F. Murphy Jr.

The Catholic University of America Press  Washington, D.C.

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009 The Catholic University of America Press All rights reserved The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. ∞ Library of Congress Cataloging-in-Publication Data Rhonheimer, Martin, 1950– [Güterabwägung, Tötungsverbot und Abtreibung in vitalen Konfliktfällen. Lösungsversuch eines klassischen gynäkologischen dilemmas aus tugendethischer Copyright © 2009. Catholic University of America Press. All rights reserved.

perspektive. English] Vital conflicts in medical ethics : a virtue approach to craniotomy and tubal pregnancies / Martin Rhonheimer ; edited by William F. Murphy Jr. p. ; cm. Includes bibliographical references and index. ISBN 978-0-8132-1718-5 (pbk. : alk. paper) 1. Abortion—Religious aspects—Catholic Church.  2. Obstetrics—Surgery—Religious aspects—Catholic Church.  3. Medical ethics—Religious aspects—Catholic Church.  I. Murphy, William F.  II. Title.   [DNLM:  1. Abortion, Therapeutic—ethics.  2. Catholicism.  3. Craniotomy—ethics. 4. Pregnancy Complications.  5. Pregnancy, Tubal.  HQ 767.3 R458g 2009] HQ767.3.R48613 2009 241´.6976—dc22 2009017580

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Contents





Acknowledgments Editor’s Preface Author’s Preface

vii ix xiii I. The Problem 

•  1

1. Two Methodologies for the Moral Evaluation of Action: The Principle of Double Effect (PDE) and the Weighing of Goods

1

2. Overview of This Study and Brief Summary of the Argument

9



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3. “Vital Indication” and a Recent Example: The Moral Justification of the Act of Saving a Life

14

4. The Structure of the Argumentation: Weighing Goods in the Case of Vital Indication 22

II. Church Doctrine and Past Discussions in Moral Theology  •  31

1. “Direct Abortion” According to Church Doctrine: Specification of the Concept from the Viewpoint of Action Theory 31

2. The Physical and Intentional Structure of Actions: The Object of the Moral Act 49 3. The Controversy Regarding Craniotomy through the End of the Nineteenth Century: The Interpretation of Summa theologiae II-II, q.64, a.7

57

a. The Argument of Pietro Avanzini and the Category of the “Unjust Aggressor” 

57

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•  Co n t e n ts



b. Summa theologiae II-II, q.64, a.7: Killing in Self-Defense According to Thomas Aquinas 

61

c. Critique and the Development of the Discussion

68

d. Waffelaert’s Incorrect Interpretation of ST II-II, q.64, a.7

73

e. The Consequences of the Confusion

77

III.  Life-Saving Medical Interventions: The Prohibition of Killing and the Virtue of Justice  •  83

1. Retrospective Summary: Acts of Killing and the Ethical Context of “Justice”

83

2. Reevaluation of Contemporary Therapies: Vital Indication and Extrauterine Gravidity

88

a. Salpingectomy or Segment Resection

92

i. An Initial Look at the Analysis of T. Lincoln Bouscaren  93 ii. A Critical Engagement with Bouscaren’s Position  96 iii. Some Conclusions  102 b. Linear Salpingotomy (or Salpingostomy)

104

i. Treating as a Single Pathology  106 ii. Cases Where Salpingotomy Makes Medical Sense  107 iii. Two Potential Solutions to the Dilemma  112

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iv. Some Conclusions  114 c. Drug Treatment with Methotrexate

115

d. Expectant Management

119

3. The Moral Justification of Life-Saving Measures in the Case of Vital Conflict

122

a. Recapitulation and Conclusive Explanation of the Ethical Argument

122

b. The Exclusion of the Weighing of Goods

126

c. Objections and Response

131

4. Epilogue: Virtue Ethics, “Direct” and “Indirect,” and Prohibition of Killing

138



151 157

Bibliography Index

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Acknowledgments

Translation and editing expenses for this volume were generously funded by the Our Sunday Visitor Foundation and the Cardinal Pio Laghi Chair of the Pontifical College Josephinum. The initial translation from the German was done by Dr. Henry Jansen and further refined by the author, the editor, and Dr. Joseph T. Papa. Additional editorial assistance was provided by Damian X. Lenshek, who prepared the initial bibliography. Dr. Gerald Malsbary was also helpful in verifying some translations from the Latin. Sincere thanks are also due to Susan Barnes for her meticulous editing of the manuCopyright © 2009. Catholic University of America Press. All rights reserved.

script, and the staff of the Catholic University of America Press, especially James Kruggel and Beth Benevides, for their highly professional facilitation of this project.

William F. Murphy Jr.



Pontifical College Josephinum



Columbus, Ohio

vii

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009. Catholic University of America Press. All rights reserved. Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Editor’s Preface

The present volume makes available, to English-language readers, a study by the Swiss philosopher Martin Rhonheimer in which he addresses a particularly difficult and contested class of cases in medical ethics.1 In so doing, it complements not only the various essays that have been available in English for some time, but also his somewhat exploratory Natural Law and Practical Reason: A Thomist View of Moral Autonomy,2 published in the year 2000, as well as the books that have recently become available in English or soon will be. These include the recently pub-

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1. In anticipation of what follows, it may be helpful to the reader to include the following remarks at this point. These cases of “vital conflict” are defined precisely as those in which the life of the unborn child or embryo cannot be saved, whereas the mother’s life can be. The debate surrounds the morality of medical intervention through certain procedures that are judged to be immoral according to traditional analyses of Catholic moral theology because they cause the death of the unborn in a physically direct manner. Since the conclusions of such traditional moral analysis would prohibit seemingly legitimate medical options to save the life of the mother (i.e., by removing an infant lodged in the birth canal after crushing its skull through a craniotomy) or to preserve her physical integrity (i.e., saving her fallopian tube by removing the lodged embryo through a linear salpingotomy or salpingostomy), these conclusions have been vigorously debated for well over a century. 2. New York: Fordham University Press, 2000, translated by Gerald Malsbary.

ix

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lished The Perspective of the Acting Person: Essays in the Renewal of Thomistic Moral Philosophy,3 as well as his systematic ethical treatise The Perspective of Morality: Philosophical Foundations of Thomistic Virtue Ethics and his Ethics of Procreation and the Defense of Human Life, both of which are forthcoming from the Catholic University of America Press.4 Also in preparation is a volume that is tentatively entitled The Common Good of Constitutional Democracy: Essays in Political Philosophy and Catholic Social Teaching. Whereas the first three books mentioned here focus primarily on ethical theory, and Ethics of Procreation and the Defense of Human Life is an extended treatment of difficult questions in sexual ethics—and it also addresses related matters of medical and social ethics—the present work offers a rigorous analysis of some specific conundrums in medical ethics. Because the cases treated are particularly complex and contested, and because the present study provides a detailed engagement with the prior analyses of them, it offers an excellent illustration of Rhonheimer’s recovery and articulation of Thomistic virtue ethics in light of various alternatives. More specifically, given the vigorous contemporary debate about Thomistic action theory that has followed in the wake of Veritatis splendor, and given Rhonheimer’s role in that debate, the present study will be of wide interest because it illustrates his action analysis in critical enCopyright © 2009. Catholic University of America Press. All rights reserved.

gagement with alternative moral analyses. Moreover, the present study brings to the forefront Rhonheimer’s not widely appreciated emphasis on the role of the virtues in the evaluation of moral acts. For these and other reasons, the editor hopes that the availability of this work will not 3. Washington, D.C.: The Catholic University of America Press, 2008, edited with an introduction by William F. Murphy Jr. The reader is referred to this introduction for an overview of Rhonheimer’s major works in ethical theory. 4. In addition, a volume tentatively entitled Essays in Political Philosophy and Catholic Social Teaching is in preparation. Yet to be translated is his Praktische Vernunft und Vernünftigkeit der Praxis: Handlungstheorie bei Thomas von Aquin in ihrer Entstehung aus dem Problemkontext der aristotelischen Ethik (Berlin: Akademie Verlag, 1994), which might be rendered in English as Practical Reason and the Rationality of Praxis: The Origin of Thomistic Action Theory in the Problem Context of Aristotelian Ethics.

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Edit o r ’ s P r e f ac e 

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only contribute to greater consensus on the particular questions it addresses, but also facilitate an informed assessment and fruitful utilization of Rhonheimer’s contribution to fundamental and applied moral theory. William F. Murphy Jr.



Pontifical College Josephinum

Copyright © 2009. Catholic University of America Press. All rights reserved.



Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009. Catholic University of America Press. All rights reserved. Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Author’s Preface

This wide-ranging study was drafted for the Roman Congregation for the Doctrine of the Faith and completed and submitted to the Congregation in 2000. After it was carefully studied in the Congregation and by its then prefect, Cardinal Joseph Ratzinger, the Congregation in turn asked that it be published, so that the theses it contains could be discussed by specialists. Obviously, the observations made here are my personal opinions and not those of the Congregation for the Doctrine of the Faith. The text was first published in German under the title “Güterabwägung, Tötungsverbot und Abtreibung in Copyright © 2009. Catholic University of America Press. All rights reserved.

vitalen Konfliktfällen. Lösungsversuch eines klassischen gynäkologischen Dilemmas aus tugendethischer Perspektive,” which can be translated as “The Prohibition of Killing, Abortion, and the Weighing of Goods in Vital Conflicts: A Proposed Solution for a Classic Gynecological Dilemma from the Perspective of Virtue Ethics.” It was included in M. Rhonheimer, Abtreibung und Lebensschutz. Tötungsverbot und Recht auf Leben in der politischen und medizinischen Ethik (Paderborn: Schöningh, 2003). The proposals made in this work had a relatively feeble impact in German-speaking areas, possibly because they conflict with the dominant paradigm for establishing norms in those areas, i.e., proportionalistic xiii

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and so-called “teleological ethics.” In contrast to that method, the proposals of the present work follow a path that is new in many respects but stands in continuity with the encyclical Veritatis splendor (1993) and its rejection of “weighing of goods” as a fundamental and universal method for making ethical decisions. Except for changes made for reasons of clarity and improved readability and some footnotes (marked in each case as “Author’s note 2008”) added to include some clarifications and references to recent criticism of some aspects of my action theory, the English version presented here is essentially the same as that submitted to the Congregation of the Doctrine of Faith and previously published in German. It combines a large number of questions. It deals (always in the concrete context of the problem expressed in the title) with the problem of how medical ethics or moral theologians assess medical actions, and also with a problem in (Catholic) moral theology itself. By this latter “problem” I mean that I discuss not only a particular problem or case in moral theology, but also a methodological problem of moral theology itself, a problem that will be explored through action analysis from the perspective of philosophical ethics. In addressing this problem, I will use virtue ethics to suggest a way out of a situation that appears to me to have reached an impasse because of an outdated approach. In the presCopyright © 2009. Catholic University of America Press. All rights reserved.

ent study, we will therefore look at the so-called “principle of actions with double effect” (hereafter, “principle of double effect” or PDE), the categories of “direct” and “indirect” actions, legitimate self-defense, and “indirect killing,” etc. But our attention will be directed particularly to the problem of the (proportionalist and consequentialist) method of “weighing of goods” in connection with the prohibition of killing, and specifically to a classic gynecological dilemma that has dominated the discussion in contemporary moral theology, a discussion that began with the nineteenth-century debate on craniotomy. As experts in this area know, in the second half of the nineteenth century the Holy Office (now the Congregation for the Doctrine of the Faith), by means of various decrees, practically committed Catholic

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Au t h o r ’ s P r e f ac e 

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moral theology to the principle that a doctor was obligated in certain gynecological borderline situations to let both child and mother die. This judgment held even in cases where the mother could be saved, but only through a procedure that was considered to be a “direct” killing of the fetus; therefore—even though the unborn child had no chance of survival—the procedure to save the mother was not permitted. It is obvious why medical ethics, which is oriented toward preserving and saving lives, finds this judgment offensive: it is offensive to demand of the mother that she sacrifice herself, not for the survival of her child (who will die anyway), but, it seems, simply to safeguard the moral principle that “an innocent should not be killed directly.” The question is of considerable importance, and in recent years was often misused in discussions of fundamental moral theology to promote a certain model of ethical decision making, namely that of the “weighing of goods.” Ultimately, however, this model could be used to provide a moral justification for every abortion—especially when the life and health of the mother are at stake—and it can also help to weaken, in a fundamental sense, the prohibition of killing in other areas. The question that will be treated here, however, is also of interest in connection with the contemporary discussion of morally permissible therapies for ectopic pregnancies, especially tubal pregnancies. Not a Copyright © 2009. Catholic University of America Press. All rights reserved.

few Catholic moral theologians today, fearing that the most minor innovations in arguments will lead to a breach in moral principles, appeal to the above-mentioned late-nineteenth-century decrees of the Holy Office in order to reject certain techniques for treating tubal pregnancies as instances of the (unjustified) killing of human persons. I will attempt to show the discussions and questionable premises that led to these decrees and argue that they should be seen today as obsolete. I will therefore also demonstrate a solution for the problem of the moral assessment of certain treatments for tubal pregnancies that are disputed in moral theology. This will require some intensive argumentation, which will be a fruit of this study. The study will deal with the question of the nature of the

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prohibition of killing within the framework of the virtue of justice; the interpretation of the Thomistic teaching on legitimate self-defense and the question of the “direct killing”; the (in my view) questionable category of “indirect action”; and of course the principle of double effect, whose considerably limited usefulness I will demonstrate. Those familiar with the material and the corresponding moral theological discussions will recognize immediately how explosive the topic is, as can be seen in the reservations expressed in the encyclical Veritatis splendor (77) against applying the method of weighing of goods in Catholic moral theology; but the explosiveness can also be seen with respect to the problem of applying the principle of double effect. The Church’s Magisterium was not interested in designating such weighing of goods as an illegitimate method, in general, for arriving at moral judgments. However, the Church did reject the elevation of this method to the comprehensive and exclusive one for the ethical or moral-theological assessment of human action. More specifically, it was rejected as a method for determining the fundamental moral quality of an action (the determination of the so-called “object” of the action), as distinct from the moral assessment of actions relative to their consequences. Had it not been rejected, then not only would the method of weighing goods (or the appraising of consequences) be used in deCopyright © 2009. Catholic University of America Press. All rights reserved.

ciding whether one should or should not perform an action considered unproblematic in itself, such as performing a complicated heart operation on a patient of advanced age, but it would also be used in deciding whether, in concrete cases, “killing,” “giving false testimony,” or “committing adultery” are morally right or wrong. This means that no action could ever be described as “intrinsically evil,” i.e., one that should be avoided at all costs. In principle, following such reasoning, every action becomes potentially reasonable; it is precisely against this outcome that Veritatis splendor is directed. The rejection of the weighing of goods, therefore, occurred in the context of the rejection of the so-called “teleological ethics” of “proportionalism” and “consequentialism.” In this study I attempt to counter these

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forms of ethical and moral-theological methodology and their corresponding unacceptable implications, using an approach that is based essentially on virtue ethics. It is not weighing goods that is key to the dilemma discussed here, but a deep reflection on the fundamental structures of the virtue of justice and of acting from the perspective of this virtue. “Killing” is a moral evil only and precisely insofar as it is a violation of justice. Only if killing (as a describable action) is understood not as a physical event but as an infringement of justice—so my thesis runs—can extreme conflict situations such as the one treated in this study be described adequately and then assessed morally. An important by-product of this study would be that it could serve as an example of the fact that, contrary to the widely held view of philosophical ethicists, an argument based on virtue ethics can contribute to solving problems in normative ethics. The methodological distinction between the approach represented here and that of proportionalism is as follows: the former is based upon the characteristic of justice or injustice inhering in an action, whereas the latter depends upon a weighing of goods. This distinction, therefore, pertains to the logic of ethical decision-making. The indication that something is “just” or “unjust” is the immediate result of the analysis of the action from the perspective of the “principle of justice.” Although such analysis in light of justice demands a great deal of wisdom Copyright © 2009. Catholic University of America Press. All rights reserved.

on the part of the agent, it avoids legitimizing the disastrous universalization of the method of weighing. Members of the medical profession who read this work might consider on the one hand the very specific problem of craniotomy mentioned above, and on the other hand the related ethical emphases, so as to classify my statements according to the spheres of medical facts and of facts related to medical ethics, respectively. The immediate relevance of many of the argument’s steps will perhaps not always be apparent from a medical point of view, but will emerge only from the perspective of the problem sketched above. On the other hand, perhaps this ethical perspective will in some respects enrich the doctor’s reflections on his or her own practice.

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I have attempted to familiarize myself as much as possible with the medical aspects of the issue, and have consulted experts who have helped me in numerous ways to clarify some questions. In particular, I would like to express my gratitude to Prof. Dr. Johannes Bonnelli (University of Vienna), and the gynecologists Prof. Dr. Claudia Kaminski (Cologne) and Dr. Karl M. Radner (Vienna), for their comments from a medical perspective and for their corrections of the first draft of this text. I have a special debt of gratitude to all those who have made possible the English version of this long essay, especially Bill Murphy, who has so carefully edited this volume. Martin Rhonheimer

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Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

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Vital Conflicts in Medical Ethics

Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

Copyright © 2009. Catholic University of America Press. All rights reserved. Vital Conflicts in Medical Ethics : A Virtue Approach to Craniotomy and Tubal Pregnancies, Catholic University of

I

The Problem

1. Two Methodologies for the Moral Evaluation of Action: The Principle of Double Effect (PDE) and the Weighing of Goods

According to the doctrine of the Catholic Church, every deliberate, direct abortion is immoral because it involves the direct killing of an innocent human being. Accord-

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ing to this doctrine, a doctor must try to save the lives of both mother and child in situations where the lives of one or both are stake. On this basis, Catholic moral theology traditionally teaches that the doctor cannot be held responsible if, in saving the child, the mother dies. Nor can he be held responsible if both the mother and child die, if the only possible means for saving the mother is to kill the child. Other therapeutic interventions that result in the possible or certain death of the child are considered morally licit, however, if the primary purpose of such intervention is not to destroy the life of the child directly, but to remove a pathological situation that is lifethreatening for the mother. Such interventions include,

1

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•  T h e P r o b l e m

for example, a hysterectomy (the extirpation or removal of a cancerous uterus containing a living fetus), necessary chemotherapy for cancer treatment (with the undesired but anticipated side effect of killing the fetus), or a salpingectomy (the removal of an inflamed fallopian tube that is highly pathological and thus in danger of rupturing, and contains an ectopic, i.e., pathologically situated, pregnancy). The latter treatments are usually justified according to the principle of double effect (hereafter PDE).1 The validity of this principle has in recent years been relativized, questioned, or even denied; new formulations of it are also being sought.2 In general, the usefulness of the distinction between “direct” and “indirect” acts is rejected in favor of the principle of proportionate reason: one may directly cause a physical evil, such as the death of a human being, if there are proportionate reasons for doing so.3 This view, based on the universalization of the method of weighing of goods and presented in various forms such as teleological ethics, proportionalism, or consequentialism, was clear1. This principle states that, if an action has an evil effect in addition to its good effects, the effectuation of the evil consequence is permissible if the following four conditions are met: first, the action itself must be good or indifferent with respect to its object; second, the good effect must arise directly from the action, such that the evil effect is not to be a means for attaining the good effect (or, the good effect should not follow from the evil effect); third,

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a proportionally serious reason is necessary for effectuating the evil effect; fourth, the intention of the action must be good. If these four conditions are met, it can be said that the evil effect is not willed but only “indirectly willed,” i.e., that it is a side effect for which one does not bear any responsibility. 2. E.g., the proposal, both interesting and instructive, of J. M. Boyle, “Toward Understanding the Principle of Double Effect,” Ethics 90 (1980): 527–38. 3. Cf. for example, P. Knauer, “Das rechtverstandene Prinzip der Doppelwirkung als Grundnorm jeder Gewissensentscheidung,” Theologie und Glaube 57 (1967): 107–33 (first published as: “La détermination du bien et du mal moral par le principe de double effet,” Nouvelle Revue Théologique 87 [1965]: 356–76); F. Scholz, “Objekt und Umstände, Wesenswirkungen und Nebeneffekte. Zur Möglichkeit und Unmöglichkeit indirekten Handelns,” in Christlich glauben und handeln—Fragen einer fundamentalen Moraltheologie in der Diskussion (FS J. Fuchs), ed. K. Demmer and B. Schüller (Düsseldorf: Patmos Verlag, 1977), 243–60; F. Scholz, Wege, Umwege und Auswege der Moraltheologie. Ein Plädoyer für begründete Ausnahmen (Munich: Don Bosco Medien Verlag, 1976); B. Schüller, “Direkte Tötung—indirekte Tötung,” Theologie und Philosophie 47 (1972): 341–57.

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ly rejected by the Church’s Magisterium in the 1993 encyclical Veritatis splendor (VS). In particular, this encyclical states: “The weighing of the goods and evils foreseeable as the consequence of an action is not an adequate method for determining whether the choice of that concrete kind of behavior is ‘according to its species,’ or ‘in itself,’ morally good or bad, licit or illicit” (VS 77).4 Indeed, based on this method of weighing—if one attempts by it to determine morally the “object” of an act— every concrete act can essentially be justified. There are no longer any acts which, independent in principle of such a weighing of goods and consequences, could be seen “in themselves” to be immoral.5 One could add, in fact, that neither is the PDE suited to determining the “species” of an action according to its object. Indeed, every application of the PDE presupposes (in accordance with the first condition listed in note 1) that the act performed is already seen as good or at least indifferent according to its object. But the controversial and most delicate cases are precisely those in which it is not clear what the object of the chosen and performed act actually is. Indeed, if the PDE can be applied at all to a case, then this basic question must already have been answered. In the present context, this is ultimately the question of whether the controversial intervention at issue, viewed as such, is a therapeutic measure—thus a healing treatment—or an act of killing Copyright © 2009. Catholic University of America Press. All rights reserved.

with the further goal of saving the life or health of the mother. Of course this means that the assertion that it is purely an act of healing cannot 4. The full reference for the encyclical is Veritatis splendor: The Splendor of the Truth (Boston: St. Paul Books & Media, 1993), from which all citations will be taken. Similarly, all references to the encyclical Evangelium vitae will be from Evangelium vitae: The Gospel of Life (Boston: St. Paul Books & Media, 1995). 5. On this, see my remarks in M. Rhonheimer, “ ‘Intrinsically Evil Acts’ and the Moral Viewpoint: Clarifying a Central Teaching of Veritatis splendor,” The Thomist 58, no. 1 (1994): 1–39, and “Intentional Actions and the Meaning of Object: A Reply to Richard McCormick,” The Thomist 59, no. 2 (1995): 279–311. Both articles have been reprinted in: J. A. Di Noia and R. Cessario, Veritatis splendor and the Renewal of Moral Theology (Princeton/Huntington/ Chicago: Scepter, 1999), 161–93 and 241–68 respectively, and in M. Rhonheimer, The Perspective of the Acting Person: Essays in the Renewal of Thomistic Moral Philosophy (Washington, D.C.: The Catholic University of America Press, 2008), chapters 3 and 4 respectively.

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be advanced as an argument here, given that it must first be clarified as to whether it is actually so. Thus, already in the early twentieth century, leading moral theologians A. Lehmkuhl and (especially) A. Vermeersch could argue convincingly that in the case of a hysterectomy performed on a pregnant woman because of uterine cancer, the object of the act is a legitimate therapeutic intervention on behalf of the mother, which has nothing to do as such with the killing of the fetus or using the killing as a means.6 The case could thus be “resolved” by means of the PDE. Later, Vermeersch’s student T. Lincoln Bouscaren convinced Catholic moral theologians that the object of a salpingectomy, i.e., the removal of a fallopian tube containing an ectopic pregnancy, is a purely therapeutic measure for removing a highly diseased fallopian tube that is life threatening to the mother. The procedure would also have to be performed if there were no embryo in the fallopian tube.7 Things were different, however, with the well-known discussion concerning the so-called craniotomy.8 Proponents of its moral permissibility attempted to prove that the object here did not concern the direct killing of the fetus but an act of saving the mother’s life, i.e., a purely therapeutic measure. The procedure, according to their view, did not therefore fall under the traditional standard for prohibiting such acts of Copyright © 2009. Catholic University of America Press. All rights reserved.

direct killing, which forbids killing the innocent child directly to save the mother’s life. Opponents of this view, however, did see the craniotomy as involving the direct killing of the fetus in order to save the mother’s life. It is noteworthy that this discussion of the object of a craniotomy is, as such, entirely prior to any discussion of a possible application of the PDE. In order to apply this principle at all, the proponents of the moral permissibility of craniotomy first would have had to prove that 6. On this, cf. J. Connery, Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1977), 295ff. 7. T. Lincoln Bouscaren, The Ethics of Ectopic Operations, 2nd ed. (Milwaukee: Bruce, 1944); see also Connery, Abortion, 302f. 8. This is extensively discussed by Connery, Abortion, 225–95.

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the object of the craniotomy is good or at least indifferent. Here this means that they would have had to prove that the death of the fetus is merely an “indirect” side effect of an act—at the level of the object and not only based on a further goal—of saving a life. If, on the other hand, the opponents of this view are correct—and on the basis of later decisions by the teaching authority of the Holy Office they appear to be so— then the case is settled anyway: the application of the PDE is already excluded a priori, because the act is morally evil according to its object (“the direct killing of an innocent”). Linear salpingotomy—the removal of an ectopic pregnancy from the pathological but not yet lifethreatening fallopian tube (which is preserved in the process), which is done instead of a salpingectomy—is similar to the craniotomy and is under discussion today. (For the purposes of the present study, I will rarely mention the “salpingostomy,” since it differs from the salpingotomy primarily in that the incision in the tube is left unsutured, so the moral analysis is identical.) It appears to fall under the judgment of the impermissibility of an acceleratio partus (i.e., an “acceleration of delivery” or “expulsion”)9 of a non-viable fetus and is thus a direct abortion.10 Concerning a possible application of the PDE, the same obtains here as in the case of the craniotomy—it cannot be applied before the truly controversial question is answered: What really is the moral object of this act? Copyright © 2009. Catholic University of America Press. All rights reserved.

But if this question has been answered and the PDE can be applied, then the problem must already be resolved. The cases just mentioned are entirely special ones in which both mother and child die as a consequence of not performing the intervention in question. In cases where an alternative like a C-section (which in current medical practice involves minimal risk to the mother’s life) is 9. On this, cf. Connery, Abortion, 217ff.; 301ff. 10. Thus, e.g., W. May, “The Management of Ectopic Pregnancies: A Moral Analysis,” in The Fetal Tissue Issue: Medical and Ethical Aspects, ed. P. J. Cataldo and A. S. Moraczewski, O.P. (The Pope John XXIII Medical-Ethics Research and Education Center, Braintree, MA, 1994), 121–47; E. F. Diamond, “Moral and Medical Considerations in the Management of Extrauterine Pregnancy,” Linacre Quarterly 66 (1999): 5–15.

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not available, the choice not to perform a craniotomy leads to the death of both mother and child. Cases of ectopic pregnancy are more complicated (we will return to this), but if a pathological situation presents itself, with the danger that the tube will rupture, then here too the foreseeable consequence of not acting is the death of both mother and child. This extreme situation—that the child is in any case lost but at least the mother can be saved—is what gives these cases their special character. The case of a hysterectomy in the event of uterine cancer, on the other hand, is different from the perspective of a theory of action and ethics, for the issue is decided entirely independently of the question of whether the child can survive. In this case the decisive argument for the ethical permissibility is that the intervention is performed entirely independently of the fact that there is a living fetus in the uterus; the only issue is the removal of a diseased organ, the uterus that is life threatening for the woman. The existence of a fetus is seen as “coincidental” and drops out, as it were, from the intentional structure of the act.11 From such cases, in which non-action leads to the death of mother and child, we need to distinguish the “normal case” of a so-called medically or “therapeutically” indicated abortion. In such cases the fetus is aborted to avoid a major threat to the health or life of the mother, whereas if the abortion is not performed, it is foreseeable that the child Copyright © 2009. Catholic University of America Press. All rights reserved.

would survive and be born, but the mother would have to accept the risk to her life or health. In this latter case, therefore, a conscious decision is made against the life of the child, in favor of the mother: the child, with its future life, is sacrificed for the sake of the mother in a free and calculated decision, a weighing of goods or a choice based on a preference for one person above the other.12 11. As we will see later, Bouscaren’s attempt at a solution is also based strongly on this argumentation. The problems that such argumentation leads to will be discussed below, in connection with the discussion of Bouscaren’s arguments. 12. It seems unfortunate that in the excellent work by E. Sgreccia, Manuale di Bioetica, I, New updated and expanded edition (Milan: Editrice Vita e Pensiero, 1988), 394–99, no distinction at all is made between the two cases under the key term aborto terapeutico or therapeutic abortion. Sgreccia discusses, as the only case, the extreme conflict between two lives,

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Such a weighing of goods is not merely a question of which of two lives will be saved, as would be the case, for example, when a decision must be made as to which of two patients will be hooked up to an artificial kidney machine. Here, certainly, some kind of preferential choice is inevitable and must be made in an understandable and morally unproblematic way. For example, with all other things being equal, one might choose the patient who is the father or mother of several underage children. This kind of choice does not involve a decision against the life of another; no one is killed, but one is saved and the other is allowed to die, without anyone being held responsible, for in truth nothing can be done (provided that no second artificial kidney machine is fortuitously and unforeseeably delivered at the last moment). In weighing the goods with a consequent preferential choice in the case of therapeutic abortion, however, weighing the lives of mother and child against each other involves the prospect of a conscious decision against the life of the child: the child could live, but his life is destroyed as the consequence of the weighing and a preference for the life of the mother. It is precisely this kind of weighing that is morally illicit, and which (I will show) does not occur in extreme cases of conflict in which the child would die anyway. It is especially characteristic of moral theologians who have been Copyright © 2009. Catholic University of America Press. All rights reserved.

influenced in some way or another by the arguments of proportionalism, consequentialism, or so-called “teleological ethics,” that they find it difficult to see a relevant ethical distinction between the extreme case in which the mother and child die. His main (though to me implausible) argument is: first, causing the death of a child to save the life of the mother is a “disproportionate and abnormal means” (“un mezzo sproporzionato e abnorme”); and second, one must not look only at the intention of the agent (finis operantis) and thereby lose sight of the real object of the action (finis operis) (397). That such a way of acting is, in view of the death of the mother and child that would occur without it, “disproportionate and abnormal” seems counterintuitive; that looking at only the intention of the agent loses sight of the real object of the act, however, seems to be a petitio principii or “begging the question,” given that the question to be resolved consists precisely in determining in what the object of the act consists. As will be shown below, the argument “the direct action is the elimination (or removal) of the fetus” (ibid.: “l’azione diretta è la soppressione del feto ..... ”) is also inadequate.

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of conflict (mother and child would die without intervention) and the “therapeutic normal case” (a choice is made between the survival— or health—of the mother or the child). The reason for this is that the method of the weighing of goods can be applied in exactly the same way in both cases, for it is always a matter of life against life, and thus of two equal goods (though, granted, the solution is clearer in the extreme case). The method of the weighing of goods weighs only abstract goods against each other; the mode of action itself and the choice implied in it, as well as the distinction between “action” and “omission,” are no longer relevant. It is understandable, of course, why so many moral theologians have embraced this way of argumentation: it is a last attempt to find a way out of certain difficulties which are, in fact, aporias—seemingly irresolvable puzzles—for an action theory based on the application of the PDE, an action theory about which there has been too little reflection, along with questionable application or even misuse. At the same time, the method of the weighing of goods itself is grounded on the presuppositions of certain variants of the same tradition that produced the PDE—and above all on its biases.13 In many cases, weighing of goods also appears to be consistent with generally recognized ethical intuitions. (One thinks here of the unreasonable demand placed on a doctor and on medical ethics generally that in an extreme case the doctor Copyright © 2009. Catholic University of America Press. All rights reserved.

would be required, in the name of Catholic morality, to allow both mother and child die, even though he could at least save the mother; and this with the argument that such an intervention would be the “direct killing of an innocent” and therefore a serious offense against the sacredness of human life). Moreover, the universalization of the weighing of goods has at least the advantage of simplicity, in that all cases can be resolved simply and in accordance with the prevalent sense of values. But this fact reveals not only the danger that precisely those subjective preferences could arbitrarily become the standard for moral evaluation, but also the extent to which so-called “teleological ethics” still moves within the 13. Cf. the useful explanations by M. Schlag, Das moralische Gesetz in Evangelium Vitae (Frankfurt am Main: Peter Lang, 2000), 143ff.

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framework of traditional casuistry.14 Conversely, in the following pages I will explore an alternative method that may prove suitable for avoiding both the inadequacy of the method of a “universal weighing of goods,” as well as some difficulties in the traditional attempts at a solution based on the distinction between “direct” and “indirect.”

2. Overview of This Study and Brief Summary of the Argument

In this section, I will attempt to apply and enlarge upon some foundations I have already developed elsewhere.15 In no way will I question the decisive fundamental insights of traditional moral theology, much less depart 14. This is true in an entirely different sense for the extensive work of G. Grisez, one of the most important and influential critics of proportionalism and consequentialism among contemporary moral theologians, who (in collaboration with J. Finnis and J. Boyle, among others) presented a new theory and methodology which claimed to have made possible a method of argumentation by which all problem cases can be resolved in absolute conformity with the Church’s Magisterium. Cf. esp. G. Grisez, The Way of the Lord Jesus, vol. 1: Christian Moral Principles (Chicago: Franciscan Herald, 1983); vol. 2: Living a Christian Life (Quincy, IL: Franciscan, 1993); vol. 3: Difficult Moral Questions (Quincy, IL: Franciscan, 1997). 15. Cf. above all M. Rhonheimer, Natur als Grundlage der Moral. Die personale Struktur des Naturgesetzes bei Thomas von Aquin: Eine Auseinandersetzung mit autonomer und

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teleologischer Ethik (Innsbruck/Vienna: Tyrolia-Verlag, 1987); see also an English edition expanded by a “Postscript”: Natural Law and Practical Reason: A Thomist View of Moral Autonomy (New York: Fordham University Press, 2000); Die Perspektive der Moral. Philosophische Grundlagen der Tugendethik (Berlin: Akademie Verlag, 2001); published in Italian as La prospettiva della morale. Fondamenti dell‘etica filosofica (Rome: Armando, 1994, 2006); published in Spanish as La perspectiva de la moral (Madrid: Rialp, 2000); forthcoming in English as The Perspective of Morality: Philosophical Foundations of Thomistic Virtue Ethics, (Washington: The Catholic University of America Press). Regarding sexual ethics, see my Sexualität und Verantwortung. Empfängnisverhütung als ethisches Problem (Vienna: Verlag IMABE, 1995); in Italian see my Etica della procreazione: Contraccezione—Fecondazione artificiale—Aborto (Milan/Rome: MURSIA, 2000); In English, see my “The Use of Contraceptives Under the Threat of Rape: An Exception? Clarifying a Central Teaching of Veritatis Splendor,” in the Josephinum Journal of Theology 14, no. 2 (August 2007): 168–81, which is also included in my forthcoming Ethics of Procreation and the Defense of Human Life (Washington: Catholic University of America Press). See also chapters 3 and 4 of my The Perspective of the Acting Person as cited more fully in note 5 above.

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from the continuity of the tradition of Catholic teaching that the direct killing of an innocent human being—and therefore direct and deliberate abortion—is never permitted. Rather, the approach I will take here will be a matter of avoiding some typical arguments of the methodology that has developed in traditional moral theology in connection with casuistry. Then, by a kind of partial paradigm shift in argumentation, I will attempt to raise the problem to a level of reflection that can do without the category of “indirect” or “the principle of double effect,” arguing instead from the perspective of virtue ethics. This is a logic that corresponds more to the method used by Thomas Aquinas; it was pushed into the background only through later commentators and ultimately in the manual theology and literature for confessors, in favor of a casuistically inspired systematics with a strong legalistic character. Finally, I will show what the perspective of virtue ethics could mean for the issue here in question.16 In pursuing this argument, I will first use a recent concrete example to show the difficulty of appealing to the weighing of goods in the case of abortion (sections I.3 and I.4). I will then turn (in II.1) to the question of precisely what the most important statements of the Church’s Magisterium mean by the prohibition of the “direct killing of an innocent” or by the expression “direct abortion.” I will also show the difficulty of the terminology “direct-indirect,” which in a certain way has been imposed Copyright © 2009. Catholic University of America Press. All rights reserved.

on the official language of contemporary moral theology and which is, in my view, to a large extent superfluous. (This is so even if this terminology, despite all its analytical weaknesses, can be of practical use in certain contexts as an abbreviated way of speaking—not, however, so much to solve ethical problems and dilemmas as to speak about problems that have already been resolved.)17 16. The systematic foundation for this can be found in my Die Perspektive der Moral, which as noted above is forthcoming in English as the previously cited The Perspective of Morality. 17. J. F. Keenan advocates something similar in “The Function of the Principle of Double Effect,” Theological Studies 54 (1993): 294–315. There he relies heavily on the substantively rich but one-sided and academically questionable book by A. R. Jonsen and S. Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press,

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We will then (in section II.2) look at a few aporias that arise from an analysis that relies upon an inadequate action theory, using an example from the neo-Thomistic manual theology (D. Prümmer). The following section (II.3) will deal with the description and analysis of the late-nineteenth-century discussion of craniotomy, in the context of which the problem treated here was discussed very clearly. The interpretation of Summa theologiae II-II, q. 64, a. 7 on legitimate self-defense and unintentional side effects was central to this discussion; it will be central to our treatment, as well. I will attempt to show here that the proponents of craniotomy saw the problem correctly but were not able to detach themselves from the traditional methodology; their argument consequently failed, and that failure led inevitably to the corresponding dismissive intervention by the Magisterium, in the form of the wellknown decrees of the Holy Office. After a short retrospective (III.1), I will take up (in III.2) the currently disputed question of the treatment of extrauterine pregnancy in the case of tubal gravidity (tubal pregnancy); present in a comprehensive way the moral justification of the relative life-saving measures and rebut possible counterarguments (III.3); and finally, formulate the prohibition against killing more precisely within the framework of arguments based on virtue ethics (III.4). Copyright © 2009. Catholic University of America Press. All rights reserved.

My position can be briefly summarized as follows: like every moral question, the question of killing and abortion can be discussed only within the framework of the specific ethical context that pertains to the problem.18 “Ethical context” is defined throughout by means of principles understood as the ends of virtues. The question of the “direct killing (of an innocent)”—indeed, of killing a human being at all—is a ques1988). Despite a few fundamental errors (particularly regarding the nature and function of “intrinsically evil acts”), Keenan’s article offers some interesting food for thought. W. Wolbert’s article “Welches Leben ist unantastbar? Probleme des Tötungsverbots aus moraltheologischer Sicht,” Theologie und Glaube 87 (1997): 225–44, which also relies very much on Jonsen and Toulmin, in my view at times makes rather tendentious arguments. 18. Cf. M. Rhonheimer, Natural Law and Practical Reason (“The Concept of the ‘Intrinsece Malum’ and the Ethical Context”), 475–83.

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tion of justice or the violation of justice (and, to be sure, of “justice” at its most fundamental level). Only within this “ethical context” of the “principle of justice,” and thus of the virtue of justice, can the question of killing be treated as a moral question at all. This means that “killing” can be seen as a morally evil act only insofar as “killing” is a violation of justice. Or, put still otherwise: viewed in itself, killing is morally evil only insofar as killing is unjust. Only within the ethical context of “justice,” therefore, does it make any sense to speak in a morally relevant way of “direct killing” (as a deliberate decision or choice to take a human life). Viewed purely as the physical (violent) causing of the death of a human being, however “direct” a killing may be, it cannot be evaluated morally; on this level the term “direct” has no morally relevant meaning whatsoever. Any deliberate causing of the death of a human being becomes a moral issue only by the fact that the agent, by his choice of an act of killing, has entered into a relation with the person killed that is characterized by the principle of “justice.” Moreover, under the normal circumstances in which acts of killing are done, this is—always and immediately and entirely apart from any other possible intentions of the agent—the case. This means that a deliberately performed act of killing—including as a means to an end perceived as a good—“automatically” or immediately implies one of two things: either Copyright © 2009. Catholic University of America Press. All rights reserved.

injustice or justice,19 because the reference to the “right” of another human being is immediately given by the pure fact of his existence. I will argue, however, that a few extreme cases—such as those which lie at the basis of the questions of craniotomy and extrauterine gravidity (i.e., pregnancy)—are, for reasons that can be identified precisely, exempt from the ethical context of “justice.”20 The principle of “justice” no longer 19. It is always assumed that justice is generally possible in, for example, the case of carrying out a legitimately imposed death sentence. 20. Similarly, for example, acts of deception done or false statements made to one’s enemies in war or in the case of aggression (e.g., Gestapo agents who want information about hidden Jews) do not fall within the ethical context of a community of communication and therefore cannot be offenses against the justice of communication. This exempts them from the moral reprehensibility of lies: they are not lies, inasmuch as every lie is also an offense

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suffices for these extreme situations. Consequently the concept of injustice, which is at the foundation of the prohibition of killing, is no longer comprehensible in these extreme cases. This incomprehensibility of justice or injustice is immediately apparent in the alleged requirement that, in the name of the sacredness and inviolability of human life, the mother die along with her already unsavable, lost child; saving her life in that extreme case is not an injustice to the unsavable child. Killing as a morally reprehensible act—i.e., more precisely, as a violation of justice—is not even an issue in such cases. Rather, in these extreme cases the saving of the mother’s life appears to be a necessary duty of justice for a doctor (or at least an act appropriate to justice), such that the act (even if it involves a physically “direct” causing of death) can be described and judged to be morally right as an act of saving a life and thus, at the level of its object, as a just act. This means that here the killing of the unborn (1) falls outside of the opposition “just/unjust” and (2) can therefore be described, on the level of the object of the act, as an act of saving a life that is at least appropriate to justice. The medical intervention that causes the death is therefore to be seen as analogous to an unintended side effect, i.e., analogous to causing death unintentionally (praeter intentionem). It thus seems to me that the moral intuition that at least the mother’s life be saved, as part of a sound medical ethics to which the doctor is obliged, is justified Copyright © 2009. Catholic University of America Press. All rights reserved.

and the doctor bears no responsibility or guilt for the death of the child. Methodologically, such analysis is not a matter of normative ethics, of establishing a norm that “In the case of X it is permitted to do Y.” It is instead a case of establishing that the doctor bears no responsibility for the death of the child. It is not a normative justification (since the case, strictly speaking, resists being turned into any kind of norm), but an excusing of the agent in a situation from which there is no rational way out. Precisely in this, it should be emphasized, lies the analogy to the causing of effects praeter intentionem, as Thomas exemplifies in ST II-II, against the justice of communication. Outside of that context, the “lie” loses the property that makes it morally evil as a falsehood, namely, an offense against the justice of communication. See M. Rhonheimer, Die Perspektive der Moral, 314ff. See also The Perspective of Morality.

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q.64, a.7 through the example of self-defense (see ch. II, pt. 3).21 In his case as well, it is not a matter of setting up a norm but of excusing a person who, in defending himself in proportion to the violence done him, causes the death of his aggressor. We must bear in mind, however, that the gynecological case of a conflict between lives that we are discussing is in no way to be treated as a case of legitimate self-defense: embryos and fetuses are not aggressors, and craniotomy or salpingotomy are not acts of self-defense. The analogy lies on a different level: in both cases there is a physically direct and immediate killing which occurs under specific circumstances, without there being, on the part of the agent, any intentionality that violates justice. This means that in both cases there is no infringement of the prohibition of killing. To reiterate, however, the issue here is not in any way one of self-defense, but a special and extreme case of saving a life.

3. “Vital Indication” and a Recent Example: The Moral Justification of the Act of Saving a Life

Not too long ago, in connection with the discussion on the introduction of the abortion pill RU 486, Hans Kramer, a moral theologian in Bo-

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chum, Germany, offered the following argument: One can, with certain reservations, approve the admissibility of a pill that initiates an abortion, thus making a surgical procedure unnecessary. There are occasionally medical grounds for abortion—if the life of the mother is at stake or the lives of both mother and child.22 21. A more recent attempt to present what St. Thomas means by praeter intentionem can be found in S. L. Brock, Action and Conduct: Thomas Aquinas and the Theory of Action (Edinburgh: T&T Clark, 1998), 197–242. Cf. also J. M. Boyle, “Praeter intentionem in Aquinas,” in The Thomist 42 (1978): 649–65. In the present study, the Latin for Thomas’s texts is taken from the Marietti edition (Turin). English translations are by the author and editor. Abbreviations follow the normal conventions of ST I-II for the Prima secundae of the Summa theologiae, and ST II-II for the Secunda secundae. 22. “Nur eine andere Methode? Zwei deutsche Moraltheologen zur Frage eines möglichen Einsatzes von RU 486,” in Konradsblatt: Wochenzeitung für das Erzbistum Freiburg of September 27, 1998, p. 19.

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Kramer then continues: because abortion by surgical means is legitimate in certain cases (on “medical grounds”), it is even more legitimate if a “less aggressive means” is available in the form of a pill. What we will focus on here, however, is simply the first part of Kramer’s statement (“There are occasionally medical grounds for abortion—if the life of the mother is at stake or the lives of both mother and child”). Kramer finds support for this in the 1975 “Pastorale Wort zur Novellierung des § 218 StGB” by the German bishops (hereafter “Pastorales Wort”), which states: There are conflict situations in which, according to human discretion, a decision is to be made between the loss of the lives of both the mother and the unborn child on the one hand and the loss of only one human life on the other. We know that many Catholic doctors who are not, in principle, prepared to indicate, carry out, or permit an abortion because of their Christian beliefs, are caught here in a crisis of conscience. A careful, conscientious decision by the doctor in the concrete individual situation is required here. Certainly no one will refuse to respect such a conscientious decision.23

Secondly, Kramer appeals to the Katholischer Erwachsenenkatechismus (Catholic Adult Catechism, hereafter the German adult catechism),24 which invokes the last sentence of the above quotation from the “Pastorale Wort,” as well as to Eberhard Schockenhoff’s Ethik des Lebens,25 in

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which Schockenhoff argues the following: ..... cases in which the continuation of the pregnancy would endanger the mother in such a way that the condition could not be resolved medically (for example, in the case of tubal pregnancy) result in a competition between two equal legal goods with no way out. If the life of the mother is compared with the life of the child, the question of who has the greater chance of survival 23. “Pastorales Wort zur Novellierung des § 218 StGB,” in Herder Korrespondenz 30 (1976), 465. 24. Katholischer Erwachsenenkatechismus, edited by the German Bishops’ Conference, vol. 2: Leben aus dem Glauben (Freiburg: Herder, 1995), 292. (This official catechism has been approved by the Roman Congregation for the Clergy.) Although the first volume is available in English as The Church’s Confession of Faith: A Catechism for Adults (San Francisco: Ignatius Press, Communio Books, 1989), the second volume is not available in English. Citations from this second volume will therefore be our translations from the German. 25. Second edition (Mainz: Matthias Grünewald Verlag, 1998), 323f.

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should be decisive—also morally. The issue is then not one of assessing the life of the mother in itself or in its meaning for her other children who have already been born, but only the principle that the savable life should be preferred above the unsavable. Where moral certainty exists, in line with a moral decision that the continuation of the pregnancy would lead to the death of mother and child, it seems to be ethically permitted to accept the death of the fetus in order to save the life of the mother.26

Like Kramer’s argument, Schockenhoff’s is also based on the “Pastorale Wort” of the German bishops. It is striking, however, that, in contrast to Kramer, Schockenhoff explicitly chooses cases in which both mother and child would die (a “vital indication”). He does not, however, examine those cases in which the mother has a better chance of survival, or in which the health of the mother is placed above that of the child who is endangering her (or, in other words, weighing the value of both lives and deciding for one over the other) and in which the child is killed to save the mother’s life (a classic case of “therapeutic indication”). In a reply to Kramer,27 Schockenhoff presented these arguments and their corresponding limitations; Kramer in turn sharpened his earlier statements in a second article. The limitation of the question to the extreme conflict case of the expected deaths of mother and child is es-

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sential here. Kramer writes in his second article: Like every other human life, the unborn child can also come into conflict with other goods. That is the case if both the life of the mother and that of the child are at stake: the so-called vital indication. It is only for this situation and not for any other that the German catechism, the bishops, the moral theologians, and thus also I myself emphasized: “A careful conscientious decision by the doctor in the concrete individual situation is required here. Certainly no one 26. Ibid., 323. It should be noted that the formulation, “it seems to be ethically permitted to accept the death of the fetus in order to save the life of the mother” is unclear, because the expression “accept” (German: in Kauf nehmen) already implies that it concerns an unintended and only permitted side effect. And this would be permitted anyway to save the life of the mother. But the question is precisely whether the death of the fetus is only “accepted,” or directly caused, chosen, and willed as a means to save the life of the mother. Schockenhoff’s formulation thus appears either to anticipate the solution of the actual problem or to blur it. 27. Konradsblatt, op.cit. above, note 22.

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will refuse to respect such a conscientious decision” (p. 292). This is a therapeutic intervention that is directed at saving the life of the mother. This defines the narrow ethical boundaries.28

Kramer, Schockenhoff, the German adult catechism, and the German Bishops’ Conference are therefore in agreement on this. In his second article, Kramer appeals to the Catechism of the Catholic Church and John Paul II’s encyclical Evangelium vitae (1995). Nevertheless, questions remain. The first and most important is: How is this position related to the traditional teaching on “direct abortion”? Does this teaching allow, in the case of vital indication, at least the mother’s life to be saved by an act that results in the death of the child, instead of allowing both mother and child to die? According to traditional teaching, every so-called “direct abortion” is not permitted, morally speaking, even if its purpose is to save the mother’s life. Is it possible to understand the act described here not as a direct abortion and thus not as the direct killing of an innocent human life? A decision by the Holy Office in 1884 (approved by the Pope) and confirmed in 1889 with reference to craniotomy appears to oppose such an understanding.29 In addition to craniotomy, this decree also covered “every arbitrary operation that kills the fetus or the pregnant mother directly (directe occisivam).” The request of the arch-

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bishop of Lyon, to which the May 31, 1884, decision was a response, was concerned explicitly with the case of an intervention in which, if nothing was done, “[m]other and child would perish, whereas, if [the intervention] is permitted, at least the mother could be saved.”30 28. Hans Kramer, “Rechtlich und ethisch unerlaubt,” Ruhrwort, Kirchenzeitung für das Bistum Essen no. 51 (1998), of December 19, 1998, page 40. 29. Cf. DH 3258 (for the Decree of 1889) or ASS XXII (1889/90), 748; the first decision is found in ASS 17 (1884), 556. 30. In DH (37, the edition of “Denzinger” edited by P. Hünermann in 1991) it is stated in the introduction to No. 3258 that in the decision of May 31, 1884, “the Holy Office has confirmed to the Archbishop of Lyon the conditional permissibility of craniotomy ..... when, i.e., mother and child would both perish if it were not performed, whereas if it were permitted, the mother could be saved, though the child would die.” This, however, is mistaken. It was precisely for this case that the Holy Office had decided the opposite, i.e., that this may “not

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Nevertheless, the following observations must be made. First, if one examines the wording, this seems to have been not a doctrinal but a disciplinary decision. In accordance with the original request, the text begins with the words: “It cannot be taught with certainty in Catholic schools that the surgical operation called ‘craniotonomy’ is permitted.......” Because it concerns a practical question regarding grave matter in a fundamental question of human life, the Decree is to be understood to declare that craniotomy cannot be taught to be morally licit (and cannot be practiced) with certitude of conscience (which leads, in practice, to its being ruled out as a possible option).31 Second, it is in no way clear which acts fall under “direct killing.” Third and finally, be certainly taught in Catholic schools.” One finds the same mistake in the French and Italian editions of the new bilingual edition of “Denzinger” edited by Hünermann. (According to information provided by the editor, which I requested in a letter, this is a mistake that will be corrected in later versions.) 31. According to D. Prümmer, Manuale Theologiae Moralis, II, 15th ed. (Freiburg/Barcelona: Herder, 1961), 125, the answer of the Holy Office on July 24 1895 (DH 3298, AAS 28 [1895/96]) would indicate not only that the permissibility of a craniotomy cannot be taught, but also that it is in itself morally illicit (“ ..... non solum tuto doceri non potest, sed etiam prorsus est illicita ..... ”). But the presence of such an intensification of statements does not in any way follow from the answer to the question of whether the doctor concerned “can perform the operation in question with moral certainty again if the aforesaid circumstancCopyright © 2009. Catholic University of America Press. All rights reserved.

es are repeated (instaurare tuto possit)” (the operation was the acceleratio partus of a fetus, still living but which would die shortly, in a case of danger to the mother’s life). The answer was: “No, according to other decrees, namely those of 28 May 1884 and 19 August 1889.” This question was therefore also related to moral “certainty,” and the answer refers to the decision that “such could not be taught with certainty in Catholic schools.” Still later Noldin, who—some years after the decisive decrees by the Holy Office—taught explicitly that craniotomy was not allowed, admitted that these decrees did indeed forbid the teaching and practice of craniotomy, though this did not mean that the contrary teaching was simply declared to be false (“ ..... doctrina opposita non declaretur simpliciter falsa ..... ”: H. Noldin, Summa Theologiae Moralis, II (Regensburg: F. Rauch, 1917), 365. In the textbook by Mausbach-Ermecke, craniotomy is considered very simply—like every abortion—to be “gravely sinful,” even in extreme cases of conflict (J. Mausbach, Katholische Moraltheologie, 10th edition. vol. 3, ed. G. Ermecke [Münster/Paderborn: Aschendorff Verlag, 1961], 271). By that time, however, it was no longer a topic for discussion, given advances in medicine. Previously, however, it had generally been held that one can accept that a doctor who practiced this acted in good faith, and that it was prudent to leave him in this good faith.

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the moral norm “It is forbidden under all circumstances to kill an unborn human life directly in order to save the life of the mother” cannot lead to the norm “The doctor is obligated in all circumstances to allow mother and child to die, even if he can save the mother’s life,” because this is too clear a contradiction of the medical ethos of saving life when possible. If the child would otherwise survive, however, a norm which obliges a doctor to refrain from an intervention that takes the life of a child to save the mother is clearly not in contradiction with the medical ethos. Such non-intervention, with the consequence of the mother’s death, is a life-preserving act for the child and thus a medically meaningful and appropriate act. The opposite act (an abortion to save the mother) presupposes a weighing of the goods of the lives of mother and child and a preferential choice, both of which are not allowed morally (which is also true for the consequent act of killing). In cases of vital conflict, however, not performing an intervention that results in death for the child but would save the mother would mean that mother and child would be allowed to die, and thus no life would be saved. To consider it a moral duty to abstain from saving the savable life of the mother seems irreconcilable with a proper medical ethos. Nor could one justify ethically a norm that declared it obligatory to abstain from such life saving interventions. Copyright © 2009. Catholic University of America Press. All rights reserved.

Ultimately, therefore, we appear to be dealing first with the question of how the doctor is obliged to act in extreme conflict situations. It is not clear whether the arguments of the moral theologians we initially cited truly address this question, and in particular whether they constitute an accurate reconstruction of a doctor’s moral judgment in such a situation. Indeed, it seems to me that in such a case a doctor will not engage in any weighing of goods. Rather, by following his conscience as a doctor, he would attempt to save a life in a situation that would lead only to death as the consequence of a naturally pathological situation. This leads to a second question, that of the structure of the arguments used. In the example cited, the argumentative structure is that of “weighing of goods” and a corresponding preferential choice. This

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mode of argumentation is found above all in the German adult catechism, but it is also found in Kramer and in a subtler and weaker form in Schockenhoff. Is this mode of argumention correct (especially, for our purposes, as it is applied to these cases of vital conflict)? Or does it lead—if followed to its logical end—to the acceptance of all forms of therapeutic abortion, and perhaps even further? Third and finally, one can ask whether the statement made in the “Pastorale Wort” by the German bishops has the same meaning as the expressions in the German adult catechism and those of both moral theologians. It seems that the bishops are speaking about the conscientious decision by a doctor acting in a conflict situation, whose medical ethics are simply contradicted in a case in which at least the mother could be saved, whereas both mother and child would die if he did nothing—a decision, moreover, which certainly does not involve a weighing of goods. To weigh the goods in this case is clearly not even possible, nor is it necessary. That the tradition gives the doctor some credit for having acted in good faith in such a situation, and speaks of allowing him to do so in good faith, has the appearance of a stopgap—but it also testifies to pastoral wisdom.32 There is, however, another differentiation that is in a way distinct from this instruction for confessors, namely, that between a normative justifiCopyright © 2009. Catholic University of America Press. All rights reserved.

cation of an act and what I would call “justification through exculpation.” A normative justification of an act is its justification by reference to subsumption under a general sentence of the type: “In case X, action p is morally permitted” or “correct.” That which I call “justification through exculpation,” on the other hand, I will discuss later in terms of Thomas’s notion of praeter intentionem. By this latter I mean a reference to the fact that the agent has caused something by his act for which he does not bear any responsibility. There are certainly widely differing cases of “justification through exculpation,” such as ordinary non-intentionality, “inadvertent” acts without negligence, acts of general unsoundness of mind 32. Cf., e.g., Prümmer, II, 127 (with an appeal to Noldin and Lehmkuhl). The issue here is not a justification of an action (understood as peccatum materiale), but only of the agent.

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(i.e., insanity), and mistakes arising from ignorance for which no one is to blame. But also falling under this category of “justification through exculpation” are those cases that I would characterize as “having no rational way out” or as a “rationally undecidable situation.” These are cases in which it is no longer possible, according to the logic of a specific ethical context (e.g., the context delimited by the “principle of justice”), “to identify an intentionally or morally consistent alternative for action.”33 They are thus cases in which criteria of justice—and, to repeat, only these are fundamentally relevant in the question of killing—no longer make any sense. There are also situations such as self-defense, in which a person, following a natural and morally legitimate impulse such as that of self-preservation, can see no other alternative of action and thus cannot be obligated to perform such an alternative, and causes the death of the aggressor through the use of appropriate force. This, too, is a case of justifying an action through exculpation. The appropriate judgment here, however, as with all cases of justification by exculpation, is a judgment about the responsibility or accountability of the agent with respect to the act, and not one about the act’s fundamental “licitness.”34 The category of “permissibility” pertains to normative ethics, whereas the category of “responsibility” is a more general category of action theory that also remains applicable when normative expressions such Copyright © 2009. Catholic University of America Press. All rights reserved.

as “it is permitted/not permitted” become impossible, so that the act cannot be subsumed under a moral norm. It is precisely this latter that appears to be the case in the situation of vital conflict we are discussing here. The argumentation based on the weighing of goods that is being criticized here suffers from seeking, in a thoroughly casuistic way, a normative justification instead of a justification through exculpation, attempting to do so on the basis of a universally valid rule that can in turn be applied to analogous cases. 33. Cf. M. Rhonheimer, Natur als Grundlage der Moral, 365. See also Natural Law and Practical Reason, 475–83. 34. As we will see, it is not in any way “permitted” in St. Thomas to kill an aggressor in self-defense.

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Indeed, neither the German adult catechism nor the moral theologians cited ask whether such a decision by a doctor is to be respected. Rather, they attempt to give a normative foundation for the permissibility of an action in a case where, it seems to me, such a foundation cannot be given. Stated more precisely: it is true that one can give reasons why saving the life of the mother corresponds to justice, and thus the action as a whole is a just act (if the medical intervention that leads to death is situated on the level of the physical substrate of the moral act). But one cannot give reasons why the medical intervention as such, consisting in an act that leads to the death of the fetus, is objectively an act of justice and is thus “permitted” (and thus falls under a corresponding norm of justice). It can be established only that it does not contradict justice, and this can be done only because and insofar as the intervention falls outside the ethical context of “justice” and, for this reason, can be treated as a physical event. Only on this basis—when the intervention is considered, as it were, as its material substrate—can the action then be described as an act of saving a life and consequently as a just act. (This is not a vain subtlety of action theory, but simply a reconstruction of sound medical ethos.) Therefore, it may be that a normative justification of the act of killing (the medical intervention), considered in itself, is impossible, and that the corresponding arguments—from Copyright © 2009. Catholic University of America Press. All rights reserved.

a weighing of goods, for example—are erroneous, and yet at the same time, the doctor’s way of acting be morally just and in this sense to be respected, i.e., in no way blameworthy. Before dealing with this question in more detail, however, we should first examine the structure of the argument of the German adult catechism and its problems somewhat more closely.

4. The Structure of the Argumentation: Weighing Goods in the Case of Vital Indication

The German adult catechism, on which Hans Kramer bases himself, obviously completely rejects all of the well-known non-medical indications as grounds for an abortion. In the medical indication for an abortion,

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the Catechism distinguishes the prophylactic (preventative) aspect from the vital indication. A medical/prophylactic indication for an abortion is present if a situation arises in which the life or health of the mother is threatened because of the pregnancy. In this case the German adult catechism states: Admittedly, most risks to the health of the mother (the prophylactic indication) have been so reduced by medical progress that, viewed medically, lifethreatening situations have become rare. Thus, with respect to a weighing of goods in connection with a medical-prophylactic indication, in general the ethical problems no longer arise in such sharp contours.35

The statement does not lack a certain ambiguity—one can at least say that it is formulated very generally. By referring to the fact that such cases are actually rare due to medical advances and that therefore the problems “no longer arise in such sharp contours,” it avoids making any kind of clearer statement. In fact, there are cases today of abortions being performed on the basis of medical-prophylactic indications—if only to reduce the risk to the mother or damage to the fetus (whether this is actually required medically or is simply the most convenient way is another question). One need only look at standard gynecological textbooks to see that abortion is recommended as normal “therapy” at

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any point in the pregnancy if the mother becomes ill (typical instances are renal insufficiency, heart defects, or pelvic vein trombosis).36 Characteristic of these cases is the fact that one could wait for treatment until the child has been born alive, even if the mother’s health and, in certain circumstances, her life are threatened due to this wait (a risk that is, of course, considerably greater in regions with a lower medical standard). In such cases, a child—who is certainly capable of surviving—is killed specifically for the purpose of saving the mother’s life or protecting her health from harm. Here a true weighing of two lives occurs. The 35. Erwachsenenkatechismus, 291. 36. Cf., e.g., H. Schmidt-Matthiesen and H. Hepp, Gynäkologie und Geburtshilfe. Lehrbuch für Studium und Praxis, 9th ed. (Stuttgart/New York: Schattauer Verlag, 1998), 168–86; or A. Pfleiderer, M. Breckwoldt, G. Martius (eds.), Gynäkologie und Geburtshilfe. Sicher durch Studium und Praxis, 3rd ed. (Stuttgart/New York: Thieme Georg Verlag, 2000).

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mother’s life is valued as a higher good, and that of the child as a good less worthy of survival. More precisely, a decision is made in favor of the survival of the mother (or the preservation of her health); killing the child is the means to attain this end. Schockenhoff notes correctly that such a decision or the weighing implied therein is inadmissible.37 The German adult catechism, however, leaves something to be desired with respect to clarity in this regard, and it becomes problematic when it continues as follows:

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In some cases, which are rare but nevertheless do occur, both the life of the mother and the life of the child are at stake (vital indication). Here the situation is so dramatic that all elements of a very personal conflict are present; the ethical categories of the inviolability of life no longer seem to be applicable. The ethical demand in such a case, i.e., to allow nature to run its course and to allow both mother and child to die, is felt to be inhuman. One will, however, in such an extreme case also take into account the argument of those who hold it to be ethically justifiable that, of two otherwise unsavable lives, at least one should be saved, especially if the purpose of the action is to save a life. Such a weighing, however, is in no case to be put on a level with those interventions in which an unborn child is killed, even when it does not in any way come into conflict with an equal good. The German bishops emphasize: “A careful conscientious decision by the doctor in the concrete individual situation is required here. Certainly no one will refuse to respect such a conscientious decision” (Zur Novellierung des § 218 vom 7. 5. 1976, 7).38

In particular, the following three passages in the text stand out (emphasis mine): 1. “One will, however, in such an extreme case also take into account the argument of those who hold it to be ethically justifiable that, of two otherwise unsavable lives, at least one should be saved .......” 2. “ ..... especially if the purpose of the action is to save a life.” 3. “Such a weighing, however, is in no case to be put on a level with those interventions in which an unborn child is killed, even when it does not in any way come into conflict with an equal good.” 37. Ethik des Lebens, 323 (the passage has already been cited extensively at footnote 25). 38. Erwachsenenkatechismus, 292.

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Statement 1, that one should save at least one of two lives if both cannot be saved, is unproblematic and actually trivial (because nothing is said about what is done to save one of the otherwise unsavable lives). Statement 2 provides (almost unnoticeably) the first part of the argument’s rationale: the “purpose of the action” is to save a life. Statement 3 contains the second part of the rationale: the decision concerns two “equal goods,” and therefore the weighing of goods and the killing of the child are permitted. In other words, the normative principle or moral norm that lies at the foundation of this argument and clearly results from the formulation of statement 3 (“ ..... in which an unborn child is killed, even when ..... ”) states clearly: if “the purpose of the action is to save a life,” then, in the case of a conflict between two human lives (equal goods), one may be killed for the benefit of the other. This norm could, of course, be applied to all kinds of killing and does not obtain only for abortion. The German adult catechism does not in any way say that the death of the child is merely an unwilled side effect (in the sense of the PDE), or that it is unwilled or unintentional (praeter intentionem) in some other way. Rather, its reasoning involves precisely a weighing of goods (here: goods of equal rank) and a reference to the fact that the purpose of the action, i.e., the intention to save a life, is good. This seems to provide moral justification for the immediate, “direct” killing of the fetus. Copyright © 2009. Catholic University of America Press. All rights reserved.

This rationale for the medical practice under discussion is certainly false and moreover can hardly be reconciled with the teaching of the Church on procured abortion. It demon­strates the validity of the statement cited earlier from the encyclical Veritatis splendor, that the weighing of goods is an inadequate method for determining if an action is “in itself,” “according to its species,” morally good or evil, licit or illicit (VS 77). In my view the mistake is obvious, precisely inasmuch as one who argues in this way can also, in principle, support medical/prophylactic abortion; the argumentation can be applied without any further adaptation to every kind of abortion based on a medical indication.39 This also 39. This, however, is not the reason for which this argument should be rejected. At issue here is not the assertion of a danger of a “breach in the dike” or a “slippery slope.” Rather, it

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explains this catechism’s rather sibylline way of expressing itself. Hans Kramer, for example, could appeal to the German adult catechism with good reason in his first article, in which he justifies every medically required abortion. (He could not, however, appeal to the episcopal “Pastorale Wort,” which goes nowhere near as far; it offers no rationale or normative instruction, only an exculpatory justification of the doctor.) Schockenhoff’s objection to Kramer is therefore correct; indeed, the former’s argumentation is more precise. Schockenhoff does, to be sure, use the argument of the equality of legal goods. Instead of statement 2, however, he uses the principle “that the savable life should be preferred above the unsavable.” I view this formulation as somewhat unfortunate, for this case is in fact not a preferential choice arrived at through a weighing of goods. Rather, the situation is characterized precisely by the fact that a weighing of goods between the two lives cannot occur. One can only weigh and choose between (a) the “death of the child and the mother” and (b) “the death of the child alone.” Compared with (b), (a) is simply not a rational, meaningful alternative; there is therefore no need to weigh or choose anything (at least if one wishes to avoid the absurd assumption, contrary to facts, that under the circumstances it would be better for the mother to die also, if her child cannot survive). The correct argument, in my opinion, would be as follows: one does Copyright © 2009. Catholic University of America Press. All rights reserved.

not reasonably come to “prefer” the savable life to the unsavable, but the action is directed from the start simply and only at the savable life of the mother (for one cannot want to save the unsavable life), and therefore the action is exclusively one of saving a life. That the disputed action has the characteristic of saving a life is thus a consequence of the fact that a weighing of goods is not possible at all here, and therefore does not occur. The life-saving quality of the action is thus not part of the rationale for allowing a “weighing of goods” (as is the case with the should be pointed out that the argument of the German Adult Catechism concerning the case in question (i.e., in which both child and mother would die if nothing were done) is in itself inadequate; it can be used, however—or rather misused—all the more effectively for other cases of medically indicated abortion.

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argument of the German adult catechism). If the life-saving objective were part of a preferential choice and therefore the reason for the medical action, then we would again have the weighing between two lives: one of two human lives (“equal goods”) would be licitly destroyed as a means to the end of saving the life of the other. It is therefore specifically characteristic of the case under discussion that a solution via a weighing of goods is excluded in principle.40 That Schockenhoff unfortunately nevertheless speaks—along with many other moral theologians, and despite the fundamental correctness of his arguments—of a “preferential choice” for the savable life over the unsavable, is to be attributed to the influence of moral theologians such F. Böckle, J. Fuchs, P. Knauer, F. Scholz, B. Schüller, etc. Judging from these thinkers, it appears that German-speaking moral theologians in particular are able to think only in terms of the paradigm of the “weighing of goods,” which can have devastating consequences for the quality and precision of arguments in moral theology. Schockenhoff and the German adult catechism have uncritically as-

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sumed in particular Böckle’s argumentation. The latter writes: The prohibition of killing is not an absolute command but a conditional one. This view is widely held. The life of a human being is without question the fundamental good, but as a concrete physical life, it is not the highest of all goods. Under certain circumstances, it could be in competition with another good that could be preferred. This principle has always been employed in the question of the fundamental moral permissibility of capital punishment, i.e., in the serious case of a conflict between the common good and an individual life. If, on the other hand, the conflict is between two innocent lives and, after careful medical deliberation, it is apparent that only one life can be saved, the savable is to be preferred above the less savable. The plausible moral justification of a medically indicated abortion in cases of vital conflict lies in such a weighing of goods.41 40. This has been made valid in general for the question of abortion in the Declaratio de abortu procurato by the Congregation for the Doctrine of the Faith of November 18, 1974, No. 14. 41. F. Böckle, “Art. Schwangerschaftsabbruch, 1. Ethik,” in A. Eser, M. von Lutterotti,

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First of all, the weighing between “savable” and “unsavable” becomes problematic if the “less savable” still has a real chance at survival. In this case one must attempt to save both lives. Only the choice between a “savable” life as compared with a (probably—according to human judgment) “unsavable” life appears unproblematic, but that is true precisely because any weighing or choice between two lives is unnecessary. (That one cannot want to save a life already judged to be unsavable corresponds to the fundamental logic of action, or to common sense.) Böckle’s formulation is thus extremely ambiguous here, if not false: it leaves open the question of whether a child who could survive and whose survival would lead to the probable death of the mother should nonetheless be aborted, because its chances of survival are less than those of the mother. (This would certainly be inadmissible.) Nor does it refer explicitly to the extreme case of conflict where probably both mother and child would die if nothing were done, but only to that in which either mother or child would not survive. The argument thus becomes applicable to every type of “therapeutic abortion,” assuming that the chances of the mother’s survival are judged to be better than that of the child (which in fact is almost always the case). Böckle adds—and here his argument definitely becomes problematic—that other grounds (e.g., eugenic, social, psychological, etc.) do Copyright © 2009. Catholic University of America Press. All rights reserved.

not provide “any adequate reason for allowing the unborn to be killed. The killing of the innocent can never be a morally permitted way to deal with social needs or injustices.”42 In these cases, he says, the issue is not one of goods equal to the good of life. To turn the argument on its head, however, this means (a logical implication of Böckle’s formulation): the killing of an innocent can clearly be morally permitted if it serves as a means to save the life of another human being (in which case it would concern equal goods in conflict with each other). Because and P. Sporken, Lexikon Medizin-Ethik-Recht (Freiburg: Herder, 1989), 966; cf. also F. Böckle, “Probleme um den Lebensbeginn, II, Medizinisch-ethische Aspekte,” in Handbuch der christlichen Ethik, vol. 2 (Freiburg: Herder, 1978, 1993), 36–59. 42. Böckle, “Art. Schwangerschaftsabbruch,” 967.

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the criterion here for allowing a weighing of goods and the corresponding preferential choice is (at least) the equality of the goods, the argument of the weighing of goods leads immediately (not in general, but in this context) to the possibility of morally justifying every act of killing, if it is done for the purpose of preserving a good “of equal value” or “equal rank.” Indeed, it would even seem to lead to the conclusion that, in certain circumstances, the killing of a human being could be required, for example, in order to save several people. Several human lives could in effect be seen as a higher good in comparison to a single life, leading one to deduce in certain circumstances an obligation to kill the single life. (Compared with the life of the unborn child, for example, the life of the mother often seems to be understood intuitively as comparable to several lives; this explains why, in the case of “mother or child,” people are inclined spontaneously to give preference to the survival of the mother—and even to consider anything else to be immoral.)43 However, if one looks closely at the case under discussion, one cannot speak of “two innocent lives in conflict,” as Böckle’s argument assumes. That would be so only if the decision were between either the survival of the child or that of the mother. In the event, however, that both would probably die as a result of doing nothing, whereas the mother could be saved through medical intervention, there is no situation of Copyright © 2009. Catholic University of America Press. All rights reserved.

conflict; there is no “either the mother or the child.” Rather, there is simply and only a life-threatening situation for the mother. Nothing more can be done for the child; the brief period that it might live seems to be negligible, even more so given that the situation in which the child finds itself, and which it has provoked—especially in the case of ectopic pregnancy—is severely pathological (at least these are the presuppositions of our discussion of the case). As we have stated, this is precisely why a weighing of goods is not even possible. Böckle’s argument—and this is the crux—is thus, precisely like that of the German adult catechism: it is 43. P. Foot assumes this in “The Problem of Abortion and the Doctrine of the Double Effect,” in P. Foot, Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Blackwell, 1978), 19–32; here: 31.

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not only not decisive for the case in question,44 but it lends itself all the more easily to the possibility of justifying every type of medically indicated abortion in which the situation of “mother or child” arises, where a weighing of goods can therefore also occur and, as a consequence, a preferential choice can be made as to which of the two will survive. (The impression that it is precisely Böckle’s intent to arrive at this result can hardly be avoided.) It is precisely this preferential choice and weighing of goods, however, that is firmly rejected—in agreement with the tradition—by the most recent teaching of the Church’s Magisterium. And, to repeat, Böckle’s argument would also lead to placing every killing of a human being as a means to the end of saving one or more lives fundamentally within the range of argumentative possibility; if one could prove that a human life could be saved, this argument could also easily justify embryonic research, which involves acts of killing. What, however, according to the Church’s doctrine, does the condemnation of direct abortion precisely include? 44. This is also not applicable to the case of capital punishment cited by Böckle. Capital punishment is not justified, at least according to Thomas Aquinas, by a weighing between the “common good and the life of the guilty.” Rather, the death of the guilty party is understood as an act of retributive justice. This act of justice (as punishment) is chosen as a means—it has nothing to do with a weighing of goods. On this cf. also M. Rhonheimer, “Sins Copyright © 2009. Catholic University of America Press. All rights reserved.

against Justice (IIa IIae, qq. 59–78),” in The Ethics of Aquinas, ed. Stephen J. Pope (Washington, D.C.: Georgetown University Press, 2002), 287–303.

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II

Church Doctrine and Past Discussions in Moral Theology

1. “Direct Abortion” According to Church Doctrine: Specification of the Concept from the Viewpoint of Action Theory

According to Church doctrine, as it has most recently

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been presented in the encyclical Evangelium vitae (EV), “the direct and voluntary killing of an innocent human being is always gravely immoral” (EV 57.4). This is specified more precisely as follows: “The deliberate decision to deprive an innocent human being of his life is always morally evil and can never be licit either as an end in itself or as a means to a good end” (EV 57.5). “[P]rocured abortion,” again “by whatever means it is carried out,” is defined as “the deliberate and direct killing ..... of a human being” (EV 58.2). For this reason it is also included under the categorical prohibition against killing, as expressed in EV 57.4. Stated synthetically, this means:

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1. “Direct and voluntary killing” is an act that a. is characterized by the “deliberate decision to deprive an innocent human being of his life” and b. is chosen either as “an end” that is aimed for or as “a means to a good end.” 2. “[P]rocured abortion” is the “deliberate and direct [voluntary] killing of an innocent human being,” and therefore always morally forbidden, because and insofar as it fulfills conditions 1a and 1b. Which is to say: an abortion is to be called “direct” and “procured” because (a) it includes the “deliberate decision to deprive an innocent human being of its life” and (b) the killing is chosen either as an end or as the means to a (good) end.1 Therefore, an action which does not include the deliberate decision to deprive an innocent human being of his life (a), and in which there is not a killing in which the death of a human being is chosen as a means to an end (b), is not a direct and procured abortion. (An act of abortion for which the death of the unborn is an end does not need to be discussed in this context.)2 In other words, an action that admittedly causes the death of the fetus (in some way) without, however, involving a decision to deprive the child of its life or the choice to kill it as a means to Copyright © 2009. Catholic University of America Press. All rights reserved.

an end is not a “direct abortion.” The criterion, however, for (b) not being met, i.e., that the killing is not chosen as a means, is precisely that 1. Cf. also the Congregation for the Doctrine of the Faith, Declaratio de abortu procurato, No. 7. 2. This would simply be impossible, except in the limit case of perverse malice. Abortion is always a means to an end, even when the abortion is chosen because in fact this child is not wanted or because no child at all is wanted. In these cases the child is certainly unwanted for some reason, and this reason will be the true end of the act of the abortion. The eugenic indication is perhaps an exception, if the child is, as is said, aborted “in its own interest,” i.e., it is not expected to have a life “worth living.” The “end” of the abortion would then be to a certain extent the “non-existence” of the child. The legal rationale for this indication, however, which is sometimes more correctly called “embryopathic,” would more likely be that a child who will probably be handicapped would be unreasonable for the mother to accept, i.e., it would be asking too much of her. The abortion is thus again seen as a means to an end (i.e., the well-being of the woman).

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(a) has not been met, i.e., that the act was not done on the basis of a decision to deprive a human being of his life. If one chooses the death of a human being as a means to an end, one cannot avoid the decision to deprive that human being of his life. Otherwise, it would not be a choice of a means—at least insofar as human actions are defined as intentional actions and not as physical processes.3 Therefore, it seems important to point out that EV 57.5 describes the act of killing in an intentional manner. “Killing” is not defined simply as causing the death of a human being, but as the expression of a deliberate decision to deprive someone of his life (either as an end or as a means to an end). This corresponds to the fundamental teaching of VS 78 on the object of an action. “By the object of a given moral act, then, one cannot mean a process or an event of the merely physical order, to be assessed on the basis of its ability to bring about a given state of affairs in the outside world. Rather, that object is the proximate end of a deliberate decision which determines the act of willing on the part of the acting person” (VS 78.1). Therefore VS also emphasizes that “[i]n order to be able to grasp the object of an act which specifies that act morally, it is therefore necessary to place oneself in the perspective of the acting person” (ibid.). Only from this perspective can one distinguish between natural events, physical processes, and the operative effects of actions that are objects of the will. Copyright © 2009. Catholic University of America Press. All rights reserved.

There are cases in which someone chooses and carries out an action that does effect the death of a fetus—also as a more or less physically immediate or direct consequence of the completed action—but a decision against the life of the fetus is not at the basis of the decision and action (in particular, it is not on the level of a choice of means). Rather, a decision is made exclusively for something else—for example, the decision to remove a diseased organ or to save the life of the mother. If the death of the fetus results from such an act, this effect is not intentional, but praeter intentionem: it is not part of what the agent wanted, something for which he has made a decision. 3. Cf. Rhonheimer, “Intentional Actions and the Meaning of Object,” and Die Perspektive der Moral.

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As we have stated, in connection with the formulations of Evangelium vitae, the act of “direct killing” or “direct (procured) abortion” is defined as an “intentional action,” i.e., it is defined without reliance on physical categories and independent of those elements of acting that exist in the purely physical dimension of the act of killing. Indeed, these are unsuitable for grasping the distinction between “direct” and “non-direct.” That the definition stays on the purely intentional level means that the core elements of the definition were the concepts “deliberate decision” (against a human life) and the decision for something as a “means” or an “end” (again, we can leave aside abortion as an “end”; in all known indications, abortion is always chosen as a means to an end). The formulations of Evangelium vitae are related to the classical formulation of this doctrine by Pius XII, that “the direct attack on innocent human life, as a means to an end—in the present case to the end of saving another life—is illicit.”4 Pius XII had already declared in an earlier address that “every action which tends directly toward ..... destruction [of an innocent human life] is illicit ..... whether this destruction be the goal intended or only a means to an end.......”5 An action “that tends directly toward” destroying human life is to be distinguished from one in which the killing occurs as “in no way willed or intended but as an unavoidable side effect.” It is worthwhile to quote the entire passage from Copyright © 2009. Catholic University of America Press. All rights reserved.

his address on November 26, 1951: It has been Our intention here to use always the expressions “direct attempt on the life of the innocent person,” “direct killing.” The reason is that if, for example, the safety of the future mother, independently of her state of pregnancy, might call for an urgent surgical operation, or any other therapeutic application, which would have as an accessory consequence, in no way desired nor intended, but inevitable, the death of the foetus, such an act could not be called a direct attempt on the innocent life. In these conditions the op4. Pius XII, “Address of Pope Pius XII to the Associations of the Large Families, November 26, 1951,” in Love and Sexuality, ed. Odile M. Liebard (Wilmington, NC: McGrath Publishing Company, Consortium Books, 1978), 123–27, here 125. 5. Pius XII, “Address to the Italian Medical-Biological Union of St. Luke, November 12, 1944,” in Liebard, Love and Sexuality, 84–95, here 91.

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eration can be lawful, as can other similar medical interventions, provided that it be a matter of great importance, such as life, and that it is not possible to postpone it till the birth of the child, or to have recourse to any other efficacious remedy.6

It should be stressed first that this text defines, in an intentional manner, certain ways of acting as being “non-direct”: a non-direct killing of the fetus is an act “which would have as an accessory consequence, in no way desired or intended, but inevitable, the death of the foetus[;] such an act could not be called a direct attempt on the innocent life.” Secondly, it can therefore be said that it is by no means clear that the opposite of “direct” is “indirect,” as has been held for a long time in the moral theological tradition. This is so, first, because “direct” is characterized as having a will to kill (on the level of the means or the end). The opposite of this is not, however, “indirect,” but “non-direct,” for the contrast to a will to kill is not an “indirect will to kill,” but the lack of a will to kill (both on the level of the end and on that of the means). The use of the term “indirect” (“indirect actions,” voluntarium indirectum) implies that something can be “willed only indirectly”; it thus implies that there is no problem in bringing it about “indirectly.” Strictly speaking, however, one cannot will something indirectly. One can only will or not will something (though in varying degrees of intensity), or Copyright © 2009. Catholic University of America Press. All rights reserved.

one can cause something directly or indirectly (in the physical sense). With the latter (i.e., causing) however, it is not yet clear whether what has been caused directly was also chosen as a means and thus willed or, conversely, whether what was caused indirectly was nevertheless not willed as a means. Similarly, one can “accept” or “permit” something (one can know that something will occur as a result of one’s actions, even though it is not willed) without this knowledge having any effect on the willing of what is chosen. And precisely here lies the point: What should be accepted under what circumstances and how far does our responsibility for knowingly caused but not willed effects extend? One can “will” something, either as a means or as an end—this confers 6. Pius XII, “Associations of the Large Families,” pp. 126–27.

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clear contours on the “direct” as “willed.” The concept “indirect,” however, remains less clear—it appears, in fact, to be quite muddled.7 The lack of clarity of the concept “indirect” leads to the attempt to clarify it by ultimately interpreting “indirect” in physical categories: the concept is analyzed in terms of whether and to what extent the effect originates physically-causally from the action, which is itself interpreted in a physical way. The action is then characterized along these lines as “direct” or “indirect.” All discussions in the last 150 years on the question of abortion—those on the permissibility of craniotomy as well as those on the issues of acceleratio partus, hysterectomy, and tubal gravidity—tended ultimately to end up on this physical level.8 In contrast to this, it can be maintained on the basis of the relevant texts of the Magisterium that the oppositional pair “direct” and “indirect” does not seem to exist. One finds only the concept “direct killing” and its negation (“non-direct”). As we shall see, the latter corresponds to what St. Thomas calls the causing of an effect praeter intentionem. The cited Magisterial texts thus distinguish: 1. “The direct destruction of a human life as end or as means”;9 “the direct attack on an innocent human life as means or end”;10 “the direct and voluntary killing of an innocent human being”;11 “the deliberate Copyright © 2009. Catholic University of America Press. All rights reserved.

and direct killing ... . of a human being”;12 “[t]he deliberate decision to deprive an innocent human being of his life,” whether as an end or as a means to a good end.13 from: 7. Based on a similar consideration, the argument has been made for the abandonment of the expression “indirect abortion,” inasmuch as an “indirect abortion” would in reality not be an abortion at all (in a moral sense). Cf. A. Rodríguez Luño, “La valutazione teologico-morale dell’aborto,” in Commento Interdisciplinare alla “Evanglium vitae,” eds. R. Lucas Lucas and E. Sgreccia (Vatican City: Libreria Editrice Vaticana, 1997), 419–34; here: 423. 8. This discussion can be found extensively in Connery, Abortion, esp. 225–303. 9. Pius XII, “Medical-Biological Union” (see note 5 above). 10. Pius XII, “Associations of the Large Families.” 11. John Paul II, Evangelium vitae, 57.4.

12. Ibid., 58.2.

13. Ibid., 57.4.

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2. an action that has as “an accessory consequence, in no way desired nor intended, but inevitable, the death of the foetus”;14 such an operation cannot be characterized as a “direct attack on innocent human life.”15 To emphasize once again: Pius XII speaks of “non-direct,” and not of “indirect.” The “non-direct” is the “not willed,” “not intended,” accepted as “inevitable.” How it arises causally from the event or in physical-causal terms from the act (viewed physically) is for the moment secondary. It is, admittedly, not completely irrelevant, for the structure of the physical event can determine the will under certain circumstances. Whoever thinks rationally cannot, for example, expect to nourish himself with stones, or to treat his headache by means of razors. Take, likewise, the case (discussed more fully below) of someone who owns an eighteenth-century summerhouse who wishes to build a swimming pool on the site, but is unable to do so because the house is unjustly and inconveniently protected by its status as a monument. Knowing that two homeless people are sleeping in it, he may not burn the house down and claim—inasmuch as the two homeless people were killed only “indirectly”—“I did not will that, I only wanted to have my summerhouse out of the way.” However—even if on the purely physical level the case is identical to that of the summerhouse—a doctor who Copyright © 2009. Catholic University of America Press. All rights reserved.

performs a hysterectomy on a pregnant woman with uterine cancer, thereby killing the fetus, would be able to claim that he only wanted to save the mother; he did not want the fetus to die. In order to recognize whether a concrete case is what the Magisterium calls a “direct attack on innocent human life”—and thus a “direct abortion”—it is necessary therefore to look at what is willed in a concrete act—on the level of ends as well as on that of means. To do so, the structure of the action and the act of willing embedded in it must be analyzed in every unique case (in the sense of a reconstruction of the act of deliberation). Only after what was chosen as a means has been determined 14. Pius XII, “Associations of the Large Families.” 15. Ibid.

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will one be able to say whether the evil consequence was “indirect,” i.e., merely tolerated or accepted in a morally permissible way. That something was caused only “indirectly,” however, does not yet settle the question as to whether it was chosen as a means or not. “Indirect” acquires a morally relevant meaning only if one knows what has been chosen, in a concrete case, as a means. The category “indirect” thus contributes nothing to the clarification of the morally relevant structure of action, but already presupposes the solution of this problem. The text just cited from Pius XII contains a further important nuance that must not be overlooked here. We will therefore quote the key sentence once more (the emphasis is not in the original text): The reason is that if, for example, the safety of the future mother, independently of her state of pregnancy, might call for an urgent surgical operation, or any other therapeutic application, which would have as an accessory consequence, in no way desired nor intended, but inevitable, the death of the foetus, such an act could not be called a direct attempt on the innocent life.

The words “independently of her state of pregnancy” call attention to the fact that this text formulates the unintended consequence in the context of the PDE: the immediate object of the action is completely independent of the factual situation of the pregnancy, i.e., the existence

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of an embryo or fetus in the uterus. This obtains classically for hysterectomies in cases of uterine cancer:16 the operation occurs completely independently of the existence of the fetus and would also be performed if the woman were not pregnant (something which also obtains, however, for our example of burning the summerhouse). The action is not only good in itself, but is medically necessary and indispensable for the 16. According to medical information, uterine carcinoma is difficult to diagnose during pregnancy; a cervical carcinoma is more detectable. Uterine cancer, however, occurs in only 2.5–5 percent of women under forty, and thus rather infrequently in pregnant women. Nevertheless, the question is important for our ethical analysis, especially with respect to the traditional moral theological argumentation, which views hysterectomy as a pure and simple “indirect killing” and therefore as morally permitted. The question of the child’s chances of survival can nevertheless be posed: depending on the case, an intervention can be postponed for a more or less extended period of time.

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woman’s survival (here we encounter an essential difference from the burning of the summerhouse). Because the pregnancy is only an accidental attendant circumstance, the death of the fetus can in no way be chosen as a means to the end of saving the mother.17 It seems clear that the earlier case of craniotomy and the current cases of extrauterine gravidity (i.e., pregnancy) are quite different in nature from that of hysterectomy. In the cases of craniotomy and extrauterine gravidity, the problem is caused precisely by the pregnancy itself (i.e., a healing or saving intervention would not be necessary if the woman were not pregnant). One can therefore not say that the intervention is performed “independently of her state of pregnancy.”18 The text cited from Pius XII, moreover, cannot be invoked straightforwardly for cases of extreme conflict between two lives when it concerns a craniotomy or the excision of a tubal pregnancy. As we have already repeatedly emphasized, these cases cannot be resolved by means of the PDE—quite simply because the application of the principle already presupposes that the action itself is recognized as good according to its object (or at least indifferent). In the case of vital conflict, it is precisely this that is 17. It should be noted here that the statement “the decision to perform a hysterectomy does not have anything to do with the existence of a fetus in the womb” obtains only insofar as the pregnancy and the uterine carcinoma are not causally connected, i.e., the disease to Copyright © 2009. Catholic University of America Press. All rights reserved.

be healed, the carcinoma, is not caused by the fetus. Pregnancies do not cause carcinomas (whereas embryos developing ectopically do cause life-threatening diseases in the fallopian tube). Certainly, the presence of a fetus in the uterus does speed up the formation of metastases, since the pregnancy leads to a strong growth of the vascular system in the uterus, which in turn causes the cancer cells to be flushed throughout the whole body; this fact is certainly important for the decision regarding when to perform a hysterectomy. (I am grateful to Prof. Dr. Johannes Bonelli of Vienna here.) Why this should influence the intentional non-directness of the killing of the fetus, however, is unclear: the hysterectomy is always an act of healing, directed immediately against the carcinoma, i.e., against the disease or the diseased organ and thus not against the fetus as the cause of the disease (which it simply is not). The killing of the fetus is therefore not a means of saving the mother. 18. It must be said, however, that the permissibility of a tubal excision (salpingectomy) was first defended precisely with the argument—which was quickly approved by all moral theologians—that the operation was directed only against a pathological tube, not against the embryo as such. Cf. Bouscaren, The Ethics of Ectopic Operations. We will return to this problem later.

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unclear—and the object of our study. (In truth, the question of a hysterectomy cannot be “resolved” by means of the PDE either. One must also establish here, in the first place, what the object of the action actually is; only then is the case “ready” to be submitted to the PDE. But then it has already been resolved.) The question in an extreme case of vital conflict is whether actions like craniotomy or salpingectomy themselves are morally correct or not, and whether, based on their object, they are an act of killing, or purely a matter of saving a life or of therapy for a disease. For that reason, the killing of the fetus in these extreme cases is then not, as an action with a double effect is, praeter intentionem— and thus an unintended consequence. This killing is instead the unwilled consequence of an act that is good in itself—saving the life that can be saved—and perhaps even required. Therefore, the killing should be called non-intentional because it cannot even determine the act on the level of the object, since it is not intended. The yield of Pius XII’s teaching lies, first of all, in the fact that the category of “direct” is shown to be an intentional category. It shows that, under certain conditions, a human being can be killed as an immediate physical consequence of a human action (given that, in a hysterectomy, the fetus effectively dies immediately as a result of the operation), without the death of this person being an object of the will, including Copyright © 2009. Catholic University of America Press. All rights reserved.

on the level of means, and that it is precisely and solely for this latter reason that the killing cannot be called direct. The reason, then, for the non-directness of the killing is not its physical indirectness, but the relationship of the will to the killing, which latter is nonetheless caused by one’s own action. When the killing is not direct, the willing involved has neither the character of a choice of a means, nor that of the pursuit of an end. Put conversely, a killing or an abortion is “direct,” not because the death of the fetus is caused in some physically direct way, but because it is willed as the means to an end. One could indeed say that, in most cases, the fact that the fetus is attacked directly is a sign that its death has been chosen as a means. But there are also entirely physically “indirect” ways to kill someone “directly,” i.e., willed as a means. And there are likewise possibilities of killing someone in an extremely

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“direct” way physically, without choosing the death as a means, for example in the case of legitimate self-defense (which is not to suggest in any way that craniotomy could be justified as a case of self-defense).19 Constitutive for “direct killing” and “direct abortion” is therefore willing the death of a human being, also on the level of means, even if one regrets such a death (someone can indeed regret that he “must” poison a person whom he actually likes very much in order to attain his end; but he nevertheless willed the death as a means to an end). Admittedly, there is still a final question to pose, and this is actually the decisive one: Why is it so important for a person—and now we are speaking of private individuals and will leave aside, for simplicity’s sake, the legitimate public use of violence20—not to will the death of a 19. K. Flannery, in “What Is Included in a Means to an End?” in Gregorianum 74, no. 3 (1993): 499–513, argues rather that craniotomy is an intervention directed against the child, which dies as a consequence, whereas in a hysterectomy the intervention, through which the mother is saved, is directed immediately at a diseased organ. He thus argues that a different logical structure is present here. Flannery concedes that this difference in the logic of the action is not immediately morally relevant. But the fact, so he continues, that in the case of craniotomy the intervention as such causes an evil (the death of the fetus), whereas in the case of hysterectomy, a healing is effected, would be morally relevant, given that the former intervention would contradict medical ethics: a doctor should inflict no harm; rather, he should heal, the only object of his actions being the effectuation of health and never Copyright © 2009. Catholic University of America Press. All rights reserved.

the infliction of an evil (ibid., 510–12). In my opinion, such an argument, despite all contrary assurances by the author, means to beg the question and is morally counterintuitive. Of course, the principle “primum non nocere” (“first, do no harm”) is a fundamental medical principle—but the question is whether it can be applied here. Its application seems to lead to counterintiutive consequences, leading to a justificatory deficit. Rather, it appears much more plausible that, based on the principle “primum non nocere,” a doctor would sooner decide in an extreme case to save the life of the mother by a craniotomy, in which case the physically direct killing of the fetus, precisely on medical grounds, would no longer be of any consequence as “harm” to him. It would therefore seem more plausible to say that the principle “do no harm” can no longer be applied meaningfully in this extreme case; in such a situation a doctor would consider a fetus that is still alive as already dead, given that not performing the operation, which would save the life of the mother, would result not only in the death of the mother but also that of the child. Nothing more can be done medically for the child. If this is so, Flannery’s argument turns out to be mere question begging. 20. For a more detailed rationale for this exclusion, see Rhonheimer, Die Perspektive der Moral, 308ff., and The Perspective of Morality.

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person either as a means or an end? Why is this so serious? What, on the fundamental ethical level, constitutes the moral evil of killing another human being? According to the fundamental statements on this in Evangelium vitae, we can say: if killing is a moral evil, it is so because, through willing the death of a human being—even as a means to a good end—a person makes himself lord over life and death, a judge over the life of another person. This is a fundamental injustice—perhaps the most fundamental—and it is this entirely aside from other, specifically theological, arguments. The fundamental injustice here consists in the violation of the principle of equality (EV 57.6). If these statements are really taken at face value, they mean that the moral act of “killing a human being” can be defined only within the framework of an ethical context formulated by the principle of justice. This means that if the death of a human being does not include a quasi-judicial power of another human being over life and death, and if it likewise does not infringe on the fundamental principle of equality which is at the foundation of all justice (and which involves a refusal to recognize the other as my equal),21 then an act causing death is not “killing” in a morally qualifiable sense. This ethical context, in fact, is as it were “built into” the norm precisely in its formulation: one should not kill an innocent directly. By contrast, “killing” those who are not Copyright © 2009. Catholic University of America Press. All rights reserved.

“innocent”—a criminal, an aggressor who threatens one’s life, a combatant from a hostile power attacking one’s own country, etc.—clearly does not seem to be a violation of equality but precisely its restoration, and thus an act of justice. To be sure, this does not give license to kill a non-innocent person directly. Rather, it seems that here the context of justice is a different one, and that in this context “killing,” when it is morally permissible, is a different kind (“species”) of human act.22 Since “killing,” as a moral act, can be described and morally evaluat21. Cf. Rhonheimer, Die Perspektive der Moral, 247ff. (“The Origin of the “Principle of Justice”), and The Perspective of Morality. 22. On “innocence” as a descriptive element in the prohibition of killing cf. M. Schlag, Das moralische Gesetz in Evangelium Vitae, 124ff.

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ed only within the framework of the ethical context of “justice,” there is at least the theoretical possibility of the existence of actions that (physically) cause death directly but do not fall within the ethical context of the principle of “justice.” A well-known example of this, often discussed by ethicists, is the following:23 the only exit from a cave in which a group of spelunkers are trapped is a small passageway in which an obese participant in the expedition has become stuck. The water level is rising and everyone, including the obese individual, is in danger of drowning. Fortunately the spelunkers have dynamite with them; they use it to open the passageway, killing the obese participant, but allowing the rest of them to go free.24 In this case, it makes little sense to say that those who blew open the passageway—along with the obese participant who was stuck in it—assumed the role of judge over life and death or committed a fundamental injustice by violating the principle of equality. Rather, one must say: in this tragic, awful situation, nothing relevant can be said at all from the perspective of justice, as far as the killing of the obese person is concerned. Consequently, one cannot even describe the killing of the obese man, considered in itself, as a moral act; nor, therefore, can it be qualified morally. The action, morally, can be understood only as an “act of saving lives.” The killing itself falls outside the ethical framework and can be viewed only in analogy Copyright © 2009. Catholic University of America Press. All rights reserved.

with an (extremely regrettable) natural event. What such an act has in common with a natural event is that natural events that cause death are not infringements of justice. A person who dies has suffered no injustice, as people who die as a result of an earth23. Cf., e.g., P. Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” 21f. 24. Author’s note 2008: This is not an indirect killing like killing a fetus by hysterectomy, because the obese person does not die as a consequence of freeing the passageway; rather he is directly blown up together with the entire wall. We could also modify the example by assuming that one frees the passageway by somehow crushing the obese person’s body, thereby killing him. Though such a procedure might be practically impossible, as far as “directness” is concerned there would be no morally significant difference from blowing him up with the wall.

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quake, or flooding, or by an airplane crash do not suffer any injustice. If “killing” is merely a natural event, no injustice can be attributed to it (which does not, of course, imply the opposite, that it corresponds to justice). The above act of saving the lives of the spelunkers is, certainly, not a natural event, but the circumstances allow the act of killing to be viewed as analogous to a natural event: it falls outside of the ethical context of “justice.” Which says in effect: where this ethical context (of justice) is no longer given, acts of killing can no longer be evaluated as “morally good” or “evil,” and this precisely for the reason that they can no longer be evaluated as just or unjust. This means, however, that now the moral description and evaluation are determined by the intention with which one carries out the act (in this case the saving of life or the preservation of one’s own life).25 It can easily be shown that in the address by Pius XII relevant to our discussion, the decisive point lies precisely in describing “direct abor25. This does not in any way mean that an act should simply be described in such a way as to appear morally impeccable (in our case, e.g., as “saving the mother”). Obviously one should not offer arbitrary and ad hoc redescriptions of actions on the basis of the governing intentions, so as then to derive the moral evaluation from such redescriptions (e.g., describing the killing of one person to save nine others as the “saving of nine lives,” so as to arrive at a positive moral evaluation of such an act of killing); cf. Rhonheimer, “Intentional Ac-

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tions and the Meaning of Object,” 291ff., and Perspective of the Acting Person, 78ff.; R. Spaemann, “Einzelhandlungen,” in Zeitschrift für philosophische Forschung 54 [2000]: 514–31, 523ff.; and in Spaemann, Grenzen. Zur ethischen Dimension des Handelns (Stuttgart: KlettCotta, 2001), 49–64, 56ff. In the case we are discussing, however, the evaluation is in no way derived from the description; rather, the description of the act as “an act of life saving” follows from the moral evaluation (which of course again presupposes an action analysis and a corresponding description of the intentional structure of the act). This means that the act can be described as a “life-saving act” precisely because (with respect to its object) the act of killing contained in it was recognized, first of all, as falling outside of the ethical context of “justice.” (For a criticism of such arbitrary “redescription,” cf. once again Flannery, “What Is Included in a Means to an End?” 511, which is in fact directed against the argument made by J. Boyle in “Double Effect and a Certain Type of Embryotomy,” in Irish Theological Quarterly 44 [1977]: 303–18. The reproach against Boyle certainly seems justified, for in his case the description of the act comes first—craniotomy is described as an “operation for decreasing the size of the skull,” in itself having nothing to do with the killing of the fetus—so as then to derive the moral evaluation from that description.)

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tion” as an infringement of justice and fundamental equality. What Pius XII in fact rejects is the weighing, implicit in the choice of abortion as a means to an end, between the value of two lives with a corresponding decision or—as is said today—a preferential choice between two “equal” goods, which in concrete cases are nevertheless evaluated precisely on the basis of their “worthiness of survival.” The ethical context of “justice” is thus built into the normative assessment of “direct abortion.” (This must be so, because human—and thus moral—acts are not natural events or physical and/or mechanical processes, but deliberate acts that are done in the framework of ethical contexts which are defined by the ends of the moral virtues). To this end, it is revealing to quote somewhat more extensively a further passage from Pius XII’s address on November 26, 1951. Concerning the principle that every “direct abortion” is “a grave and illicit attempt against inviolable human life,” the following specification is made (em-

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phasis mine): This principle holds good both for the mother as well as the child. Never and in no case has the Church taught that the life of the child must be preferred to that of the mother. It is erroneous to place the question with this alternative: either the life of the child or that of the mother. No; neither the life of the mother nor of the child may be submitted to an act of direct suppression. Both for the one and the other the demand cannot be but this: to use every means to save the life of both the mother and the child.26

It seems important to point out here that the case in which both mother and child would die if nothing were done cannot be discussed in this context. The alternative that the text addresses and, as it states clearly, the basis on which the question cannot be decided, reads: “either the life of the child or the life of the mother.” In (extreme) cases of conflict, however, the alternative is: “Either the life of the mother or neither the life of the child nor that of the mother.” This alternative is not addressed in this argument (as can be seen in how the argument develops). Rather, it proceeds consistently on the basis of the child’s possible 26. Pius XII, “Associations of the Large Families,” 125.

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survival, for whom the mother must sacrifice herself in certain circumstances. The appeal to the doctor, as well, to attempt to save both mother and child, cannot regard a situation in which the child is—as far as anyone can judge—lost anyway. It relates rather to a situation in which the child can be born alive, but the mother will possibly die during the delivery or shortly thereafter, and yet an effort is made to save both. Even if Pius XII then appeals to those involved “to bow down in reverence to the laws of nature and to the dispositions of divine Providence,” according to the logic of the argument this can refer only to allowing the mother to die to save the child. This statement of the Magisterium is directed against preferring the life of the mother to that of the child on the basis of a value judgment made by a human being.27 Only in this context of such a fundamental injustice, a violation of the principle of equality, does the condemnation of every “act of direct destruction” (and also the respect for the providence of God that expresses itself in nature) acquire its ethically normative contours: “The inviolability of the developing life of an innocent person does not depend on its greater or lesser value. More than ten years ago, the Church formally condemned, in all its forms, the killing of a life deemed as ‘useless.’ ”28 It is thus pre27. And here again it essentially concerns “killing” as the presumption of a human pow-

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er of disposal over human life. This is the context of the commandment against killing, and thus also the commandment against abortion. This was already made clear in the famous address of Pius XII to the Society of Italian Catholic Midwives on October 29, 1951 (AAS 43 [1951]: 835–54), where it says, among other things: “Hence, there is no man, no human authority, no science, no medical, eugenic, social, economic, or moral ‘indication’ that can offer or produce a valid juridical title to a direct deliberate disposal of an innocent human life; that is to say, a disposal that aims at its destruction whether as an end or as a means to another end, which is, perhaps, in no way unlawful in itself. Thus for example to save the life of the mother is a very noble end; but the direct killing of the child as a means to that end is not lawful. The direct destruction of the so-called ‘life without value’ whether born or yet to be born, such as was practiced very widely a few years ago, cannot in any way be justified ....... The life of one who is innocent is untouchable, and any direct attempt or aggression against it is a violation of one of the fundamental laws without which secure human society is impossible” (“Address of Pope Pius XII to Midwives, October 29, 1951,” published in Liebard, Love and Sexuality, 101–22, here 104–5). 28. Pius XII, “Associations of the Large Families,” 126.

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cisely the weighing and corresponding preferential choice that are here considered to be immoral. But the argument assumes the possibility (in principle) of the child’s survival, and the consequent duty of the mother to be ready to sacrifice her life for her child. (As noted in Chapter I, the preferential choice implies a conscious decision against the life of the child and not purely weighing which of the two human lives is to be saved, as was the case with the two patients in an emergency, both of whom needed the one artificial kidney machine at their disposal.) That Pius XII in fact assumes the possible survival of the child in principle can be seen from how the text proceeds: “[W]ho can judge with certainty which of the two lives is in reality the more precious? Who can know what path that child will follow and to what heights of perfection and of work it will reach? Here, two greatnesses are compared, about one of which nothing is known.”29 If the child has no chance of survival, however, one could then certainly say that one of the two greatnesses is indeed known; and above all one can conclude that in this case “weighing” can no longer take place. Nor, obviously, can it be demanded of the mother that she sacrifice her life, because there is no one for whom she would give it. It is precisely here that one recognizes the hopelessness of coming to a rational way out of the situation, along with the impossibility of the moral criteria characteristic of the ethical context of “justice” Copyright © 2009. Catholic University of America Press. All rights reserved.

being any longer applicable. Thus, what is meant by “direct” abortion in this case can be clarified as follows: an abortion is not direct if no decision has been made (on the level of means) to take the life of a child in order to ensure the survival of the mother. Whether this is the case or not is not decided by the structure of the physical act, but by the intentional structure (which is in its turn determined by physical conditions: intentions cannot be freely and arbitrarily directed—they also depend on conditions that are independent of the will). The abortion is direct, however, if there has been a deci29. Ibid. Here Pius XII gives an example of a mother who, against the advice of doctors and her own husband, gave birth to a baby girl and died as a result. The child became a nun who devoted her whole life to the service of the sick.

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sion to take a life on the level of means (and a fortiori on that of the end). Although with this every problem has not been resolved, the discussion to this point can be summarized in the following points: 1. A (direct) will to kill is a will that is directed against the life of another human being.30 1a. A will directed against the life of another human being entails a decision against his continued life, or a judgment that, in the given circumstances, it is good and right to take his life. 1b. A (direct) will to kill can exist on the level of the end to be attained, as well as on the level of a means to an end. 2. A (direct) act of killing is an act that is chosen and carried out with such a (direct) will to kill. 3. A (direct) act of killing is a morally evil act because and insofar as it contravenes justice. 4. A direct abortion is one that fulfills (2) and thereby also (1), and consequently is morally illicit, because it fulfills (3). The advantage of this description of the action is that it corresponds completely to the morally undisputed intuition that a physical killing (however physically “direct” it may be) is not an act of killing that can be held against the agents precisely when the carrying out of this acCopyright © 2009. Catholic University of America Press. All rights reserved.

tion does not involve any “will directed against the life of another human being,” any “decision against his continued life, or any judgment that, in the given circumstances, it is good and right to take his life” (= 1a), and therefore, in the given ethical context, the carrying out of the action involves no injustice. In the classic case of therapeutic abortion, on the other hand, where a decision is made to save the life of the mother and thus to kill a child who could otherwise survive (thus mother or child), condition (1a) has clearly been fulfilled. A decision is made against the life of the child based on the weighing of goods. Therefore (2) is also fulfilled, i.e., there 30. We have put “direct” in parentheses here because the expression is actually redundant.

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is an act of direct killing on the level of the means to an end (in itself good), namely the saving of the mother’s life. The crucial question, however, is: if both mother and child will forseeably die, how necessary is (1a) in order to choose and perform the act of saving the mother? For if (1a) is not necessary, then (1) is not met either and, consequently, (2) and (4) also are not met. The action is then—at least morally—not an act of “direct” killing, but exclusively one of saving a life. Before we attempt to answer this question, we need to clarify some other aspects concerning action theory. Above all, we must clarify the concept of the “object” of the moral act, especially in light of the distinction between the “physical” and the intentional structures of an action (and thus the distinction between an action in its genus naturae or natural (i.e. physical) species and its genus moris or moral species). That the objects of actions are essentially intentional was, indeed, recognized in traditional manuals of moral theology; the concept of “direct” action, however, does not seem to have been decisively influenced by this recognition of the intentional character of the object.

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2. The Physical and Intentional Structure of Actions: The Object of the Moral Act

When we look at one of the moral theological manuals used widely in the past, such as that of D. Prümmer, it is somewhat astonishing to see that in the first part on fundamental moral theology, the concept of “direct” is nowhere explained or clarified. The concept of “voluntarium indirectum seu in causa” (“ ‘indirect’ or ‘voluntary in the cause’ ”), however, does appear.31 We must thus ask ourselves how it is possible to 31. Prümmer, Manuale, vol. I, 45ff. As distinguished from this, a definition of the concept of “direct” is found in the section on fundamental morality in B. H. Merkelbach, Summa Theologiae moralis I, (Paris: 1931), 65ff. Merkelbach opposes the “voluntarium positivum et directum” (the positive and direct voluntary [or willed]) to the “voluntarium negativum et indirectum” (the negative and indirect voluntary [or willed]). The distinction rests on the different ways in which they each proceed from the will. The “voluntarium directum” is “quod

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have a concept of “indirect” or “indirectly willed” without having first settled what the concept “direct” or “directly willed” is. Only in specific moral questions—and precisely in connection with the discussion of abortion—is the concept of “direct” defined more closely. Indeed, one would expect the concept to be defined as “directly willed,” in imitation of the concept of “indirectly willed.” This is not the case, however; rather, according to Prümmer, there is a “directa procuratio abortus” if “the means used, as such and immediately, kill and expel the fetus” (“si media adhibita per se et immediate occidunt foetum expelluntque”). The abortion would, however, be indirect “if the means used, as such and immediately, aim at preserving the health of the mother, but incidentally and unintentionally (even if not unforeseen) kill the fetus” (“si media directe ab ea procedit in tantum est agens (sicut calefactio a calore) et in quod voluntas fertur” (that which proceeds from it insofar as it is an agent [as heating from heat] and which the will aims at). The “indirect” is “quod procedit ab ea [voluntate] indirecte in quantum prohibere potuit sed non prohibet, seu non agit dum agere debeat .......” “Voluntarium directum itaque est a voluntate agente; indirectum a voluntate non agente quando agere debet” (The indirect voluntary, therefore, is “what proceeds indirectly from a will”; the directly voluntary is from a will that does not perform [or operate] when it ought to). The “voluntarium in causa” (voluntarily in cause) is, in turn, distinguished from the latter (the indirect voluntary). The concept of “indirect” applied here by Merkelbach as the consequence of the omission of an act that should and could have been done does not, however, appear to be that

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which is applied in the PDE, where it concerns forseeable but permitted consequences of actions positively performed, and not those of omissions. In fact Merkelbach as well seems to treat this in the chapter on the “voluntarium in causa.” The concept of the “voluntarium in se” (the voluntary in itself) is defined there as “quando voluntas directe in illud fertur i.e. aliquid immediate in se vult et simul agendo causat, sive ut finem ..... sive ut medium ad finem ..... ” (when the will directly aims at it, i.e. when it wills something immediately and in itself and when it simultaneously causes it by acting ......, whether as an end ......or as a means to an end). The “voluntarium in causa tantum” (voluntary in the cause only) is defined as “quando voluntas immediate fertur in causam et non in effectum i.e. effectum in se ut finem vel medium non vult ..... ” (when the will immediately aims at the cause and not at the effect, i.e. when it does not will the effect in itself as means or end). On this basis, a meaningful distinction between “direct” and “indirect” can be established, but this is accomplished exclusively on the level of the act of the will and thus on the intentional level. With Merkelbach as well, only with respect to specific moral questions does a clearer position appear, when “direct” and “indirect” killing are distinguished in connection with suicide (II, [Paris: 1938], 349).

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adhibita per se et immediate ordinata sunt ad sanitatem matris, sed per accidens et praeter intentionem [licet non praeter praevisionem] expellunt foetum”).32 What is problematic here is that Prümmer, unacceptably, uses the word “means” in two different ways. First, he uses “means” in a technical-physiological sense as a “medical measure,” an “operation,” a “remedy” (one is reminded of a “means” against a headache). In the following sentence, he then uses “means” in the context of a human action, chosen for the sake of an end (which becomes apparent in the use of the word “unintentional,” which in effect can only be applied to human actions, and not to “means” in the first sense). More precisely, one must say: actions are characterized as “means,” in the sense used in action theory and thus relevant for moral assessment, precisely insofar as they are chosen for the sake of an end (and not in the sense of a “headache tablet,” or a measure described on the purely physical-technical level, such as the “excision of a fallopian tube”). The aspect of “choice,” and therefore the relationship to the willing of some physical action, is thereby constitutive for the description of the action in question as a “means” (just as choice and willing are to be taken into account in defining “direct”). The description of a moral act should therefore be an intentional description, i.e., it must somehow include a fundamental and primary Copyright © 2009. Catholic University of America Press. All rights reserved.

“why?” of the act.33 (Sore throat lozenges, for example, can also be used because people enjoy sucking on them, and the purpose of an excision of a fallopian tube may be sterilization as well as treatment for tubal gravidity; according to the different cases, these are different actions with regard to their objects.) Second, precisely for this reason the concept of “per se et immediate occidere” (as such and immediately to kill) as Prümmer applies it, is underdefined. It is clear that, for example, the dismembering and sucking out of a living fetus kills it “as such and immediately.” Such a physical32. Prümmer, vol. II, 128. 33. Cf. more extensively on this Rhonheimer, Die Perspektive der Moral, 49ff. and 96ff., as well as the essay “ ‘Intrinsically Evil Acts’ and the Moral Viewpoint” cited above.

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ly immediate killing of the fetus, I assume, would also be the case with chemotherapy, even though in this case, according to classical doctrine, the death of the fetus is caused only “indirectly” (for the act was intentionally “per se et immediate” directed at the healing of the mother); the same obtains for a hysterectomy in the case of uterine cancer in a pregnant woman.34 The “indirect” here, however, is not the physically indirect, for it seems obvious that a fetus would be killed immediately by the extirpation of the uterus in which it exists; similarly, chemotherapy will kill the fetus—insofar as it kills it—causally in a very direct and immediate way, though granted it may be more complex. Why, then, is there a “voluntarium indirectum” here? Precisely because the will of the acting person, as a will that chooses a means, is not aimed at the death of the fetus, but exclusively at a treatment that saves the mother.35 But it is not in fact entirely opportune to say that the will is aimed only “indirectly” at the death of the fetus. Rather, it is not aimed at the fetus at all. Simply put, there is no direct killing of the fetus here. The death of the fetus is, to be sure, physically caused (however “directly” it occurs is beside the point), but it is not chosen as a means to an end. As Prümmer rightly says (using the terminology of St. Thomas Aquinas), it occurs per accidens (incidentally, casually) and praeter intentionem (unintentionally). Both are key terms, and should be used rather than the Copyright © 2009. Catholic University of America Press. All rights reserved.

concept of “indirect,” which only causes confusion.36 34. At the time, this was P. Gemelli’s argument against A. Vermeersch to demonstrate that a hysterectomy of a gravid (i.e., pregnant) uterus was a direct killing. The latter responded by saying that the certainty that an effect would occur did not entail that it was willed directly. Gemelli in turn replied that killing the fetus directly or simply robbing him of what is, for him, a vital means of subsistence amounts to the same thing. Subsequently, the discussion became enmeshed in physiological subtleties concerning the direct or indirect harming of the fetus, such as precisely which arteries were cut, etc. Cf. Connery, Abortion, 295ff. 35. On this cf. also M. Rhonheimer, Natur als Grundlage der Moral, 350ff.; Natural Law and Practical Reason, 458ff. This book, however, does not yet call into question the concept of “acting indirectly.” Today I would be more careful with respect to terminology. (Author’s note 2008: this could be misunderstood as pleading for the possibility of redescribing actions depending on what is “willed.” Yet, this is not the case. See for this what is said below in Chapter III, section 1.) 36. Here, “unintentional” obviously cannot mean something like “unwittingly” or “in-

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Human actions are not simply physical events that are causally stimulated or otherwise brought about by people. Precisely the same holds for the so-called “object” of actions.37 Here one should first point out that the objects of human actions are not “things,” but rather activities, types of behavior.38 Thus, even in the classical manuals, which were oriented to St. Thomas, the object of “theft,” for example, was not defined simply as res aliena (something belonging to another), but as ablatio rei alienae (taking a thing belonging to another), and thus as an action. The objects of actions must be indicated with verbs rather than nouns. The “object” of a craniotomy, therefore, is not simply the fetus. Even if the death of the fetus is caused immediately, in a physical sense, by the medical intervention, one can still pose this question: Is the object of the act the killing of the fetus with the purpose of saving the mother, or is the whole act to be viewed, regarding its object, as a life-saving medical intervention?39 To be able to answer the question, one must put oneself in the “perspective of the acting person” and analyze precisely what is actually chosen on the level of the concrete act, and not simply analyze what happens physically in this act. As soon as the action is described as “chosen,” however, one cannot escape describing it as advertently,” for a doctor, after all, knows precisely what the consequences will be for a feCopyright © 2009. Catholic University of America Press. All rights reserved.

tus in the case of a hysterectomy or chemotherapy. The question here is not the unintentionality with which someone does something inadvertently or unwittingly, but an unintentionality in the more narrow, theoretical-practical (i.e., within a theory of action) sense of the not-chosen-as-means (and, of course, the not-sought-as-end). Rather than “unintentional,” one could perhaps say “non-intentional” or “without intention.” But this is ultimately a question of semantics. 37. Cf. John Paul II, Veritatis splendor (1993), 78. On this see also Rhonheimer, “Intentional Actions and the Meaning of Object.” 38. On this cf. Rhonheimer, Natur als Grundlage der Moral 343ff.; The Perspective of the Acting Person, chapter 8 (“The Perspective of the Acting Person and the Nature of Practical Reason: The ‘Object of the Human Act’ in Thomistic Anthropology of Action”); T. G. Belmans, Le sens objectif de l’agir humain. Pour relire la morale conjugale de Saint Thomas (Vatican City: Libreria Editrice Vaticana, 1980, 163ff. (Der objektive Sinn des menschlichen Handelns. Zur Ehemoral des hl. Thomas [Vallendar-Schönstatt: Patris Verlag, 1984], 183ff.). 39. Cf. also the critical remarks on K. Flannery’s article “What Is Included in a Means to an End?” (above, note 19).

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an object of reason, which again entails understanding it as a purposeful, intentional action, oriented toward an end. Again, however, this is possible only within an ethical context, through which the act can be grasped not only in its genus naturae or natural species but also in its genus moris or moral species.40 40. Author’s note 2008: My view that objects are not “things” but “actions” has recently been challenged by Lawrence Dewan in an article that in my view contains some significant misunderstandings and undue simplifications of my position; see: “St. Thomas, Rhonheimer, and the Object of the Human Act,” in Nova et Vetera (English edition) 6, no. 1 (2008): 63–112. Although Fr. Dewan makes several valuable and useful points, he does not do justice to the fact that in Aquinas things are not so clear as he (Dewan) presents them as being, and that his own interpretation entails some difficulties that he seems to disregard. See, for example, a text like De malo, q. 2 a. 5, which makes no sense if the object were the thing involved in the corresponding description of the object (emphasis added to the Latin of Thomas’s references to reason and to objects described with verbs, i.e., as actions): “ ..... the moral act has its species from the object according to its relation to reason, as we have said above (in the preceeding article). Now there is an object that implies something in accord with reason (aliquid conveniens rationi) and makes the act good by reason of its genus, for example, clothing the naked (vestire nudum); and an object that implies something discordant with reason (aliquid discordans a ratione), for example, taking what belongs to another (tollere alienum), and this makes it evil in its genus; but there is a kind of object which implies neither something in accord with reason nor something discordant with reason, for instance, picking up a straw from the ground (levare festucam de terra), or the like; and such an act is called indifferent.” English text is from John A. and Jean T. Oesterle’s translation of AquiCopyright © 2009. Catholic University of America Press. All rights reserved.

nas’s On Evil (Notre Dame: University of Notre Dame Press, 1995), 66–67. For a very useful discussion of the main texts belonging to this question see Joseph Pilsner, The Specification of Human Actions in St. Thomas Aquinas (Oxford University Press: Oxford 2006), 113ff. and 77ff. It is to be hoped that Pilsner’s book will serve as common ground for further discussions on this subject. Yet, unfortunately, Pilsner does not elaborate the notion of “object” in the context of a theory of practical reason based in Aquinas. This is precisely what I have tried to do in my works previously available in English, from Natural Law and Practical Reason through The Perspective of the Acting Person. Fr. Dewan seems to have overlooked the need to articulate the notion of object in the context of a theory of practical reason based in Aquinas and therefore simplifies matters too much. Such simplification is not the case in Steven L. Brock, “Veritatis splendor §78, St. Thomas, and (Not Merely) Physical Objects of Moral Acts,” in Nova et Vetera, English edition, 6, no. 1 (2008): 1–62. Brock, on pages 14– 15, concedes my main point, i.e., “that the first proper principle and measure of moral acts is reason,” that physical nature plays a morally determinative role only “insofar as the role is conferred upon it by reason,” and that therefore objects are defined by their relation to reason. Brock, however, tries to confer on physical nature also a somehow “formal” role.

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According to Prümmer, however, the object of an action is that “towards which the act is immediately directed according to its nature” (“ad quod actio ex propria natura et immediate ordinatur”).41 Unfortunately, this is of no further help, because he does not clarify in what the “action” (actio) itself consists, as distinguished from what are merely the individual elements of an action. If one does not want to define an action as a purely physical event—and thus according to its genus naturae—one must indicate that through which an action becomes this kind of human action—i.e. one must describe its genus moris. Like all advocates of traditional moral theology, Prümmer emphasizes correctly that one must distinguish the purely physical discussion of the object from its moral treatment. But how is the “moral object” to be defined, as distinct from the purely physical object? As the “objectum physicum” of the act of killing, Prümmer refers to the “violenta destructio vitae humanae.” According to Prümmer, this does not yet define the moral evil of the act, for indeed, the “violent destruction of human life” (violenta destructio vitae humanae) is, as such, not morally qualifiable at all. (It is precisely only this violent physical destruction of human life—independent of other volitional and properly moral considerations—that, in the case of craniotomy, many see as a basis for the moral reprehensibility of the intervention.) Not only because a pure and simple violenta destrucCopyright © 2009. Catholic University of America Press. All rights reserved.

tio vitae humanae may be realized by a robot or an earthquake is it not qualifiable in a moral sense, but also because, in cases where the “destruction” is done by human beings, it does not necessarily and in all cases violate justice (the classic cases being self-defense, killing in war, and capital punishment). Therefore: When is killing evil? According to Prümmer, it is evil precisely “when, for example, a person is killed in an unjust way” (“si e. gr. homo occiditur iniusto modo”). But we are now caught in a vicious circle. That is why Prümmer adds: “To judge in pracI doubt whether this is correct, but I would not deny that “physical nature” has also a morally determinative role to play because it possesses an intrinsic value-content and both defines and delimits the possible range of further formal determinations by reason. 41. Prümmer, vol. I, 46.

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tice whether an act is good or indifferent in itself, it helps to consider whether the agent, in an absolute sense, has the right to perform such an act or if he violates another’s rights” (“ ..... num agens habeat absolute loquendo ius hanc actionem ponendi neque laedat ius alterius”).42 Here it is again shown that the PDE is inadequate and cannot be applied in any case where it cannot first be clarified whether the chosen act is itself good, indifferent, or evil according to the definition of its kind (species), and thus considered as an intentional human act. It is precisely this, however, that is not clear in the case in question. Secondly, it must be said that if we take Prümmer at his word, it is not enough to clarify whether the death of the fetus follows (physically) immediately from the act that saves the mother’s life. Rather, the question that needs to be answered is whether one has the right to perform such an act. Thus, one cannot avoid analyzing the act of killing, however “direct” it may be, in its relation to the ethical context of “justice.” It seems that, based on what Prümmer has said, an answer to the question can be given by answering the further question of whether the right to life of the unborn is actually violated. With this further question it becomes entirely clear how different the two situations are from each other: whether a decision is being made between the survival of the mother and that of the child (on the basis of a weighing of goods and a subseCopyright © 2009. Catholic University of America Press. All rights reserved.

quent “preferential choice”), or whether the child has no chance at survival anyway. In the latter case there is nothing to be decided upon or chosen (and thus no right to life can be violated), but the mother’s life could be saved through an operation. A similar solution, which simply denies the right to life to an unborn child who will not survive, thus indeed appears to suggest itself. If we accept it in this form, however, we find ourselves on slippery ground. We arrive, in fact, at the most unacceptable conclusion of all: that in every such conflict the issue would be to clarify which of the two people 42. Ibid. Prümmer’s problematic definition of the “morality” of an act corresponds to this; for a critique, see Rhonheimer, Die Perspektive der Moral, 299, and also The Perspective of Morality.

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has a greater or “prevailing” right to life, with this “greater” right being decisive. On this basis, every act of killing could actually be permitted—certainly any kind of therapeutic abortion to save the mother’s life. Prümmer’s argument would therefore lead us directly to a form of the weighing of goods and thus to the method of “teleological ethics,” proportionalism or consequentialism. The dangers of such an argument are obvious—and in my view, a consequence of an inadequate action theory—and it is understandable that on this basis, one cannot avoid the insinuation of an argument such as, e.g., making physical directness the decisive criterion for judging whether something is also directly chosen in a moral sense, i.e., as a means. It is interesting and revealing that in the discussions that finally led to the decrees of the Holy Office on craniotomy cited at the beginning of the present work, this further possibility of justifying craniotomy as an act that does not violate the unborn’s right to life was already present in the discussion. The statements made by St. Thomas Aquinas in connection with self-defense in his Summa theologiae (ST) II-II, q. 64, a. 7, and the figure of the “unjust aggressor” (iniustus aggressor) in subsequent thinkers, played a decisive role in this debate. To present this discussion in its main features will be useful, not least so as to be able to understand the sense and importance of the interventions at the time Copyright © 2009. Catholic University of America Press. All rights reserved.

by the Holy Office, so as to be able to understand the historical context. But above all, it will help to clarify my proposal for a solution, which I outlined at the beginning.

3. The Controversy Regarding Craniotomy through the End of the Nineteenth Century: The Interpretation of Summa theologiae II-II, q. 64, a. 7

a. The Argument of Pietro Avanzini and the Category of the “Unjust Aggressor” Twelve years before the first restrictive intervention by the Holy Office, the first systematic defense of craniotomy for the case in which, if nothing were done, both mother and child would certainly die, was pub-

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lished in a three-part anonymous article in the Acta Sanctae Sedis (and generally thought to have been written by the latter’s first editor, Pietro Avanzini),43 under the title “The Moral Question of Craniotomy or The Case of Killing an Infant in the Mother’s Womb to Preserve the Mother from Certain Death” (Quaestio moralis de Craniotomia seu de occisione infantis in utero matris ut mater a certa morte servetur).44 Avanzini pointed out that moral theologians had virturally closed ranks against the permissibility of such an intervention, though he did cite some important voices that deviated from this position. The author, however, was of the opinon that this quasi-unanimity stemmed from the fact that the question was posed incorrectly, i.e., under the supposition that it concerned a “direct killing of the infant” (directa occisio infantis). This obviously already settled the question, for a direct killing is, indeed, never permitted. Avanzini’s argument moves, however, to the claim that the issue here is not actually the killing of an innocent. The child in the uterus, which kills the mother and itself by his existence (or at birth) and is thus already lost with no possibility of being saved, is, precisely because of this characteristic, materialiter (but not formaliter) an aggressor iniustus, an “unjust aggressor.” For this reason, neither is his right to life violated by his being killed

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43. Cf. Connery, Abortion, 232. Editor’s note: Pietro Avanzini was the founder of “Acta Sanctae Sedis” (cited as ASS), which began as a private journal, collecting and publishing all papal documents. ASS later became an official organ of the Holy See and changed its name to “Acta Apostolicae Sedis” (cited as AAS), as it is called today. 44. Cf. AAS 7 (1872/73), Appendix V (308–11); Appendix XI (491–96); Appendix XII (552– 65). On November 28, 1872, there was already an initial response to an inquiry from 1869 regarding the permissibility of craniotomy “or similar operation, which per se directly aims at the killing of an infant situated in the womb of the mother” ( ..... craniotomia vel similis operatio, quae per se directe tendit ad occisionem infantis in utero positi) in the case of the certain death of mother and child. The Holy Office answered the questioner at that time: “consult approved authors, whether ancient or recent, and act prudently” ( ..... consulat probatos auctores, sive veteres sive recentes et prudenter agat) (quoted, e.g., in A. Ballerini, Opus theologicum morale in A. Busenbaum medullam, vol. 2 [Prati: Giachetti, 1890], 647–48; D. Prümmer, Manuale Theologiae moralis, II, 127). The question thus appeared to the Holy Office as anything but simple, despite the words “quae per se directe tendit ad occisionem infantis ..... ”!

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directly, because he would no longer have such a right, inasmuch as he in effect has no chance of surviving (310 and 553). Avanzini argues subtly but questionably: if the child could choose, the choice of his brief continued life at the expense of the mother’s life must be characterized as unjust. In a situation in which continuing to live would lead not only to one’s own death but also to the death of another, one is obligated to put the life of the other before his own. Whoever holds onto his life in such circumstances can be characterized as an “unjust aggressor.” The idea can be illustrated perhaps by the following example— which Avanzini himself did not use. We would feel it to be morally correct, indeed obligatory, that a non-swimmer sacrifice himself voluntarily if he realizes that his clinging to an expert swimmer who is trying to save him would cause both to perish. The conscious refusal to do so in the face of the fact that he himself cannot be saved would be seen as unfair. For the same reason, we do not consider it unfair if in such a situation—in order at least to save himself—the expert swimmer violently shoves away a drowning person who is (“unfairly”) clinging to him, an action which will of course lead to the non-swimmer’s death. Avanzini’s claim then, i.e., characterizing the fetus as materialiter an unjust aggressor, is thus intended to support only the position that in the case in question killing the child in a physically direct way would not in any Copyright © 2009. Catholic University of America Press. All rights reserved.

way violate justice—something which is not the same as what is rightly rejected as a “direct killing of an innocent.” (That the fetus is an unjust aggressor only materialiter but not formaliter means that the fetus itself cannot commit an injustice, inasmuch as it is incapable of any choice.) With this, the issue comes back to that of legitimate self-defense. Is this correct? It must be said in the first place that the introduction of the “unjust aggressor”—appealing to Théophile Raynaud, S.J. (1587–1663) and JeanPierre Gury, S.J. (1801–1866)—must be characterized in this context as a most unfortunate step. Moreover, according to the logic of Avanzini’s argument, it was also unnecessary. The use of the category of unjust aggressor led in succeeding years to disastrous arguments, and also preju-

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diced the later decisions of the Holy Office in no small measure. Resistance to the iniustus aggressor argument was strong, for if the fetus is once characterized as an iniustus aggressor, even in this minimal and purely “material” way, then the danger exists that this mode of argumentation will be expanded to cases of medical indication to recommend therapeutic abortion. According to the sententia communis or common teaching of the time (based on a questionable interpretation of Thomas), the direct killing of an “unjust aggressor” would be permissible (because in effect we are not dealing with an innocent).45 That recourse to the doctrine of the “unjust aggressor” is unnecessary here is shown by the continuation of Avanzini’s argument, which merits every attention and expresses his real concern: to demonstrate the questionability and inadequacy of the distinction between “direct” and “indirect” killing. From the demonstration of the non-existence of the fetus’s right to life (as outlined above), Avanzini concludes that it follows clearly that “the distinction between direct and indirect ways of killing is inappropriate” (incongruam esse distinctionem inter modos directos interficiendi et indirectos, 310). The reason is that an “unjust aggressor” may indeed be killed directly. Therefore, the “directness” of the act could not be a criterion for its impermissibility. This distinction (and he means, of course, the distinction between a physically “direct” Copyright © 2009. Catholic University of America Press. All rights reserved.

and a physically “indirect” killing) is thus not “sufficiently scientific.” Admittedly, one could object to Avanzini’s argument here by pointing out that the traditional formulation of the prohibition against killing forbids only the (direct) killing of an innocent, but does not forbid the killing of a guilty party, a criminal, an “unjust aggressor,” etc. But with his characterization of the fetus as a (material) iniustus aggressor, Avanzini wants to highlight something else (which his unhappy detour 45. As will be shown later, this view cannot therefore appeal to Thomas. In the first place, Thomas does not speak, in his discussion of this question in Summa theologiae II-II, q. 64, a. 7, of an “unjust” aggressor but only of the (forcible) defense of oneself against lifethreatening violence. In the second place, Thomas explicitly rejects the notion that one may intend the death of an aggressor as a means of self-defense (which would actually mean: to kill him “directly”).

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through the teaching of the iniustus aggressor unfortunately obscures); his thesis, based on Thomas Aquinas, reads: “In matters of that kind, direct or indirect is considered not in the material act but in the intention, according to the famous principle provided by St. Thomas in II-II, q. 64, a. 7” (Namque in eiusmodi rebus directum vel indirectum in intentione consideratur, non autem in materiali actu, iuxta praeclarum principium a S. Thoma datum, 2, 2, q. 64, art. 7 ..... )” (311). One should not pay attention to the physically “direct” or “indirect” existing in materiali actu (the act considered only in its “material” components), but to the direct and indirect as it exists in the intention of the will (which is a formal consideration of the same act). In connection with this, Avanzini quotes the famous and often misused ST II-II.64.7, which discusses self-defense and in which (as is commonly held) Thomas incidentally formulates the PDE.46 b. Summa theologiae II-II, q. 64, a. 7: Killing in Self-Defense According to Thomas Aquinas

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The essence of this famous article is given in the following quote: Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention, which is per accidens.47 Now moral acts take their species according to what is intended, and not according to what is beside the intention. (Nihil prohibet unius actus esse duos effectus, quorum alter solum sit in intentione, alius vero sit praeter intentionem. Morales autem actus recipiunt speciem secundum id quod intenditur, non autem ab eo quod est praeter intentionem, cum sit per accidens.) 46. Cf. J. T. Mangan, “An Historical Analysis of the Principle of Double Effect,” in Theological Studies 10 (1949): 41–61. Opposing this view, J. Ghoos, “L’Acte à double effet: Étude de théologie positive,” Ephemerides theologicae Lovaniensis 27 (1951): 30–52, attempted to show that this principle was formulated much later, namely by John of St. Thomas (1589– 1644). In fact it does appear doubtful that Thomas recognized the PDE as a general principle for casuistic application. 47. The German translation of Thomas (vol. 18) reads: “ ..... außerhalb der [eigentlichen] Absicht ..... ”; the addition of “eigentlichen” (actual) in brackets is significant and changes the original meaning of the text. There is no issue of an “actual” or a “not actual” willing of the means or the end; the act of choosing a means or that of intending a goal is always “actual.”

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We will attempt here to articulate the precise meaning of the text. First, strictly speaking, the word “actus” (“act”) seems to be used in this text in two different ways. In the first statement “ ..... unius actus esse duos effectus ......,” “actus” refers to the physical act that characterizes a human action in a purely exterior way (e.g., the act of a more or less wellaimed gunshot, or a hit on the head with a club or, in Thomas’s time, perhaps a stab with a sword or a lance), and not yet the human act according to its moral species. The definition of this latter is the concern of this article. Indeed, the precise question is: Which of the two effects of the physical act is decisive for the species of the act viewed as a moral action? And here Thomas says: only that which is intended, and not what is beside the intention (praeter intentionem). In the second sentence, “Morales autem actus recipiunt speciem secundum id quod intenditur ......,” “actus” therefore means the human act viewed according to its moral species (the moralis actus), i.e., here the issue is the obiectum morale of the intentional act (e.g., “self-defense”).48

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The application to legitimate self-defense then follows: Accordingly the act of self-defense may have two effects; one is the saving of one’s life, the other is the slaying of the aggressor. Therefore this act, since one’s intention is to save one’s own life, is not unlawful, since it is natural to everything to keep itself in “being,” as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful....... Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s. (Ex actu igitur alicuius seipsum defendentis duplex effectus sequi potest: unus quidem conservatio propriae vitae; alius autem occisio invadentis. Actus igitur huiusmodi ex hoc quod intenditur conservatio propriae vitae, 48. Precisely for this reason (because actus in the sentence “nihil prohibet unius actus esse duos effectus ..... ” refers still to the physical and not the moral action), it can be argued that it does not even appear possible to make the text into an application of the PDE, inasmuch as the PDE addresses human, moral acts already defined in terms of their species (“good” or “indifferent”), but which can also have a double effect, and not physical acts whose moral species are as yet undetermined, as in this case.

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non habet rationem illiciti: cum hoc sit cuilibet naturale quod se conservat in esse quantum potest. Potest tamen aliquis actus ex bona intentione proveniens illictus reddi si non sit proportionatus fini. Et ideo si aliquis ad defendendum propriam vitam utatur maiori violentia quam oporteat, erit illicitum ....... Nec est necessarium ad salutem ut homo actum moderatae tutelae praetermittat ad evitandum occisionem alterius: quia plus tenetur homo vitae suae providere quam vitae alienae.)49

One should first point out that Thomas does not speak here of an unjust aggressor: the predicate “unjust” does not appear in the text. Nor does the Latin text speak much about an “aggressor” at all; it refers only once, and rather neutrally, to the “slaying of the aggressor” (“occisio invadentis”). The initial question in fact is simply: “Whether it is lawful to kill a man in self-defense.” The aggression itself is not qualified more specifically as “just” or “unjust.” Second, the issue with which Thomas is concerned here is clearly only that of the act of defense not being excessive or unnecessarily violent, which would be a clear indication that the will intends precisely the death of the aggressor (which presupposes, however, that the defender acted deliberately, i.e., did not overreact out of fear or panic, which could certainly be presumed in many cases— as in rape, for instance). However, the simple fact that the aggressor is, under the circumstances, killed “directly” (e.g., by a gunshot, a blow Copyright © 2009. Catholic University of America Press. All rights reserved.

to the head, a fall from a window as a result of being pushed)50 plays 49. The last sentence, i.e., that one is bound to take more care of one’s own life than that of others, is not entirely without significance for the case being discussed here. We will come back to this. 50. For a concrete assessment of the act of self-defense, the way in which one is attacked and with what weapon one defends oneself are certainly not irrelevant. Thomas presumably proceeds on the basis of a situation in which one is attacked by a stabbing weapon. The use of violence can be stopped under such circumstances through moderate countermeasures without deadly injury to the aggressor. It is entirely different if one is attacked with a modern firearm and also has one at his disposal: only gunslingers from Hollywood can be expected to shoot the aggressor’s weapon out of his hand. Rather, one “aims” more or less spontaneously—insofar as one aims at all—at the area of the head or heart or the lower body, which in no way means that one does so with the intent to kill. The intention is always selfdefense, fending off the aggressor (although an illegitimate intent to kill is also possible, but this does not depend simply on the structure of the physical act). A.-F. Utz, who notes

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no role here—everything here is “direct” in a physical-causal sense. It is therefore morally or intentionally “non-direct” only because the will is directed at saving one’s own life (“ ..... intenditur conservatio propriae vitae ..... ”) and not at the death of the aggressor, all of this in accord with a legitimate, natural impulse, the natural inclination for selfpreservation (“ ..... cum hoc sit cuilibet naturale, quod se conservet in esse quantum potest”). Thus the death of the aggressor is not chosen as a means of self-defense, and that fact is entirely decisive here. Thomas expressly emphasizes that such a choice is not permissible: But as it is unlawful to take a man’s life, except for the public authority acting for the common good, as stated above, it is not lawful for a man to intend killing a man in self-defense....... (Sed quia occidere hominem non licet nisi publica auctoritate propter bonum commune, ut ex supra dictis patet: illicitum est quod homo intendat occidere hominem ut seipsum defendat.......)

But “to intend to kill a man in self-defense” is the same as “choosing to kill a man as a means to the end of self-defense.” This nuance is important, for it shows that it is not consistent with St. Thomas to deduce from the above principle the moral norm that “it is lawful”/“one should” kill another person in the defense of one’s own life (if there are appropriate reasons and appropriate, proportional means are used). Such an ar-

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gument implies a weighing of goods and would in effect assert that the means of killing is permitted in order to save a life. Thomas, however, does not argue in this way. No norm can be derived from his argument at all, strictly speaking—certainly not one that could be arrived at through a weighing of goods. The text states only that, in the case described, the killing of the aggressor occurs praeter intentionem, that it is done per accidens and therefore has no influence on the moral specification of the act. This is a form of what we earlier called “justification through the different structure of the physical act of self-defense with modern firearms, nevertheless concludes incomprehensibly: “It appears, it seems, that no other possibility remains than directly willing the death of the aggressor” (Summa Theologica, Die Deutsche Thomas Ausgabe, vol. 18: Recht und Gerechtigkeit, II-II 57–79, with commentary by A.-F. Utz [Heidelberg/ Munich, etc.: Kerle, 1953], 485).

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exculpation.” The response to the main question of this article “utrum alicui liceat occidere aliquem se defendendo” (“Whether it is lawful to kill a man in self-defense”) is thus not simply “Yes,” but rather the following: if the death of the aggressor is intended as a means of selfdefense, then it is not lawful; if, however, his death is caused praeter intentionem, then no guilt is attributable to the agent. The principle that Thomas uses here is thus more comprehensive and more fundamental, but at the same time more trivial, than the PDE. Only after it has been established that the use of violence to fend off aggression with fatal consequences for the aggressor (e.g., by a completely spontaneous blow to the head) was, according to its species, an act of self-defense (for the killing, being praeter intentionem, cannot specify the act), can the act then be viewed in terms of the PDE scheme: the object was good (self-defense) and the evil effect, i.e., the death of the aggressor, was not chosen as a means ......, etc.51 But to demonstrate that the object of the act was good—this requires precisely the argument used by Thomas. His argument is thus not an application of the PDE. The principle used by Thomas in ST II-II, q. 64, a. 7 simply says that acts are defined according to their moral species by that which is willed or intended on the levels of the end and of the means, but not by what is praeter intentionem (“not intended”) and therefore happened merely Copyright © 2009. Catholic University of America Press. All rights reserved.

per accidens, even if it was “done” and occurred as the immediate effect of the action. Such an occurrence is then no longer the content (object) of the action but an accidental event (per accidens, accidit).52 51. It is, however, interesting that the condition (often cited as equivalent) that “the good effect should not follow from the evil effect,” is actually violated here. The preservation of one’s own life is here a consequence of rendering the aggressor harmless (here: the consequence of his death). If the act is viewed “from the outside,” i.e., from the perspective of the observer and not from the perspective of the agent, then it must be concluded that the killing is the means for saving a life. It is thus entirely possible that the good effect follows from the evil effect, and that the evil effect nevertheless was not chosen as a means! Ultimately, it is precisely the act of the will itself that is decisive for whether something has been chosen as a means. 52. Author’s note 2008: I cannot discuss here the views on praeter intentionem and the following interpretation of self-defense in Aquinas recently set forth by Steven A. Long, first

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To avoid any misunderstanding, it should be emphasized that we are discussing ST II-II, q. 64, a. 7 here not because we believe that the killing of the fetus in cases of vital conflict—where, if nothing were done, mother and child would die—is a case of legitimate self-defense. We are discussing ST II-II, q. 64, a. 7 here only because, first, Thomas’s treatment contains a theory concerning the specification of moral acts and the causing of events praeter intentionem; this theory is generally valid and applicable beyond the issue of self-defense. Second, ST II-II, q. 64, a. 7 is central—and not without good reason—to Avanzini’s argument. Instead of simply limiting himself to the statements found in this article of the Summa concerning action theory in general, however, Avanzini in an article in The Thomist 67 (2003): 45–71 (“A Brief Disquisition Regarding the Nature of the Object of the Moral Act According to St. Thomas Aquinas”) and then in his book The Teleological Grammar of the Moral Act (Naples, FL: Sapientia Press, 2007). For a helpful critique of Long’s article in The Thomist I refer the reader to Steven Jensen, “A Long Discussion Regarding Steven A. Long’s Interpretation of the Moral Species,” in The Thomist 67 (2003): 623–43. Jensen rightly remarks that Long “has attempted to construct a theory from a few difficult passages” (623). In fact, Long bases his argument mainly on one single text from Aquinas’s Summa theologiae (I-II, q. 18, a. 7), which he interprets in a very one-sided way, failing to consider other key texts of Aquinas’s Summa theologiae that contradict his unduly narrow reading of the terms intention and praeter intentionem. Two of these texts are ST II-II, q. 43, a. 3 c and I-II q. 72, a. 1. Secondly, the solutions Long provides for some hard cases are not

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always fully consistent with his own theory, but rather reflect my own way of arguing. Examples include his discussion of the cases of the mountaineer hanging on a rope with his colleagues who saves them by cutting the rope and falling to his death, and the case of a soldier who sacrifices himself (see pages 72–80). Whereas Long’s book claims to show that “the correct understanding of the object and species of the moral act ..... depends wholly on natural teleology” (137), he resolves these cases by referring to—choice! In this, indeed, he is completely right. On the one hand, he dedicates (only) a short footnote to the meaning of “directly” (footnote 1 on page 103), telling the reader that it refers to the “per se terminus of the action,” here: “cutting a rope,” but on the other hand he had, on page 77, given quite a different meaning to the word “direct” and a different reason why the cutting of the rope was not a morally illicit suicide: “Nor does the mountaineer completely and directly choose his own death....... Likewise, the soldier does not completely and directly choose his own death..... .” Or: “The mountaineer has not chosen to dispose the stay to be on the verge of failing along with the death this threatens ......,” etc. In fact, what is happening on the level of choice must be part of the analysis of the object of the human act. The object cannot solely or, in the words of Steven Long, “wholly” depend “on natural teleology”!

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seems to have made the fatal error of attempting to resolve the question at issue (craniotomy) by viewing it as self-defense and by using the figure of the “unjust aggressor”—something that seems all the more unnecessary, given that Thomas did not even speak of an “unjust” aggressor, but only of an aggressor who threatens one’s life; such a person could also be, for example, a violent mentally ill person. At any rate, the yield of ST II-II, q. 64, a. 7 is the following: the analysis on the level of action and on that of moral theory must be directed toward what is actually willed, on the level of means and of the end, in a concrete action. With respect to craniotomy, Avanzini maintains that the concrete intervention has two effects: one is willed or intended and gives the act its moral species as “remotio causae mortis matris” (removing the cause of death for the mother). The other effect, however, is praeter intentionem and therefore per accidens—a pure and simple “happening” that remains external to the morality of the act, namely the death “of the unjust aggressor, the child.” Like his predecessors Raynaud and Gury, to whom he refers, Avanzini is apparently led by the thematic context of ST II-II, q. 64, a. 7 (selfdefense) to view the child as an unjust aggressor. But this, as we stated above, is not necessary for the application of the principle formulated there. Nevertheless, the positive contribution of Avanzini’s attempt at a Copyright © 2009. Catholic University of America Press. All rights reserved.

solution should be retained: his treatment of human acts as intentional acts and the substitution, for direct/indirect, of “intended, willed as end or means” / “praeter intentionem,” “per accidens.” It is also important that Avanzini frames the question in truly ethical categories: in order to analyze the act of killing and the associated intention of saving a life, he takes the ethical context of “justice” into account without, obviously, being fully conscious of the significance of this step for his argument. Instead of a casuistic, and what often appears as pedantic, concentration on the question of whether something was caused or done physically “directly” or “indirectly,” he poses the question in moral categories: Is the doctor’s act, which saves the mother’s life, a violation of justice? Has a person’s right to his life been violated? Are two lives

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weighed against each other here and the one rejected in favor of the other? Is this an act of “direct” killing, i.e., is the death of the child chosen (i.e., is his survival or continued existence prevented) as a means to save the mother? Can one speak at all of a life-negating, and thereby unjust, will? Is the life of the mother preferred through a decision concerning which of the two should live—a decision against a life? It is precisely these questions that risk being neglected by a method that concentrates on the opposition between “direct” and “indirect.” Certainly, using this traditional method one can arrive at unambiguous results that also preserve principles—the breaking of which would amount to a dangerous breach in the whole moral edifice. But such solutions must always have the air about them of being unfair, even unjust. No doctor whose ethics are directed toward saving lives can be expected to apply such a solution (especially since, in the nineteenth century, doctors whose refusal to perform surgery led to the mother’s death had to face the charge of negligent homicide or of having made a professional error). One can thus understand the generally widespread instruction to confessors, mentioned above: Given that one could not expect a doctor to change his practice on the basis of the view that a craniotomy to the save a mother’s life is a grave violation of the fifth commandment, it instructed that, in practice, confessors should assume that a doctor Copyright © 2009. Catholic University of America Press. All rights reserved.

who performs a craniotomy acts in good faith, and should be left in this good faith (with, of course, the stipulation that he not commit as formal sins what were considered purely material sins).53 c. Critique and the Development of the Discussion (P. Eschbach, D. Viscosi, J. Pennacchi) Avanzini’s concern, however, seems at first to have been completely lost in the discussion that followed. This discussion was opened—al53. This obviously does not apply to doctors who used embryotomy and craniotomy as normal methods for abortion in the nineteenth century. We are speaking here only of cases of extreme conflict between lives, in which both mother and child would die as a consequence of choosing not to perform the surgery.

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so anonymously—with a critical article by Abbé P. Eschbach.54 This article strongly criticized Avanzini’s position as being “close to heresy,” because it deviated from the sententia communis of theologians; thereafter, Avanzini’s efforts to extricate himself from this serious and dangerous charge took almost all his energy. He did show that the unanimity among theologians was certainly not without gaps, but above all that it referred only to the “directa occisio innocentis,” and that his argument in effect rested on the fact that this was in fact not the case. In truth, Eschbach did not even engage Avanzini’s argument, but simply accused him of wanting to justify the direct killing of innocents—at the time more a defamatory statement than an argument. Avanzini’s argument was taken up again, after his death, by Daniel Viscosi.55 Viscosi correctly emphasized that “direct/indirect” meant different things depending on whether one was referring to the physical or to the intentional level. His main point was that human acts should be judged as direct or indirect, not on the basis of the structure of the physical/causal act, but on the basis of what the will construes as its end. The killing of an innocent is forbidden in the sense that it may never be willed either as an end or as a means, but not in the sense that one may never physically cause a death—assuming there are appropriate grounds.56 Viscosi denies that the act (craniotomy) is nothing other Copyright © 2009. Catholic University of America Press. All rights reserved.

than an act of killing; medically, it is the direct and immediate removal of the death-causing child from the mother’s uterus (which would also be done, and precisely for the same reason, if the child were already dead).57 The killing of the child is thus not willed here as a means or as 54. “L’embryotomie au point de vue moral,” in Revue des sciences ecclésiastiques 27 (1873): 274-52; 364–74. 55. Connery, Abortion, 237–55. 56. This has nothing to do with proportionalism, for proportionalism states that one may choose a physical evil (like the death of a person) also as means, if there is an appropriate reason to do so. Proportionalism rejects the (for Viscosi) essential argument that the death is not chosen as a means here, and it therefore considers the fact that there is no will to kill to be an insignificant complication and irrelevant to the question. 57. Viscosi could find support here in the principle adopted, for example, by B. von

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an end, i.e., such a will to kill is not a motivation for acting on the level of means or on that of the end. It is striking, moreover, that up to this point Viscosi’s argument makes no reference at all to the notion of the “unjust aggressor.” Viscosi criticizes—entirely justifiably—the many theologians of the past who defended the view (going back to the seventeenth-century Jesuit John de Lugo) that an unjust aggressor, thus not an innocent, could be killed directly (an opinion that was generally held in the nineteenth century as well).58 This view, according to Viscosi, contradicts St. Thomas; according to our analysis above, it seems clear that Viscosi was right on this. In general, as we have said, Thomas holds that the direct killing of an aggressor, i.e., willing his death both on the level of means and (of course) on that of the end, is immoral (whether the aggressor is “innocent” or “unjust” plays no role in his argument). For Viscosi this seems to prove that his opponents have wrongly understood the essence of “direct.” Indeed, we could add that the traditional norm that an innocent should not be directly killed does not in any way lead to the idea that a non-innocent can be (“directly”) killed; this is clearly a non sequitur. According to Thomas, the carrying out of capital punishment by a public authority is not a “direct” killing, even though his way of expressing himself here is often somewhat ambivalent.59 Decisive for Thomas, Copyright © 2009. Catholic University of America Press. All rights reserved.

however, for this case also, is the absence of a will to kill: the death of the guilty is chosen neither as end nor as means. Rather, the restoration of justice is the end for which the means is more immediately chosen, Merkelbach that there is an intention to kill directly if the corresponding action cannot be directed immediately toward something else (cf. Merkelbach, Summa Theologiae Moralis, II [Paris: Desclee, 1938], 349: “Directa [occisio] est quae in se intenditur tamquam finis aut medium, sive explicite, sive implicite, ut dum actio vel omissio ad nullum alium finem immediate tendere possit). Insofar as the “actio” is considered not as a physi­cal event but as an intentional human action, one can readily say of the present case that it is directed immediately toward something other than the killing, i.e., the removal of the fetus that poses a threat to the mother. 58. A view that has recently been retrieved by Steven A. Long in his The Teleological Grammar of the Moral Act. 59. On this cf. Rhonheimer, “Sins against Justice.”

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and which gives the physical act of killing its moral species as an act of punishment.60 In terms of its object, therefore, it is not a “direct” killing (and thus not a homicide or a murder), but an act of punishment, and therefore a matter of retributive justice according to the principle that the equality of justice is restored by punishment.61 This also explains why only the public authority is suited to do this: not because it “may kill directly,” but because only a punitive killing performed by the public authority has the character of the “restoration of the equality of justice and, thus, the character not of vengeance, but of punishment.”62 Viscosi thus correctly opposes the widespread view that “direct killing” is permitted for public authorities as well as in legitimate selfdefense, which in fact would mean that there are cases in which the death of a person can be chosen as a means to an end. (In my view, Thomas would never say that the death of the criminal is chosen as a means to restore justice or to preserve the common good!) Indeed, this generally widespread view discredits the strict condemnation of direct killing, even if the proviso “innocent” has been added to the prohibitive norm.63 Insofar as “direct” is understood to mean “chosen as means,” 60. Thus the central text from ST I-II, q1, a.3, ad 3: “It is possible, however, that an act which is one in respect of its natural species, be ordained to several ends of the will: thus

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this act ‘to kill a man,’ which is but one act in respect of its natural species, can be ordained, as to an end, to the safeguarding of justice and to the satisfying of anger: the result being that there would be several acts in different species of morality.” (Possibile tamen est quod unus actus secundum speciem naturae ordinetur ad diversos fines voluntatis; sicut hoc ipsum quod est occidere hominem, quod est idem secundum speciem naturae, potest ordinari sicut in finem ad conservationem iustitiae, et ad satisfaciendum irae. Et ex hoc erunt diversi actus secundum speciem moris.) 61. “ ..... quia per poenam reparatur aequalitas iustitiae” (ST II-II, q. 108, a. 4). 62. To be sure, capital punishment is a direct act; it is carried out “directly.” But the death as such is direct here only in view of its genus naturae, which is not morally relevant. However, private individuals cannot restore the violated justice (this requires the responsibility for the whole of the corresponding community), but only practice retribution or revenge. 63. That Viscosi was right here is shown precisely by the currently widespread view of moral theologians who argue proportionalistically; these assume that direct killing is generally permissible if there are appropriate grounds, and they seek to legitimate this view by

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the direct killing of a non-innocent is also immoral, if not precisely for the same reasons. Unfortunately, however, Viscosi now appears to use this argument to declare that the question of whether the death of the aggressor may be intended directly or indirectly is ultimately unimportant. For if the fetus is truly an aggressor, he asserts, then killing the fetus would be permitted in either case. He thus definitively connects his intentional distinction between direct and indirect (or better, non-direct), which he derived from Thomas, with the iniustus aggressor argument. To make matters worse, Viscosi appeals to several earlier theologians who—with the argument of the unjust aggressor—justified the direct abortion of a foetus inanimatus, an “unsouled” fetus (as it was called in the doctrine of successive ensoulment), i.e., a fetus that did not yet have a human, rational soul. Here he took up Avanzini’s argument that a fetus who was fated to die and at the same time threatened its mother’s life could not claim any right to life. This argument, to which P. Eschbach strongly objected, was continued by J. Pennacchi—who was also editor of the Acta Sanctae Sedis.64 Pennacchi denied that the killing of the fetus in the present case was a direct killing, if viewed from the question of the intention. This argument, however, was mixed with other, more questionable, ones: before Copyright © 2009. Catholic University of America Press. All rights reserved.

it was born, Pennacchi argued, a fetus could not even be considered a “neighbor,” a “human person,” and therefore the fifth commandment of the Decalogue did not apply here (something which could justify every therapeutic abortion). But principally, Pennacchi defended Avanzini’s main argument: a fetus with no chance of survival has no right to the prolongation of his life at the expense of the mother’s. Avanzini’s fundamental intuition is thus resumed: namely, that the refusal to perform a surgery entailing immediate death for the fetus, at the cost of referring to the traditional permissibility of direct killing in the cases of an unjust aggressor and capital punishment. 64. Joseph Pennacchi, De abortu et embryotomia, Rome: Polyglotta, 1884. Cf. Connery, Abortion, 256–69.

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the mother’s life, clearly seems to contradict justice and is unfair. Moreover, according to Pennacchi, the assumption that nature or the creator of nature wills that mother and child die makes little sense. To all this, Pennacchi adds that craniotomy would also not be unconditionally wrong if it entailed a direct killing, given, after all, that it is generally acknowledged that an unjust aggressor (here the unjust aggression is so only materialiter) can be killed directly! Thus, for Pennacchi as well, everything finally comes down to the iniustus aggressor argument. This is prior to his assertion that it is not a matter of direct killing. Pennacchi concludes that the life-saving operation itself is here the finis operis (thus the object of the action); the saving of life is thus not only finis operantis, the end for the sake of which the surgery is performed, but the object of the action as well. As such, the action is not an act of killing but one of saving a life (strictly analogous to Thomas’s example of self-defense.) Connecting the demonstration that this is not a matter of a direct killing with the assertion that the fetus can be viewed materialiter as an “unjust aggressor” is fatal also for Pennachi’s argument. This connection again leads to non-directness actually being declared to be insignificant, because, according to the commonly held view—which again contradicts Thomas’s analysis of self-defense in ST II-II, q. 64, a. 7—an Copyright © 2009. Catholic University of America Press. All rights reserved.

iniustus aggressor could be killed directly. The argumentative chaos was thus complete and the valuable elements in the original argument of Avanzini and Viscosi could hardly be developed in an effective way. d. Waffelaert’s Incorrect Interpretation of ST II-II, q. 64, a. 7 Immediately prior to the first decision of the Holy Office, the Belgian moral theologian J. G. Waffelaert published a series of articles in which Pennacchi’s argument was systematically and, so the author believed, conclusively refuted.65 With complete correctness, Waffelaert estab65. G. J. Waffelaert, “De abortu et embryotomia,” in Nouvelle Revue Théologique 16 (1884): 94–106; 160–79; 293–321; 377–85; 17 (1885): 60–68; 200–210; 528–50. Cf. Connery, Abortion, 270–83.

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lished that direct willing is directed not only at the end but also at the means chosen for an end. The criterion for something being willed as a means rather than being only a side effect, and thus praeter intentionem, is that both effects arising from the one action do not arise immediately; rather, one is subordinate to the other. An effect that is produced so that another (which is actually willed as the end) would emerge from it is in fact chosen as a means. This also applies, according to Waffelaert, to an intentio of the will. Therefore, Waffelaert concludes, Avanzini, Viscosi, and Pennacchi are actually endorsing the Machiavellian principle that the end justifies the means. From the point of view of action theory, Waffelaert’s analysis to this point is obviously correct. But in fact he misses the point. Is reproaching the proponents of craniotomy with “Machiavellianism” justified? Those being criticized would object here that their argument consists precisely in the fact that the consequence of death is not chosen as a means; the act of saving a life is alone the object of the intentio of the will. They would have agreed entirely with the view that the means is also the object of an intentio, and therefore directly willed. But they contest the claim that the killing here is intentionally a means to an end. Indeed, in ST II-II, q. 64, a. 7, to which both parties appeal, Waffelaert’s criterion that both effects must spring “immediately as equal effects” from the Copyright © 2009. Catholic University of America Press. All rights reserved.

action plays no role at all. An example from Hitchcock’s Dial M for Murder can help clarify this. The heroine, Margot Wendice (Grace Kelly), takes a pair of scissors in legitimate self-defense and stabs the murderer who has almost strangled her. It seems pointless to ask whether the two effects of the stabbing, the “death of the aggressor” and “saving the life of the person who has almost been strangled,” occur here “immediately as equal effects,” or if the one effect is secondary or subordinate to the other. One could reasonably assume that the fatal stab was the physical (causal) condition for the survival of the woman whose life was threatened; the good thus followed from the evil effect. Nevertheless, this effect was not chosen as a means: the will is focused simply and solely on rendering the ag-

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gressor harmless or neutralizing the cause of the threat to one’s life. This intention, however, is realized in a purely physically causal way through the fatal stab with the scissors.66 This is precisely what ST II-II, q. 64, a. 7 refers to—which, it seems, Avanzini and his successor understood correctly. It cannot, however, be concluded from this analysis that Thomas holds that an “unjust aggressor” may also be killed directly: the directness here is only a matter of physical directness and not one of intentional directness. In the moral, and thus only relevant, meaning here, “direct” means the same as “chosen as means”—and that is precisely not the case here, and it is what is characterized in ST II-II, q. 64, a. 7 as unlawful. Waffelaert’s interpretation, however, of ST II-II, q. 64, a. 7 not only misses the point of the text but also distorts its meaning: Thomas, Waffelaert claims,67 shows in this article that not only the object of an act but also the circumstances and the intention must be good. That the object is to be good is already presupposed in this example, for it concerns an unjust aggressor, who can be killed directly at any rate! But, according to Waffelaert, Thomas wanted to show here that not only the object but also the circumstances and the end must be good: this, according to Waffelaert, is why Thomas thinks that only appropriate violence (a circumstance) should be used, and that an unjust aggressor Copyright © 2009. Catholic University of America Press. All rights reserved.

may be killed only for the end of self-defense, but not for the end of killing the aggressor. For Waffelaert, therefore, when Thomas says that the moral act is defined according to its species by what is intended and not by what occurs praeter intentionem, he is not referring to the species of the object of the action, but only to the final species as determined by the final intention!68 The author therefore concludes that St. Thomas’s 66. Admittedly, if the aggressor could have been rendered harmless through being only seriously wounded, she would not have killed him; rather, she would have called the police. But this is insignificant in this context. 67. “De abortu et embryotomia,” Nouvelle Revue Théologique 16 (1884): 165ff. 68. It is also astonishing that Waffelaert (ibid., 167), characterizes St. Thomas’s statement “Actus morales accipiunt speciem moralem secundum id quod intenditur” as “difficult to interpret,” even though it is, in fact, the central statement of the whole article and the key

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opinion is that self-defense that results in the death of the aggressor is always proper, as long as the final intention of the defender consists in saving his own life and not in killing the aggressor. If he is not innocent, the aggressor may be killed directly on the level of means, but that should not be the final end of the act. This latter would be permissible only for public authorities when imposing capital punishment.69 In my judgment, both of these assertions are wrong and contradict the text in very obvious ways. Thomas says explicitly the opposite with respect to the first: “illicitum est quod homo intendat occidere hominem ut seipsum defendat” (“it is not lawful for a man to intend killing a man in self-defense”). To kill directly, i.e., to choose the death of another as a means (and in this sense “to intend” it) for the end of selfdefense, is unlawful.70 The correct analysis of St. Thomas, which rests on the fact that the killing here is understood to be praeter intentionem and that therefore the object or species of the act is not determined by the killing, is thus ignored by Waffelaert. But his second claim is wrong as well—indeed completely absurd. As we have already seen, for Thomas the imposition of capital punishment is an act done for the end of restoring justice, and this not only on the level of the final end, but also on that of the object of the act itself.71 For Thomas, this is not even an act of “killing” as such (“killing” as such occurs here only on the level Copyright © 2009. Catholic University of America Press. All rights reserved.

of the genus naturae; viewed thusly, it is not even a morally definable “human act”). For Thomas, at the level of genus moris, there are only to its proper understanding! Waffelaert thus asserts arbitrarily that “species” refers exclusively to the definition of the species of the final end, but not to the object of the act. 69. “ ..... l’intention, le but final de tuer ne peut être légitime que chez celui qui exécute le coupable en vertu d’un ordre de l’autorité publique” (ibid., 169). That is not rational and would be immoral; the executioner, as well, kills for the sake of justice, for the common good, or to fulfill the duties of his profession. If he kills for the sake of killing, he sins. 70. Nevertheless, Waffelaert claims, incomprehensibly, that Thomas would say this: “..... S. Thomas ne dit pas qu’on ne puisse vouloir directement la mort de l’agresseur, si elle est necessaire” (“De abortu et embryotomia,” 169f.). Also for Waffelaert, “directement vouloir” is effectively the same as “intending or choosing as means.” 71. It is clearly not carried out for the end of killing or eliminating the guilty, which Waffelaert would nevertheless consider to be legitimate!

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homicide, murder, the imposition of capital punishment by public authorities (an act of retributive justice), or killing in war as collective selfdefense.72 All of these are either just or unjust acts, according to their object; they thus fall, respectively, within a specific ethical context of the virtue of justice. Killing as self-defense, however, is an act of saving one’s own life, of self-preservation. Precisely insofar as it is an act of self-preservation, the death of the aggressor falls outside the intentional structure; it is praeter intentionem. The figure of the “unjust aggressor” is obviously superfluous here, which also renders the opinion that an “unjust aggressor” should be killed directly untenable. If Waffelaert is taken at his word, his position is profoundly amoral. What he actually wants to say, however, is that the defender of craniotomy cannot appeal to ST II-II, q. 64, a. 7, but must prove that this operation is correct not only with respect to its end but also with respect to its object and circumstances. To this end, Waffelaert not only misinterprets the text of ST II-II, q. 64, a. 7 but also misses completely the point of the position he criticizes, even if it must be admitted that its representatives were at times also carried away by statements that in this form were equally untenable, and came close to stating that only the intention with which something is done determines what one is doing.

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e. The Consequences of the Confusion Against the background of the intensity, but also the confusion of the (to some extent) extremely subtle discussion we have just presented, the decisions of the Holy Office of 1884 and 1889, according to which the permissibility of craniotomy could not be taught as certain in Catholic schools (“tuto doceri non posse”), seem almost accommodating. The note that it “could not be taught as certain” did indeed influence teach72. The death of the aggressor is not willed here either, but only his being rendered harmless, even if he is killed directly in a physical sense. If he is only wounded, but is now incapable of fighting (by which the act of defense is thus completed), he must be given medical treatment like any one else; otherwise, even in war, one would become a murderer. If the object or even the final end of the act was the death of the aggressor, then, logically, he must be killed.

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ing and medical practice, but it did not in any way decide the question from a doctrinal standpoint (and thereby the reproach of heresy was eliminated).73 Problematic, of course, is the addition of 1889 (“et quamcumque chirurgicam operationem directe occisivam foetus”) through which craniotomy, it seems, was incorrectly classified under the genus of “direct killing,” a genus of acts that all the theologians understood as impermissible. Also problematic was the decision of 1895, which confirmed this classification of craniotomy as direct killing and expanded it even to the case of the straightforward removal from the uterus of a nonviable fetus that in consequence will die.74 The confusion was not lessened by a statement made by P. Eschbach (the main opponent of Avanzini and his sympathizers), after the publication of the decrees of the Holy Office, against M. Matharan, again on the issue of the meaning of “direct willing.”75 The immediate topic of 73. This is also the position of such a vehement opponent of craniotomy as Noldin; cf. H. Noldin, Summa Theologiae Moralis, II (Regensburg: F. Rauch, 1917), 365: “Verum licet s. Officii responsis doctrina opposita non declaretur simpliciter falsa, tamen ea uti amplius non licet nec theoretice nec practice.” A. Eschbach, however, referring to an 1861 decree formulated in similar terms (“ ..... tuto doceri/tradi non posse ..... ”) which condemned ontologism (DH 2841f.) and which was understood without a doubt to be a condemnation of the teaching, held the view that the craniotomy decree was therefore also to be viewed as

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a doctrinal condemnation. Cf. Connery, Abortion, 285. Whether this assessment is compel­ ling is doubtful. In any case, one cannot derive from the formulation “tuto doceri non posse” any more than what it explicitly says, i.e., that one cannot teach something with certainty of conscience (because it is perhaps wrong). But it is also obvious that such a decree could also be rescinded. Such a judgment was in any case certainly appropriate for the time, especially in consideration of the foregoing discussion. 74. This means that a revision of these judgments would not imply a limitation of the prohibition of direct killing, but only a retraction of the assertion that craniotomy (and any similar procedure) is a form of that which is called in a moral sense “direct killing.” However, this formulation “directe occisiva foetus” is again extremely problematic: does it concern the physical or the intentional directness of the “occisio”? Does “occisio” refer to the act on the level of the physical event, or to the intentional human act of killing? According to one or the other meaning, the meaning of the decree would then of course be different. In any case, one can say that, given the state of the discussion at the time, it would have been difficult to make such differentiations in an adequate way. 75. Cf. Connery, Abortion, 286ff.

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the controversy was the question of the acceleratio partus of a living but premature fetus (which would subsequently die) and whether it was a direct or indirect killing. Matharan defended the view of A. Ballerini, i.e., that the act of extraction as such was (according to its nature) not an act of killing, and that the act as a whole acquired its species from the intention of the will to save the life of the mother. Eschbach held that this was a direct killing (on which he is, in my view, correct, insofar as it concerns an ordinary method of “therapeutic abortion” in favor of the mother, thus not an extreme case of conflict between lives). But what is interesting in Eschbach’s argument here is his assertion that the criterion for the directness of the killing is not how immediately the fetus dies as a result of the action, but whether its death is clearly connected, causally, with the act performed. To be sure, it cannot be denied that such a clear causality exists in this case. But is this sufficient? What Eschbach could not know is that years later, hysterectomies in the case of uterine cancer would be approved by moral theologians as “indirect,” even though the act would of course clearly and certainly cause the death of the fetus. The defenders of the permissibility of hysterectomy, however, obviously did not want Eschbach’s counterargument—which had also been introduced by A. Gemelli—to prevail.76 According to Gemelli’s opponent Copyright © 2009. Catholic University of America Press. All rights reserved.

at the time, A. Vermeersch, what is entirely decisive is that the death of the fetus not be willed as a means, and here, indeed, the death is not so willed, for the death of the fetus is neither necessary, nor must it be willed, for the success of the operation. But it should be added here that the death is not necessarily intentional, because the existence of the fetus in the uterus does not have anything to do with the cancer as such, i.e., this disease would have occurred without the pregnancy, in which case, if necessary, the extirpation would have been performed: it would be an identical therapeutic treatment of the woman. Viewed from the physical-causal perspective, however, in the presence of a pregnancy 76. Ibid., 295ff.

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the death of the fetus is obviously clearly connected causally—and this necessarily—to the act performed.77 But this refutes ex post, or after the fact, P. Eschbach’s earlier argument against acceleratio partus (where the criterion for the directness of a killing is that a clear causal connection exist between the action performed and the death). In any case, this criterion of causal connection appears to be incompatible with the permissibility of a hysterectomy.78 The moral justification of a hysterectomy shows precisely that the question of whether something is willed as a means or is a non-intended side effect cannot be answered on the basis of the analysis of the physical structure of the act or of physicalcausal connections, even if the answer is not completely independent of them.79 The discussion on craniotomy and embryotomy, and the accompanying discussion on the acceleratio partus of a premature fetus to save the mother’s life, seems therefore to have taken a somewhat chaotic course, primarily because it was linked from the beginning with the idea that the fetus could be considered materialiter as an iniustus aggressor, and the corresponding medical intervention causing the death of the fetus could be interpreted as self-defense. The aftereffects of this discussion can still be found in the encyclical Casti Cannubii of Pius XI,80 where

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77. On this cf. the extensive analysis in M. Rhonheimer, Natur als Grundlage der Moral, 354ff. 78. In contrast to such analysis based on caused consequences, the clear causality of the evil consequence does not, in general, play any role in the application of the PDE. 79. The subsequent discussion between Vermeersch and Gemelli shows, however—at least on the basis of Connery’s presentation—that Vermeersch himself was incapable of producing a properly intentional analysis of the action. Rather, the discussion took place on the level of the question of whether the fetus itself would be affected immediately by a hysterectomy, or only through an indirect influence on its vital organs. In the end, the only topic discussed was where, when, and which arteries should be cut. 80. “ ..... [N]evertheless what could ever be a sufficient reason for excusing in any way the direct murder of the innocent? ..... [N]or is there here question of defense by bloodshed against an unjust aggressor (for who would call an innocent child an unjust aggressor?); again there is question here of what is called the ‘law of extreme necessity’ which could even extend to the direct killing of the innocent... ... [T]hose show themselves most unworthy of the noble medical profession who encompass the death of one or the other, through

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the real central issue, the clarification of the intentional significance of “direct” and “indirect,” again gets short shrift.81 It seems that in that encyclical it would have been possible to give a simple and safe solution to the problem, one that would in no way endanger the continuing validity of the norm that the direct killing of an innocent is never permitted (and, in effect, the non-violation of this norm is what the discussion is all about). Such a solution, moreover, can be summarized in the statements already expressed above, which I reiterate here in anticipation of Chapter III of this study: 1. A (direct) will to kill is a will that is directed against the life of another human being. 1a. A will directed against the life of another human being entails a decision against his continued life, or a judgment that, in the given circumstances, it is good and right to take his life. 1b. A (direct) will to kill can exist on the level of the end to be attained, as well as on the level of a means to an end. a pretence at practicing medicine or through motives of misguided pity” (in Liebard [ed.], Love and Sexuality, 23–70, here 44). Missing from this text, of course, is a clear distinction between the two cases of “mother or child” on the one hand and “mother and child” on the other. In any case, it is very difficult to understand how a doctor in the case discussed here

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“encompass the death of one or the other,” unless this “encompassing” is understood in a purely physically causal sense (but then precisely cases of so-called “therapeutic abortion” would become problematic, because in effect the purely physical distinction between direct and indirect is, from a moral point of view, of no interest). 81. It is symptomatic how, decades later, T. Lincoln Bouscaren reproduced the arguments of Avanzini, Viscosi, and Pennacchi, but coarsened and reduced to the question of the “unjust aggressor” and the conflict of rights (Bouscaren, Ethics of Ectopic Operations, 5f.). Bouscaren’s work gives the impression that he has not read Avanzini’s article in the original and is familiar with his argument only through Eschbach’s critique. That craniotomy in the moral sense is a “direct killing” is assumed by Bouscaren from the outset and not even analyzed. Bouscaren hardens in the assertion that the defenders of craniotomy attempted to morally justify “direct killing,” and correspondingly concludes regarding the decrees of the Holy Office: “The question of the possible licitness of direct abortion in any form is thus, for Catholic moralists and physicians, forever closed” (13). But this was not even the question at issue; rather, it was the question of whether craniotomy is actually a case of “direct abortion.”

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2. A (direct) act of killing is an act that is chosen and carried out with such a (direct) will to kill. 3. A (direct) act of killing is a morally evil act because and insofar as it contravenes justice. 4. A direct abortion is one that fulfills (2) and thereby also (1), and consequently is morally illicit, because it fulfills (3). Again, in the case of a classic therapeutic abortion, in which it is decided to save the mother and thus to kill a child who might otherwise have survived (“mother or child”), (1a) is clearly fulfilled—a decision against the life of the child is made on the basis of a weighing of goods. Therefore (2) is also fulfilled, i.e., there is a direct act of killing on the level of the means to an (in itself good) end, namely, saving the mother’s life. Thus (3) is fulfilled: the act violates justice and for precisely this reason is morally evil. If, however, mother and child would probably die, (1a) is not necessary for the performance of an act saving the mother’s life—indeed it is not even possible—with the result that (3) and also (4) become irrelevent. Therefore (1) is not fulfilled, and thus neither are (2) and (4), with the consequence that the act is describable exclusively as an act of saving a life. It seems to me that this is what Avanzini, Viscoso, and Pennacchi actually wanted to demonstrate via Copyright © 2009. Catholic University of America Press. All rights reserved.

the argument of the materialiter unjust aggressor. Precisely this connection of their argument with the idea of the unjust aggressor, however, seems to have distanced the argument from their actual intent, and ultimately made it incomprehensible. In Chapter III of this work I will first attempt to work out a solution to the present gynecological dilemma regarding the problem of extrauterine gravidity—in particular tubal pregnancy—on the basis of the insights we have gleaned thus far and by means of a step-by-step argument. Second, I want to treat—and more precisely found—this and other related questions that occur within the framework of Catholic moral theology, increasingly within a perspective of virtue ethics. Such a “partial paradigm shift” will particularly affect the use of the category of “direct” and the concept of “indirect.”

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III

Life-Saving Medical Interventions The Prohibition of Killing and the Virtue of Justice

This final chapter includes (1) a concise restatement of the preceding argument, (2) an application of it in the moral analysis of four major therapies currently used Copyright © 2009. Catholic University of America Press. All rights reserved.

for tubal gravidity, (3) a thorougoing moral justification of this approach, and (4) an epilogue on this virtue ethics based approach to the prohibition of killing, in contrast to an analysis based on the distinction between “direct” and “indirect.”

1. Retrospective Summary: Acts of Killing and the Ethical Context of “Justice”

As we have seen, ST II-II, q. 64, a. 7 contains a fundamental doctrine that is applicable beyond merely the case of self-defense. This doctrine is the principle that what lies outside the intention (praeter intentionem) of 83

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the agent cannot morally specify an action. There are various conditions that may cause something to lie outside the intention, and these depend upon the case. Thomas Aquinas uses the principle in ST II-II, q. 64, a. 7 with reference to self-defense; in the present study, it concerns a specific, unique situation, whose logic cannot be transferred straightforwardly to other cases of praeter intentionem. My thesis is that, in the case of craniotomy, and in that of tubal gravidity where there is a danger that the tube will rupture (which means that both mother and child would foreseeably die, and where only the mother can be saved), the action that causes the death falls entirely outside of the ethical context of “justice.” As such, this action is not (and cannot be) related on an intentional level to a possible infringement of justice. This reference to being just to the one who is killed is, as such, a part of every act of killing; thus, every act of killing a human being is either just or unjust. If, however, for certain reasons, an act falls in principle outside of the alternative “just/unjust,” then this reference to justice can no longer be made. It is this reference alone, however, which enables one to call the act of killing morally evil. Therefore, in a different sense and for a different reason than those operative in the case of legitimate self-defense, that which makes killing evil (the infringement of rights or justice) in this case falls outside of the intention and is thus Copyright © 2009. Catholic University of America Press. All rights reserved.

praeter intentionem. With respect to its intentional content, the act can therefore be described as an act of saving the life of the mother, i.e., as a therapeutic act. To repeat, I believe this allows me to present adequately what a normal and healthy medical ethos appears to require in such a situation. In order to avoid any misunderstanding, and the possible criticism that this approach opens the door to subjective arbitrariness, we should bear in mind the following: it is a matter of objective fact, and not one of subjective arbitrariness, that places “outside” the intention the (physical) act of killing, which the infringement of rights or justice would make unjust and thus morally evil. When intentionality does come under consideration here, what is meant is the intention that belongs to the

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structure of the object of the action and constitutes the action as a moral action—an intention that is formed precisely by the immediate grasp of objective facts. As we have already remarked above, whoever attempts to feed another with stones (for example) has a wrong view of the structure of reality. One cannot “steer” intentions according to whim on the level of the object of the act, and thus describe acts in whatever way one wishes. Whoever kills out of a free decision of the will usually intends to take the life of someone else; he thus infringes on that person’s rights, acting unjustly and in a morally evil way. This intention to take a life does not depend on whatever else he may further intend in his act of killing; other, possibly laudable intentions cannot undo or mitigate this fundamental, objective act of infringing the rights of another. But in our case, the objective reality is so structured that the physical act of killing does not imply any decision of the will to take the life of another hu­man being. The intention is different on the basis of the given facts and, indeed, on the level of the object of the act. It is precisely for this reason that it does not qualify as a “direct killing” in the moral sense.1 1. Author’s note 2008: In footnote 1 of the Introduction to his book The Teleological Grammar of the Moral Act, Steven Long counts me among those who, as he says, like Germain Grisez and William May, “share a similar view of the object of the moral act as simply that which the agent proposes to himself, rather than as ineluctably and materially including

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the act itself and its integral nature.” I was very astonished at this remark (which is the only explicit reference to me in the whole book), especially because I was never aware myself of holding such a view. I always thought I was rather opposed to it, holding something quite different, that is, that the object of the human act, being essentially the intentional content of a human act—and, therefore, a kind of a proposal—is not simply and exclusively shaped by “that which the agent proposes to himself,” but also by brute facts of nature, objective circumstances, givens, which are not at the disposal of the agent. I was even more surprised by Long’s footnote, because we had discussed this together at length. In 2001 I wrote to him with feedback on a draft of his article “A Brief Disquition Regarding the Nature of the Object of the Moral Act According to St. Thomas Aquinas.” I wrote precisely as follows: “I agree with you, that the ‘the physical character of what is done ..... cannot simply be excluded from the object.’ I too think that the object of the act is something more than simply an ‘adopted proposal.’ In fact, it essentially is a proposal, but to explain the nature of this proposal one must not abstract from the physical structure of the act (in the sense of materia debita).” Since this remark in the above-mentioned footnote is the only explicit reference to me, I do not know Long’s precise reasons for attributing to me the view that the object is “simply

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Therefore, it should be emphasized, the unconditional prohibition of “direct abortion” is not threatened in any way, nor is the teaching that this is “an intrinsically evil act” in any danger. It seems to me that the only reason why one could object to such a solution is the fear that it might lead to the weakening—and ultimately to the doing away with— the unconditional prohibition of direct abortion.2 In the past, opposition to any attempt at justifying medical interventions like craniotomy appears to have arisen less from the moral intuition that what was at issue was indeed an immoral, seriously sinful act, than from a concern for protecting the unconditionality of the prohibition of direct abortion: what was feared was the slippery slope. In other words, it was not so much of a problem of morality as of moral theology. This also explains why, as we have mentioned, confessors in the past were taught to leave doctors who acted in these cases to save the mother in “good faith.” What seems to me to be decisive here is that the so-called intrinsece malum can in every instance be defined and understood only relative to an ethical context.3 The same statement holds for acts falling under the virtue of justice. Different contexts of justice generate different ways of acting according to their object: for example, objectively differthat which the agent proposes to himself.” But I have never held such a view, nor have I ad-

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vanced it in the present work. If I had, I could have omitted 99 percent of what I have said. It would have been sufficient to assert that the object of an act of killing a baby performed with the proposal of saving the mother’s life is “saving life” or “healing”; and that, therefore, the act is morally licit. 2. Based on a similar fear, many moral theologians in the past (and still today in isolated instances) disapproved of using contraceptives to protect against the consequences of rape—they feared that the teaching that contraception is “intrinsically evil” would be weakened. But here as well, the “ethical context” is decisive. Cf. on this M. Rhonheimer, “The Use of Contraceptives under Threat of Rape: An Exception?” in the Josephinum Journal of Theology 14, no. 2 (Summer/Fall 2007): 168–81; originally published as “Minaccia di stupro e prevenzione: un’eccezione?” in La Scuola Cattolica 123 (1995); reprinted in Rhonheimer, Etica della procreazione, 110ff., and forthcoming in Ethics of Procreation and the Defense of Human Life (Washington, D.C.: The Catholic University of America Press). 3. I have presented this in detail in Natur als Grundlage der Moral, 367–74 (“Exkurse: Der Begriff des ‘intrinsece malum’ und der ethische Kontext”), in English as Natural Law and Practical Reason, 475–83.

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ent types of “killing” (homicide or murder, administration of the death penalty, killing in war). As we have already stated, “killing” as such, as a “human act” defined independently of an ethical context of justice, does not exist. If it can be substantiated that an act of killing “falls outside” of the context of justice altogether (for example, because in a given case the logic of justice no longer applies, and indeed precisely from the perspective of justice the alternative must appear as irrational), it can therefore no longer be described as an unjust and thus morally evil act. To repeat: this is so because, considered in itself, an act of killing can be morally evil only insofar as it is unjust. (An action can, of course, be just in itself but evil in that it was done out of vanity or selfishness; this, however, changes nothing regarding the fact that such an action, with respect to its object, can be good or evil only to the extent that it is just or unjust.) If, however, the standard of “just/unjust” can no longer be applied to an act of killing, i.e., if an act which materialiter causes death, and the action precisely as such a causing of death cannot be judged as “evil” in a moral sense, it must then be qualified on the basis of the immediate or basic intention with which it is performed—in this case, e.g., as an act of saving the life of the mother. This “why was it done?” will then be the finis proximus, i.e., the “moral object” of the act of killing; without reference to an unjust finis proximus, the act of Copyright © 2009. Catholic University of America Press. All rights reserved.

killing can genuinely be equated, from the moral point of view, with a natural event or a simple “dying.” But this lack of an unjust finis proximus—and this is my argument—precisely describes the extreme case of a craniotomy performed in a situation of vital conflict (where mother and child would die) and, likewise, under analogous conditions which will be specified below, in most cases of extrauterine pregnancy. In the following section, four major therapies currently used for tubal gravidity will be reevaluated according to the approach I have just summarized: salpingectomy (or segment resectioning), linear salpingotomy, drug treatment with methotrexate, and the so-called Expectant Management or waiting method.

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2. Reevaluation of Contemporary Therapies: Vital Indication and Extrauterine Gravidity

A detailed examination of the moral justification of the medical intervention of craniotomy would be anacronistic, given that this procedure has been made obsolete through the ability to perform C-sections (although it is possible that under certain conditions, inadequate clinical care facilities could make such an intervention necessary). From the perspective of action theory, however—as well as for historical reasons—this case is very instructive and will continue to be discussed. A problem of more current interest is the problem of extrauterine gravidity (i.e., pregnancy), the implantation of the embryo outside of the uterus. Of the various types of ectopic pregnancies, tubal gravidity (implantation in the fallopian tube) is the most frequent.4 Abdominal cavity pregnancy, ovarian pregnancy, cervical pregnancy, etc. can also occur, but they are less frequent. As distinct from craniotomy, the problem of tubal pregnancies will not simply become obsolete through medical advances, but will intensify, for two reasons: first, because tubal pregnancies have become more and more frequent and, second—precisely due to medical advances—interventions are becoming increasingly safe for the woman and more likely to preserve the tube itself, even while simulCopyright © 2009. Catholic University of America Press. All rights reserved.

taneously being aimed “more directly” at the ectopically growing embryo, i.e., at its removal leading to its death. This increase of extrauterine or ectopic pregnancy is due in part to better diagnostics and thus better statistical records, but it is also due to a considerable increase in pelvic infections (chlamydial infection)— an effect of increasingly promiscuous sexual relations5—which are the 4. Cf. J. Hucke, Extrauteringravidität. Klinisches Bild, Diagnostik, Therapie und spätere Fertilität (Düsseldorf: Wissenschaftliche Verlagsgesellschaft, 1997), 31ff.; Isabel Stabile, Ectopic Pregnancy: Diagnosis and Management, Cambridge: Cambridge University Press, 1996); N. Kadar, Diagnosis and Treatment of Extrauterine Pregnancies (New York: Raven Press, 1990); T. G. Stovall and F. W. Ling (eds.), Extrauterine Pregnancy: Clinical Diagnosis and Management (New York: McGraw-Hill, 1993). 5. As with AIDS, tubal pregnancies currently occur most frequently in African countries.

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most frequent cause of salpingitis (infection of the fallopian tube), which in turn is the classic cause of tubal gravidity. What is important here is that the cause of the tubal pregnancy itself is not the embryo but the pathological, diseased state of the fallopian tube (either its abnormal length or another anomaly, such as a narrowing of the tube caused by the pressure of a tumor). This leads to the pregnancy “getting stuck in the tube” and, as a result, the implanting in the tube of the trophoblast that surrounds and nourishes the embryo. If this occurs, then the embryo (and the surrounding trophoblast) that is implanted and growing in the wrong place does in fact become the source of danger; the trophoblast attacks the fallopian tube, causing bleeding and continually inflicting damage on the tube, finally causing it to rupture, which leads to internal bleeding. The cause of this disease of the tube that threatens the mother’s life, however, is exclusively the pathologically situated, ectopically growing embryo. The ectopic implantation of the embryo in the tube, along with the eventual rupture of the tube and the danger of bleeding, therefore constitute a single, indivisible pathological phenomenon (this emphasis will prove to be important later). To be sure, many ectopic embryos die spontaneously before the tube is ruptured as a consequence of simply waiting (in the past they were often incorrectedly diagnosed as tumors), and many do so unnoticed. If the embryo is still Copyright © 2009. Catholic University of America Press. All rights reserved.

living, a rupture of the fallopian tube will cause the embryo to die; the mother also will die if she does not receive emergency medical intervention within a very brief period after the rupture. As we have stated, not every ectopic pregnancy leads inevitably to the rupture of the tube. But if the mother’s life is not to be placed in danger, one must anticipate the possible need for hospital admission—on short notice—for a possible operation.6 Until a few years ago, tubal pregnancies were treated by performing a salpingectomy, which consisted simply in the removal of the diseased tube (salpinx), which is life-threatening because of the danger of rupture that results from the pregnancy. (The fact that this salpingectomy 6. Hucke, Extrauteringravidität, 125. We will return to this below.

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can be done through laparotomy, an incision in the abdominal cavity, or by laparoscopy, is not important in the present context.) With this procedure the woman loses one of her tubes. To avoid the loss of the tube, procedures that allow the woman to retain it have been adopted: only the affected part of the tube is removed and the tube ends are reattached through microsurgery. But this partial salpingectomy (called “segment resection”) has been increasingly replaced in recent years by linear salpingotomy (or salpingostomy),7 performed either via laparotomy or laparoscopy. Here the fallopian tube is opened at the diseased point with a linear incision, to extract the pregnancy; the embryo dies as a result, if it is not already dead. In addition to these surgical treatments, there are now drug treatments available, especially methotrexate (a chemotherapeutic drug), which cause the embryo to die and to abort spontaneously. Thus, the following procedures with their respective characteristic effects can be listed: a. Salpingectomy and Segment Resection. The embryo dies as a result of the excision of the tube (as in a hysterectomy). Moral theologians in general today consider this to be a matter of a purely “indirect” killing of the fetus. In the case of a segment resection, only the part of tube in Copyright © 2009. Catholic University of America Press. All rights reserved.

which the pregnancy in located, rather than the whole tube, is extirpated. The tube is then repaired by microsurgery. b. Linear salpingotomy. The embryo dies as a consequence of its removal from the fallopian tube, i.e., its removal to an environment in which it cannot survive. Whether this is a direct or an indirect killing, according to traditional criteria, is disputed. From a moral perspective, the case displays great similarities with the acceleratio partus of a nonviable fetus. c. Drug treatment with methotrexate. The trophoblast surrounding the embryo is attacked by chemicals, which leads to the death and ex7. The distinction (of no relevance here) is that in the first case the surgeon sews up the incision, whereas in the second it is left open (to avoid postoperative complications). Cf. Hucke, Extrauteringravidität, 81; Stabile, Ectopic Pregnancy, 121.

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pulsion of the embryo. According to the classical criteria, this seems to be a “direct” killing, although this is disputed by some Catholic moral theologians. d. Expectant management or waiting method. This is not actually a treatment but a waiting for the tubal pregnancy to come to an end on its own, when it is expelled through a spontaneous tubal abortion. In what follows we will attempt to analyze these different possibilities with respect to their ethical valuation. First, however, a brief statement is necessary. An ethical valuation does not follow precisely the same logic as a purely medical assessment of the same phenomenon. Indeed, medically relevant ethical valuations should not contradict the logic of medical treatment, but they should take this logic and the corresponding medical facts into consideration. At the same time, an ethical valuation introduces a new element into the logic for judgment of an action, an element that at times can become obscured when the situation is viewed from a strictly medical perspective. Thus, for example, in certain contexts, the importance of the foreseeable death of both mother and child, which has been strongly emphasized here, may appear irrelevant to a doctor in that he is instinctively accustomed to asking only whether or not an operation is a healing (or life-saving) measure. Copyright © 2009. Catholic University of America Press. All rights reserved.

Craniotomy and salpingotomy, for example, and of course hysterectomy, can clearly be viewed as such “healing measures,” since the mother is indeed healed or her life saved by these procedures. A therapeutic abortion, on the other hand—in which the child is aborted as part of the mother’s treatment, but the actual disease (e.g., renal insufficiency) that has become dangerous for the mother because of the pregnancy is not removed—cannot be viewed as a healing treatment; rather, it must be viewed as a killing of the fetus as a means to the end of saving the mother. Thus far, this seems obvious. Nevertheless, a craniotomy or a salpingotomy cannot simply be viewed as a “healing measure” that immediately removes the disease or saves the life of the mother. A more precise ethical justification is required to show that in these cases the killing of the embryo or the fetus is not chosen as a means to the end

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of healing or of saving a life. In the case of a hysterectomy, this justification was achieved classically on the basis of the argument that we have mentioned several times already (the PDE and the fact that the operation would be done if the fetus were not present). The cases of craniotomy and salpingotomy are different. In order to show that here it is a matter of a pure and simple act of healing (or a life-saving measure), in which the killing of a human being is by no means chosen as means, the fact of the otherwise foreseeable death (if nothing is done) of the mother and child is decisive. Even if it is not necessary in everyday medical practice to refer to this consideration explicitly—since such medical interventions are viewed instinctively as acts of healing—an ethical justification nevertheless requires this step. In fact the present ethical valuation intends to test precisely whether the medical intuition involved in this case is also morally just. Second, the issue in what follows is a matter of resolving not only a medical problem, but also a problem that pertains specifically to moral theology, i.e., a problem that moral theology has with itself and with its method of resolving the problem under discussion here—without, as we have said, incurring the danger of a slippery slope with respect to the absolute prohibition of the direct killing of an innocent person.

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a. Salpingectomy or Segment Resection Procedure (a), salpingectomy, like segment resection, no longer appears to cause any difficulties for Catholic moral theologians. With regard to its moral assessment, it appears that the procedure can be treated, like a hysterectomy, as a simple “indirect killing.” As we have already frequently mentioned, however, there is a decisive distinction: a cancerous uterus is extirpated only because of the disease of the uterus, even if there is no living fetus in it. Traditionally, this is the main argument for claiming that a hysterectomy is not a matter of a direct killing. The non-removal of the uterus would entail an immediate danger to the very life of the mother. The fetus itself has no causal significance for either the disease of the uterus or the decision to operate (in fact, its existence

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rather argues against the operation).8 In the case of a tubal pregnancy, however, it appears to be precisely the ectopic development of the embryo that endangers the mother’s life, since it will ultimately destroy the fallopian tube, with the danger that the tube will rupture before the embryo dies (in other words, the “disease” of the fallopian tube is in part cause, in part consequence of the ectopic pregnancy, but the latter (i.e., ectopic pregnancy) has now become the problem itself). i. An Initial Look at the Analysis of T. Lincoln Bouscaren  Some decades ago,

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T. Lincoln Bouscaren supplied reasons for considering the extirpation of a gravid fallopian tube (salpingectomy) to be a purely “indirect” killing; his reasoning quickly received general acceptance.9 From the outset, Bouscaren emphasized correctly that, for the reasons given above (i.e., that the pregnancy itself is not the problem), a salpingectomy can be considered to be analogous to a hysterectomy from a moral perspective. Bouscaren’s argument rests on the assertion that, on account of the ectopic pregnancy, the fallopian tube has become so seriously pathological that the tube itself, entirely apart from the existence of the embryo, represents a mortal danger to the mother and in any case must be removed. For this reason, the killing of the embryo is only indirect, not (only) in a physical sense, but more importantly—as with a hysterectomy—in an intentional sense. It is precisely this step that is decisive for Bouscaren’s argument.10 8. I want to emphasize again at this point that this statement refers to the intentional structure of the action, i.e., it is important for showing that in a hysterectomy the killing of the embryo occurs praetor intentionem. Distinguished from this is the medical fact mentioned above: the pregnancy causes a strong growth in the vascular system and thus the formation of metastases is considerably increased through the flushing of the cancer cells throughout the body. To this extent, therefore, there is a relation between the disease and the existence of the fetus in the uterus, which is also significant for the timing of a radical surgical intervention. 9. This reasoning can be found in his book that we have already cited frequently, Ethics of Ectopic Operations, which was originally a doctoral dissertation (in Latin) presented to Arthur Vermeersch at the Gregorian University in Rome in 1928, published in English in Chicago in 1933 and in a second edition in 1944 in Milwaukee; both of these later editions include medical information of the time. 10. Bouscaren, Ethics of Ectopic Operations, 153ff. In his critique of this rationale for the

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It thus appears that the Principle of Double Effect (or PDE), as described at the beginning of Chapter I, can be used in this case, just as it can with respect to a hysterectomy.11 But this judgment, through application of the PDE, to remove the tube is no longer entirely convincing today, due to the possibility of earlier and better diagnosis, as well as the possibility of linear salpingotomy, in which the removal of the pregnancy preserves not only the fallopian tube but, depending on the circumstances, also the woman’s ability to bear children. This operation was already known in Bouscaren’s time, but he argued that it was not a morally acceptable solution, first because it was clearly a direct killing,12 and second, according to the medical opinion of the time the pathological tube that remained was still a danger to the mother and thus had to be removed anyway (which in turn underscored Bouscaren’s assertion that the operation was done only because of the pathological tube). Here, however, one could object as follows: it may be true that the tube must be removed in any case because of its serious pathological state, i.e., entirely apart from the existence of the embryo. Such a state develops, however, only if the operation is performed too late. Salpingectomies are still recommended today for fallopian tubes that are irpermissibility of salpingectomies, J. F. Keenan inverts this key argument and instead asserts:

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“But in the case of ectopic pregnancy, we are cutting the tube only because the embryo is there” (“The Function of the Principle of Double Effect,” 309). He thus abbreviates and falsifies Bouscaren’s argument, even though, as I want to show, Bouscaren’s argument (at least under medical conditions of that time) ultimately leads precisely to what Keenan here asserts. In her discussion of the “Catholic” position, on the other hand, Helga Kuhse does not even appear to be aware of Bouscaren’s classical argument; her presentation and discussion of the problem are accordingly faulty. Cf. H. Kuhse, Die “Heiligkeit des Lebens” in der Medizin. Eine philosophische Kritik (Erlangen 1994, 137–39, originally published as The Sanctityof-Life-Doctrine in Medicine—A Critique (Oxford: Clarendon Press, 1987). 11. Moral theologians agreed with Bouscaren’s view, as did the U.S. Bishops’ Conference in 1971. Cf. recently, e.g., also W. May, “The Management of Ectopic Pregnancies,” and E. F. Diamond, “Moral and Medical Considerations in the Management of Extrauterine Pregnany,” 9f. 12. “ ..... this method of operating, if the fetus is alive, is certainly a direct killing, and certainly indefensible. It is one thing to remove the tube containing the fetus; it is another thing to remove the fetus directly” (Bouscaren, Ethics of Ectopic Operations, 101f.).

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reparably damaged,13 but doctors now try to intervene earlier so as to also preserve the tube (in Bouscaren’s time this was hardly possible, for technical reasons and because the possibility of early diagnosis of an ectopic pregnancy did not yet exist). This, however, leads to an unsatisfactory solution. If one accepts salpingectomy as a morally permissible therapeutic intervention in a tubal pregnancy only in the case of a severely pathological fallopian tube, then a doctor who diagnoses such a pregnancy at a stage where the tube is still intact—and could be saved— is required to wait before operating until the tube is damaged to the extent that it is unsavable. At that point the removal of the tube, along with the pregnancy, is still directed only at the diseased fallopian tube and is thus a purely “indirect” killing of the embryo. This solution is clearly unsatisfactory, and obviously hard to defend from a medical point of view. Moreover, to ask a doctor consciously to wait for damage to the tube—which waiting, moreover, endangers the mother’s life—to occur, so that the removal of the pregnancy that is originally and properly the source of the problem would be only an “indirect” killing, seems hardly defensible on moral grounds as well—at least if there isn’t another purpose to the waiting, e.g., hoping that the embryo will die of itself. But even in this waiting process there would be a point at which this could no longer be hoped for without incurring damage to and loss Copyright © 2009. Catholic University of America Press. All rights reserved.

of the tube; at this point an operation preserving the tube could become necessary, from a medical point of view. Of course, one could act in this way. On the basis of Bouscaren’s argument, the killing of the embryo would then in fact still be “indirect.” But in this case one might ask what moral relevance such “indirectness” could still have. One even gets the impression that Bouscaren sees purely physical indirectness as finally decisive. Let us consider the following: given an earlier diagnosis of the ectopic pregnancy, could not a salpingectomy be done at a stage in which the tube is in no way pathological to the point of being life-threatening, not only so as to heal the disease but even to prevent it entirely, along with the pain and danger 13. Cf. Stabile, Ectopic Pregnancy, 132ff.

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to the mother? Actually, one should be able to agree with this, because it is completely meaningful and also morally permitted to prevent a dangerous illness and the associated pains and dangers to life by eliminating the cause of the disease, especially if the exact same operation will have to be done later anyway. But the peculiar result would be that, according to Buscaren’s logic, the killing of the embryo would then no longer be “indirect,” for now the tube would be removed exclusively to prevent the pregnancy from causing life-threatening damage to the tube; the treatment thus now seems to be aimed “directly” against the embryo as the cause of the life-threatening disease of the tube. A preventive salpingectomy is therefore not permitted, for it would then (according to Bouscaren’s logic) be a direct killing of the embryo, with the purpose of preventing the life-threatening condition of the tube. ii. A Critical Engagement with Bouscaren’s Position  In my view, this dif-

ficulty arises because Bouscaren’s argument does not take into account a fundamental and, in my opinion, decisive fact: the ectopic pregnancy and the pathological condition of the tube (which precisely results from the ectopic pregnancy) constitute a single and indivisible pathological phenomenon. Bouscaren attempts to dissociate the condition of the tube from the fact of the ectopic pregnancy, and to understand the former as Copyright © 2009. Catholic University of America Press. All rights reserved.

a separate pathological phenomenon; he can then state that the operation is directed exclusively against the diseased tube, but not against the embryo. This produces the dilemma outlined above where the doctor must wait until the situation becomes life-threatening to perform exactly the same procedure that he could have performed sooner. It is the embryo, however, and the embryo alone, which is the cause of the condition; without the pregnancy, even in a tube “predisposed” for an ectopic implantation, there would be no life-threatening state of the tube to make an operation necessary. The faulty initial condition of the tube is only the necessary condition of the ectopic pregnancy, not its cause; the cause is the act of procreation and the resultant conception of the embryo. The life-threatening condition of the fallopian tube and the

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ectopic pregnancy are therefore to be understood as a single and indivisible pathology. On this basis, however, Bouscaren’s argument no longer seems valid, and even leads to counterintuitive consequences. To make plain the self-defeating structure of Bouscaren’s argument, it could be argued that whoever has decided, at time T, to wait until the tube is damaged in a life-threatening way to perform a salpingectomy, for the sole purpose of allowing a direct killing to become “indirect” (which waiting would be obligatory, if a preventive salpingectomy is not permitted because it is a direct killing), waits only because he has already decided at time T to remove the embryo from the uterus as the cause of the threat to the mother’s life! Viewed intentionally, there is effectively no difference between the salpingectomies performed at either stage. Thus, the following argumentation would hold: if salpingectomy is chosen before the tube constitutes a threat against the life of the mother, the medical intervention is directed intentionally against the embryo. If, however, one waits until the fallopian tube is seriously diseased and life-threatening only so as to avoid the directness of the killing (for now, so the argument runs, the condition of the tube is in itself grounds for its removal), then in reality, from the point of view of the intention, neither is this salpingectomy simply the removal of a diseased and (for Copyright © 2009. Catholic University of America Press. All rights reserved.

the mother) life-threatening tube. It is in fact the removal of an embryo that represents a danger to the life of the mother, given that the original reason for performing a salpingectomy only now was in effect that of preventing the life-threatening disease of the fallopian tube, a condition caused precisely by the ectopic pregnancy. But, as stated above, this earlier salpingectomy was not done, because such an intervention would have had the immediate consequence of the death of the embryo and thus—again following Bouscaren’s logic—would have been a “direct” killing, in that it was not directed against a pathological fallopian tube. Rather, at that point it would have been directed intentionally at the ectopically growing embryo as the cause of a life-threatening condition; moreover, there would have been no adequate reason for such

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an intervention, because at this earlier time the fallopian tube was not pathologically life-threatening for the mother. Precisely to avoid such a direct killing, the salpingectomy was postponed to a later stage of the disease of the tube—thus only so that the killing would become “indirect.” But this changes nothing with respect to the intention with which, ultimately, the pathological fallopian tube is removed: it still consists in removing the cause of the problem, the embryo. With this, it seems that both physical “indirectness” (death as a consequence of the removal of the fallopian tube) and moral “indirectness” as analyzed by Bouscaren (the grounds for removal being the condition of the fallopian tube and not the existence of the embryo) suddenly become meaningless categories. It could be stated even more sharply: one who waits to operate until the fallopian tube is seriously pathological and represents an immediate danger to the mother’s life—and does so only so that the operation becomes an “indirect killing” of the embryo— acts in a morally absurd and self-contradictory way. It is true that, according to the premises of Bouscaren and the PDE, it is morally correct to do something because it is “indirect,” but not so that it would become indirect. The fact that an action’s intention is directed at making the action indirect and thus justifiable by the PDE, is already an indication that the action has been chosen precisely because it cannot be justified Copyright © 2009. Catholic University of America Press. All rights reserved.

by the PDE—it is even an indication of the fact that the action is precisely “direct,” because the intention is clearly oriented to it in a direct way. This way of acting is self-contradictory. Thus, whoever chooses salpingectomy and waits for the tube to reach a diseased state, only so that the killing of the embryo becomes indirect, clearly does so with the intention of terminating the pregnancy and not simply with the intention of removing a pathological fallopian tube! The objection could be raised—and in fact has been raised by a gynecologist known to me who on principle does not perform salpingotomies—that medically plausible grounds already exist for a salpingectomy before the serious condition of the tube and its life-threatening status for the mother develops, as required by Bouscaren. The occur-

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rence of the tubal pregnancy rests precisely on the fact that the tube was pathological prior to the pregnancy. As a matter of fact, it was already diseased (e.g., attacked by a chlamydial infection with a resulting inflammation of the tube, due to deformities, etc.). Because the tube can already be considered to be a diseased organ that could, moreover, cause dangerous tubal pregnancies in the future, it would be medically advisable in every case (or in most cases) to remove the tube, or at least part of it, by a salpingectomy.14 This should therefore also be done in the event of an early diagnosis of a tubal pregnancy, when the condition of the tube as such represents little danger for the woman. This would make the whole problem less acute: a salpingectomy would, in every case, be a morally possible alternative to a salpingotomy, and would also be recommended medically; salpingotomy, on the other hand, because of its medical inappropriateness, would not be justifiable in any case. A salpingectomy would thus appear—and precisely on the basis of the arguments advanced by Bouscaren—to be a purely “indirect” killing of the embryo, as the operation is aimed at the pathological tube and not “directly” at the pregnancy. In my view, however, this objection can be countered by two arguments. First, according to Bouscaren’s argument for permitting the salpingectomy, what is required is not only proof that the operation is Copyright © 2009. Catholic University of America Press. All rights reserved.

directed only against the pathological tube, but also an appropriate, serious reason for performing the operation (we will come back to this). If such does not exist, the killing—in a moral sense—cannot actually be called “indirect,” i.e., non-direct. For example, one who performs a hysterectomy on a pregnant woman, solely in order to prevent and avoid risk, does not in any way kill the fetus only “indirectly” according to traditional casuistry. The action would not meet all the conditions 14. If it were the first of the two tubes, the ends of the segment operated on could be left open, according to information provided by the same gynecologist. If an ectopic pregnancy were then to occur in the other tube, the same thing could be done there and, under certain circumstances, the ends of the first and and the second tube could be joined to make a “new” tube.

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formulated in the PDE (and the killing would moreover be indirect only in a physical sense). Does the mere indication of the disease amount to .

a serious reason for removing a tube in which there is a living embryo, if the disease is not yet life-threatening—and it is not certain whether it will ever be life-threatening, since there is still a good chance that the embryo will die of itself? Bear in mind what Bouscaren meant by a pathology that justified the salpingectomy of the tube: a destruction and dysfunction of the tube caused by the mounting invasion of the trophoblast, with corresponding internal bleeding, which already represents a life-threatening condition as such, so that the tube must be removed in any case.15 But the initial disease of the tube, which may later lead to a tubal pregnancy, is not identical with that which ultimately endangers the life of the mother as a result of a tubal pregnancy. Certainly, this initial disease is the cause and necessary condition of the life-threatening case, but it is not a sufficient condition to make Bouscaren’s arguments in favor of salpingectomy valid. There is a second, more important, counterargument, which is related to the first. The initial, still general, pathology of the fallopian tube cannot be considered to be already the beginning of the final diseased condition of the tube (which is life-threatening and leads to rupture), because it is not at all certain that the initial pathological state of the Copyright © 2009. Catholic University of America Press. All rights reserved.

tube that led to a tubal pregnancy in this case will, after preservative surgery (for example by a linear salpingotomy), lead to a tubal pregnancy again. Research has shown that about 40 percent of women who have already lost one tube and have had a (tube-preserving) salpingot15. Bouscaren, The Ethics of Ectopic Operations, 152, describes the pathology of the tube as follows: “1. Absence of adequate protective decidua, and the consequent deep penetration of the musculature of the tube by the ovum. 2. Perforation of large blood vessels in the tube muscle walls by the chiorionic villi of the ovum, causing profuse hemorrhage within the tissues of the tube, instead of the normal blood supply for the fetus, which is produced by the analogous process in uterine pregnancy. 3. Further destructive effects caused by this extravasation of blood, such as splitting and dissection of the muscular coats of the tube wall, and not infrequently the destruction of the tube, or its conversion into a hematoma of bloodclot by repeated internal hemorrhages.”

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omy in their remaining tube give birth later, whereas the chance of another tubal pregnancy is 20 percent.16 It is, of course, a medical decision whether to remove the remaining tube in such a case or to accept the risk of another pregnancy. (Sexual intercourse with the foreseeable possibility of conception is certainly permitted by the PDE under these circumstances; the removal of the second and final tube, however, would amount to sterilization with the purpose of preventing a tubal pregnancy, which is impermissible according to Catholic moral teaching because it is understood as contraceptive in the properly moral sense.) On the other hand, from a medical point of view it is understandable that the tube should be removed, if a second tube remains that seems to be normal.17 It should be noted, however, that this latter consideration is purely medical in nature; it clearly concerns a preventive measure to avoid further tubal pregnancies. Moreover, the intervention causes the death of a living embryo. It would be difficult to justify this act morally using the PDE, even if it is appropriate on medical grounds, because a serious reason for justifying the killing of the embryo is simply lacking. This is particularly so since, as we have already noted, the embryo could die through a spontaneous tubal abortion (the earlier the diagnosis, the higher the statistical probability of this occurring), and the condition of the tube does not yet represent an immediate danCopyright © 2009. Catholic University of America Press. All rights reserved.

ger to the mother. In contrast to the situation that Bouscaren used as the basis for his argument, here the diseased tube that could possibly cause a tubal pregnancy would not constitute any danger for the mother without the actual presence of a tubal pregnancy. Simply put, if the woman were not pregnant, the tube would not be removed. Nor would removal, even as a preventive measure, be justifiable medically, either as “therapy” for an infection of the tube or for deformities. Thus, the central argument for demonstrating that the death of the embryo may in this case be called purely “indirect” according to the PDE breaks down. 16. According to Stabile, Ectopic Pregnancy, 143–47; cf. also Hucke, Extrauteringravidität, 127ff. 17. Thus Kadar, Diagnosis and Treatment of Extrauterine Pregnancies, 133.

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Still following Bouscaren’s logic, the reason for justifying a salpingectomy at this stage could be called a “serious” reason, and thus a sufficient one, only on the condition that the initial disease of the tube—which possibly leads to a tubal pregnancy, and the possible repeat of a tubal pregnancy following a purely conservative therapy—is itself considered to be the disease that threatens the life of the mother. In order to remain faithful to the logic, however, it would be necessary to remove the tube without any pregnancy being present. This, however, is not done, as there are obviously no grounds for such an operation. The reason for performing a salpingectomy at this early stage (in which no life-threatening disease of the tube is present) thus appears in reality to be the existence of the pregnancy itself! The operation as a whole is actually directed at the pregnancy as the cause of the life-threatening condition. In this case, therefore, to call the killing “indirect” reduces the “indirect” aspect to a purely physical indirectness—an indirectness with no ethical relevance. iii. Some Conclusions  Having arrived at this point in my argument, the

following conclusion seems to present itself: if one attempts moral justification of a salpingectomy at this early stage on the basis of the initial pathology of the fallopian tube that would lead to tubal gravidity, then Copyright © 2009. Catholic University of America Press. All rights reserved.

one appears to become enmeshed in contradictions and unacceptable alternatives. These include either (a) reducing the morally indirect to the physically indirect (which would have devastating consequences for morality), or (b) justifying a salpingectomy without the presence of a life-threatening disease, by viewing the initial pathology of the tube— which may lead to a tubal pregnancy—as the beginning of that disease which ultimately leads to a life-threatening situation ending in the rupture of the tube. For the reasons mentioned above, it seems to me that this move is incorrect; if it is accepted, however, my earlier argument for the salpingotomy has gained support, i.e., the argument that the lifethreatening condition of the tube and the existence of a tubal pregnancy together constitute a single, indivisible pathological phenomenon. But

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this argument would invalidate the premise at the basis of Bouscaren’s argument, i.e., that one can neatly separate the operation directed at the tube from the fact of the presence of a tubal pregnancy. Finally, if Bouscaren’s premise is thus untenable, then it obtains, as I have already argued above, that if a salpingectomy is morally justifiable, the salpingotomy must also be justifiable. Both cases are concerned with the treatment of one, indivisible pathological phenomenon; the salpingotomy, however, has the advantage of preserving the tube. In cases where a salpingectomy is preferable to a salpingotomy (as is strongly recommended medically in many cases, despite the possibility of preserving the tube in the latter, since salpingectomy is often a more certain and medically cleaner method—post-operative bleeding and other complications such as persistent trophoblast tissue, for example, can be avoided),18 there is obviously nothing to object to from a moral standpoint (although salpingectomy can, under certain circumstances, lead to sterilization). But this cannot be justified with Bouscaren’s argument, for the above-mentioned reasons, as a purely “indirect” killing of the embryo. It can be justified morally only if the entire situation of the ectopic pregnancy is already considered to be a pathological phenomenon and, as a consequence, no significant moral distinction can be made between salpingectomy and salpingotomy. This later position Copyright © 2009. Catholic University of America Press. All rights reserved.

appears unobjectionable since, as we have shown, neither procedure can be viewed as the “direct” killing of the embryo. As stated above, medical advances have indeed complicated and sharpened the moral questions related to tubal gravidity. Medical innovations (better diagnostics through ultrasound and laparoscopy, and thus the possibility of earlier, tube-preserving surgery by means of salpingotomy, and even through drug treatment) are moving in the direction of treatments that appear to be morally questionable. These innovations in fact, in many and perhaps even all cases, deprive what was once considered morally unobjectionable according to Bouscaren’s at18. Cf. Hucke, Extrauteringravidität, 86.

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tempt at a solution—the salpingectomy—of its initial moral plausibility. When examined more closely, however, the problem becomes somewhat less acute, at least on the basis of the assessment suggested here. The questionability of certain therapies appears to arise more from the traditional moral grounding for the (physical) “indirectness” of the killing of the embryo in a salpingectomy than from the actual present situation.19 b. Linear Salpingotomy (or Salpingostomy) Here we will look more closely at the second therapeutic measure, linear salpingotomy, which involves the straightforward removal of the pregnancy (the embryo and its surrounding trophoblast) from the incised tube, the immediate consequence of which is the death of the embryo. E. F. Diamond holds that this is a case of direct abortion, which is not permitted.20 He thus follows Bouscaren on this issue: to remove a living embryo from the tube, which removal leads to its death, is—as quoted above—“certainly a direct killing and certainly indefensible. It is one thing to remove the tube containing the fetus; it is another thing to remove the fetus directly.”21 It is striking that the distinction between “direct” and “indirect” is here again described in categories of physical causality. Whether something is chosen as a means—and this, in effect, Copyright © 2009. Catholic University of America Press. All rights reserved.

is what is meant by “direct”—does not, however, always depend unambiguously on whether an effect is the physically causal prerequisite of another effect that follows from it (though this is certainly the case in both hysterectomies and salpingectomies). 19. On the other hand, the suggestion of the possibility of transferring the embryo from the tube to the uterus as the possible solution of the future is not very convincing, since at present there is nothing to indicate that this is possible. (And, according to experts, it may even in principle be impossible, despite an alleged successful attempt which was reported in 1917 and is still cited today, but remains disputed; cf. Bouscaren, Ethics of Ectopic Operations, 105ff.) If medical treatment does progress this far, it would then mean, of course, that this should be attempted in every case, and the whole discussion would be changed. 20. Diamond, “Moral and Medical Considerations in the Management of Extrauterine Pregnany,” 10. 21. Bouscaren, The Ethics of Ectopic Operations, 101f.

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Bouscaren’s position was nevertheless supported by an 1898 decision of the Holy Office (which was not specifically related to tubal pregnancies), which was endorsed by Leo XIII: “In urgent necessity, a cesarean section is permitted in order to remove embryos from the mother that are located in the wrong place, only insofar as, to the extent possible, serious and appropriate precautions are taken to save the lives of both the fetus and the mother.”22 The formulation appears to be somewhat oracular in tone. “Urgent necessity” is cited as the reason for allowing such an intervention; in this case this can only mean the saving of the mother’s life. As such, linear salpingotomy was implicitly covered and declared permissible (though of course this operation was not yet known at the time). It seems important, however, that the fetus’s ability to live is not cited as a condition for the permissibility of the operation. Only “to the extent possible, serious and appropriate precautions” are required to attempt to save both. That a fetus who is not capable of living would die as an immediate consequence of the operation could therefore, it seems, be accepted and not considered to be an act of killing. In such a case the killing would therefore be, according to traditional casuistry, an “indirect” one. This interpretation, however, conflicts with a further decision by the Holy Office in 1902 (in this case not approved by the pope),23 which reCopyright © 2009. Catholic University of America Press. All rights reserved.

sponds to the question of whether premature fetuses may also be removed in the event of an ectopic pregnancy. The answer is “No,” and, indeed, with reference to the decree of 1898, “by virtue of this, care is to be taken, as much as possible, seriously and in an appropriate way for the lives of the fetus and the mother.” And this care for both would be possible only if the operation “is done at the time and in the way in which, according to the natural order of things, precautions have been taken for the lives of the mother and of the fetus”—and thus clearly if the fetus is capable of life outside the womb.24 22. AAS 30 (1897/98), DH 3338, 3. 23. AAS 35 (1902/3), 162, DH 3358. 24. Author’s note 2008: Steven Long (The Teleological Grammar of the Moral Act, 97ff.)

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This judgment seems clear, but it is obviously not decisive for our case, inasmuch as our case rests on the assumption that, without intervention, both mother and child would certainly die. Consequently, the rejection of any intervention whatsoever would go directly against the intention of the norm formulated in the decree: to save the lives of both mother and child. For in such a case, for the lives of the mother and child—for both lives—precautions were precisely not “carried out as much as possible, seriously and in an appropriate way.” Admittedly, one could say that this excludes only salpingotomy, but not the entire or partial removal of the tube (salpingectomy), which has already been established as permissible in that it is only an “indirect killing” (insofar as the tube is already seriously pathological). At this point, however, the above-mentioned difficulty again arises, i.e., that one must wait for the disease of the tube to advance to such a point that the medical intervention would become a purely “indirect” killing of the embryo. Precisely for this reason, however, the killing of the embryo would again become intentionally direct, because the intention behind the act is again the solution to the actual problem, i.e., the removal of the tubal pregnancy. i. Treating as a Single Pathology: Tubal Pregnancy and the Pathology of the Tube  It seems that these inconsistencies can be overcome only by Copyright © 2009. Catholic University of America Press. All rights reserved.

abandoning Bouscaren’s approach of considering tubal pregnancy and the pathology of the fallopian tube as two different pathological phenomena, and seeing them rather as a single, indivisible event of illness. The inconsistencies are additionally overcome through giving decisive significance to the fact that, without the operation that removes this pathology—however this may appear, considered from a physical point of view—mother and child would die. They are further overcome by recognizing that the child has no significant chance of survival. On the badiscusses what seems to be a salpingotomy, advocating its licitness. He does so, surprisingly, without using the name and seemingly ignorant that this operation does exist and is routinely performed, yet arguing in a way which in my view conflicts with the 1902 decree of the Holy Office and also comes into conflict with Long’s own complete rejection of craniotomy.

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sis of these considerations, any such operation can then be viewed as a therapeutic act in favor of the mother. Having arrived at this point, we can conclude that salpingectomy and salpingotomy are either both morally permissible or both morally forbidden. The one cannot be justified without the other being justified as well. The argument for such permissibility based on the PDE, however, is in any case invalid (though it can be applied successfully in the very different case of a hysterectomy, as we have shown). It seems, therefore, that it could be said (as we remarked at the beginning) that the 1902 decree of the Holy Office forbidding the removal of premature fetuses in the event of an ectopic pregnancy—which at first glance seemed to present a serious difficulty—in fact did not concern the case under consideration here. At the most, it can be applied to a situation in which there still is a real chance of survival for the fetus. Once both mother and child are in danger, however—due to the immediate danger of the rupture of the tube—with the child no longer having any chance of survival (as far as anyone can judge), any appeal to this decree seems to become self-defeating and even to lead to absurd consequences. The goal of the decree was, after all, that of saving the lives of the mother and the child (and it is interesting to note here that the decree of 1902 did not appeal to the decisions regarding craniotomy, which dealt with Copyright © 2009. Catholic University of America Press. All rights reserved.

the case of “the death of mother and child”). ii. Cases Where Salpingotomy Makes Medical Sense: Does Extreme Vital Conflict Exist?  The final question that must be raised here consists

in an assessment of whether, at the stage in which a tube-preserving salpingotomy still makes sense medically, there is actually a situation of extreme vital conflict. First, however, there are some complementary points of view to be introduced, which were mentioned in part above. A tubal pregnancy is, as such and entirely independently of the pathological condition of the tube, a gravely pathological situation. It means, as we have described, that instead of an embryo being implanted in the uterus and developing there, it settles in the fallopian tube; the sur-

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rounding trophoblast thus uses the tube as a uterus, attacking the tube and continually destroying it, finally causing the tube to rupture. For this reason, there are Catholic moral theologians such as Albert S. Moraczewski, O.P., who argue that removing the pregnancy through salpingotomy or through the ingestion of a drug like methotrexate is merely a direct attack on the trophoblast surrounding the embryo, which cannot be considered to be part of the embryo, but is in reality the actual source of danger.25 (Certainly, so the argument goes, the embryo dies through the removal of the pregnancy, but it is killed only indirectly: the attack is directed against the trophoblast that is considered pathological; the argument is therefore structurally identical to Bouscaren’s, though now applied to the trophoblast.) The objection to this view is that the trophoblast is actually a vital organ of the embryo, so its destruction is also to be considered a direct attack against the embryo.26 If this is correct, however, one could in turn counter that the tube itself is also a vital organ for the embryo which, obviously, cannot survive outside the tube (which in effect was the argument in favor of the claim that a salpingotomy was a direct killing of the embryo). Thus here as well one becomes entangled in contradictions. For example, it appears that the counterargument against Moraczewski also leads to the conclusion that a salpingectomy can no longer be simply considered an “indirect” killCopyright © 2009. Catholic University of America Press. All rights reserved.

ing of the embryo. This aporia can be avoided by means of the argument already introduced above, i.e., that the whole situation is so pathological that every such intervention, though physically fatal for the embryo, ultimately effects nothing other than the removal of a pathological situation—a situ25. A. S. Moraczewski, “Managing Tubal Pregnancies I and II,” in Ethics and Medics (ed. by Pope John Center the Study for of Ethics in Health Care, Braintree, MA), vol. 21 (1996), nos. 6 and 8, here 3f. Cf. also ibid., vol. 23, no. 3 (1998): 1ff. for a critique by William E. May, and 3f. for an answer by Moraczewski. (I am grateful to Ignatius Perkins, O.P., of the National Catholic Bioethics Center, for his kindness in providing these materials.) The discussion was presented again briefly in William E. May, Catholic Bioethics and the Gift of Human Life (Huntington, IN: Our Sunday Visitor, 2000), 184ff. 26. Diamond, “Moral and Medical Considerations,” 11.

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ation in which, as far as humans can judge, the embryo is not capable of surviving, and at the same time foreseeably constitutes a grave danger to the life of the mother. The question is no longer whether the medical intervention leads “directly” or “indirectly”to the death of the embryo, but rather: “How great are the chances that the embryo will survive?” (It is well known that, for a tubal pregnancy, the chances of survival are effectively nil.) This question must in turn be weighed against the response to the question: “How great is the foreseeable danger to the mother’s life?” It also needs to be taken into account that a possible preservation of the tube, by avoiding a salpingectomy altogether, can be an appropriate reason to perform such an operation when the danger to the woman is not yet acute, but only anticipated with certainty. For the justification of this argument, we can turn to no less than Bouscaren himself. As already stated, in justifying salpingectomy, in his day Bouscaren also had to respond to the question of whether there is an appropriate reason for performing a salpingectomy prior to the actual rupture of the tube. According to the PDE, not only must it be established that the mode of action is good or indifferent according to its object, and that the evil effect was not chosen as a means to obtain the good, but it must also be determined whether there is an appropriate, serious reason for the “indirect” effecting of the evil consequence. For Copyright © 2009. Catholic University of America Press. All rights reserved.

Bouscaren, this appropriate reason was obviously that of saving the mother’s life. Some moral theologians, however, objected that precisely for this reason one must wait for the actual rupture of the tube, for only then is the mother’s life actually in danger, and the embryo definitely lost (it will certainly die as a result of the rupture of the tube, but in a natural way rather than by human hands). Bouscaren refutes this objection with the following arguments: 1. Since it has already been established that the killing in a salpingectomy is only indirect, it is permitted to weigh against each other the probabilities of either the mother or the child being saved. If, and only if, the child has a very small chance of survival (less than one percent of cases), an earlier intervention would be justified. It would then

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be merely a matter of shortening an antenatal life by a few weeks, which would be of little moral significance. A significantly high probability of being able to save the mother’s life by excising the tube is, on the other hand, an appropriately important reason for performing the operation under these circumstances.27 2. Certainly, in the event that the mother can be kept under observation, one must wait longer. If such waiting under medical observation is not possible, the following principle holds: a mortal danger is already present if a quickly growing disease, known to be deadly, is diagnosed in its beginning stages. Even if death will occur only in the future, the danger of death is already a present factor.28 It seems important to point out, therefore, that in this application of the PDE to the case of salpingectomy, which in effect has already been resolved for Bouscaren (with respect to the object of the action), the question of whether the embryo does have a chance at survival, and how great that chance is, still seems to be decisive. This is interesting, because ultimately, the goodness of what one does, and thus the actual object of the act, also depends in every case on whether the embryo is already practically “consigned to death” as a result of its pathological implantation in the tube. If the embryo were not so consigned to Copyright © 2009. Catholic University of America Press. All rights reserved.

death, then it obviously would have a real chance at survival (which is certainly not the case here) and it would be morally necessary to wait as it developed toward viability, even if this put the life and health of the mother in danger.29 If a salpingectomy were nonetheless chosen, this act would amount to a decision against the life of the child in favor of saving the mother, which is not permitted. But this would also mean that not even the object of the act was good; rather, the death of the embryo is chosen along with the saving of the mother, and as such also 27. Bouscaren, The Ethics of Ectopic Operations, 158f. 28. Ibid., 161. 29. This is, of course, a counterfactual assumption that does not apply to reality. If it did apply, this would be an indication that an ectopic pregnancy is in fact not a seriously pathological state.

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becomes part of the object of the act. This is a purely theoretical reflection, but it is nevertheless effective for showing that the PDE is always the presentation of a “case” that has already been resolved. The PDE thus exercises a test function, as it were, but does not help in arriving at a solution; the question that must first be resolved is the question of the object.30 Secondly, according to Bouscaren’s argument, it also seems decisive that the danger of death that results from a mortal illness does not need to be an acute danger to be a present one. This is an essential part of Bouscaren’s refutation of the objection that one should wait until the rupture of the tube occurs. This means, consequently, that with respect to the mother it is sufficient that the disease has already been diagnosed in its beginning stages. The issue for Bouscaren is, admittedly, the life-threatening desease of the tube, and not the ectopic pregnancy as such. His argument seeks to provide justification for the following: if the condition of the tube can be diagnosed, and assuming the embryo’s chances of survival are extremely small, then the tube containing the pregnancy can be removed, even if the danger of rupture is not yet immediate. The death of the embryo is then caused only “indirectly.” We have already seen above, however, that these arguments do not hold precisely for the case in which, in Copyright © 2009. Catholic University of America Press. All rights reserved.

order to prevent the disease and to preserve the tube, the embryo could have been removed earlier from the tube by means of a salpingotomy; this was not done, because it was considered to be a direct killing of the embryo and therefore it was decided to wait for the tube to become diseased, thus making salpingectomy an “indirect” killing. But—again— this is precisely the reason why the killing, considered as an intentional action, is not indirect at all. We are thus confronted with a dilemma. 30. This is different with respect to a hysterectomy: even if the child has a chance of survival, the intervention is directed exclusively against the carcinoma as the cause of the illness, i.e., against the diseased uterus. Uterine carcinoma and pregnancy are two separate phenomena; moreover in this case the pregnancy, because it is not ectopic, does not have any pathological character.

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iii. Two Potential Solutions to the Dilemma  This dilemma can be resolved

theoretically in two ways. First, it can be asserted that a salpingectomy is not permissible at all—except when it is done after the tube is diseased to the point that it is life-threatening, and the intervention was chosen only later, i.e., because this condition has in fact come about (and was not chosen so that the killing would become “indirect”). This later choice could be the case for two reasons: either the tubal gravidity was diagnosed too late, or the embryo was given a greater chance of survival or it had been hoped that it would die spontaneously. We can disregard the first reason here; the second, however, shows again that the decisive question is the embryo’s probable chance of survival. If this is why one waits until the tube becomes severely pathological, then this shows that the salpingectomy is not simply an operation to remove a diseased fallopian tube but, ultimately and precisely an operation to remove an ectopic and thus pathologically situated embryo. The operation is performed at that later point precisely because the embryo’s chances of survival are now estimated as negligible, and not because a diseased and dangerous (for the mother) tube can be removed. The killing of the embryo would then in no way be unintended. Secondly, it can be concluded conversely from the dilemma just cited that a salpingotomy is equally as admissible as a salpingectomy—for Copyright © 2009. Catholic University of America Press. All rights reserved.

the very same reasons that Bouscaren introduced for the appropriateness of the salpingectomy, i.e., the fact that 1. the embryo has an extremely small and therefore negligible chance of survival, and 2. there is certain danger to the mother’s life. It could, admittedly, be objected that the probability of the survival of the embryo diminishes and the danger to the mother increases as a consequence of waiting until the disease of the tube progresses. There is, however, an appropriate and sufficiently serious reason to dispense with this waiting: the preservation of the tube (always assuming that the embryo’s chances of survival have been judged to be sufficiently small).

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Indeed, precisely for this last reason, Bouscaren’s argument for the excision of the tube along with the living embryo can, in my opinion, be used to justify linear salpingotomy as well. Bouscaren’s argument was that a quickly progressing, fatal disease is to be considered as already present if it is diagnosed in its beginning stages. Therefore, according to Bouscaren, not only the rupture but the diseased tube itself is to be viewed as the illness already present. And to this can be added: the life-threatening pathology of the tube that ultimately leads to a rupture does not simply happen (for example, because of a virus), but is rather a direct and necessary consequence of the tubal pregnancy itself, i.e., the implantation of and invasion by the trophoblast, with the embryo, in the tube.31 But it could then be said, following Bouscaren’s logic, that the initial stage of the disease, which leads to a rupture of the tube only in its last stage, is in reality the tubal pregnancy as such, at least insofar as there is no rational expectation of its spontaneous death, or waiting cannot be justified since the patient cannot be kept under constant surveillance. In any case, in my view what cannot be said is that the initial pathology of the tube, which may lead to a tubal pregnancy, is the beginning of the life-threatening disease. Specifically, this cannot be said because—as distinct from the life-threatening pathology of the tube which, according to Bouscaren, justifies salpingectomy as a purely indirect killing of the Copyright © 2009. Catholic University of America Press. All rights reserved.

embryo—the unhealthy condition of the tube still has nothing to do with the existence of a pregnancy and thus, considered in itself, i.e., independently of the presence of a pregnancy, neither can it lead to a rupture of the tube, nor will it ordinarily become dangerous for the woman.32 31. Bouscaren says this himself on pp. 154f. of his book; he calls the pregnancy the “remote cause” of the disease. But if there is a necessary connection between this “remote cause” and the disease (and this is certainly the case), then the initial stage of the disease is the pregnancy itself, and precisely because it is an ectopic pregnancy, i.e., itself a pathological phenomenon. In this it is different from the situation behind a craniotomy, where the pathological situation is not the fetus or its position, but the narrowing of the woman’s pelvis. The same is true for the case of uterine cancer: here the pregnancy itself is not a pathological phenomenon, and as such has nothing to do with the original disease of the uterus. 32. If Bouscaren distinguishes between the life-threatening pathology of the tube and

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iv. Some Conclusions  Consequently, it can be said that a salpingotomy

is actually a therapeutic measure for healing exactly the same pathology as does, according to Bouscaren, a salpingectomy. The only difference is that a salpingotomy prevents the disease of the tube (i.e., the “second phase” of the disease); it is performed, from a medical point of view, so that the tube and possibly the woman’s ability to bear children can be preserved. Contra Bouscaren, the fundamental fact is therefore that the tubal pregnancy itself is seen to be the actual pathology, i.e., the initial stage of that fatal pathology that results in a rupture of the tube in its last stage. Together with the other reasons advanced, this yields the conclusion that, fundamentally, there is no morally relevant distinction between salpingectomy and salpingotomy, but only a distinction in the physical “directness” of the intervention. (Indeed, salpingotomy even appears to have a higher moral standing, if a salpingectomy is performed only so that the killing will become “indirect” after deliberately waiting for the disease to advance; one could hardly require a conscientious doctor to act in this way.) Therefore, it is necessary to weigh the embryo’s chances of survival against the danger to the mother and the possibility of preserving the tube. This “weighing” always takes place, however, against the background of the primary fact of the judgment that the lives of both mothCopyright © 2009. Catholic University of America Press. All rights reserved.

er and child would be lost through doing nothing, whereas at least the mother’s life could be saved through medical intervention. For in no case should there be any weighing between the two lives. Moreover, as extreme as is the case of vital conflict, no general rules can be proposed for dealing with it. The simple existence of a tubal gravidity is certainly not sufficient grounds to perform such an operation. Only if it can be foreseen that the pregnancy will lead to a life-threatening pathology of the ectopic pregnancy as remote cause (p. 154), then the initial pathology of the tube that may lead to an ectopic pregnancy must of course be considered as a still more remote cause of the life-threatening pathology. According to the logic of Bouscaren’s argument, however, the initial pathology has even less to do with the actual life-threatening disease than the ectopic pregnancy itself.

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the tube does an operation appear to be morally justified, even if medical concerns indicate that it would be better perhaps to operate at an earlier stage; regard for human life prohibits such a morally questionable dealing with an unborn human life, which displays an interest only in the welfare of the mother. And, once an intervention can be morally justified, this justification rests neither on a weighing of goods between the life of the mother and that of the child, nor on a preferential choice. Rather, it is—entirely—a therapeutic measure for saving the life of the mother in a situation in which no other rational alternative exists, since the ethical context of justice is no longer effective with respect to the life of the embryo. It is not possible to speak here of an infringement of justice against the child, and therefore neither is it possible to speak of killing in a morally relevant sense, nor of a “direct” killing. There is no morally relevant killing because, as stated above, “killing” becomes morally evil only insofar as it is an infringement of justice. The intervention can be justified positively, however, through the therapeutic lifesaving end with respect to the mother. The life-shortening killing of the embryo has no significance intentionally, since it is indifferent with respect to the ethical context of “justice”: it falls outside, as it were, the intention—is praeter intentionem—entirely independently of how (physically) direct is the removal of the embryo from the tube, which leads to Copyright © 2009. Catholic University of America Press. All rights reserved.

its premature death. c. Drug Treatment with Methotrexate Based on the preceding assumption that it is not possible to save the embryo but only the mother, one can also attempt to assess the third method, the administering of methotrexate. As with other similar drugs (e.g., in some cases with prostaglandins, mifepristone [RU 486], etc.),33 its drawback is that it can be used with any prospect of success (i.e., resolving the ectopic pregnancy) only at an early stage of a tubal pregnancy—thus when the other procedures can not be justified, because 33. Cf. Hucke, Extrauteringravidität, 97ff.

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the outcome of the tubal pregnancy and thus the danger to the mother’s life have not yet been established. To repeat, we are dealing here with the extreme situation of a vital conflict—and only with this situation—in which it is established that either mother and child both die, or only the mother can be saved. The situation in which treatment with methotrexate could lead to a successful removal of the ectopic pregnancy, on the other hand, does not as yet pose an acute threat to the life of the mother. Nevertheless, if one could achieve by means of a chemical preparation what is achieved in an extreme situation through salpingectomy or salpingotomy, this would be merely a physical distinction, but not an intentional and thus morally relevant one. (Methotrexate attacks the trophoblast, with the result that the embryo dies and is then spontaneously expelled; this therapy can therefore be considered nothing other than a method for removing the tubal pregnancy, analogous to a salpingotomy.) Indeed, methotrexate is applied as it were “prophylactically” (i.e., preventatively), when it has not yet been established whether the embryo has any real chance at survival or whether it will die spontaneously, and thus not produce the actual disease of the tube with the danger of rupture. (Neither salpingotomy nor salpingectomy can, in my opinion, be morally justified at this point.) The procedure thus becomes something approaching a direct attack on the embryo, with the end Copyright © 2009. Catholic University of America Press. All rights reserved.

not only of saving the mother’s life, but also of sparing her problems by avoiding a possible operation later. The simply possible but not yet immediately foreseeable (or already existing in the initial stages) life-threatening disease of the tube, with the subsequent danger of rupture (always fatal for the embryo), is not yet sufficient in itself to justify the intervention morally. Even given this possibility of a life-threatening disease, there is still a great probability that the embryo will die before such an operation is necessary and the chance, even if minimal, that the diagnosed problem will not develop into a tubal pregnancy, and thus the child will survive. (From a moral point of view, treatment at this early stage can be considered the best solution only if the welfare of the mother is considered to be the highest

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good—that is, if there is an implicit but morally questionable weighing of goods that is directed intentionally against the life of the embryo.) Catholic moral theology has always rightly held that the doctor should make every attempt to save the lives of both mother and child; he cannot simply assume from the outset that the life of the child is less important. But things can also reach the point where the child has no chance of survival—as far as humans can judge—and the possibility that the child will die spontaneously is extremely small, especially since, as we have stated repeatedly, the situation of a tubal pregnancy, considered in itself, is already pathological.34 There comes a point when no woman can be asked to risk her life for a minimal chance that the child might survive—and that very briefly. Here again we find ourselves in the extreme situation of a case of vital conflict, to which the words of Thomas Aquinas certainly lend themselves: “since one is bound to take more care of one’s own life than of another’s” (plus tenetur homo vitae suae providere quam vitae alienae).35 St. Thomas said this in connection with the use of violence in self-defense. Even if the case discussed here has nothing to do with self-defense, and the mother obviously bears a special, maternal responsibility for the child in her womb, this case does have something to do with the natural and morally legitimate drive for self-preservation, and with the similarly natural Copyright © 2009. Catholic University of America Press. All rights reserved.

and morally indisputable love for self that no maternal obligation and indeed no duty at all can ever render simply morally insignificant. Insofar as the drive for self-preservation and legitimate self-love is not real34. For this reason there also exists an argument based exclusively on showing that a salpingotomy is in any case the removal of a pathological situation. The embryo is transferred from a place where it cannot survive, to another place (outside the tube), where of course it cannot survive either. Its dying, however, is not the result of human action but of a pathological situation. The doctor is therefore not responsible for the death of the embryo that occurs as a result of salpingotomy. Viewed closely, this argument is essentially identical to the one presented here: the structurally lethal situation in which the embryo is located situates the action which causes its death outside of the context in which the act of killing can be qualified as an unjust act. 35. II-II.64.7.

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ized via a choice of the destruction of the life of another human being— thus, as it were, at his cost—there is nothing to object to in it (and this is in fact precisely how St. Thomas argues in the case of self-defense). In the situation which underlies the cases discussed here, there is no basis for the claim that the woman would be aiming at the preservation of her own life at the cost of another person. It could also hardly be demanded of her to put her self-preservation last, indeed to abandon it, sacrificing herself—for whom? Forsaking the preservation—indeed, making the conscious sacrifice—of one’s own life is, in certain circumstances, a noble and even required act. But it must always be for someone or for a good. Here, obviously, there is no good for which a mother could meaningfully sacrifice her life, for the child will die even if she does make the sacrifice. How immediate the danger is for the life of the woman in a concrete case (always assuming the death of the embryo) is a question to be answered according to the doctor’s judgment. In order to bring her child into the world alive, a woman should, however, be free to undertake risks beyond those that are strictly required by moral considerations. Such a birth can hardly be expected in cases of ectopic pregnancy, though it does occur in extremely rare cases, e.g., with abdominal cavity pregnancies. Some years ago I met a young student from the Philippines Copyright © 2009. Catholic University of America Press. All rights reserved.

who told me: “I was an abdominal cavity pregnancy. My mother refused to have an abortion, despite the doctors’ urging.” To be sure, abdominal cavity pregnancies are much rarer than tubal gravidities, but the same principles apply: everything should be done to save both mother and child. How much risk the mother is ultimately willing to undergo must be left to her decision; this is a question of judgment, in which it would be difficult to draw clear boundaries. What is decisive morally is only that any intervention which results in the death of the embryo should occur only if, in the doctor’s judgment and that of the woman in question, the situation is such that both mother and child would foreseeably die as a result of doing nothing. (This also holds if the intervention, as Bouscaren argued, occurs at a time in which the danger to life is not yet

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acute, but the pathological situation that leads to the acute danger is already irreversibly present and the child can be given, as far as humans can judge, no or very negligible chances of survival.) Somewhat objective criteria can be indicated for when this is clearly not yet the case. How long one should be prepared to wait and give the child a chance is, however, a question of conscience for the individuals involved, who will ultimately bear responsibility for the decision. d. Expectant Management There is still the final “treatment option” to discuss, which is actually a treatment through non-treatment: the so-called “expectant management.”36 It is, as stated earlier, justifiable only if continuous medical observation is possible, and if hospital admission is guaranteed on short notice for a possible operation. Its justification, moreover, requires that certain medical conditions exist such that simply waiting under observation will (usually) lead to the spontaneous death of the embryo (with secondary resorption, i.e. the reduction and dispersal of that which blocks the tube). In patient groups selected according to corresponding criteria, up to two-thirds of cases did not require surgery.37 Nevertheless, the danger of a rupture of the tube can never be excluded, even under such favorable conditions. None of this, however, has any evident influCopyright © 2009. Catholic University of America Press. All rights reserved.

ence on the survival chances of the embryo, but the treatment does represent a considerable burden for the woman, and for some it may require a lengthy hospital stay. In any case, it seems that the expectant management approach is becoming increasingly attractive in gynecological practice (for purely medical and not ethical reasons), though it is true that it can be followed only under the condition that it is possible beforehand to establish whether an ectopic pregnancy will end spontaneously or not. 36. Cf. Hucke, Extrauteringravidität, 121ff.; Stabile, Ectopic Pregnancy, 112ff. 37. Precise data can be found, e.g., in Hucke and in Stabile. Cf. also S. A. Carson, “Expectant Management: Its Role in the Treatment of Ectopic Pregnancy,” in Extrauterine Pregnancy, ed. Stovall and Ling, 271–78; Kadar, Diagnosis and Treatment of Extrauterine Pregnancies, 135ff.

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It should be pointed out that expectant management corresponds precisely to what was normal medical practice in the past. For this reason, certain writers also argue that the present gynecological practice of surgical and chemotherapeutic remedies is based on an “overdiagnosis” and “overtreatment” of the disease.38 Conversely, it should also be said that, both medically as well as fundamentally from an ethical point of view, the increase in conservative (thus tube-preserving) treatments certainly constitutes true progress, a progress due also to the fact that the diagnosis of the disease has been enormously improved by laparoscopy and ultrasound.39 Because an observational “therapy” does not significantly change the survival chances of the child, it is at first difficult to see why it should be viewed as morally required. However, to the extent that this form of therapy is used with a legitimate expectation of the spontaneous death of the embryo, it means that there is still no acute danger to the mother’s life. Insofar as the conditions are such that the spontaneous dying of the embryo can be legitimately expected, the pathological situation of the tubal pregnancy cannot be categorically considered to be life-threatening. That mother and child would both die without intervention is not (yet) the case here —even though it is not yet the case because the life of the mother appears to be relatively safe. With respect Copyright © 2009. Catholic University of America Press. All rights reserved.

to the child, the situation is still the same: it has no significant chance of survival. If a surgical procedure is nonetheless chosen here as an alternative to expectant management, it would be done in order to avoid the difficulties of expectant management—as well as the always present (but less acute than when done later) danger of a rupture of the tube. In fact, expectant management leads to success only if the tubal pregnancy is discovered at a very early stage and the waiting begins in the early period. This is, admittedly, a purely statistical relationship: 38. So Kadar, Diagnosis and Treatment of Extrauterine Pregnancies, 135. 39. It should be noted that with the introduction of laparoscopy, diagnosis and therapy often merge today, because both salpingectomies and salpingotomies can be carried out laparoscopically.

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most tubal pregnancies that end spontaneously do so relatively early (i.e., the sooner a tubal pregnancy can be detected, the more the case can be claimed as a statistic indicating the “success” of expectant management). As an alternative to “expectant management,” and in order to be certain of the results, treatment with methotrexate is often recommended on medical grounds40 (in contravention, however of the ethical evaluation given above). In any case, this recommendation points to the fact that we are here at a stage where surgical procedures like salpingotomy and salpingectomy are not yet morally justified either.41 In my view, this yields the following ethical assessment: if a tubal pregnancy can be diagnosed early enough that expectant management therapy includes a likely probability of the spontaneous dying of the embryo, the woman would then seem obligated to undergo such an observation and waiting treatment. However, as soon as the situation develops in such a way that by further waiting a serious and life-threatening disease of the tube would arise, we find ourselves in the situation described in detail above: intervention by means of a linear salpingotomy would be morally permissible. In no case is it required that, before performing a salpingectomy, one wait until the disease of the fallopian tube definitely becomes life-threatening so the killing of the embryo would become a purely “indirect” killing. How long one must wait for a surgiCopyright © 2009. Catholic University of America Press. All rights reserved.

cal procedure (i.e., when the danger to the mother’s life becomes certain) can be judged only by the doctor. In doubtful cases, however, he should decide based on protecting the life of the mother, since she is not obligated to undergo high risks to her health and her life for a child that will certainly not survive. Here as well, there is no weighing between the lives of the mother and the child.

40. Carson, “Expectant Management,” 278. 41. In reality this seems only a theoretical consideration, since at such an early stage an ectopic pregnancy would not be visible via laparoscopy and therefore an operation would make no sense.

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3. The Moral Justification of Life-Saving Measures in the Case of Vital Conflict

a. Recapitulation and Conclusive Explanation of the Ethical Argument The elements for a concluding assessment of our problem have now been completely worked out. We should first, however, recall some parameters for such an assessment. The method of the weighing of goods has been excluded: it is morally impermissible to weigh two lives against each other and to make a preferential choice. It is precisely this that seems to be the meaning of the Magisterium’s condemnation of direct abortion, in which the death of the child is chosen as a means to the end of saving the mother’s life, i.e., a decision is made, on the level of the choice of means, in favor of the mother and against the life of the child. In fact, in the case where mother and child would die if the life-saving intervention were not undertaken, there is not even the possibility of a weighing of goods (in the sense of weighing between two lives and deciding which one should not live so that the other be saved). Nevertheless, one who argues here using the notion of the weighing of goods makes a mistake, with the result that every case of abortion to save the mother’s life can be justified—including what the Magisterium has condemned as “direct” abortion. Along

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these lines, we want to emphasize again that the prohibition against direct abortion can involve only the case in which it is possible to make a preferential choice between the mother’s life and that of the child, and therefore in which the mother could be obligated to sacrifice her life to make possible her child’s survival. Finally, we have excluded the possibility of justification using the PDE, because this requires the certainty beforehand that the chosen action is good or indifferent according to its object. It is precisely this, however, that is the matter of discussion. The cases of craniotomy and tubal gravidity differ from each other on some points. Craniotomy does not involve any pathological situation regarding the fetus. The anomaly consists in the fact that the mother’s pelvis is too narrow, and thus it is it impossible for the child to be born without fatally injuring both itself and the mother. The case of craniot-

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omy involves an acute obstetric emergency, in which there is also a certain time pressure. My argument, which will be presented once more synthetically below, lends itself easily to this case: the obstetric intervention with the consequence of the direct death of the fetus cannot be described as an act of killing that infringes on justice. It is—again—performed outside of the ethical context of “justice”; without a relation to the principle of justice, an act of killing cannot be qualified as unjust, and therefore neither can it be qualified as morally evil. In the case of tubal gravidity, the situation of the embryo is itself pathological, and at a certain point becomes a mortal threat to the mother, while at the same time the child’s chances of survival are negligibly small. In contrast to craniotomy, however, tubal pregnancy is not a case of obstetric emergency. This means that, on the grounds of all the above arguments and respecting the conditions formulated in combination with them, an earlier intervention can be morally justifed. Let me now recapitulate the fundamental argument for the moral justification of this mode of action (causing the death of an embryo or fetus that can not survive). The argument consists in the view that the decision to allow both mother and child to die—when at least the mother can be saved and the child will die in any case—is simply irrational, and particularly from the perspective of the doctor. The norm that proCopyright © 2009. Catholic University of America Press. All rights reserved.

hibits the killing of a human being appears, in this case, to be simply pointless and nonsensical. In fact the meaning of the norm is that no unjust killing be committed; it is simply beyond comprehension, therefore, to claim that the child’s right to life is disregarded in such cases. One cannot “take away” a life for which it is already clear that it will never even be born. The argument that humans are not able to measure the worth or meaningfulness of a human life vis-à-vis others, and that they therefore should not have control over it, likewise does not seem to pertain here. In this case, only the life of the mother is at the disposal of another human being—the fetus is no longer even subject to a decision between “killing or allowing to live”; the only morally good thing that can be chosen here is to save the life of the mother. With respect to the

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life or death of an embryo, the only morally relevant question is “to kill or let live?”—and for this particular embryo, this question can no longer be decided about or chosen. There remains only the question regarding the mother: “to let die or to save?” It is thus clear that the death of the embryo is not a matter of “just or unjust,” inasmuch as only in the ethical context of “justice” can an act of killing be described as an unjust act.42 Everything that makes the killing of an innocent human being appear as wrong, as a crime, as an injustice, everything that makes the killing worthy of loathing or condemnation, is missing in this case. The only charge that can be leveled against the procedure is that it is “direct,” i.e., physically direct. But is this morally decisive? According to my argument, this point of view is not morally decisive in this context. Therefore, in this case, the killing of the fetus would not consist in a choice of the death of a human being as a means to save the life of the mother. Intentionally (objectively) we can describe the case simply as “the saving of the mother’s life.” Only if the fetus would otherwise survive could its death be said to be chosen as a means—and thus caused “directly” in a morally relevant way. But in our case, the death of the fetus is not willed in order to save the mother; as far as the life of the fetus is concerned, it is beyond any kind of willing.43 The killing of the fetus falls here under the pure and simple genus naturae of the moral (intentionCopyright © 2009. Catholic University of America Press. All rights reserved.

al) act of “saving the mother’s life.” (Stated in Thomistic terms: the fatal medical intervention by which the fetus or the embryo is removed is the material part of the act, whereas the basic intention or the finis proximus of the life-saving act is the formal part of the moral object of the act.)44 42. This does not, however, imply a judgment that the embryo no longer has a right to life. Rather, what is missing here entirely is a context in which one can speak of rights. One can lose their right to life only through a culpable violation of the law; as such, an unborn human being cannot lose its right to life. But it is possible that it finds itself in a situation in which speaking about rights no longer makes sense—indeed, even becomes contradictory. 43. Author’s note 2008: Notice that “what is willed” depends on the objective configuration of circumstances. It is not the intention that “redescribes” what is going on, but what is going on determines what the intention can possibly be. See also section b, below. 44. J. T. Mangan, in his time, said precisely the same thing; cf. “An Historical Analysis of

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That the consequence of death for the embryo is to be considered in the same way as a non-intentional side effect, and thus as a purely physical evil caused praeter intentionem, is shown, it seems to me, by the fact that one would not feel justified in performing the intervention if the child had a real chance of survival. But in our case, it is not only that the death of the embryo is regretted (for this could also be the case in a morally inadmissible direct therapeutic abortion to save the mother’s life), but that it is decided to perform the operation solely because it is known—and regretted for this reason—that the child will not survive. This is a significant difference. Precisely at this moment, and for this reason, the action as a whole falls outside of the ethical context of “justice.” The death of the child is to be seen on the level of simply dying. And one who dies suffers no injustice, as stated above.45 the Principle of Double Effect,” in his interpretation of ST II-II, q. 64, a. 7, 50, i.e., that the object of the act of legitimate self-defense analyzed by Thomas (even if it is a physically direct act of killing) is “good” because the act of self-defense, on the basis of its object, is an act of “self-preservation.” The point is that what is effectively done here is nothing other than an act of killing; but the intentio is the preservation of one’s life and, because the act of killing occurs praeter intentionem, the object of the action is determined formally by the intention of self-preservation. Nevertheless, the reason why in a legitimate act of self-defense the killing is praeter intentionem is different from the gynecological cases discussed here (for, to re-

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peat, the gynecological cases are not a matter of self-defense). The parallel consists only in this: that an act can be an act of killing materialiter but something else entirely formaliter, e.g., self-preservation, the saving of a life, medical therapy. The object of an action is determined on the basis of the formal aspect, not the material. 45. It should be emphasized once more: the case of a hysterectomy in the event of uterine cancer is different. The structure of the argument for the non-intentionality of the killing of the fetus in a hysterectomy is different because it rests, as already stated, on the possibility of understanding the disease and the pregnancy to be two independent phenomena (whereby the pregnancy as such has no causal significance for the uterine cancer, nor does the removal of the fetus have causal significance for its healing). In this case, therefore, a hysterectomy would be considered permissible even if the child had a real chance of survival, and which survival would foreseeably lead to the mother’s death. According to traditional Catholic moral theology, that a woman in such a situation would sacrifice herself for her child is commendable and heroic, to be sure, but not morally commanded. The criterion of the child’s inability to live in the obstetric emergency resolved by craniotomy and in a tubal gravidity treated by a salpingotomy thus does not in any way take away from the

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For this reason it is also incorrect to consider the case of vital conflict discussed here as an exception to the prohibition of killing; here we are not dealing at all with the intentional action of “directly killing an innocent,” to which the norm of the prohibition of killing applies. Cases such as this one are not subsumed under any norm, and therefore cannot be justified normatively, not even as “exceptions.” But such a framework of norms and exceptions is not even necessary here because such cases, in addition (typically) to urgent time pressure, possess the characteristic that two rationally defensible alternatives of action simply do not exist. Here, only saving the mother’s life can be justified rationally. To repeat, the physical act of killing (e.g., by craniotomy or, in the case of a linear salpingotomy, by the extraction of the pregnancy from the incised tube) is characterized intentionally only by the will to save the mother’s life. This mode of action therefore requires no additional normative justification. Only the non-intentionality of the killing of the fetus needs to be justified. In this case such a justification seems possible and, therefore, the killing of the fetus is no more connected morally to the action than if the death had occurred as a result of not intervening; it remains, despite the operation, analogous to a purely natural event. And again, this entails that the child has no more suffered an injustice

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than does someone who dies of natural causes. b. The Exclusion of the Weighing of Goods It is precisely for this reason that what Thomas says in ST II-II, q. 64, a. 7 is correct: (moral) acts do not take their species from what is not intended. But it must be held as entirely decisive that this “not-beingintended” is not, so to speak, simply decided by the agent such that anyone could in fact claim: “I did not actually will/intend this, but that.” If such self-description were a criterion for what is intended, we could, as it were, direct our intentions according to whim and fancy and then legitimacy of the traditional reasoning for the moral permissibility of a hysterectomy during pregnancy.

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morally justify every kind of action; we would, morally, always do precisely that to which we “intended to direct our intention.” The moral content and the object of our actions would then be only the intentions with which we do something; we could describe every action as we wish, according to our dominant intentions, and indeed redescribe them differently, if necessary. This is in fact where proportionalism leads.46 In my opinion, the solution proposed by Germain Grisez appears to move in at least a similar direction, even though Grisez is one of the sharpest and most original critics of proportionalism.47 He uses the following example: a woman suffering from a serious kidney disease becomes pregnant, and decides to have an abortion in order to avoid health problems. Grisez holds that this woman can simply choose an abortion, without, however, choosing to kill the child, for her intention is not directed at the death of the child but only at its removal from the womb. Thus, it is not the killing of the child that is intended but the termination of the pregnancy as the cause of danger to the mother. The death of the child here would be an unintended side effect, which is to be accepted as morally permitted, though only in very rare cases, for serious reasons and if it is not contrary to fairness with respect to the child. And even if such an abortion is not a direct (intentional) killing, generally speaking Copyright © 2009. Catholic University of America Press. All rights reserved.

the woman should nevertheless not have an abortion if, in doing so, she accepts the death of the child unjustifiably. And an abortion would be justified, according to Grisez, only if the mother’s life is in danger. This clearly would make virtually every therapeutic abortion—at least where the mother’s life is in danger—morally permissible (including those cases in which the child could foreseeably survive without an operation). The distinction between the cases “mother or child” and “mother and child” seems to have no importance for Grisez.48 46. I refer once again to my article “Intentional Actions and the Meaning of Object: A Reply to Richard McCormick” and to Spaemann, “Einzelhandlungen.” 47. G. Grisez, The Way of the Lord Jesus, vol. 2: Living a Christian Life, Quincy 1983, 500f. 48. On this cf. the critical remarks by W. E. May, Catholic Bioethics and the Gift of Human

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According to the position presented in this study, Grisez’s position is not sound. It disregards the Catholic teaching that in such cases everything must be done to save the lives of mother and child, even if the mother must sacrifice her life so that her child will survive. Any other alternative entails a weighing of goods between the life of the mother and that of the child and then, in a preferential choice, choosing to kill the child as a means to save the mother’s life—a classic case of “therapeutic” abortion.49 The argument presented here, on the other hand, attempted to show that the death of the child can be claimed to be praeter intentionem,50 not because the intention is related solely to the removal of the pregnancy (with the end of saving the mother’s life), but because the intention in the action here in question can be directed only at saving the mother’s life, i.e., because the removal of the pregnancy in Life, 176ff. (also directed at P. Lee, Abortion and Unborn Life [Washington, D.C.: The Catholic University of America Press, 1997]; Lee adopts Grisez’s distinction between “abortion as killing” and “abortion as removal”). 49. Such a weighing of the goods can indeed be found in Grisez’s solution, which he neveretheless sees as allowable, because it has already been established that the act of abortion in this case is not a “direct killing” (in Grisez’s terminology, not an “intentional killing”). Nor is craniotomy necessarily an “intentional killing” in Grisez’s view. According to his argument, the fact that the child has no chance of survival does not play any role. Rath-

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er, he first establishes (in complete independence of the child’s ability to survive) whether or not an abortion is an “intentional killing” (thus a “direct killing” or not); if not, then the killing is not intended but is simply a side effect of the action (something which Grisez contends occurs in many cases of therapeutic abortion). He then establishes, in a second step, whether there is a correspondingly serious reason that justifies the acceptance of this side effect. Grisez’s method is thus a new, very simplified version of the PDE, which in fact has some points in its favor (though in some cases—for instance, craniotomy—the description of the action must be forced a bit for the death of the fetus to appear to be only a side effect of the operation!). However, in this case his conception of the PDE leads to a result that seems difficult to reconcile with an explicit teaching of the Catholic Church, i.e., that a mother is not permitted to abort her child to save her own life, but must be prepared, after all attempts to save both have failed, in certain circumstances to sacrifice herself so that her child can survive. 50. This is sufficient in the case of self-defense, on the condition, however, that the use of force is measured, i.e., an appropriate, not excessive use of violence (which would itself be an indication that the will was in fact not aimed at the death of the aggressor).

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this case cannot include any decision against the life of the child, since the child has no known chance of survival. No other outcome is even in question for the child, nor can any other outcome (i.e., saving the child) be conceived of as a rational basis for action, nor can the action be criticized as an injustice against the life of the child. Consequently, the death of the embryo is not chosen; rather, it is similar to an unintentional side effect, which is to say that it is not a “direct killing.” In no way is it chosen as a means, and for this reason neither is it willed in any way; that the operation is possibly aimed directly at the embryo in a physically causal way is thus of little importance. This obtains most clearly, of course, for the extreme case where the rupture of a tube is either imminent or has already occurred (if the embryo is still alive). Here a salpingectomy cannot be avoided. As Bouscaren has astutely shown, however, the “intentional situation” does not change if a salpingectomy, or at least a segment resection, is performed earlier so as to avoid this extreme case. According to traditional guidelines, this earlier procedure would still be considered an “indirect killing.” But, as we have seen, the “intentional situation” is likewise identical if the timing of an intervention is moved forward still further so as to preserve the tube, and a linear salpingotomy is performed. The embryo dies as a result of its removal from the tube, but this distinction appears Copyright © 2009. Catholic University of America Press. All rights reserved.

to be morally insignificant, inasmuch as in this case nothing different is chosen and willed than in the cases previously cited. From a moral point of view, the killing here cannot be seen to be “more direct” than in the other cases. With respect to the moral object of the action, this intervention has nothing to do with an abortion; it is rather a therapeutic measure in favor of the woman, with the only intentional content of the action being the healing and the saving of the mother’s life. (The so-called “therapeutic” abortion, on the other hand, is in fact a euphemism: it is not “therapeutic” because it is performed at the cost of the life of an innocent person and, furthermore, because the disease for which the child is aborted is not healed at all by the abortion; on medical grounds alone it is illegitimate to call such an intervention “therapy.”)

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We must once again recall that tubal pregnancies are pathological situations: the tubal pregnancy and the disease (or pathology) of the fallopian tube are to be considered a single, indivisible pathological phenomenon. To be added to this judgment is the fact that the tube can be preserved by a salpingotomy and the woman may still be able to bear children (something which speaks more in favor of the moral permissibility of the action discussed here than against it). This latter motive, however, is not an end that justifies the means, for the means no longer need to be justified at all. It does, however, show the rationality and appropriateness of the anticipatory tube-preserving course of action, which does imply the acceptance of the death of the embryo, but does not imply an immoral preferential choice against the embryo.51 Conversely, the argument does not hold that a salpingectomy could be performed at an earlier stage (instead of a salpingotomy) on the grounds that the tube was already pathological from the outset (which led to the ectopic pregnancy in the first place), and that, medically speaking as well, removal of the tube would be preferable to conservative therapy. As we saw, this argument is inadequate, in that the initial pathology of the tube is not a life-threatening condition for the mother, but only causes the tubal pregnancy that then becomes the cause of the danger to the mother’s life. If there is no pregnancy, the initial patholCopyright © 2009. Catholic University of America Press. All rights reserved.

ogy of the tube itself does not justify removing it—which invalidates the decisive argument in favor of the “indirectness” of the action. Moreover, the merely future and possibly life-threatening disease of the tube is not an appropriate, serious reason for killing the embryo via a salpingectomy, because a spontaneous termination of the pregnancy is always still very possible. Finally, in many cases there are appropriate grounds for 51. The application of this argument to the case of craniotomy appears to be unproblematic and does not need further discussion, except to note that here also we are dealing with an extreme case in which, after attempts have been made to save both mother and child, in the end one can choose only to prevent that the situation of the fetus also ends in the death of the mother. Nor, or course, can this be characterized as “self-defense” (inasmuch as there is no aggressor), but simply as a reasonable medical measure to save the mother.

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a tube-preserving treatment, because the woman’s fertitility even then remains very high. It is in no way certain that a tubal pregnancy will again occur in a tube that has been preserved (the probability, as we saw earlier, is only 20 percent with a single tube remaining after a salpingotomy). A salpingectomy therefore has the character of a preventive measure for avoiding the reoccurrence of a tubal pregnancy; again, this is not an adequate reason for killing the embryo via an excision of the tube. As we have seen, in fact, these counterargments tend to support the arguments in favor of the moral permissibility of a salpingotomy. c. Objections and Response The following five objections could be advanced; I will attempt, briefly, to refute them. The first objection that could be advanced against my argument would be the simple assertion that the fact that a person will die anyway is not a justification for killing him now. In principle, every killing is a simple “cutting short of a life,” and since every human being will certainly die eventually, we must ask: could not every killing be justified in this way? I would reply that the fact that someone will die anyway is in itself no justification for taking any kind of action whose direct consequence would be the immediate death of this person; this, Copyright © 2009. Catholic University of America Press. All rights reserved.

in fact, was not the argument in the preceding pages. Rather, the fact of the foreseeable death of person X (the child) is to be seen in connection with the fact that not doing an act that would result in the immediate death of X would also lead to the death of person Y (the mother). (In fact, in the case discussed here, Y’s life is also the condition for the survival of X, so that the continued life of X, which is fatal for Y, is precisely also the cause of death for X itself: because person X causes the death of person Y, X causes its own death as well). But Y can live through the performance of an action that will lead to the earlier death of X—who will die anyway. This action can thus be characterized as an act of saving a life or as a therapeutic measure. Added to this (in particular in the case of extrauterine gravidity) is the pathological character of the situa-

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tion, i.e., what will be removed by the intervention is a disease (the nonremoval of which would lead to the death of Y). Only in this context— which again, falls outside the context of “justice”—does the fact that X will not survive become morally relevant. Thus there is no danger at all of legitimizing the argument that, given the foreseeable fact that someone will die anyway, an action leading directly to his death is justified.52 The second objection to my argument would be that this method could justify active euthanasia. Why should someone, who is suffering seriously and unbearably and wishes to die, not be killed directly—an insignificant shortening of his life, since it is clear that he will die soon anyway? The object of such an act would then be “relief from pain” or “liberation from suffering.” The reply to this objection would be that the object of this action is the direct killing of an (innocent) human being for the further end of “relief from pain.” The fact that he would die soon anyway is morally irrelevant here, and precisely for the same reason that in a case of vital conflict it is morally relevant. In the case of vital conflict we have analyzed, this fact is morally relevant because the brief continued life of the embryo is coupled immediately and necessarily with the threat to or destruction of the life of another person (and

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this, moreover, on the basis of a situation that in itself is to be charac52. This objection was also made by G. J. Waffelaert against Viscosi and Pennacchi in the discussion on craniotomy (“De abortu et embryotomia,” 104). It seems, however, that Waffelaert, too, missed the key point when he said, “In this case, all those who are on the point of dying, with no hope of living, could be led by forceps to the end at which they would soon arrive. But does one say: ‘idque non simpliciter, sed ut matris vita servetur?’ This is a begging of the question (or circular argument). Does one kill the child to save the mother?” Waffelaert makes the mistake of considering this to be two separate arguments, thereby making it an obvious petitio principii. He thus reduces Viscosi’s and Pennachi’s argument to the simple assertion that one can kill a child to save the life of the mother. In fact, we are not dealing with two arguments, but two elements of the description of an action that belong together. The child who will die in any case, or the pathological situation caused by this, will lead to the death of the mother if there is no intervention that cuts short the embryo’s life. For this reason, Waffelaert’s objection that this leads to the principle that “everyone who will shortly die can be killed now” is unfounded.

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terized not as natural but as pathological). This is not the case with euthanasia; there is therefore no reason to consider a measure that cuts short a life as not morally evil. And in fact it is evil, in the first place, because suicide is evil (though this is not the place to argue this point), and because active euthanasia is a voluntary assisting of suicide. Secondly, the action is evil because it is unjust, in cases where it is done without the “patient’s” consent or only assuming such consent. There is also another counterargument in this case: to kill a human being with the end of freeing him from suffering can in no way be described as an action of “freeing from suffering,” because the subject who is thus “freed” from suffering is no longer alive once the action has been carried out. What remains is not a human being freed from suffering, but a body that is neither the human being who was to be freed from suffering nor a subject of possible suffering; it is therefore a body that, since it can no longer suffer, can not be “free from suffering.” For this reason the immediate consequence that can alone be the object of a choice—and thus the true and proper relevant moral object of the action—is only the killing (to free from his suffering a patient who, prior to the killing, was still alive, capable of suffering and in fact suffering). Therefore, one first has to intend to kill him, with the further end of freeing him from his present suffering. The action is thus, objectively, not an Copyright © 2009. Catholic University of America Press. All rights reserved.

action of freeing someone from suffering but an act of killing, chosen as a means to a further end. The problem (suffering) is solved by killing the subject affected by the problem and thereby rendering him incapable of suffering, through which the problem (suffering) of course also disappears. It is different with the cases of vital conflict that we have analyzed: the immediate consequence and thus also the meaning of the medical intervention is to heal the mother and to save her life. To do so, one does not in any way will to shorten the life of the embryo (the willing occurs completely independently of the life or death of the embryo); it is sufficient to will its removal from the womb, since it represents a mortal threat for the woman. The third objection to my argument is that it could be misused to

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justify research using either embryos or embryonic stem cells extracted from surplus (i.e., spare, extra, or supernumerary) embryos that will be “discarded” and therefore “die anyway.” The objection would claim that, according to my argument, if these embryos are used for research that could possibly lead to life-saving treatments for others, then the corresponding acts could be described and evaluated simply and purely as acts of saving lives; the acts of killing implied in the corresponding procedures would be of a purely physical kind and not a matter of injustice against human beings, since the embryos are going to die anyway. At first glance, the objection appears to be persuasive, but my argument cannot lead to this conclusion for at least three reasons, which show the objection to be unjustified. This third objection to my argument (i.e., that it could be used in support of unjust research) fails on three counts. First, because these socalled surplus embryos considered as such are capable of living insofar as they are implanted in a uterus, in contrast with an embryo implanted in the fallopian tube. They are surplus and incapable of life only because their development in the uterus is not willed or not possible (due to the lack of a “mother”). Moreover, their status as surplus is not pathological as such, as is the case for a tubal pregnancy. Additionally, any use that would destroy them would be a direct (i.e., intentional) killCopyright © 2009. Catholic University of America Press. All rights reserved.

ing of human lives (even though possibly for a good end). Second, this objection fails because for these embryos—who are human beings with the right to life—this situation is to be characterized as one of injustice caused by human beings, whereas there is no question of injustice in the situations we have described which underlie the case of vital conflict. This situation brought about by embryo research is not natural, as is the result of the pathologies we have dealt with. Consequently, the fact that these embryos are not capable of survival and will probably die is a situation that has been caused by human beings, and is moreover the immediate result of a morally reprehensible practice. To further use this situation for research purposes, instead of working to ensure that it does not come about in the first place, means that one becomes partly

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responsible for the injustice of this situation and the praxis that causes it. To use research embryos for therapeutic ends thus implies consent to an injustice (the “production” of embryos with no chance of survival, the instrumentalization of human lives); it cannot, therefore, also be described and evaluated as an act of justice (i.e., of saving a life).53 Third, the objection fails because in this case the essential condition already indicated in my reply to the first objection is missing, namely, that the life of the embryo is a direct threat to the life of another person. The physical killing of such embryos for research purposes does not have any immediate relation to a possible life-saving effect with regard to another person, so it is not justified by my argument. The same lack of relation to a life-saving effect obtains for early euthanasia: the killing of a newborn who is severely damaged and certain to die soon. Such an act of killing does not, as such, in any way have the character of an act of saving the life of another person; such early euthanasia is therefore intentionally and morally a direct killing of a human being. In distinction from this, craniotomy or salpingotomy are medical interventions through which, as such, the mother’s life is saved, so that the aspect of the act that causes the death of the embryo or fetus is not to be assessed intentionally, and thus morally, as a “direct killing.” The fourth objection to my argument concerns my claim that even Copyright © 2009. Catholic University of America Press. All rights reserved.

though the medical intervention discussed here immediately causes the death of the child, it no longer pertains to the ethical context of “justice.” Does not the danger exist that anyone can similarly claim according to his or her own discretion, judgment, or intuitions that the ethical context of “justice” no longer obtains in this or that case? Does this not open the door to a subjectivistic morality—the danger of a slippery slope? The response is first that one could object in this way to every kind of ethical argument, for, when an appeal is made to reasons, there can always be an alternative view or another set of reasons. To act on the basis of no reasons at all, however, is not a morally acceptable alter53. On this cf. the author’s preface to this volume as well for a discussion of how inadequate theory leads to a justification of elective abortion and other kinds of killing.

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native. Secondly, whether and in what way the ethical context of “justice” pertains in a certain situation is not an arbitrary judgment, but is to be established in precisely the same way as is, for example, the moral object of a particular action. There are also disagreements about determining this object; no one claims, however, that it is therefore dangerous to assess the morality of an act by its object. In any case, the statement—that the moral identity of a human action is in general ascertainable only relative to an ethical context—reflects the traditional view, going back to Thomas Aquinas, that acts which are identical in their genus naturae could belong to an entirely different genus moris.54 That this view has often been misused is no argument that it is wrong. Obviously, the category of the “ethical context” can also be similarly misused to bolster an argument. The fifth objection to my argument is that it does not offer any clearcut solutions. It appears to yield a sort of continuum, with a gray zone in which one does not know whether the intervention is permissible or not, given that everything depends on an estimation of the danger to the mother and the probability that is given to the survival of the embryo. Probabilities cannot be the basis for actions in questions of life and death; what are needed, so the objection goes, are clear answers and norms. My response to this objection is that even in questions of Copyright © 2009. Catholic University of America Press. All rights reserved.

life and death, univocal answers are not always required, and neither is absolute certainty (and indeed these are often not possible). Rather, a so-called “moral certainty” is sufficient. Even moral theologians in the past who considered craniotomy to be direct abortion and therefore murder if the fetus was still alive, did not demand, in cases of the possible removal of a dead child via craniotomy, that the doctor be absolutely certain that the child was already dead. It was sufficient that it was probably dead, “for a living mother is not obligated to give her life for a fetus that is with great probability already dead” (“ ..... mater vivens non debet vitam suam dare pro foetu probabilius iam mortuo”).55 As54. Cf. e.g. I-II.1.3 ad 3; ibid. 18.5 ad 3. 55. Prümmer, Manuale Theologiae Moralis, II, 127. According to this principle, when the

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suming that my argument is correct for the case in which it is absolutely certain that the embryo cannot survive, the following principle can also be applied: the argument also obtains for the case that it is only probabilius that the embryo (or in the case of an abdominal cavity pregnancy, the fetus) will not survive. This is sufficient to refute this fifth objection, inasmuch as it has been shown that my argumentation lies entirely within the tradition in this respect.56 To be sure, one question remains: at what point, according to medical judgment, does not only the pregnancy become a mortal threat to the mother, but also the survival of the embryo become extremely unlikely, at least as far as anyone can judge? A gray zone is perfectly admissible here, in which the responsibility of the doctor is called upon. Indeed, precisely because this case does not concern a question that can be solved normatively or casuistically, the doctor’s judgment is indispensable. It is moreover a judgment that belongs to the virtue of prudence; no ethicist, nor the woman involved, can make this decision for the doctor. Precisely in this question—where the boundaries are not clear and it is not certain in a concrete case when the medical intervention that is immediately fatal for the embryo becomes an unjust and in itself evil action with regard to the child—neither a prohibitive norm

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fetus is only probabilius dead, Prümmer concludes that “many teachers of good repute rightly teach that the craniotomy to save the life of the mother is licit” (“complures auctores recte docent, licitam esse craniotomiam ad salvandam matrem”). 56. The distinction, moreover, between craniotomy in the case of an only probabilius already dead fetus, and a salpingotomy in the case of a fetus of which it is only probabilius that it will not survive, can be considered to be morally insignificant. In the first instance (i.e., craniotomy in the case of a still-living but believed to be already dead fetus), the error does not in any way affect the child’s chances of survival; it will die in any case. With respect to salpingotomy, a wrong assessment of the chances of survival would of course prevent the embryo from actually surviving (something which can never be known, of course). It is insignificant in this context, however, because the principle introduced by Prümmer (i.e. “a living mother is not obligated to give her life for a fetus that is with great probability already dead”) can be applied independently of this distinction, though admittedly the correctness of the argument always assumes that salpingotomy is morally permissible in the case of absolute certainty concerning the non-survival of the embryo (which permissibility, in my view, has already been established independently of this).

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nor, conversely, a general authorization can take the place of the prudent judgment by the acting person, i.e., the doctor. For his part, he must always decide for life. If the embryo still has a real chance of survival, he must not do anything that would decrease its chances. Failing this, he not only should, but must attempt to save at least the life of the mother. Again, it does not in any way follow from the norm that one should never perform a direct abortion to save the life of the mother that a doctor should be obligated, if he is not able to save both, to allow mother and child to die. Unfortunately, in the past Catholic moral teaching often understood things precisely this way, which not only caused conflicts of conscience and suffering, but also contributed to the discrediting of Catholic moral teaching.

4. Epilogue: Virtue Ethics, “Direct” and “Indirect,” and Prohibition of Killing

I recognize that those accustomed to thinking within the framework of “direct” and “indirect” of the traditional moral theological casuistry of the last four hundred years will read the present argument with some mistrust. That it is called an “argument based on virtue ethics” will hardly mitigate this mistrust—the labels “virtue” or even “prudence” ofCopyright © 2009. Catholic University of America Press. All rights reserved.

ten conceal rather dubious hidden agendas. Obviously, I cannot explain in detail here what is meant by an “argument based on virtue ethics.”57 At the risk of repeating myself, however, I will briefly sketch what is decisive for a treatment based on virtue ethics in the present context of the prohibition of killing. First, it is decisive that the “life of a human being” is not simply to be considered as a “good” provided with a certain rank, which can then in some way become the object of a weighing of goods. This may be ad57. On this cf. some brief comments in M. Rhonheimer, “ ‘Ethics of Norms’ and the Lost Virtues: Searching the Roots of the Crisis of Ethical Reasoning,” in Anthropotes 9, no. 2 (1993): 231–43 (republished in an expanded version in The Perspective of the Acting Person, chapter 2); and the introduction to Die Perspektive der Moral, esp. 22ff.

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missible in juridical contexts, but it is not an adequate approach to morality regarding “human life,” because here the perspective is different. The perspective is precisely that of the agent; from this perspective, the “life of a human being” is not merely a “good,” but it is in the first place the life of the agent himself, and his own natural inclination to selfpreservation. Secondly, it is the life of other human beings who, in a fundamental act of recognition as “equal to me”—insofar as they are human beings like me—become the targets of acts of justice. From this recognition of the other as “an equal”—which is thus the fundamental act of justice—the Golden Rule arises, which demands of every acting subject that he or she never do to someone else what they would not want others to do to them.58 Both one’s own life and that of the other are therefore “situated” within a context of the principle of “justice,” which as a practical principle comes to expression first of all in the Golden Rule and secondarily in common principles such as “to each his own,” “do no harm,” etc. It thus becomes clear that every free human action that is related in any way to one’s own life or to that of another always involves an intimate relationship to justice. This relationship, insofar it is stably implanted in the will as a habitus (stable disposition or character), is called the virtue of justice. In this light, the perception of “human life” as a “pre-moral” or Copyright © 2009. Catholic University of America Press. All rights reserved.

“non-moral good” that may be injured or destroyed—as “teleological ethics” asserts—appears quite inadequate. This theory obviously operates with a simple theory of goods, rather than an ethical theory of action; it lacks the first-person perspective of action, and it argues from the perspective of the detached observer. It is true that the “life of a human being” is not a moral good, because then the “death of a human being” would be a moral evil. (I exclude the predicate “innocent” here to keep matters simple, but it could be added.) The death of a human being or its causing cannot as such be a moral evil—when some58. Here I state the Golden Rule negatively, recognizing that some scholars call this negative formulation the Silver Rule. I will refer to both positive and negative formulations as the Golden Rule.

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one dies in an earthquake, for example, no one is guilty and no one can be blamed (barring, for example, the situation of a corrupt or negligent building contractor, who could be held responsible for the evil consequences of an earthquake), i.e., there is no moral evil, only a malum physicum. “Moral evil” and corresponding “moral goods” are found in the will of acting subjects in their freely chosen actions, and for this reason imply guilt and merit reproach; they are properties of acts of choosing and intending.59 Consequently, the “death of a human being” (even an “innocent” human being) is not a moral evil; what is morally evil is the killing of a human being, where “killing” is not a mere “causing of death” (for then we would again be speaking of death simply as a physical evil), but rather a human, deliberate action of “killing,” i.e., the choice or the intention to take an (innocent) human life.60 Nevertheless, the reason 59. Author’s note 2008: In his above mentioned article “St. Thomas, Rhonheimer and the Object of the Human Act,” Lawrence Dewan strangely misunderstands my claim that “human life” or “a possession” are non-moral goods. His polemic against my view seems to me far off the mark. My claim is not, of course, that “human life” or “a possession” are not morally relevant, but that “good” and “evil” in a moral sense are qualities of the will. Moral goods are “justice,” “courage,” “prudence,” and so on; moral evils are, for example, “injustice” etc. A moral good is what merits praise, a moral evil what merits blame. For a hu-

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man being to live does not, as such, merit praise, but rather joy; and to die (or to be killed) does not, as such, merit blame, but rather sorrow. Equally, “owning a possession” is not, as such, a moral good and therefore praiseworthy; what is a moral good and merits praise is, for example, “rendering to someone what he rightly owns” (an act of justice). This is purely Aristotelian doctrine, and it also underlies Aquinas’s moral theology as well as the generally known scholastic distinction between “physical” (or “ontic”) and “moral” good and evil (malum physicum and malum morale). This is why geological configurations are not to be blamed (in a moral sense) for killing people by an earthquake; instead blame belongs to those who have negligently, and in order to make more money, constructed unsafe houses which collapse in the earthquake. The moral evil here is not the death of the killed (which is a deplorable and grave physical evil), but the negligence, greed, or irresponsibility of those who constructed the shabby houses (a moral evil precisely determined in its gravity by the dignity and worth of human life). 60. The fundamental error of so-called “teleological ethics,” as a form of consequentialism, lies precisely in implicitly accepting that the action of “killing a human being” could be initially considered to be a purely non-moral causing of the death of a human being (thus as

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why “killing” (for example) can be a moral evil lies not in the will of the agent and thus in his freedom, but in an objective fact which is independent of his freedom to dispose of himself as he wishes, a fact that the intellect, which grasps reality, presents to the will as its object. And in the present case, this objective fact is the infringement of fundamental justice, which becomes the freely, rationally chosen object of the will (though obviously other objective factors could increase the evil of an act of killing). This fact, in turn, already includes the implication that, in every freely chosen or performed act, the human agent has an end. Generally speaking, an action can be the object of a willing only under the aspect of a “Why?” presented by the reason to the will. For the will of the agent, the actual object or content of a human action always has the character of an end. Thus “killing,” as the “causing of the death of a human being,” can be willed only insofar as it becomes an end for the will. The end—and here it is the immediate (finis proximus) not the final or more remote end (finis ultimus or finis remotus )—that people who are mentally healthy pursue in causing the death of a human being consists in taking the life of that person. What they thus will is that the person be dead, that he no longer exist, that he be taken out of the way, etc. (with the further end, for example, of receiving an inheritance, of retriCopyright © 2009. Catholic University of America Press. All rights reserved.

bution or revenge, of eliminating a threat to one’s own life, being able to marry someone else, saving the lives of others, deposing a dictator, etc.). “Killing” can also, at least theoretically, be pursued as the final (i.e., remote, ulterior) end of one’s action; for the most part, however, it is chosen as a means to another end. the causing of a physical evil that cannot yet be evaluated morally), in a way that this action would acquire its character as “morally correct” or “morally wrong” only as a result of the [ulterior, i.e., remote] intentions that attend it or the foreseen and intended consequences. The supposition is correct that the “death of a human being” and the causing of it are purely physical evils. However, to accept that a human action could simply be the non-moral causing of such a physical evil is wrong. Human actions are always acts of the will and they are inevitably bearers of moral qualities, entirely apart from the [ulterior] intentions belonging to them or their consequences.

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Every choice made by a person to take the life of another (at least insofar as he does not act on orders from public authorities, a case which must be treated separately)—even where the intention perhaps has something good to it—means entering immediately into a relation with the person whom he kills which is determined by the principle of “justice.” In this case the relationship is a non-recognition of the other’s right and claim to life. This non-recognition is a fundamental injustice, because it can be sustained only on the basis of the assumption that the other is not “my equal” on the fundamental level of the right to life and the recognition of this right. The relation of the will to the person whom one kills is thus a relation of fundamental injustice. Precisely for this reason killing is evil, i.e., a moral evil. This explanation emphasizes that killing is “evil,” not because the “good” of life has been destroyed, but because, by the destruction of his life—his bodily and thus fully human existence in this world—one has acted toward a concrete living human person in a fundamentally unjust way (in other words, it is not “goods” that are infringed upon, but claims, rights of human persons, and therefore these persons themselves).61 The person has been denied recognition as an “equal,” and robbed of that toward which the most fundamental inclination of

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his nature, the drive toward self-preservation, is directed. This is an in61. To be sure, with respect to Thomas we should add some differentiation: what he and the classical premodern tradition understood by “right” (ius) is the iustum, i.e., what is due or owed to a human being based on the nature of things or on the basis of human positive law, and not subjective rights in the modern sense (“rights,” “the right to ......,” “rights claims”). But the difference appears to be insignificant in this context, for a modern view of the “right to life” is also grounded in a certain iustum, as something to which humans are naturally entitled. The naturalness of this right, however, changes nothing with respect to the fact that there can be contexts of acting that stand outside of the context in which a certain right is relevant. In the case of the right to life, this concerns extremely rare and very specific cases. This can happen more commonly in other areas; the right to free speech, for example, can be irrelevant in certain contexts and one cannot appeal to it, without for that reason having lost the right. Every right belongs to a certain context of justice, which is again defined by specific relationships between people. As the most fundamental of all rights and as their basis, the right to life can become irrelevant only if, as in the above case, the ethical context of “justice” loses its intelligibility altogether and thus, as it were, vanishes.

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clination whose end—“life”—is in turn the foundation and presupposition of all other goods toward which the natural inclinations of the human person are directed. Therefore, the life of a person is not a “good” that can be weighed against another good in any way whatsover, not even against goods of “equal rank,” because it is simply not “a good” like, e.g., the legally protected rights (Rechtsgüter) considered by a judge or a legislator, which can be weighed against one another and at times be restricted in view of the common good. This is so because in contrast to such “interests protected by law” through a judge or a human lawmaker, in a most fundamental ethical sense life is, instead, either one’s own life or the life of a fellow human being, which must be treated according to the standards of fundamental justice, especially the Golden Rule, as equal to one’s own life (“Love your neighbor as yourself”). Life is thus incommensurable or “sacred” (the latter understood principally in its colloquial, non-theological meaning).62 For someone who is killed unjustly, the fact of his death is obviously not a moral evil. It is, to be sure, a serious and irreparable evil for him, but not one of a moral nature for him—he does not become morally better or worse through such a death, and he is neither praised nor blamed. It is the injustice with which this evil is brought about that makes the death of this person also a morally relevant evil, such that it can be Copyright © 2009. Catholic University of America Press. All rights reserved.

said: the one killed has suffered an injustice (which is not the case, to repeat, if he simply dies or is killed by an earthquake). However, “to suffer an injustice” is, again, not a moral evil. Moral evil is the deliberate causing of the suffering of an injustice; this is the meaning of Democrates’ saying that it is better to suffer injustice than to do injustice. If the pure and simple fact of “death”—independently of the injustice through 62. This does not contradict the principle introduced by Thomas in ST II-II, q. 64, a. 7 “plus tenetur homo vitae suae providere quam vitae alienate,” because this principle is related to a conflict case. In such a case, the natural love of self has precedence over love of neighbor (although there can be reasons to sacrifice one’s own physical well-being for that of another). As noted above, both positive and negative formulations of the Golden Rule are possible; the principle introduced by Thomas refers, however, not to the omission of an injustice but to the doing of good.

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which it is caused—was in itself an injustice and a morally relevant evil, then obviously no form of killing could be morally justified: not capital punishment or killing in a just war; and even the person who kills in self-defense would have to be held accountable for his action.63 It seems important to point out that such a perspective—i.e., that of virtue ethics as I have sketched it here briefly with respect to the prohibition of killing—shows precisely why what the Catholic tradition calls the “direct killing of an innocent” is “an intrinsically evil action.” What is more, in my judgment it also shows the meaning of the expression “intrinsically evil action” (actio intrinsece mala). If the prohibition of killing were to be so formulated in the context of virtue ethics, perhaps some terms of argumentation found in traditional casuistry would receive a new context, allowing them to avoid the danger of a “collapse” into the methodology of the “teleological ethics” of consequentialism or proportionalism. In fact, this danger exists only when one stays within the traditional argumentative structures, as do these latter methodologies, which then “bend” and reinterpret them to meet “new” needs. In my view, virtue ethics is as effective in addressing the cases discussed here, such as the gynecological vital conflict, as it is in establishing that the direct killing of an innocent human being is an “intrinsically evil act” and therefore morally prohibited without exception. Indeed, Copyright © 2009. Catholic University of America Press. All rights reserved.

for the very same reason that the “direct killing of an innocent” is characterized as an intrinsically evil act, those medical interventions that 63. It is symptomatic that the meaning of these differentiations has been lost for many people of our time. Perhaps this is a consequence of a materialistic attitude toward life, which seems to value “life” only as a means for the fulfillment of needs and preferences, and in the measure in which it can be experienced as exciting and satisfying. Thus, the tendency to place health and freedom from suffering above life itself (euthanasia, embryopathic or “eugenic” indications for abortion), or in part the tendency to value the lives of animals and their respective “rights” more highly than the lives and rights of unborn human beings. For many people, the indignation over natural disasters which cost so many human lives often seems to be greater than that directed at unjust human actions through which at least as many people are killed. Indeed, a sense of the properly moral evil of killing seems to diminish in proportion to the degree to which health measures and the protection of life (for those already born) become more and more sophisticated.

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save the mother’s life in the cases of vital conflict dicussed here cannot fall under this same judgment. Such actions lie outside the ethical context we have just described, delimited by the “principle of justice,” in relation to which “the direct killing of an innocent” becomes an unjust and thus an evil action. In fact, it is only in relation to a specific ethical context delimited by the different ends of virtues or moral principles that a particular action can be “intrinsically evil.”64 As a complement to the above analysis, it would seem worthwhile to “test” whether the solution presented here as morally permissible conforms to or violates the Golden Rule. It seems clear that no one, based on a weighing of goods, would want to be killed in favor of another person and thus prevented from continuing to live. Even where one is prepared to offer his life for another person, he certainly—and reasonably— would wish to be allowed to decide for himself whether or not to make such a sacrifice. Thus, according to the Golden Rule—“What you do not want to have done to you, do not do to others”—it would be immoral to inflict such a “sacrifice” on someone else. 64. Author’s note 2008: Here lies another rather serious misunderstanding in Lawrence Dewan’s article “St. Thomas, Rhonheimer and the Object of the Human Act”: on page 102, he takes my claim that lying is morally evil because it is opposed to the virtue of truthfulness to mean that acts of lying are evil because they are opposed to the habitus of lying. To this posi-

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tion, which I don’t hold, Fr. Dewan objects that an act is not to be said good or bad because of the habit it opposes, but the other way round: habits are said to be good or bad depending on the goodness and badness of the acts from which they spring. This is, of course, correct and purely Aristotelian and Thomistic doctrine. But I did not say in any way, and nowhere had I said, that acts of lying are bad because they oppose the habit of truthfulness. I did not speak of the virtuous habitus; rather, as Aristotle commonly does when he says that right reason depends on virtue, I spoke of the end of the corresponding virtue (here: of truthfulness). The ends of virtues are the principles of practical reason, and they confer upon moral acts their proper moral significance. For Aquinas, these ends or principles are identical with the precepts of the natural law. (This is precisely the nucleus of the theory of practical reason which is underlying Aquinas’s whole moral philosophy and theology and which I try to retrieve as its implicit “deep-structure.”) So, every unjust act (e.g., theft) is unjust because it is opposed to the end of the virtue of justice, which is to give to everyone his due. And therefore, acts of lying are morally evil because they are opposed to the end of the virtue of truthfulness, which is a (imperfect) kind of justice. (I call it “communicative justice.”) As such, then, they cause the bad habit of lying, that is, the vice as a habitus inclining to further bad acts.

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What, however, would be the case in the event of a vital conflict, where no weighing of goods occurs and no one is prevented from surviving, but a human life is saved? Here application of the Golden Rule seems to be to some degree irrelevant, or at least not clear-cut. Consider, for example, the doctor or mother, and what they would have wanted done if they themselves had been tubal pregnancies; it is in no way clear that they would not have wanted done to them exactly what we have proposed, i.e., an intervention be made to save the mother’s life. Surely this inability to apply a norm pertaining to such a fundamental principle of justice is an indication that here the ethical context has fundamentally changed. But one could go even further (and this is precisely what Pietro Avanzini attempted to show in 1872, though in an admittedly unfortunate way): it is conceivable that, if I imagine myself to be a tubal pregnancy, having no chance of survival and also destroying my mother’s life, I would wholeheartedly agree to be removed from the fallopian tube, and even as early as possible, so that the tube remains intact and the mother can bear other children. Let us imagine a “reunion” between two mother/child pairs in eternity. In the first case the mother aborted a child for the sake of her own survival, when she could and should have sacrified herself for the child’s survival. In the second case a tubal pregnancy was treated by Copyright © 2009. Catholic University of America Press. All rights reserved.

a salpingotomy. The relationships between mother and child would be very different in the two pairs. In the first case, the relationship would be fundamentally disturbed: a guilty mother would encounter her child and would have to ask forgiveness. In the second case, there would be nothing else to do but to fall into each other’s arms; one could even hear the child say: “Mother, don’t worry. It wasn’t your fault. I would have done exactly the same in your shoes.” This narrative “excursus” might seem sentimental or superfluous; in my view, however, it clearly shows the heart of the virtue ethics approach to our problem.65 65. We have nevertheless persistently ignored one aspect: the fact that an ectopic pregnancy can blamed on the mother herself because of irresponsible sexual behavior (pelvic infection and the resulting salpingitis). This is obviously a delicate subject, though it changes

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Such an argument based on virtue ethics does not in any way intend to jettison traditional Catholic teaching and the wisdom of traditional moral theology. The post-tridentine casuistic moral theology of the last centuries not only has great value, but was much more differentiated and effective than its current critics want to admit;66 it did, however, have its limitations and biases. The recovery of the perspective of virtue ethics presented here could perhaps at least blunt these limitations or biases, something which obtains especially for the distinction between “direct” and “indirect” killing. In fact, the meaning of the term “direct killing” depends upon the context of the moral theory in which it is used; as a term in moral theory, it is already “theory-laden” and anything but clear or self-explanatory. At the same time, the colloquial use of “direct” clearly contradicts the usual application of this term in moral theology. Nevertheless, here and there this colloquial use of the term leaves its traces in the arguments of moral theology, causing confusion. Colloquially, “direct” usually means a physical connection between cause and effect. One says, for example, that at the last moment under duress, the policeman killed the attacking terrorist who threatened his life with a direct shot to the heart; from a moral theological perspective one would speak here of a killing that was “indirect” or praeter intentionem. Or a doctor explains Copyright © 2009. Catholic University of America Press. All rights reserved.

to a pregnant cancer patient that chemotherapy is necessary but, unfortunately, the direct or immediate consequence will be the death of the child. Here too, moral theologians would speak of an “indirect” killing; the doctor, however, would certainly not tell the woman not to worry, nothing with respect to the analyses and conclusions reached above. If the woman could be considered guilty for the entire situation, this would influence a moral judgment concerning the person herself and her life, but not the fundamental ethical assessment of the various treatments discussed. The child would also, in our imagined “reunion,” take this into account: he would not reproach his mother for the chosen therapy, which in effect changed nothing with respect to his fate, but only because, by her behavior, she brought about an ectopic pregnancy, which kept him from being born. 66. As, e.g., the above-mentioned book by Jonsen and Toulmin, The Abuse of Casuistry, which does not do justice to the plurality and richness of the moral theological tradition.

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that the death of the fetus will be a “purely indirect” consequence of chemotherapy; he knows the chemicals will kill the child directly and inevitably, since “direct” implies “inevitable.” In fact the expression “direct” has a specific meaning in moral theology only if it is used in reference to an act of the will—but this understanding of direct in turn presupposes a specific theory of action, one which is capable of correctly analyzing an action in its relation to the will. Precisely in analyzing this relation lies the auxiliary and “test” function of the PDE, which in fact can be meaningful and comprehensible only within this context of the analysis of intentionality. In my view, therefore, it would seem better to replace the formulation of the prohibition of killing, “An innocent person may not be killed directly,” with the formulation, “The killing (or the death) of an innocent human being should neither be pursued as an end nor chosen as a means to an end.” Because, however, the expression “killing” is also not clear, one can better formulate the norm, in line with Evangelium vitae 57.5, as follows: “The deliberate decision to deprive an innocent human being of his life is always morally evil and can never be licit either as an end in itself or as a means to a good end.” This formulation clarifies the norm in a way conducive to an analysis from the perspective of virtue ethics. Here, in fact, the expression “to choose the killing/ Copyright © 2009. Catholic University of America Press. All rights reserved.

the death of” is better defined, meaning “the deliberate decision to deprive a human being of his life,” or an action that originates precisely from this decision.67 Since there are good reasons for denying that the death of a noninnocent person can be chosen morally as a means to an end, the norm could also be formulated without the inclusion of the predicate “innocent” (one does not make such a choice in im­posing the death penalty, in killing in a just war, or in legitimate self-defense; instead one chooses something like an act of self-defense). But there are important prag67. The intention to kill is therefore also an essential part of the definition of (active) euthanasia; cf. Congregation for the Doctrine of the Faith, Declaration on Euthanasia (5 May 1980) II (AAS 72, 1980, 546); and John Paul II, Evangelium vitae, 65.1.

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matic reasons for retaining this qualification. First, “innocent” has the advantage of circumscribing the “normal” or general prohibition of killing compared to all other cases; it thus delimits the ethical context of justice for the universal prohibition of killing, i.e., the lack of guilt. At the same time, it delimits the ethical context of justice for those cases of killing which can be authorized only by the public authority: the infringement of law. In fact, both capital punishment and killing in a just war presuppose the need for defense against a violation of the law, i.e., the need for a restoration of justice. In essence, therefore, the absolute prohibition against killing means that the death of a human being may never be chosen as the means to an end. This means that the death of a human being should never be intended as the object of an action. Even the intention of saving another person’s life in no case morally justifies an act of killing based on the choice between the death or life of a human person. To will the death of a human being as a means—thus consciously deciding for his death, for the destruction of his life—for whatever end, is unjust in the most fundamental sense. Indeed, from an ethical viewpoint, it is not simply the conditions in the world or the goods or evils we bring about through our actions that are morally relevant. Even if these are not irrelevant, the specific ethical Copyright © 2009. Catholic University of America Press. All rights reserved.

point of view proposed here is nevertheless concerned with whether the persons who have caused this or that state of affairs by their actions become good or evil, just or unjust persons. And this does not simply depend on the consequences of our actions, but also on how we have caused these consequences. Good and desirable consequences, such as a society without sick people, could be brought about by actions that are unjust, such as a euthanasia program, and thus—from a moral perspective—can lead only to very undesirable results. Put otherwise, unjust actions lead precisely to a world characterized by the existence of unjust subjects—from whom injustice can be expected for the future. At the same time, whether the death of a human being which results from our actions is to be considered an evil in the proper, ethical sense—that

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is, whether it is the result of an unjust act—depends not only on the fact of the causing of the death, but also on whether it was caused in an unjust way. The subject matter of ethics and morality concerns how we become good and, above all, just persons. Whoever has the death of a fellow human being as an end, or wills his death as a means to an end, and acts accordingly, is in his heart an unjust person. One who kills another out of negligence will be called irresponsible and, according to his or her guilt, a more or less evil person. Besides these cases of causing the death of a human being or choosing it as the means to another end of an act (i.e., homicide), or as the means to another end, or out of negligence, the person who causes the death of another cannot, from a moral per-

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spective, be blamed for it.

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Index

aggressor, unjust, 12n20, 14, 15, 21, 58–65, 67, 70, 72, 73, 74, 75, 76, 77, 80, 81, 82, 128n50, 130n51 analogy, 13, 14, 43 aporia (conumdrum), x, 8, 11, 108 Aquinas, St Thomas, 10, 14n21, 30n44, 52, 54n40, 57, 61, 65n52, 84, 85n1, 117, 136, 140n59, 145n64 Avanzini, Pietro, 57–61, 66– 69, 72–75, 78, 81–82, 146

abortion: direct, 1, 5, 10, 17, 30– 49, 72, 81n81, 82, 86, 104, 122, 136, 138; indirect, 36n7; procured, 25, 32, 34; spontaneous tubal, 89–91, 101, 112, 113, 116, 117, 119–21, 130; therapeutic (or therapeutically indicated), 6n12, 7, 20, 25, 28, 48, 57, 60, 72, 79, 81n80, 82, 91, 125, 127–29 acceleratio partus (an acceleration of delivery or expulsion), 5, 18n31, 36, 79– 80, 90 action theory (action analysis), xiv, 21, 22, 44n25, 88, 139: in Aquinas, x, 66–67, 74; deficient, 8, 11, 14n21, 57; and intentional action, 6, 49, 51, 53n36, 148; in manuals, 11, 49; in Veritatis Splendor, x, xvi, 3n5, 25 acts: direct, xiv, 2, 6n12, 35, 48, 49, 71n62, 82, 125n44; exterior, 62; intrinsically evil, xvi, 3n5, 11n17, 51n33, 86, 144; moral species, 3, 25, 42, 49, 54, 61, 62, 65–67, 71, 75, 126; physical species, 49, 62, 71

Ballerini, A., 58n44, 79 Belmans, T. G., 53n38 Böckle, F., 27, 28, 29, 30 Bouscaren, T. Lincoln., 4, 6n11, 39n18, 81n81, 93–106, 108–14, 118, 129 Boyle, J. M., 2n2, 9n14, 14n21, 44n25 Breckwoldt, M., 23n36 Brock, S. L., 14n21, 54n40 Carson, S. A., 119n37, 121n40 Cataldo, P. J., 5n10 Catechism of the Catholic Church, 17

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categories: intentional (moral), 38, 40, 67; physical, 34, 36, 104 causality, physical, 104 cesarean section (C-section), 5, 88, 105 chemotherapy, 2, 52, 53, 90, 120, 147–48 choice, preferential, 7, 19, 26, 27, 29, 30, 45, 47, 56, 115, 122, 128, 130 Church, Catholic, 1, 17, 128n49 conflict, extreme (vital), ix, xiii, xvii, 6–8, 14–16, 18n31, 19–21, 24–25, 27– 29, 39–40, 45, 56, 66, 68, 79, 81, 87, 105–7, 114, 116–17, 122–38, 143–46 Congregation for the Doctrine of the Faith (CDF), xiii, xiv, 27n40, 32n1, 148n67 Connery, J., 4-5, 36n8, 52n34, 58n43, 69n55, 72n64, 73n65, 78, 80n79 consequentialist, xiv, xvi, 2, 7, 9n14, 57, 140n60, 144 conundrum. See aporia craniotomy, ix, xiv, xvii, 4–6, 11–12, 14, 17–18, 36, 39–41, 44n25, 53, 55, 57–82, 84, 86–88, 91–92, 106–7, 113, 122, 125n45, 126, 128, 130n51, 132n52, 135–37 Decalogue, 46n27, 68, 72 Diamond, E. F., 5n10, 94n11, 104, 108n26 dilemma, gynecological, xiii, xiv, 82, 96, 112 Di Noia, J. A., O.P., 3n5 direct actions, moral / intentional, 5, 13, 38, 43n24, 45, 48–49, 51, 67, 70, 79, 82, 95, 98–99, 103, 116, 127, 129, 144, 147–48; physical, 13, 33, 36, 43, 48–49, 61, 69, 78n74, 104, 125n44. See also acts disease (condition), of the tube, 4, 39n17, 89, 90, 93, 95–102, 106, 111–14, 116, 121, 130 De Malo (Aquinas), 54n40

Denzinger, H., 17n30 Dewan, Lawrence, O.P., 54n40, 140n59, 145n64 double effect, principle of, xiv, xvi, 1–5, 8, 10, 25, 29n43, 38–40, 43–44, 50, 56, 61–62, 65, 80, 92, 94, 98, 100–101, 107, 109-11, 122, 125n44, 128, 148 ectopic pregnancy, xv, 2, 4–6, 29, 39, 81n81, 88–90, 93–97, 99–101, 103–5, 107, 110–15, 118–19, 121, 130, 146–47. See also pregnancy embryo, ix, 4, 14, 38–39, 88–91, 93–101, 103-21, 123-25, 129-38, 144 embryotomy, 44n25, 68n53, 69n54, 72n64, 73n65, 75n67, 76n70, 80, 132n52 Ermecke, G., 18n31 Eschbach, P., 68–69, 72, 78–81 ethical context, 11–12, 21–22, 42–45, 47– 48, 54, 56, 67, 77, 83–84, 86–87, 115, 123-25, 135-36, 142, 145-46, 149 ethical valuation (evaluation): versus medical, 91–92, 121 ethos, medical, 19, 22, 84 ethics: medical, ix–x, xiv–xv, xvii, 5n10, 8, 13, 20, 41n19, 93, 104; normative, xvii, 13, 21; philosophical, x, xiv, xvii, 9n15; Thomistic, x, 9n15; virtue, x, xiii-xiv, xvii, 9–11, 82–83, 138, 144, 146–48 Eschbach, Abbot P., 68–69, 72, 78–81 euthanasia, 132–33, 135, 144n63, 148n67, 149 Evangelium vitae, 3n4, 8n14, 17, 31, 33– 34, 36n11, 42, 148 finis: operis/ operantis (end of the physical act, end of the agent), 7n12, 73; proximus (proximate end of human action), 87, 124, 141; remotus, 141

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fallopian tube, ix, 2, 4–5, 39, 51, 88–90, 93–98, 100, 102, 106–7, 112, 121, 130, 134, 146 fetus, xv, 2, 4–7, 14, 16–18, 22–23, 25, 32–33, 35, 37–41, 43–44, 50–53, 56, 59–60, 66, 70, 72–73, 78–80, 90–94, 99–100, 104–5, 107, 113, 122–26, 128, 130, 135–37, 148 Finnis, John, 9n14 Flannery, Kevin, S.J., 41n19, 44n25, 53n39 formally (formaliter), 58–59, 124n44 Foot, P., 29n43, 43n23 Fuchs, J., 2n3 Gemelli, P., 52n34, 79–80 genus moris. See species genus naturae. See species German Adult Catechism (Katholischer Erwachsenenkatechismus), 15–17, 20, 22–27, 29 German Bishops’ Conference, 15–17, 20, 24 Ghoos, J., 61n46 Golden rule, 139, 143, 145–46 goods, method of weighing (proportionalism, consequentialism, teleological ethics, revisionism), xiii–xvii, 1–3, 6–10, 19–23, 25–27, 29–30, 48, 56–57, 64, 69n56, 82, 115, 117, 122, 126–28, 138–40, 144–46 gravidity. See pregnancy. Grisez, G., 9n14, 85n1, 127–28 Gury, Jean-Pierre, S.J., 59, 67 habitus, 139, 145n64 Hepp, H., 23n36 Hucke, J., 88n4, 89n6, 90n7, 101n16, 103n18, 115n33, 119 hysterectomy, 2, 4, 6, 36–41, 43, 52–53, 79–80, 90–94, 99, 107, 111, 125–26

•  159 indication: for abortion, 17, 22–23, 25, 32, 34, 60, 144n63; medical, 22–23, 25, 46n27, 60, 88; prophylactic (preventative), 23 indirect actions, xiv, xvi, 35. See also acts indirectness, 40, 95, 98, 102, 104, 130 infection, chlamydial, 88, 99 injustice, xvii, 12–13, 28, 42–44, 46, 48, 59, 124–26, 129, 134–35, 140n59, 142– 44, 149. See also justice innocent: direct (intentional) killing of, 1, 4–5, 8, 10–11, 17, 31–32, 34, 36, 42, 59–60, 69, 71–72, 76, 80n80, 81, 92, 126, 132, 144–45, 148; person, 34, 42, 46, 92, 129, 148 intention: basic (proximate), 33, 87, 124, 141; conditioned by nature, 47; and moral object, 49, 85, 127; remote (as opposed to basic), 141n60 interventions, therapeutic, 1, 3–4, 8, 17, 95, 115, 129 intrinsically evil acts, xvi, 3n5, 11, 51n33, 86, 144–45 John Paul II, Pope. See pope Jonsen, A.R., 10n17, 147n66 justice: virtue of, xvi–xvii, 12, 77, 86, 139, 145n64; principle of, xvii, 12, 21, 42–43, 123, 139, 142, 145–46; and rights, 84 justification: normative, 13, 20–22, 26, 126; through exculpation, 20–21, 26, 64 Kadar, N., 88n4, 101n17, 119n37, 120n38 Keenan, J. F., 10n17, 94n10 killing: in capital punishment, 27, 30n44, 55, 70–72, 76–77, 144, 149; as governed by justice, xvi, 12–14, 21, 42–44, 48, 55, 59, 77, 82–84, 115, 123–

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killing: (cont.) 24, 142, 144–45, 149; as inadequate description, 7n12, 44n25, 139; indirect, xiv, 38, 43, 50, 60, 79, 90, 92– 93, 95, 98–99, 103, 106, 108, 111, 113, 121, 129, 147; in just war, 144, 148– 49; as negligent homicide, 68; prohibition of, xiii–xvi, 10–11, 13–14, 27, 31, 42, 60, 78n74, 83, 86, 92, 126, 138, 144, 148–49; in self-defense, xiv, xvi, 11, 14, 21, 41, 55, 57, 59–67, 71, 73– 77, 80, 83–84, 117–18, 125, 128n50, 130n51, 144, 148 Knauer, P., 2n3, 27 Kramer, Hans, 14-17, 20, 22, 26 Kuhse, Helga, 94n10 laparoscopy, 90, 103, 120, 121n41 Large Families, Address to, 34–37, 45– 46 law, natural. See natural law Liebard, Odile M., 34, 46n27, 81n80 life, sanctity of, 94n10 Lee, Patrick, 128n48 Lehmkuhl, A., 4, 20n32 Ling, F. W., 88n4, 119n37 Long, Steven A., 65n52, 70n58, 85n1, 105n24 love: of self, 117, 143; of neighbor, 143 lying, 12n20, 145n64 Machiavellian, 74 magisterium, xvi, 3, 9–11, 30, 36–37, 46, 122 Mangan, J. T., 61n46, 124n44 manuals, 10–11, 18n31, 49, 53, 58n44, 136n55 Martius, G., 23 materially (materialiter), 20n32, 58–61, 68, 73, 80, 82, 85n1, 87, 108n25, 124, 125n44

Matharan, M., 78 Mausbach, J., 18n31 May, W. E., 5n10, 85n1, 94n11, 108n25, 127n48 McCormick, Richard, S.J., 3n5, 127n46 means: in moral sense (as human acts ordered to ends), 28, 38, 51, 57, 67, 70, 75, 121, 124, 141, 148; in technical sense, 51 measure, therapeutic, 3–4, 11, 51, 91– 92, 101, 104, 114–15, 122, 129–31 Merkelbach, B. H., 49n31, 70n57 methotrexate, 87, 90, 108, 115–16, 121 Midwives, Address to, 46n27 Moraczewski, A.S., O.P., 5n10, 108 moral perspective, 90, 93, 149–50. See also perspective moral object, 5, 55, 87, 124, 129, 133, 136; versus physical object (objectum physicum), 55 moral species (genus moris). See species moral theory, 67, 147; applied, xi; fundamental, xv, 49 Murphy, William F. Jr., vii, x–xi, xvii natural law, ix, 9n15, 11n18, 21n33, 52n35, 54n40, 86n3, 145n64 neo-Thomistic, 11 Noldin, H., 18n31, 20n32, 78n73 non-direct, 34–37, 39–40, 64, 72–73, 99. See also indirect object, moral. See moral object object, physical. See physical object Oesterle, Jean T., 54n40 Pastorales Wort zur Novellierung des § 218 StGB (by German Bishops), 15– 16, 20, 26 pathology, 97, 100, 102, 106, 113–14, 130 Pennacchi, J., 68, 72–74, 81–82, 132

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Perkins, Ignatius, O.P., 108n25 person, innocent, 34, 42, 46, 92, 129, 148 perspective (viewpoint, point of view): of the acting person, x, 3n5, 9n15, 33, 44n25, 53, 54n40, 138n57; medical, xvii–xviii, 91, 95, 101, 114; moral (ethical), 3n5, 51n33, 81, 87, 90, 93, 116, 120, 129, 149–50 petitio principii (begging the question), 7n12, 132n52 Pfleiderer, A., 23n36 physical categories, 34, 36 physical object, 54n40, 55 physical species. See species Pilsner, Joseph, 54n40 Pius XII, Pope. See pope pope: John Paul II, 17, 36n11, 53n37, 148n67; Pius XII, 34-40, 44-47 practical reason, 54n40, 145n64 praeter intentionem (outside the intention, unintentional), 13–14, 20, 25, 33, 36, 40, 51–52, 61–67, 74–77, 83– 84, 115, 125, 128, 147; as per accidens (accidental to morality), 51–52, 61, 64–65, 67 pregnancy (gravidity) 2, 4–6, 11–12, 15–16, 23, 29, 34, 38–39, 79, 82, 87– 91, 93-111, 113-121, 125-128, 130–31, 134, 137, 146–47: abdominal cavity, 88, 118, 137; ectopic (out of place), xv, 2, 4–6, 29, 39, 81, 88–90, 93–97, 99–101, 103–5, 107, 110–15, 118–19, 121n41, 130, 146n65; extrauterine, 5n10, 11–12, 39, 82, 87–90, 94n11, 101, 103–4, 115n33, 119n37, 131; pathologically situated, 2, 5-6, 29, 89, 93, 95–100, 102–3, 106–7, 110–11, 113–14, 117, 120, 130, 134; tubal, xv, 11, 15, 36, 39, 51, 82–84, 87–89, 91, 93, 95, 99–103, 105-9, 112-18, 120-23, 125n45, 130–31, 134, 146

•  161 principle of justice, xvii, 12, 21, 42, 123, 145–46 prohibition of killing, xiii–xvi, 13–14, 27, 42, 83, 126, 138, 144, 148–49. See also killing proportionalist, xiii–xvii, 2, 7, 9, 57, 69, 71, 127, 144. See also goods, method of weighing Pennacchi, Joseph, 68, 72–74, 81n81, 82, 132n52 Prümmer, D., 11, 18n31, 20n32, 49–52, 55–58, 136n55, 137n56 punishment, capital, 27, 30, 55, 70–72, 76–77, 144, 149. See also killing Raynaud, Théophile, S.J., 59, 67 right: iustum, what is due, 12, 56–59, 67, 72, 81n81, 85, 123, 124n42, 134, 140n59, 142, 144n63; to life, 56–58, 60, 72, 123–24, 134, 142; legally protected, 143 Rodríguez Luño, A., 36n7 Sacred Congregation of the Holy Office, xiv–xv, 5, 11, 17–18, 57–58, 60, 73, 77– 78, 81n81, 105, 107 salpingitis, 89, 146n65 salpingostomy (where the incision is left unsutured), ix, 5, 90, 104 salpingotomy (or linear salpingotomy), ix, 5, 14, 87, 90–92, 94, 99–100, 102–8, 111–14, 116–17, 121, 125n45, 126, 129–31, 135, 137n56, 146 Schmidt-Matthiesen, H., 23n36 Schockenhoff, E., 15–17, 20, 24, 26–27 Scholz, F., 2n3, 27 Schüller, B., 2n3, 27 segment resection, 87, 90, 92, 129 self-defense, legitimate, xiv, xvi, 11, 14, 21, 41, 59, 62, 66, 71, 74, 84, 125, 148. See also killing Sgreccia, E., 6n12, 36n7

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slope, slippery, 25n39, 86, 92, 135 Spaemann, R., 44n25, 127n46 Sporken, P., 28n41 species: moral (genus moris), 3, 25, 42, 49, 54–56, 61–62, 65–67, 71, 75–76, 79, 126, 136; natural or physical (genus naturae), 49, 54–55, 71, 76, 124, 136 Stabile, Isabel, 88n4, 90n7, 95n13, 101n16, 119 Stovall, T. G., 88n4, 119n37 subjectivistic, 135 suicide, 50n31, 66n52, 133 Summa Theologiae (Aquinas), 11, 14n21, 18n31, 49n31, 57, 60–61, 65–67, 70, 71n61, 73-75, 77, 83-84, 117, 125n44, 126, 143n62 summerhouse, 37–39

unintentional, 11, 13, 25, 50–53, 129 uterus, cancerous, 2, 4, 6, 37–39, 52, 79, 92, 113n31, 125n45 Utz, A.-F., 63–64 Veritatis splendor: The Splendor of the Truth, x, xiv, xvi, 3, 9, 25, 53n37, 54n40 Vermeersch, A., 4, 52n34, 79, 80n79, 93n9 virtue: ends of, 11, 45, 145; in the manualist tradition, 144, 147; of justice, xvi-xvii, 12 77, 83, 86, 139, 145n64; of truthfulness, 145n64 Viscosi, Daniel, 68–74, 81, 132n52 vital conflict (extreme conflict). See conflict Waffelaert, G. J., 73–77, 132 Wolbert, W., 11

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teleological ethics, xiv, xvi, 2, 7–8, 57, 139, 140n60, 144 Toulmin, S., 10–11, 147n66 trombosis, pelvic vein, 23 trophoblast, 89–90, 100, 103–4, 108, 113, 116

tube (salpinx), 89. See also fallopian tube

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