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Double Effect in the Halappanavar Case

5 Dec, 12 | by Iain Brassington

In the wake of Savita Halappanavar’s death, a statement was issued by the Irish Catholic Bishops’ Conference.  The whole thing is available here.  However, I think that a couple of paragraphs is particularly worth picking out:

Where a seriously ill pregnant woman needs medical treatment which may put the life of her baby at risk, such treatments are ethically permissible provided every effort has been made to save the life of both the mother and her baby.

Whereas abortion is the direct and intentional destruction of an unborn baby and is gravely immoral in all circumstances, this is different from medical treatments which do not directly and intentionally seek to end the life of the unborn baby. Current law and medical guidelines in Ireland allow nurses and doctors in Irish hospitals to apply this vital distinction in practice while upholding the equal right to life of both a mother and her unborn baby.

I think that the first of these paragraphs is pretty unexceptionable, and describes something approaching the default setting for medical interventions anyway.  We might want to talk about “reasonable efforts” rather than “every effort”, since the latter does perhaps tend towards the onerous; but the general gist seems OK to me – almost trivially so.

Note, though, how a great deal rides on a distinction between different kinds of pregnancy-terminating procedure (PTP, from now on).  Notably, there’s a line drawn around abortion as a particular form of PTP.  The statement admits that certain PTPs may be permissible: what matters is that there should be no intention to kill.  Thus certain PTPs may be permissible notwithstanding foetal death if that death is not intended.  I take this to mean that, should the foetus survive, permissible PTPs would be those in which there is no sense that the procedure had gone wrong.  Abortion would be the kind of PTP that is impermissible, precisely because the intention is to kill.  (At the extreme, successful delivery is a kind of PTP, too, since it does end the pregnancy – it’s just that it’s the kind of PTP that we celebrate, rather than tolerate.)

Fairly clearly, the Bishops’ statement relies on some form of the Doctrine of Double Effect: the idea that there’s a moral difference to be had between intending some outcome, and foreseeing it.  If the Doctrine holds water, it would provide a way to say that acting in order to shorten a life may have one moral value or require one moral argument, but acting despite a foreseen shortening may have or require another.

Now: put that slightly to one side, but keep it simmering while we look at something else.

A couple of moths ago, the world was presented by something called the “Dublin Declaration” on maternal healthcare, which states that

[a]s experienced practitioners and researchers in Obstetrics and Gynaecology, we affirm that direct abortion is not medically necessary to save the life of a woman.  We uphold that there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child. We confirm that the prohibition of abortion does not affect, in any way, the availability of optimal care to pregnant women. [emphasis mine – IB]

Once again, this statement seems to ride on there being a distinction between abortions and other kinds of PTP.  Reading the Declaration in its own terms, it seems to me not so much to be predicting that abortion will never be necessary, as defining abortion as not medically necessary.  This then opens the way to saying that it’s impermissible, and maintaining that prohibiting it will – by stipulation – not make any difference to medical care.  Again, other PTPs may be permissible.  Again, we’re dealing with the DDE.

Sorcha’s post on the Halappanavar case mentioned the DDE, too; but her treatment of it is the one respect in which I take issue with her.  She writes that the DDE

would only make sense if you wanted to justify abortion under certain circumstances (i.e. where it is an unintended but necessary consequence of some other morally good or morally neutral outcome). Reframing such an abortion as “medically necessary treatment that also destroys the foetus” undermines the need for the DDE at all.

I don’t agree.  Partly this is because, at least in the context of these statements, causing but not intending the death of the foetus would not count as abortion, and so the debate would have been shut down before it’s begun.  But let’s put that terminological point aside.  What’s important to keep in mind is that the DDE isn’t something that one would invoke in order to justify abortion (or any act) anyway; it’s something to which one subscribes rather than something that one invokes, and makes justification possible.  It provides a lens through which to read the world.  As such, it isn’t a method of justification.  Reframing a procedure that ends the life of the foetus in a case like this doesn’t undermine the need for the DDE; this is partly because the doctrine isn’t a response to a need (which would be question-begging, and would leave it guilty of Mackie’s charge that it “purifies the intent”), and partly – and, I think, more importantly – because such framing is possible precisely because of the DDE.

More importantly for my purposes here, the DDE won’t tell us that action A is permissible and B not; all it does is say that the arguments that apply to one don’t apply – or don’t apply straightforwardly – to the other.  Both, whatever A and B are, might turn out to be OK; both might turn out to be wrong.

The point is this: even if you don’t agree with the definition of abortion offered by the Bishops or the Declaration, it does play a role in what I take to be a formally valid argument.  Even if you think abortion is permissible, the argument seems to me still to be formally valid.  You might think that it reaches the wrong conclusion because the word “abortion” is misused, or because of a misattribution of value to the embryo – but that speaks to the soundness of the conclusion of the argument about what is and isn’t permissible, not its validity.  (For the non-philosophers, think of this analogy: if you put the wrong variables into an algebraic equation, you’ll end up with a misleading answer.  But the calculation that got you there could be perfectly accurate.)

This is a roundabout way of saying this: disputes about the permissibility of deliberately killing a foetus don’t have to have any direct impact on situations like this.  If you think that the DDE is bunk but that killing a foetus is permissible, there ought to have been no problem with ending Halappanavar’s pregnancy.  If you think the DDE is sound but that killing a foetus is permissible, there would have been no problem (though you probably wouldn’t feel that the DDE had any relevance).  If you think the DDE sound and that killing the foetus is impermissible, you could quite coherently deny that there’s a problem with ending the pregnancy even at the cost of the foetus’ life.  Ending Halappanavar’s pregnancy – and so saving her life – would have been impermissible only if you think both that killing the foetus is wrong, and that the DDE is unsound.

In other words, you’d have to be considerably more restrictive than even the Catholic Church.

OK so far?  Right.  Moving on…

Let’s go back to the Bishops’ Conference statement.  Jen Gunter isn’t happy with it.

I spent quite sometime trying to understand how one could possibly translate this statement into medical care. I’ve been a doctor for 22 years and an OB/GYN for 17 years and I admit that I am at a bit of a loss. My three interpretations are as follows.

  • Terminating a pregnancy is “gravely immoral in all circumstances.” All circumstances includes 17 weeks and ruptured membranes. Unless I misunderstand the meaning of “all,” then Irish Catholic Bishops also view ending a pregnancy at 17 weeks with ruptured membranes and sepsis, either by induction of labor or the surgical dilation and evaluation (D & E), to be “gravely immoral.” They must also view ending a pregnancy for a woman who previously had postpartum cardiomyopathy and a 50% risk of death in her pregnancy as “gravely immoral.” So if you have a medical condition that is rapidly deteriorating because of your pregnancy, too bad for you if you live in Ireland. Because the mother and unborn baby have equal rights to life, Irish law spares women the anguish of choosing their own life. Neither can be first, so both must die.
  • The latest edition of the medical textbook of Irish Catholic gynecology defines “abortion” as elective abortion and “medical treatments that do not directly and intentionally seek to end the life of the unborn baby” as medically indicated abortion. I admit this interpretation is a bit of a stretch. Whether it’s an induction or a D & E at 17 weeks for a woman with ruptured membranes and a runaway infection the intention is to end the life of the “unborn baby” because the infected uterine contents are what is killing the mother. [...]
  • The statement is an attempt to distinguish induction of labour from a D & E (you’ll have to bear with me on this one as neither “induction of labor” nor “D &E” are specifically mentioned). “Abortion” could be Irish Catholic Bishop code for D & E (a surgical procedure) and “medical treatments” code for induction of labor. After all, with an induction of labor (medication placed in the vagina or given intravenously to bring on contractions and empty the uterus) the fetus technically dies as a result of the mother getting medication and not by something that “directly” touches the fetus. Sort of in the way that if you tell a lie and your fingers are crossed you’re not really lying. Under this if-you-just-knew-the-secret-code-because-we-don’t-know-or understand-appropriate-medical-terminology interpretation, Dr. Halappanavar could clearly have had an induction of labor at 17 weeks and thus the blame for her death sits squarely on the shoulders of her medical team.

But there’s a number of problems with this, and I think they stem from the distinction between abortion and termination.  The Bishops’ statement isn’t that terminating a pregnancy is immoral: it’s that abortion is; and abortion has been quite narrowly defined.  You don’t have to like the definition, but it does set the terms of this particular debate.  Thus I don’t think that D&E would have to count as “gravely immoral”.  That speaks to the second bullet point, too: if we think that there’s a logical distinction between killing and expecting death, then we don’t have to accept that acting in such a way as can be expected to hasten death is the same as killing.  I think that there is a logical distinction: it would be logically possible to evacuate the uterus while still hoping against hope for foetal survival.  At 17 weeks, this is practically impossible, but it’s not logically so – and that’s what matters here; pro tanto, it’s not the same as an abortion.  Whether or not abortion is permissible makes not a sniff of difference in this case.

In another post on her blog, responding to reports that the doctors had said that the cervix was fully dilated, amniotic fluid was leaking and the baby wouldn’t survive, Gunter claims that

[t]here is no medically defensible position for doing anything other than optimal pain control and hastening delivery by the safest means possible.

For a 17-week pregnancy, hastening delivery will mean the child’s death.  But – assuming I’ve understood things aright (and I’m happy to have things corrected) – had Halappanavar’s pregnancy gone bad at, say, 30 weeks, it a hastened delivery could conceivably have resulted in a live birth.  Again, this means that the procedure isn’t the same as an abortion.

And this makes the refusal to terminate the pregnancy even more baffling.  Unless, again, you think that it’s wrong to act in such a way as to bring about a foetal death, as well as to kill it.  Again, that is, you reject the DDE.

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  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Yeah, OK: I’m not wholly sure of this post, which is why I’ve tagged it as thinking aloud.

    And it’s too sprawly. Surely the point – if there is one – could have been made more efficiently?

    Mind you: it’s only a blog. Take it seriously at your own peril. IANAD, and so on.

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Don’t worry. People stopped reading several paragraphs ago.

  • Georgina

    Priests are supposed to be

    a) celibate, i.e. cannot get pregnant
    b) theologians not medical practitioners

    Any opinion they may have is irrelevant, in my book, they don’t qualify for a vote

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Why would being celibate disqualify you from constructing a moral argument? Why would having a medical degree qualify you?

  • Joe

    Just a quick couple of comments – we do not know the details of the case nor the thinking of the doctors, so, pace some shrill media
    commentary it is important to be clear that the cases considered
    below (and above?) are hypothetical.

    DER (double effect reasoning) does not only distinguish between some
    ptp’s and deliberate homicide; i.e. between ‘bringing about death’
    and ‘killing’. Although the moral norm against ‘directly and
    intentionally’ killing innocent people is the one that is most often
    discussed, DER leaves room for there to be distinctions between
    permissible and impermissible kinds of ‘bringing about death’, and
    the relevance of other norms to which DER applies. Kidnapping and the removal of vital organs is thought to be impermissible even though
    the perpetrator might not intend death.

    If one is of the view that deliberate pre-viability induction is
    impermissible, one could refuse pre-viability induction for oneself
    or another while maintaining, through DER, that other treatments that
    benefit the mother and harm-the-fetus-as-a-proportionate-side-effect
    would be permissible. (Again, this hypothetical situation should be
    distinguished from the actual, still quite obscure Galway case or any
    actual case, if one exists, where induction is the ‘best’ or ‘only’
    lifesaving option. As a matter of fact, I don’t think Irish law or
    medical guidelines prohibit pre-viability induction, though there
    appears to be some support for that position in the Catholic
    tradition itself.)

    The question then would not be about double effect, but the justification
    of a norm that prohibits pre-viability induction. Does induction
    involve an intention vis-a-vis the fetus (as opposed to its mother)
    that is not present in, say, the classic double effect case of
    hysterectomy for cancer? Should this kind of intention (moral object)
    belong to the class of absolutely prohibited actions? Answering yes
    to both these questions provides at least one hypothetical scenario
    in which refusals to terminate pregnancy do not involve a rejection
    of DER, and so would be less baffling. I promised a couple of ‘quick’
    comments so will leave it there.

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