Abstract
Martin Rhonheimer has written extensively on disputed issues in medical ethics: the use of condoms to prevent HIV, contraception, masturbation to provide semen for analysis, and at length on “vital conflicts” in medical ethics that arise in a pregnancy in which the lives of both the mother and the child are seriously threatened. If nothing is done, both will die, but if a medical intervention is performed, the child will die but the mother has a chance of living. After offering his interpretation of relevant magisterial documents on the difference between “direct” and “indirect” killing and of St. Thomas's teaching on the lawfulness of killing in self-defense and the principle of double effect, Rhonheimer proposes to solve conflicts of this kind by an ethical analysis based on what he calls a “virtue-based ethics” concerned with rendering justice to both mother and child. Using this approach he justifies craniotomy, salpingectomy, and salpingo(s)tomy as morally permissible ways of saving the mother's life without doing any injustice while rejecting use of the drug methotrexate to end a tubal pregnancy. His analysis can be seriously challenged as rooted in a misinterpretation of key magisterial documents and for failing to consider the principle of double effect revised to bring it into harmony with Aquinas's teaching on the distinction between killing as intended and as the unintended although foreseen effect of an act of legitimate self-defense.
Introduction
After providing relevant information regarding Martin Rhonheimer's background and qualifications, I will consider his views on the following disputed issues: masturbation in order to provide semen for fertility analysis, use of condoms by married couples to prevent transmission of HIV/AIDS, craniotomies, and morally licit ways of coping with tubal pregnancies. I will briefly treat the first two issues and focus attention on the final two, which Rhonheimer examines at length in his recent work Vital Conflicts in Medical Ethics: A Virtue Approach to Craniotomy and Tubal Pregnancy (Washington, D.C.: Catholic University of America Press, 2009). Considering these issues more fully, I will devote special attention to the following: 1) his reason for judging the intentional killing of an innocent person intrinsically evil; and 2) his misunderstanding and/or misrepresentation of the arguments advanced by Germain Grisez and others associated with the “new natural law theory” for judging such killing intrinsically evil along with their opinion on craniotomies and coping with ectopic pregnancies. I will also consider Rhonheimer's opinion regarding the choice to stimulate a man's genitals to derive sexual pleasure versus the choice of the same behavior to provide semen for fertility awareness or to prevent transmission of HIV/AIDS. Then I will summarize in some detail his solution to “vital conflicts” in medical ethics posed by craniotomies and the different ways of dealing with ectopic pregnancies. I will then offer a final evaluative critique of his work.
Martin Rhonheimer is a priest in the Prelature of Opus Dei and a philosopher noted both for his interpretation of the natural law teaching of St. Thomas Aquinas and for many other philosophical studies. 1 He is also recognized for his arguments in defense of Pope Paul VI's teaching on contraception in Humanae vitae. One of his most important and thought-provoking essays on this subject, “Contraception, Sexual Behavior, and Natural Law: Philosophical Foundation of the Norm of ‘Humanae Vitae,’” was published in this journal. 2 He also has written articles in defense of Pope John Paul II's Veritatis splendor. 3
Masturbation to Provide Sperm for Analysis, Spousal Use of Condoms to Prevent HIV/AIDS
Masturbation
In an essay defending Veritatis splendor, in a section criticizing Richard A. McCormick, S.J.'s proportionalistic “expansion of the moral object,” Rhonheimer writes with regard to the relationship between the stimulating of a man's genitals and the moral act of masturbation:
Stimulation of the genital organs ‘as such’ is not a kind of human behavior that can be chosen or willingly performed by a human person; a basic reason, intent, or purpose is needed. That is why the Catechism of the Catholic Church very correctly writes in n. 2352: “By masturbation is understood the deliberate stimulation of the genital organs in order to derive sexual pleasure.” This seems very clear. If one chooses the same behavioral pattern (stimulating genital organs) in order to get semen for fertility analysis, then one simply chooses an action that is different by its object. 4
Rhonheimer thus held that stimulating a man's genital organs to get semen for fertility analysis was “morally permissible.” Rhonheimer, in a cordial email to me, wrote that he did not say this but rather only that the chosen act was “different [from masturbation] in its object.” I accept this as Rhonheimer's position. But if the chosen act is “different in its object” or “different by its object” (as the text cited reads), then the chosen act cannot be masturbation insofar as Rhonheimer's precise point is that while both have the “same behavioral pattern,” they have different moral objects: one is masturbation, defined as “choosing that pattern in order to derive sexual pleasure,” whereas the other is “to choose that pattern to provide semen for fertility analysis.” My criticism was and still is that Rhonheimer's position is not that of Pope Pius XII, who explicitly condemned as masturbation the act of freely choosing to stimulate one's genitals to provide semen for fertility analysis. 5 I accept Pius XII's position, not Rhonheimer's. Moreover, it seems to me that I did not unreasonably infer that, for Rhonheimer, such stimulation of the genital organs is morally permissible, for, in asserting that the action's moral object is different, he in no way shows that the action whose specifying moral object is to provide semen for fertility awareness is morally evil.
Spousal Use of Condoms to Prevent HIV/AIDS
The July 10, 2004, issue of the Tablet (London) published Rhonheimer's article “The Truth about Condoms,” which led many theologians, including this writer, to conclude that he justified as morally permissible the use of condoms by married couples to prevent the transmission of the HIV virus. 6 We reached this conclusion because of the following passage in Rhonheimer's essay:
A married man who is HIV infected and uses condoms to protect his wife from infection is not acting to render procreation impossible, but to prevent infection. If conception is prevented, this will be an—unintentional—side effect and will not therefore shape the moral meaning of the act as a contraceptive act. There may be other reasons to warn against the use of a condom in such a case, or to advise total continence, but these will not be because of the Church's teaching on contraception but for pastoral or simply prudential reasons—the risk, for example, of the condom not working. 7
Rhonheimer says that the “other reasons” are “pastoral or simply prudential reasons.” He does not say that these reasons are moral. Thus I and many other theologians/philosophers thought that Rhonheimer did in fact hold that it was morally permissible for married men and women to engage in condomistic intercourse as a chosen means of avoiding transmission of the husband's HIV. Otherwise, would he not have said there was a moral reason to warn against such use of condoms? I and others (e.g., John Finnis) who read the article agreed that use of condoms in such circumstances might well not be contraceptive—after all, it is possible that either the man who has contracted the HIV and/or his wife is permanently sterile and incapable of conceiving, so it would not make sense to use condoms in these circumstances as a means of impeding procreation, and even fertile couples might use condoms for this purpose, foreseeing but not intending their contraceptive effect.
But in his “debate” with Benedict Guevin, O.S.B., in the National Catholic Bioethics Quarterly, Rhonheimer wrote:
The meaning of my incidental remark [regarding use of condoms by a married couple to prevent transmission of HIV] in the Tablet article was simply to underline that if using condoms for preventing infection is wrong, this will be for reasons different from those for which contraception is wrong—and also that the Church's teaching about contraception as an intrinsic evil is independent of the question of whether using condoms for preventing infection of a spouse is morally admissible. Having mentioned “prudential” and “pastoral” reasons which advise total abstinence also in the latter case, I did not want to exclude that these reasons are also moral reasons. 8
This text seems to show that I and others erred in claiming that in his Tablet article Rhonheimer defended the use by married couples of condoms to prevent transmission of HIV. But I frankly cannot see how this passage can be reconciled with the following statement by Rhonheimer in the same debate:
I think one can reasonably express marital love in sexual intercourse while using a condom to reduce the danger of infection (though, given the limited safety of condoms, it is more reasonable to abstain completely). But a marital act thus performed—and without opposing one's will to the good of offspring within that act—has still a point as a marital act of loving union. 9
If Rhonheimer considers the act in question—“expressing marital love in sexual intercourse while using a condom to reduce the danger of infection”—a “marital act of loving union,” how could he at the same time hold that it is morally evil? 10
I think sufficient has been said regarding Rhonheimer's views of the liceity of masturbation to procure semen for analysis and problems with his essay regarding spousal use of condoms to prevent transmission of HIV/AIDS.
Rhonheimer's Vital Conflicts in Medical Ethics: A Virtue Approach to Craniotomy and Tubal Pregnancies 11
An Overview
Rhonheimer's book has three chapters. Chapter 1, “The Problem,” identifies the problem posed by the “vital conflicts” he considers, and describes methodologies he judges erroneous and unable to offer a solution to that problem. In chapter 2, “Church Doctrine and Past Discussions in Moral Theology,” Rhonheimer 1) gives his interpretation of the way magisterial documents understand “direct” abortion (or “direct” killing of the innocent in general; 2) criticizes the methodologies identified and rejected in chapter 1; and 3) in a section devoted to understanding the teaching of St. Thomas Aquinas in his Summa theologiae on “killing in self-defense,” lays some foundation for his solution to “vital conflicts.” He concludes with a consideration of decrees of the Holy Office in the late nineteenth century regarding craniotomy and their meaning. 12 In chapter 3, “Life-Saving Medical Interventions: The Prohibition of Killing and the Virtue of Justice,” Rhonheimer offers a retrospective summary of his understanding of killing; and from the perspective of the virtue of justice, sets forth his solution to the different ways proposed for coping with ectopic pregnancies, recapitulates his basic argument, defends it against objections, and concludes with an epilogue on “Virtue Ethics, ‘Direct’ and ‘Indirect,’ and the Prohibition of Killing.”
What Problems Do “Vital Conflicts in Medical Ethics” Present?
Rhonheimer identifies the central problem as the one that arises when the unborn child will surely die no matter what one does, whereas the life of the mother, endangered by an unborn baby trapped in the cervix and birth canal or by a tubal pregnancy, can be saved by a craniotomy or by removal of the tube or affected site within the tube. 13
Rhonheimer's Rejection of Proportionalism and the “Traditional Catholic” Solutions to the Problem
Rhonheimer rejects two methodologies as invalid and useless for resolving this problem. The first is the proportionalistic “weighing of the unweighable value of human lives”; the second is the application, common in the “traditional moral” approach used in casuistic Catholic moral theology, of the principle of double effect along with its (mis)understanding of the distinction between “directly” and “indirectly” intended effects of an action. Rhonheimer criticizes proportionalism in chapter 2. 14
He rejects the second methodology as rooted in a physicalism that identifies the moral object specifying the act with its physical structure that brings about states of affairs in the world exterior to the agent. 15 This approach erroneously held that the “object” morally specifying human acts is “physicalistic” insofar as it identifies the moral object with the “physical structure” of the act, a physical event that brings about certain states of affairs in the external word.
He continues his critique of this “traditional moral” approach in chapter 2, devoted to “The Physical and Intentional Structure of Actions: The Object of the Moral Act.” 16 There he uses the influential moral theology text of Dominic Prümmer, O.P., as an example of the casuistic approach used in that theology to continue his critique of its “physicalism” that identifies the specifying moral “object” with an action's physical structure and its consequences in the external world, totally ignoring the agent's “intention.” This approach, common to others as well (e.g., Merkelbach 17 ), condemned craniotomy as a “direct” attack on innocent human life and hence an intrinsically evil act.
In the final chapter Rhonheimer strongly criticizes T. Lincoln Bouscaren, S.J., who defended as morally licit a salpingectomy (excision of the entire affected fallopian tube where the ectopic pregnancy occurred) in order to save the life of the mother but rejected as a “direct” abortion and hence immoral a salpingo(s)tomy (splitting the tube, removing the implanted fetus and sewing the tube up so that it could again function). 18 Rhonheimer does not note, in criticizing Bouscaren, that the 1971 revised edition of the U.S. Bishops' Ethical and Religious Directives for Catholic Health Care Facilities in directive 16 explicitly endorsed Bouscaren's view and also explicitly rejected salpingotomy, whereas in its 1995 revision (dir. 48), it simply said that any method that is not abortifacient may be used to terminate an ectopic pregnancy. He may perhaps have been unaware of this recent and important development in the U.S. Ethical and Religious Directives for Catholic Health Care Services. 19
Rhonheimer's Understanding of “Direct” Killing and His Virtue-Based Methodology
Rhonheimer begins chapter 2, section 2, an “Overview of This Study and Brief Summary of the Argument,” by affirming:
In no way will I question the decisive fundamental insights of traditional Catholic moral theology, much less depart from the continuity of the tradition of Catholic (= magisterial) teaching that the direct killing of an innocent human being—and therefore direct and deliberate abortion—is never permitted.
His proposal is to “raise the problem to a new level of reflection that can do without the category of ‘indirect’ or the ‘principle of double effect’ [both central to the physicalistic Catholic moral tradition and proportionalism], arguing instead from the perspective of virtue ethics.” 20
In chapter 2, Rhonheimer employs the “perspective of virtue ethics” in his analysis of the precise meaning of “direct abortion” and “direct killing” in the teaching of the Magisterium. 21 His first point, made in reflecting on Pius XII's teaching in several of his addresses, is to show that the Magisterium does not identify the object morally specifying the act of killing an innocent person with the physical structure of the act but rather with the intention of the acting person. He thus writes:
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). 22
So far so good. But he then goes on to ask what he considers the decisive question: “Why is it so important for a person … not to will the death of a person either as a means or an end? … What, on the fundamental ethical level, constitutes the moral evil of killing another human being?” He then claims that the text of Evangelium vitae, number 57.6, warrants our saying:
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…. The fundamental injustice here consists in the violation of the principle of equality. 23
1 think that Rhonheimer here misreads Evangelium vitae; I will return to his view on this matter in my concluding evaluation.
Rhonheimer's Principal Claim
The principal claim Rhonheimer makes, both in chapter 1, section 2 (“Overview of This Study and Brief Summary of the Argument,” 9–12), and in chapter 3, section 1 (“Retrospective Summary: Acts of Killing and the Ethical Context of ‘Killing,’” 83–84), can be formulated as follows:
Every moral question, including killing and abortion, can be discussed only in the framework of the ethical context of an ethics of virtue. The killing of any human being is a question of “justice” at its most fundamental level. Only within the ethical context of “justice” does it make any sense to speak in a morally relevant way of a “direct” killing as a choice to take a human life. It is only this reference to the virtue of “justice” that enables one to call an act of killing morally evil. If no injustice is done then any killing involved in a life-saving act is, as Thomas Aquinas says in Summa theologiae II-II, q. 64, a. 7 (on killing in self-defense), praeter intentionem, i.e., outside the scope of the acting person's intention. 24
Brief summary. I have now, I hope, clearly shown what Rhonheimer means by a “virtue-based” moral methodology and his principal claim regarding the reason why the killing of an innocent human person is morally evil.
Rhonheimer's Understanding of Aquinas on Killing in Self-Defense and His Rejection of the Principle of Double Effect
In presenting his understanding of the Angelic Doctor's position, Rhonheimer was also laying the basis for his own argument to resolve the problem posed by “vital conflicts.” Thus it is imperative to examine Rhonheimer's understanding of St. Thomas's teaching in Summa theologiae II-II, question 64, article 7, “Is it lawful to kill a man in self-defense?” (utrum alicui liceat occidere aliquem se defendendo).
Rhonheimer says: “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. Now moral acts take their species according to what is intended, and not according to what is beside the intention. (Nihil prohibetur unius actus esse duos effectus, quorum alter solum in intentione, alius vero sit praeter intentionem. Morales autem actus recipient speciem secundum id quod intenditur, non autem ab eo quod est praeter intentionem, cum sit per accidens.) 25
Rhonheimer then seeks to articulate the precise meaning of this passage, writing as follows:
First … 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 well-aimed 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 moral 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 recipient speciem secundum id quod intenditur,” “actus” therefore means the 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”). 26
Rhonheimer then applies this to legitimate self-defense, citing the text of St. Thomas:
Accordingly the act of self-defense may have two effects; one, 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 that of another's. 27
Rhonheimer's comment on this passage is central to his argument. He emphasizes that the issue concerning St. Thomas 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…. However, the simple fact that the aggressor is, under the circumstances, killed “directly” (e.g., by a gunshot, a blow to the head …) plays 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 … and not at the death of the aggressor, all of this in accord with a legitimate, natural impulse, the natural inclination for self-preservation…. Thus the death of the aggressor is not chosen as a means of self-defense, and that fact is entirely decisive here. 28
Although many theologians have argued that St. Thomas's article on the liceity of killing in self-defense is the source for the doctrine of double effect, Rhonheimer thinks that Aquinas's principle in this article is “more comprehensive and more fundamental, but at the same time more trivial, than the PDE [principle of double effect].” 29 Rhonheimer maintains that St. Thomas's justification of killing in self-defense in fact violates one of the conditions essential to the principle of double effect as traditionally understood in the Catholic moral tradition. He writes as follows:
It is interesting that the condition [of the principle of double effect as traditionally understood] (often cited as equivalent [to the thought of St. Thomas]) 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 was nonetheless not chosen as a means! Ultimately, it is precisely the act of the will itself [for St. Thomas] that is decisive for whether something has been chosen as a means. 30
It is for this reason that Rhonheimer rejects use of the principle of double effect as a way of resolving the problem posed by “vital conflicts.” I will return to this later, offering a different interpretation of this important Thomistic text, seeing it as the forerunner to the principle of double effect. But, like Rhonheimer, I will reject the “traditional” Catholic understanding of it while proposing a newer and, in the eyes of its proponent (Germain Grisez), better grasp of the principle of double effect relevant to the “vital conflicts” at stake here.
Brief summary. I have now shown how Rhonheimer interprets St. Thomas's teaching on killing in self-defense and why this understanding is central to his thought, and also why he rejects the use of the principle of double effect.
Rhonheimer's Solution to the “Vital Conflicts”
In the final section of his book, Rhonheimer applies his reasoning to four common procedures used to resolve ectopic pregnancies. First is salpingectomy (the surgical excision of an entire fallopian tube containing an unborn child); second is linear salpingo(s)tomy (slitting the tube where the baby is implanted and removing the unborn child and then sewing the tube together so that a future conception can take place in it); third is the use of the drug methotrexate (which dissolves the trophoblastic tissue attaching the unborn child to the tube and thus removes it from the tube); finally there is expectant management (or waiting to see if the unborn child will pass through the tube and enter the mother's uterus). Rhonheimer judges the first two treatments morally legitimate because patients considering them ordinarily have reached the stage of vital conflict. He does not think that the third, use of methotrexate, is licit since the drug is administered when tubal pregnancies are first discovered, and at that time there is reason to think that the embryo will not die; since this is not a case of vital indication, he believes that the procedure “becomes something approaching a direct attack on the embryo.” 31 Finally, expectant management is justifiable if the progress of the tubal pregnancy has not yet reached the point of vital conflict.
Rhonheimer's Argument Summarized
I have already summarized the principal claim made by Rhonheimer that the proper way to resolve the vital conflicts posed by craniotomy and ectopic pregnancies is to recognize that
the killing of any human being is a question of “justice” at its most fundamental level. Only within the ethical context of “justice” does it make any sense to speak in a morally relevant way of a “direct” killing as a choice to take a human life. It is only this reference to the virtue of “justice” that enables one to call an act of killing morally evil. 32
Viewed from the context provided by an ethics of justice as a virtue, Rhonheimer recapitulates his own argument justifying craniotomy and use of any physical act removing and thus resulting in the death of an unborn child implanted ectopically by saying:
The norm that prohibits the killing of a human being appears, in this case [vital conflicts], to be simply pointless and nonsensical. In fact, the meaning of the norm is that no unjust killing be committed.… The only morally good thing that can be done is to save the life of the mother. 33
The final pages of Rhonheimer's book, titled “Epilogue: Virtue Ethics,” offer important insights into his thought. 34
“Virtue Ethics”: The Key for Judging the Morality of Acts and for regarding Some “Killings” as Morally Evil: A Critique
Rhonheimer claims that
the reason why “killing” … 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. 35
On reading this, I was astounded because it seems to me to show that Rhonheimer regards moral norms as norms presented to the will by speculative, not practical, reasoning. Perhaps I do not properly understand Rhonheimer, but if my reading of this text is correct, I find it difficult if not impossible to see how it is in harmony with the teaching of John Paul II in Veritatis splendor and with a magnificent passage from St. Gregory of Nyssa cited in that encyclical. Thus in number 65, John Paul II declared: “Freedom is not only the choice for one or another particular action; it is also, within that choice, a ‘decision about oneself’ and a setting of one's own life for or against the Good, for or against the Truth, and ultimately for or against God.” He also affirmed:
Human acts are moral acts because they express and determine the goodness or evil of the individual who performs them. They do not produce a change merely in the state of affairs outside of man but, to the extent that they are deliberate choices, they give moral definition to the very person who performs them, determining his “profound spiritual traits.” This was perceptively noted by Saint Gregory of Nyssa: “All things subject to change and to becoming never remain constant, but continually pass from one state to another, for better or worse…. Now, human life is always subject to change; it needs to be born ever anew…. But here birth does not come about by a foreign intervention, as is the case with bodily beings…; it is the result of a free choice. Thus we are in a certain way our own parents, creating ourselves as we will, by our decisions.” 36
Rhonheimer also asserts:
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 thoroughly unjust way … it is not “goods” that are infringed upon but claims, rights of human persons. 37
Here Rhonheimer seems to be criticizing those who say that it is always morally evil to choose to damage, destroy, or impede a basic human good such as life in a concrete human person. This, in essence, is the position taken by Grisez et al., who hold that a specific negative moral norm, an absolute with no “exceptions,” is not to choose to destroy a basic human good such as life itself. Grisez et al., while recognizing the role that virtue has to play in our moral life, do not propose a virtue-based ethics but rather one rooted in normative principles of the natural law, which for them, as for Aquinas, is the work of intellect as practical, and consists of an ordered set of true practical propositions—Aquinas calls them universal propositions of practical reason ordered to action—beginning with the most common and universal and proceeding to more specific kinds of norms: positive—which are always binding but not for every instance (norms binding semper sed non pro semper)—and negative—which are not only always binding but also binding at all times insofar as one can forbear doing any evil whatsoever (semper et ad semper).
Concluding Evaluative Assessment of Rhonheimer's Work in Medical Ethics
There is no doubt that Rhonheimer's studies on issues in medical (or bioethical) issues are exceptionally thought-provoking. In my judgment his criticism of the proportionalist methodology involving the “weighing” of the “unweighable” values of human lives and of the “physicalism” of the “traditional Catholic” understanding of the object morally specifying human acts is helpful.
But despite the helpfulness of some of Rhonheimer's views on disputed issues in medical ethics, his analyses can be seriously questioned and criticized. I will summarize my major problems with his analyses by focusing on the following aspects of Rhonheimer's moral thought:
His claim that the intentional killing of an innocent human being either as means or as end is, from the perspective of justice, morally wrong because it violates the principle of equality. 38
His claim that “the norm that prohibits the [intentional] killing of a human being appears, in this case [vital conflicts], to be simply pointless and nonsensical. In fact, the meaning of the norm is that no unjust killing be committed.“ 39
His contention 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 thoroughly unjust way … it is not ‘goods’ that are infringed upon but claims, rights of human persons.” 40
His rejection of the principle of double effect.
The Principle of Equality
Is the intentional killing of an innocent human being morally wrong because it violates the principle of equality? Readers will recall that Rhonheimer, in his analysis of the precise meaning of the Magisterium's understanding of “direct killing,” said that this teaching must be viewed from the perspective of virtue ethics. From this perspective he concluded as follows, appealing to Pope John Paul II's encyclical Evangelium vitae for support:
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…. The fundamental injustice here consists in the violation of the principle of equality (EV 57.6). 41
Rhonheimer has, I contend, misread the pope's text. I thus cite here the text of Evangelium vitae, number 57, in full and offer comments.
57.1. If such great care must be taken to respect every life, even that of criminals and unjust aggressors [this matter was taken up in number 56], the commandment “You shall not kill” has absolute value [emphasis added] when it refers to the innocent person. And all the more so in the case of weak and defenseless human beings, who find their ultimate defense against the arrogance and caprice of others only in the absolute binding force of God's commandment.
57.2. In effect, the absolute inviolability of innocent human life is a moral truth clearly taught by Sacred Scripture, constantly upheld in the Church's Tradition and consistently proposed by her Magisterium [emphasis added]. This consistent teaching is the evident result of that “supernatural sense of the faith” which, inspired and sustained by the Holy Spirit, safeguards the People of God from error when “it shows universal agreement in matters of faith and morals.” 42
57.3. Faced with the progressive weakening in individual consciences and in society of the sense of the absolute and grave moral illicitness of the direct taking of all innocent human life, especially at its beginning and at its end [emphasis added], the Church's Magisterium has spoken out with increasing frequency in defense of the sacredness and inviolability of human life. The papal Magisterium, particularly insistent in this regard, has always been seconded by that of the bishops, with numerous and comprehensive doctrinal and pastoral documents issued either by episcopal conferences or by individual bishops. The Second Vatican Council also addressed the matter forcefully, in a brief but incisive passage. 43
57.4. Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral [original emphasis]. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14–15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium. 44
57.5. 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 [emphasis added]. It is in fact a grave act of disobedience to the moral law, and indeed to God himself, the author and guarantor of that law; it contradicts the fundamental virtues of justice and charity. “Nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. Nor can any authority legitimately recommend or permit such an action.” 45
57.6. As far as the right to life is concerned, every innocent human being is absolutely equal to all others. This equality is the basis of all authentic social relationships which, to be truly such, can only be founded on truth and justice, recognizing and protecting every man and woman as a person and not as an object to be used. Before the moral norm which prohibits the direct taking of the life of an innocent human being “there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the ‘poorest of the poor’ on the face of the earth. Before the demands of morality we are all absolutely equal.” 46
Note that number 57, paragraphs 1 through 5 are all concerned with expressing the truth of the moral norm that it is always morally evil and can never be licit either as an end or as a means to deprive an innocent human being of his life. That is why I have added emphasis to passages affirming this in these numbers. The moral evil done here is essentially that of intentionally killing an innocent human being, and not that of violating rights or justice. Killing such persons does of course violate the requirements of justice and does in truth violate the right of innocent persons not to be killed.
I think that texts from Pope John Paul II's Veritatis splendor make this evident. In Veritatis splendor, number 96, he said that the Church's service in behalf of moral norms
is directed to “every man,” considered in the uniqueness and singularity of his being and existence: only by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth. For this very reason, this service is also directed to “all mankind”: it is not only for individuals but also for the community, for society as such. These norms in fact represent the unshakable foundation and solid guarantee of a just and peaceful human coexistence, and hence of genuine democracy, which can come into being and develop only on the basis of the equality of all its members, who possess common rights and duties [emphasis added].
He then goes on to emphasize in number 97 that
moral norms, and primarily the negative ones, those prohibiting evil … by protecting the inviolable personal dignity of every human being help to preserve the human social fabric and its proper and fruitful development. The commandments of the second table of the Decalogue in particular … constitute the indispensable rules of all social life…. [These rules] entail “specific demands” to which both public authorities and citizens are required to pay heed…. Civil authorities and particular individuals never have authority to violate the fundamental and inalienable rights of the human person. In the end, only a morality which acknowledges certain norms as valid always and for everyone, with no exception [emphasis added], can guarantee the ethical foundation of social coexistence, both on the national and international levels.
I think that these passages from Veritatis splendor clearly show that rights are dependent on duties or moral norms. An innocent person has an inviolable right to life if and only if all human persons have the moral and unexceptional obligation never intentionally to kill him or deprive him of the good of life. 47
Unjust Killing is Not Permitted
Does the moral norm that it is always gravely immoral intentionally to kill innocent human beings mean that no unjust killing is permitted? Rhonheimer says it does. I believe, from what has already been said here, that this is not the meaning of this norm. To say “no unjust killing is permitted” can readily be said by relativists, utilitarians, and proportionalists, who deny that any actions, described in non-moral terms, are always wrong and who deny the existence of negative norms that admit of no exceptions. They do not seek to justify as just what is by definition unjust. Rather the norm means that intentionally killing an innocent human person is always an unjust killing.
The Good of Human Life
Is intentional killing of the innocent intrinsically evil because it deprives a person of the good of human life? Rhonheimer thinks not and claims it is evil because it violates an innocent person's right to life. I think his view has already been rebutted and is not in harmony with the teaching of John Paul II in Evangelium vitae that we just examined. Nor in my judgment does it correspond to his teaching in Veritatis splendor, numbers 13 and 82.
The Relevance of the Principle of Double Effect
Rhonheimer rejected completely using this principle as a way of resolving “vital conflicts.” He did so because he considered invalid and not in accord with the thought of St. Thomas in his celebrated article on “killing in self-defense” the understanding of this principle and the conditions under which it can be applied in what he described as the “physicalistic” methodology used in “traditional Catholic moral theology.” Here I agree with him, and so, it seems to me, does Germain Grisez.
But Grisez, in his massive (over five hundred pages) and still relevant 1970 study Abortion: The Myths, the Realities, and the Arguments, proposed a way of understanding this principle and the conditions for its application so that it is in harmony with the teaching of St. Thomas on the lawfulness of killing in self-defense when the death of the aggressor, although foreseen as a consequence or effect of one's freely chosen act of defending oneself by proportionate means, is nonetheless praeter intentionem or outside the scope of one's intention. Grisez takes this subject up after first citing the text of St. Thomas in full and commenting on it. 48 He first states the four conditions used to explain the principle and its application, offers comments on them, and illustrates their application to show how they can be understood to be in accord with Aquinas. 49 Recapitulating the principle as commonly understood, Grisez writes: “One may perform an action having two effects, one good and the other bad, if four conditions are met simultaneously.
The act must not be wrong in itself, even apart from consideration of the bad effects. (Thus one does not use the principle to deal with the good and bad effects of an act that is admittedly murder.)
The agent's intention must be right. (Thus if one aims precisely at death, the deadly deed cannot be justified by the principle.)
The evil effect must not be the means to the good effect, for then evil will fall within the scope of one's intention, and evil may not be intended even for the sake of an ulterior good purpose. (Thus it is certainly wrong to kill someone in order to inherit his wealth.)
There must be a proportionately grave reason for doing such an act, since there is a general obligation to avoid evil so far as possible. (Thus one may not use poison deadly to children to kill rodents in a public park.)” 50
He then writes:
The last condition can easily become a field for covert, although limited, utilitarianism (=consequentialism, proportionalism). 51 However, this is not necessary. Though human good is not calculable (=weigh-able) and though diverse modes of human good are incommensurable, the basic human goods do require protection when possible. 52
He then illustrates how these conditions can be met in one example of a “vital conflict.”
If a woman suffering from an invasive carcinoma of the cervix also is pregnant, treatment of the disease is likely to result in the fetus's death. Yet such treatment can be justified. For (1) the treatment would not be wrong apart from its deadly effect on the fetus; (2) neither the mother nor the physician need include the fetus's death within the scope of intention—which might be indicated by the fact that they would proceed in the same way if there were a similar problem without pregnancy and, on the other hand, would use a treatment that would save the fetus if such a method were available; (3) the fetus's death does not produce the desired cure, but is truly incidental to the procedure; and (4) the mother's life and health are of fundamental importance, and may not be able to be safeguarded in a way harmless to the fetus. If the four conditions are actually fulfilled, the deadly deed is compatible with the right moral attitude; it will not involve turning directly against the basic good of human life. 53
Grisez then, using the principle of double effect as now understood to be in harmony with St. Thomas's teaching on self-defense, justifies salpingotomy, or the slitting of the fallopian tube and removing the fetus from the tube which is then sewed up so that in the future a pregnancy can take place within it. 54 At that time, 1970, this procedure was rejected as immoral by the U.S. bishops who followed T. Lincoln Bouscaren's view that only a salpingectomy could be rightly used to end a tubal pregnancy. Thus Grisez also said that “the principle of double effect, reformed as I have suggested, can accommodate certain morally accepted deadly deeds … without yielding the principle that it is never morally right to act directly against the basic good of human life.” 55
He also wrote,
If it were impossible to prevent the mother's death (or worse the death of both [mother and fetus] except by cutting up and removing the child piecemeal [as in craniotomy], it seems to me that this death-dealing deed could be done without the killing itself coming within the scope of intention. 56
But, as we have seen, some nineteenth-century decrees (disciplinary and not doctrinal in nature) of the Holy Office, now the Congregation for the Doctrine of the Faith, had declared that it was not safe to teach what Grisez was proposing. Grisez realized this. Thus he then made it clear that his views on some deadly deeds he thought could be justified by the principle of double effect, were not apparently compatible with magisterial teaching. Thus he said that should Catholic (that is, magisterial) teaching judge otherwise, Catholics like himself were not at liberty to set that teaching aside and act on the basis of his analysis. Lee made the same point in his book on abortion. What Grisez had to say about this matter is so important that it needs to be cited in full. He wrote:
Roman Catholic readers may notice that my conclusions about abortion diverge from common theological teachings, and also diverge from the official teaching of the Church as it was laid down by the Holy Office in the nineteenth century. I am aware of the divergence, but would point out that my theory is consonant with the more important and more formally definite teaching that direct killing of the unborn is wrong. I reach conclusions that are not traditional by broadening the meaning of “unintended” in a revision of the principle of double effect, not by accepting the rightness of direct killing or the violability of unborn life because of any ulterior purpose or indication. 57
He then continued:
Most important, I cannot as a philosopher limit my conclusions by theological principles. However, I can as a Catholic propose my philosophic conclusions as suggestions for consideration in the light of faith, while not proposing anything contrary to the Church's teaching as a practical norm of conduct for my fellow believers. Those who really believe that there exists on this earth a community whose leaders are appointed and continuously assisted by God to guide those who accept their authority safely through time to eternity, would be foolish to direct their lives by some frail fabrication of mere reason instead of by conforming to a guidance system designed and maintained by divine wisdom. 58
Grisez has not explicitly expressed his position on the use of methotrexate for tubal pregnancies; but he, Finnis, Boyle, Lee, and the present writer, have applied the principle of double effect as reformulated and in harmony with the thought of Aquinas, to justify craniotomy and salpingo(s)tomy to resolve “vital questions,” in a way that I regard as superior to Rhonheimer's.
Final Conclusion
In this concluding evaluation of Rhonheimer's work on disputed issues in medical ethics I have given my reasons for thinking that his virtue-based approach to solving those issues, in particular “vital conflicts,” is not adequate and is rather rooted in a misreading of relevant magisterial documents.