Legislating for Article 40.3.3: Mills and Glackin on the Doctrine of Double Effect

by Human Rights in Ireland on January 16, 2013

Authors: Dr Simon Mills, Barrister and Dr Shane Glackin, Lecturer in Philosophy, University of Exeter

Responding to the Government’s decision to legislate for the X case, the four Irish Catholic Archbishops stated:

If what is being proposed were to become law, the careful balance between the equal right to life of a mother and her unborn child in current law and medical practice in Ireland would be fundamentally changed. It would pave the way for the direct and intentional killing of unborn children. This can never be morally justified in any circumstances. (Emphasis added)

The statement further elaborated:

Abortion, understood as the direct and intentional destruction of an unborn baby, 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. (Emphasis added)

But how plausible is it to claim that there are circumstances where the conscious destruction of a foetus or embryo is not “direct and intentional” and therefore (according to Catholic teaching) not abortion? The underlying philosophical conceit is the “Doctrine of Double Effect”, which may be (briefly but not inaccurately) summarised in this way: an action having foreseen harmful effects that are practically inseparable from the good effect is justifiable if the following three criteria are satisfied:

  1. The nature of the act is itself good, or at least morally neutral;
  2. The agent intends the good effect and not the bad either as a means to the good or as an end itself;
  3. The good effect outweighs the bad effect in circumstances sufficiently grave to justify causing the bad effect and the agent exercises due diligence to minimize the harm.

The example of ectopic pregnancy in Catholic theology supplies a useful preliminary basis on which to assess the plausibility of the Church’s account of “direct and intentional”, without invoking the more complex clinical scenarios which must be considered in any full discussion of necessary termination.

An ectopic pregnancy arises when a fertilised embryo implants somewhere other than the uterus, typically (but not always) in the fallopian tube. The treatment of ectopic pregnancy is permitted in principle under Catholic theology, because it can – depending on the method used – be regarded as an indirect termination. However, it is precisely this question of method which raises, and is limited by, the issue of “intention”. It is only moral – by the lights of the Catholic Church – to treat an ectopic pregnancy if the fallopian tube is removed with the pregnancy.

Where the method used is either methotrexate or the surgical opening of the tube – both of which destroy the ectopic pregnancy but leave the woman’s fallopian tube intact – the “good effect” and “bad effect” of the treatment are identical; it cannot then be the case that one is intended and the other not, nor can any sense be attached to “minimizing the harm”. Terminations by these methods are therefore impermissible. Yet since the aim of all three versions of the procedure was to save the life of the mother by removing the threat of a ruptured fallopian tube as a consequence of the ectopic pregnancy, the distinction appears arbitrary at best.

Suppose that it is possible to coherently distinguish the removal of the tube (containing the ectopic pregnancy) from either the administration of methotrexate or the removal of the ectopic pregnancy alone (leaving the tube intact) as being “direct” in the first instance and “indirect” in the latter two. Can the same be said with any plausibility about intention? Each procedure is performed with the same absolute and necessary intention of destroying the ectopic pregnancy; if the ectopic pregnancy is not destroyed, the treatment has failed. Were doctors, upon removing the tube, to discover that an ectopic pregnancy had somehow survived and implanted elsewhere, the intended treatment would have to be deemed a failure.

Similar considerations apply to the more clinically complex cases where a necessary consequence of treatment is the removal of a viable embryo from a woman’s womb.

One common response distinguishes between intent and foresight; merely foreseeing a foetus or embryo’s destruction is not the same, supposedly, as intending it. Again, this is unconvincing, for at least two reasons. Firstly, in cases like the ectopic pregnancy above, or certain surgical interventions in pregnancy, it is simply implausible to claim that there is no intention to destroy the foetus or embryo. Secondly, a moral standard which allows us the ability to privately pick and choose which of the anticipated consequences of our actions we take responsibility for would seem unreasonably easy to evade.

To be sure, the spectrum of abnormal physical health during pregnancy is such that there will be medical interventions where treatment can plausibly be said to neither directly nor intentionally kill the foetus (for example, where a lifesaving treatment increases the risk of foetal death, but does not cause it).  But the idea that a clear, medically and morally significant line exists between direct and intentional killings of the unborn (“abortions”), on the one hand, and the full range of interventions permissible by Catholic doctrine, on the other, remains unpersuasive.

  • Surely when people talk about the distinction between intending and foreseeing what they really mean is the distinction between intending as a means and intending as a side-effect. So can’t we use Quinn’s account of intending as a means vs. intending as a side-effect in terms of opportunistic vs. eliminative agency as a surrogate for the intended/foreseen distinction? Then the difference between “direct and intentional” killing of the embryo and merely direct killing would be the distinction between opportunistic and eliminative direct agency. Since in the ectopic pregnancy case the action is at worst direct eliminative agency, we could say, whilst maintaining DDE, that the killing is not “direct and intentional” in any such cases. Indeed, the only way in which an abortion which was carried out to protect the life of the mother could count as direct opportunistic agency, and hence as “direct and intended” would be if somehow we took advantage of the presence of the embryo in order to save the mother’s life, and such cases must be rare to non-existent. So on the most philosophically defensible understanding of “direct and intentional”, in practice every abortion to protect the life of the mother is permitted by DDE, and so a law which imposed no restrictions on abortion to protect the life of the mother would still not lead to “direct and intentional” killing of embryos.

  • Shane Glackin

    That’s extremely helpful, Dan, thanks. Quinn’s rejection of the intention/foresight distinction was something that came up in our discussions, but was omitted for reasons of space.

    I think personally I’d agree with you that his is the best available version of the DDE (I obviously can’t speak for Simon here), but I presume – for the reasons you outline – that somebody whose interest in the DDE is to limit the availability of therapeutic abortions won’t find it at all a satisfactory formulation…

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