Rape and Contraception

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Is rape an exception?

Now that I've got your attention, here's another long essay. (And you thought you would be free of this after you graduated.)

Don't worry. I'll get back to Islam soon enough. But this issue niggles.

By the way, I welcome arguments for the opposite point of view. Just because you disagree with me doesn't mean you're a heretic.

Necessarily . . .

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Catholic moral theory prohibits contraception on the grounds that it is intrinsically evil. Recently, however, there has been talk of possible exceptions or special cases where the use of contraceptives may be licit. Pope Francis himself suggested that married couples might allowably use contraceptives to prevent conceiving a child with birth defects caused by the Zika virus.

I think it's safe to say that Catholic ethicists have generally rejected the Pope's reasoning, with the exception of dissident ethicists who were pro-contraception to begin with. (What this says about the state of the Church and the current papacy, I'll leave for another time.) Among other things, the 1968 encyclical Humanae vitae was quite clear in rejecting the use of contraceptives by married couples for any reason.

However, another sort of exceptional case is currently being discussed--the use of contraceptives to prevent conception in the case of rape. Ironically, the discussion was prompted by the Pope, in support of his Zika claim, citing an alleged historical example that has now almost certainly been debunked as a myth--the story of the Belgian Congo nuns who were "on the pill."

I have written elsewhere that this story is not only false but maliciously false--even obscene. And indeed it was denied by the Vatican when it last publicly surfaced in 1993. This hasn't stopped some Catholic commentators from continuing to use it as a moral thought experiment: True or not (they have argued), it shows that there are some cases--rape being one of them--where use of contraceptives might be licit.

But independent of relying on a bizarre and grotesque moral hypothetical, these commentators appear to have another thing going for them: For at least the last fifteen years the United States Conference of Catholic Bishops (USCCB) has apparently endorsed the use of the Morning After Pill for rape victims. This quasi-official instruction is contained in the Ethical and Religious Directives for Catholic Health Care Services (no. 36).

A woman who has been raped may defend herself against a conception resulting from sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medication that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum.

It is important to note that the USCCB prohibits the use of anything that might be or function as an abortifacient. Many Catholic ethicists have claimed that the medical evidence now shows that there are no post-coitius contraceptives that meet this standard, and thus the 2001 USCCB directives implicitly get the science wrong.

This is obviously a very important debate but I want to leave it here for now. Rather, I want to assume with the USCCB that some of the contraceptives in question are merely contraceptive in nature, that is, they merely block or prevent fertilization. In that case, would it be licit to take them in the case of rape? Or to put it negatively, if contraception is intrinsically evil as the Catholic church has always taught, how could it be allowable in this case?

I think the answer is that the USCCB is incorrect--contraception is not allowable, even in cases of rape. But I want to consider the argument for the contrary position. Where does it go wrong?  

In certain recent articles and discussions, one claim has been that we simply know it is licit. Why? Because the USCCB has told us so. This assertion, I suppose, has the added bonus of introducing a new definition of infallibility to the Magisterium. If a bishops conference pronounces on a philosophical claim on page 211 of an instruction manual for doctors, we know it to be true.

In fairness, there is also an actual argument that some Catholic theologians have set out.

Warning: the following discussion may get slightly gross.

The argument makes use of the doctrine of double effect: While blocking conception is an intrinsically bad result, we may intend a good result that merely has the blocking of conception as a foreseen though unintended result. A woman may obviously resist a rape, which of course may have the consequence of blocking conception. Thus, in the same way (so goes the argument), the use of contraception after penetration has occurred--i.e. the next morning--may be properly thought of as resistance to the rape. Blocking the sperm, or preventing it from fertilizing the ovum is no more morally problematic than attempting to physically throw off an attacker. The intention is not to contracept but to defend oneself against a rape.

But this misunderstands the doctrine of double effect. We may not do an intrinsically bad thing if that thing, even if not intended per se, is being used as a necessary means to achieve another albeit possibly good end. Blocking conception after a rape, while the general intention might be good--to avoid having a child (in and of itself a perfectly allowable intention)--includes the blocking of conception as a necessary means. What else would the purpose of taking a contraceptive pill be but that?

Against this it is claimed that what is occurring is self-defense against the rape, not the blocking of conception per se. There is no principled difference (again, so goes the argument) between attempting to block the penetration of the rapist and attempting to block (say) the continued progress of his sperm.

I still find this argument bizarre. Among other things it is an abuse of the English language. It doesn't diminish the horrible crime of rape in the least to say that rape, like most human actions, is implicitly defined as having a beginning point and an end point--that end point being no later then when the attacker leaves the scene. One doesn't go to the police or to a clinic the next day and say, "I am currently being raped even as we speak." And again, this is not to devalue the awful potential consequences of rape--physical or mental--which may unfortunately last a lifetime. But these are consequences, not the ongoing continuance of the rape itself.

The linguistic contortions necessary for the argument can be shown by this passage from a published Catholic theologian (much published, according to his website):

Similarly, after a rape is completed, if a women enters a hospital emergency room and is given a non-abortifacient spermicide, this medical intervention has the moral object of interrupting the rape.

Did you get that? After a rape is completed, one may interrupt the rape. Or at least one may have "the moral object" of interrupting the rape. That makes no sense.  

One could grossly say, I suppose, that the rape ends when the sperm reaches something, or fails to reach something. But this is also not how we use the word. Rape is not defined as a forcible attempt to fertilize an ovum. Among other things, men can rape other men, men can rape woman in ways that cannot possibly lead to conception and so on.

This bizarre stretching of the definition is an attempt to get around the fact that contraception is intrinsically evil. The only way to do that is to somehow redefine contraception as something else.

But answers to moral questions can never be about mere definitions of words. So, for the sake of argument, let's imagine that rape does continue way past the duration normally thought. As that sperm is attempting succeed in fertilization, hours after the initial act, the rape is continuing to occur. When does it end? It is possible, of course, that fertilization will occur and a baby will start to grow. That baby was not intended by the victim, nor is it morally required that she desire to have that baby. If we define a swimming sperm as the continuance of an attack, why not define a growing baby in the same way?

Or to look at it another way, suppose the baby were not a person but merely a tumor, starting to grow malignly. Surely in that case resisting that could justly be looked on as self-defense, made manifest as a result of the rape, whether we wish to say that the victim was still being raped or not.

Of course, I'm not suggesting that resisting that baby would be justified, nor does the USCCB suggest that. Indeed, it explicitly condemns abortion even after rape. The reason it condemns it is the correct one--that killing the baby, even as merely a means to achieving a permissible end (not wanting to have a child that one had no part in consenting to) is intrinsically evil.

So, there it is. Intrinsically evil. We can redefine rape as lasting nine months. We can call abortion after rape "self-defense" (and it perhaps would be self-defense, just not justified self-defense). But because killing the innocent baby would be intrinsically evil we cannot do it.

But for some reason the USCCB refuses to apply this logic to contraception.

Abortion and contraception are both intrinsically evil. If you want to say that one is more evil than the other (as virtually everyone would), that's fine. But they are both on precisely the same grounds when it comes to functioning as absolute side-constraints to our actions. We cannot intend to do them, either as ends themselves or as necessary means to achieve other ends, even if those ends are good ones.

Redefining words or concepts--rape as a two-day process--is one way to cheat this logic, but as I have tried to show, even that fails.

Why is all this important? The question of contraception after rape is not just a remote sort of case. If one adds "date rape" into the mix, this sort of issue is no doubt dealt with virtually every day. Though actual rape is horrific and it may seem unfeeling to ask a rape victim to refrain from doing anything that she believes will help her, it is still wrong to compound things by introducing further evil into the situation.

Equally importantly, the history of ethics in general and Christian and Catholic ethics in particular, show that these sorts of moral "exceptions" have the tendency to eventually undermine the entire moral structure. That's certainly why some defend and advance them. They hate the Church's teachings on sexual morality but they know they cannot, at least at the moment, attack those teachings directly. So they float these sorts of arguments.

Others are perfectly faithful and sincere and have merely been convinced on the not completely unreasonable grounds that important Catholic people or groups such as the USCCB have endorsed them. And of course, some faithful Catholics are convinced by their own sincerely made arguments. Their arguments are nevertheless unsound. That's not a criticism per se. It happens.

But it's still dangerous.

The Belgian Congo nun case was a thought experiment floated by three Catholic theologians sixty-five years ago. They were explicit in claiming that their argument could not and would not be used to justify contraception within marriage. (Whether or not they were sincere in this I have no idea.) Two weeks ago they were proved wrong.

By a pope.

The Doctrine of Double Effect

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Recently, the doctrine of double effect has been mentioned in the context of discussing the morality of contraception.

I want to take a few posts to discuss the doctrine and its applicability in Catholic ethics. In this post I will simply try to explain the doctrine.

What is the doctrine of double effect?

The doctrine states that one may if certain other conditions are met, perform an action where certain intrinsically bad results are foreseen but not intended. These conditions are:

1. The results intended must be good or at least neutral.
2. The action itself cannot be intrinsically bad.
3. The bad results foreseen must not be a necessary means to achieve the intended results.
4. The good results must sufficiently outweigh the bad results.
5. There are no practicable alternatives that have fewer bad results.
6. There must be due diligence in minimizing the bad results.

The necessary means condition is in a sense a way to prohibit cheating regarding intentions. Consider this claim:

When I robbed the bank and fatally shot the bank guard, my intention was not to kill the guard, but to fund an Hawaiian vacation. Thus, the guard's death, while unfortunate was merely foreseen (or at least foreseen when I pulled the trigger) but not intended.

It is the means condition that prohibits this sort of sophistry. I had to, or at least I thought I had to given the circumstances, shoot the guard to carry out my greater intention (otherwise the guard would have shot me or arrested me, etc). Thus, in an important sense, his death (or at least his incapacitation carrying with it a high chance of death) was indeed intended by me, whatever I might say after the fact.     

It will be useful to look at two examples from war, one general or hypothetical, the other unfortunately real:

Suppose one is fighting a just war. Many thousands have died in this war, including both soldiers and civilians. If the war continues, many more thousands will die. However, imagine that there is the opportunity to conduct a military operation that will end the war: If a certain set of bridges in enemy territory is bombed, the enemy will realize the situation is hopeless and thus surrender. Assume, however, that despite taking the greatest precautions, it is highly likely that some civilians will die in the bombing operation. Is it morally permissible to bomb the bridges?

We can go down the list:

1. The intention is to end the war--a good result.
2. While destroying bridges is often a bad thing, it is not an intrinsically bad thing.
3. The bad results foreseen--the probable deaths of some civilians--is not a necessary means to achieve the end. If, by some happy circumstance, no civilians are killed, the end will still be accomplished.
4. By assumption, the number of lives--military and civilian--that will be saved by ending the war, are much greater than the number of lives that will probably be lost in the bombing action.
5. There is no other military operation that will end the war quickly.
6. Everything possible has been done--by properly instructing the flyers to bomb only a small area, operating at night so there will be fewer civilians nearby, etc.--to minimize civilian casualties.

Given these answers, double effect would say the act is permissible.

Contrast this with a case taken from history--the atomic bombing of Nagasaki. Some of the answers to the above conditions will be similar. Assume the intention is to end the war, not to take revenge on the Japanese or send a message to the Russians, etc. Assume also, that even though thousands will die in the bombing, many more thousands, perhaps even many millions will die if the war continues. No other significantly different alternative exists to end the war. Assume that the Japanese leadership is sufficiently cynical or hardened that exploding the bomb over the ocean or in an uninhabited area would have no effect or might even be interpreted as cowardice.

The key difference, though, is with condition 3 (and also therefore 6). Many thousands will die in the bombing. Are their deaths not a necessary means to achieve the intended result--ending the war? I think the answer is No. Their deaths are in fact the necessary means by which the end is accomplished. The reason the enemy will surrender is his horror at those deaths, and by extension his horror that more deaths will occur as a result of more atom bombs being used.

Thus, condition 3 is violated. Double effect says the Nagasaki bombing was not permissible.

Further thoughts:

It might be argued that the deaths of those at Nagasaki were, as in the first example, simply unavoidable casualties. Thus, their deaths were not a means for the result to be achieved. The inhabitants of Nagasaki were simply and tragically (so continues the argument) like those who lived near those bridges, caught in the middle, so to speak. While this is not really very credible, there is no doubt that some of the participants in the actual bombing looked at things in this manner. The city was "strategic," war materiel was produced there, it was a port and rail hub, etc. The means used to convince the enemy to surrender included the destruction of a city, not the killing of civilians (or so some of the participants may have convinced themselves). But of course this description is belied by a number of facts including the assumption that exploding the bomb simply as a demonstration, would not have worked. While one might claim that the goal was simply to destroy buildings or whatever, it's pretty clear that this would be false claim. 

The immorality of terror bombing is not based on numbers. Let's assume 50,000 souls perished at Nagasaki. That's not what made it wrong per se. Imagine an alternative scenario where the only way to end the war and thus save millions, would be to (somehow) sneak into the palace and kill the Emperor's young son. Assume that only this will be enough to make the Emperor see reason, etc. Killing the son would still be wrong.

We may not kill even one innocent person to save millions of persons.

It is here that we see that double effect is not a tricky license to do more, but a constraint limiting us to do less. War examples help us see this. Once one is involved in a war, any action or inaction will almost certainly result in the deaths of many, including civilians. If we advance, some will die. If we retreat, some will die. If we do nothing, some will die. Recalling the plane sent to bomb Nagasaki will spare the lives of some of its inhabitants, but it will also result in thousands or even millions of others dying due to the continuance of the war. Looking at it this way makes it clear that it is only the doctrine of double effect that keeps conventional morality from collapsing into pure utilitarianism. If every action has bad results, shouldn't we simply choose the one that minimizes them? Double effect says that while consequences are important, there are still certain things we cannot do, regardless of how the consequences are weighed.

I hesitated in using the Nagasaki example, partly because it is fraught with implications I want to avoid. Bombing Nagasaki was wrong. But moral culpability is a separate question. That it was wrong doesn't mean that President Truman was morally equivalent to Hitler, or that the pilots of the bomber were morally equivalent to concentration camp guards. This doesn't relieve the participants of responsibility, of course. But whatever any Catholic or non-Catholic might say, moral reasoning is often difficult or complicated, especially in war. And good men can often do the wrong thing while at least in part trying (in some sense of trying) to do the right thing. That bad excuses can almost always be offered for even the most gravely evil actions does not mean that there cannot be justly deserved mitigating factors in many situations, even the most horrific.

Or to put it another way, the purpose of the doctrine of double effect in particular and Catholic moral theory in general is not merely to point fingers at how various people did the wrong thing, but to offer clear guidance on how we can do the right thing.

Clear guidance. That the right thing is not always the easy thing or the obvious thing is all the more reason why voices in the Church should never be ambiguous on these matters.  

Next, double effect in abortion and contraception.