Msgr. William Smith on Catholic teaching about “emergency contraception”

Editor’s note: The following is from Monsignor William Smith’s Modern Moral Problems: Trustworthy Answers to Your Tough Questions (Ignatius Press, 2015). Monsignor Smith, who died in 2009, for many years wrote a regular column for Homiletic & Pastoral Review. This particular question-and-answer appeared in the March 2004 edition of HPR; it appears on pages 147-151 of Modern Moral Problems.

Emergency Contraception

Question: Various bills and regulations propose to mandate “emergency contraception”. Not all Catholic responses to this movement seem to say the same thing. How does this stand?

Answer: I agree with your uncertainty: not all Catholic responses are the same response to this challenge. What I take to be the clearest and best response is that of Dr. Eugene F. Diamond: “The Ovulation or Pregnancy Approach in Cases of Rape?” [18] Indeed, Dr. Diamond writes in response to and presents a critique of Drs. Ronald Hamel and Michael Panicola’s “Emergency Contraception and Sexual Assault”. [19]

A first problem is terminology, i.e., the very expression “emergency contraception” seems to beg the question that needs to be answered. Is this simply a question of contraception or does it risk abortion and is called “emergency contraception” to distract attention away from the abortion problem? Once this is called “contraception”, the public relations effort is probably lost.

Some of the general public will give some space for Catholic institutions and Catholic individuals to distance themselves from any participation in abortion procedures and abortifacients. However, the same general public is not so willing to allow or acknowledge Catholic reluctance about contraception. Thus, by calling this “emergency contraception”, the impression is given and taken that the only point at issue is “contraception” when, of course, the crucial point at issue is the risk of abortion and abortion consequences.

In the conventional terms of the 1950s, when the term contraception meant diaphragms, the case for self-defense against rape was and remained a defensible opinion. This was the reported advice of the German bishops to German women in post-war Berlin, then occupied by the Red Army, an army not known for good manners. However, during the “Nuns in the Congo” case in the early ’60s and the rapes in Bosnia in the early ’90s, the contraceptive in question was no longer a simple barrier method to prevent conception, but rather the birth control pill—at first called an anti-ovulant or anovulant.

This is and remains the problem. The pill is not simply or only a chemical method of preventing ovulation. All commercially available birth control pills marketed in the United States have some abortifacient properties. This element raises some moral questions that simply did not exist in the post-war Berlin context.

To approach this dilemma today, some Catholic authors speak of a “Pregnancy Approach” while others speak of an “Ovulation Approach” in the aftercare of rape victims. An example of the former is the Hamel and Panicola article in Health Progress cited above; an example of the latter is Peter Cataldo in Catholic Health Care Ethics. [20]

In the pregnancy approach, only a pregnancy test is given. If a woman has been raped while pregnant, the need for post-rape hormone therapy is moot, indeed counterproductive. If she is not pregnant, this approach presumes the emergency contraceptives will only prevent ovulation, sperm migration, or sperm conception—these are seen as self-defensive contraceptives in this context. However, multiple-dose oral contraceptives can also have the effect of disturbing the receptivity of the endometrium, which does not prevent conception but prevents implantation and is thus in effect abortifacient.

This is why the “ovulation approach” tests not only for the presence of pregnancy but also for the time or timing of ovulation to free one from that abortifacient possibility. It does require more effort, but that effort seems necessary in order to avoid an abortifacient practice. There is no technology or chemistry presently available to prevent sperm capacitation in the fallopian tube, or to prevent the advance of spermatic pronucleus to the ovum’s pronucleus to full syngamy (zygote) hours later. The only possible effect available at this point is to prevent implantation, and that is an abortifacient effect.

In a given case, we may not factually know, and that’s the problem. When (post-zygotic) human life is at stake, it is not enough not to know, rather we must know that we do no harm to human life and thus must here take the safer course.

Thus, I believe the ovulation approach is the more correct because the real question is whether or not potentially abortifacient medications should or should not be given to every woman who presents herself to an emergency room with a history of sexual assault. It seems to me that the December 15, 2003, “Fact Sheet on Emergency Contraception” of the U.S. Bishops’ Committee for Pro-Life Activities makes the same point: “Tests are available to determine whether ovulation has occurred.” 21 Thus, it is not simply a pregnancy test but also concern about ovulation as well.

Of course, no one questions the obvious need for pregnancy testing in these cases. On the other hand, the routine or automatic administration of oral contraceptives without reference to or knowledge of the timing or status of her menstrual cycle is not without moral risk. Directive 36 of the 2001 Ethical and Religious Directives of the USCCB is largely correct as it reads, but, it is also a bit ambiguous since it mentions “after appropriate testing” without specifying or indicating which tests or methods are “appropriate”.

The Ovulation Approach (e.g., the Peoria protocol and the like) requires a pregnancy test and tests to specify the range and time of ovulation. The Pregnancy Approach is just that—after a negative pregnancy test then any oral contraceptive is administered.

Personally, I wish some of the science were clearer than it is. However, I am not an expert in science, and my basic reservation is elsewhere. My reservation concerns “moral certitude”. Advocates of almost all positions claim to have “moral certitude” for their position, so that no wrong (evil) or risk of evil is placed. They support that claim by appealing to Probabilities as a “traditional” principle.

Some make this claim but muddle their point in making it. Classic Probabilism has to do with doubts of law (at base, the principle is lax dubia non obligat). There is no doubt of law here. The law is certain: Thou shalt not kill! No Catholic questions that when it means “[D]o not directly kill the innocent or risk the same”.

What is sometimes in doubt here is instead a doubt of fact—in fact, has conception taken place or not? No amount of probable opinions or approved authors will make a woman pregnant if she is not, nor can the same authorities make her un-pregnant if she is.

As I understand Catholic moral teaching, this is one of the three areas to which Probabilism cannot be applied: i.e., the rights of a third party, specifically, the right of an innocent third party not to be injured. Since the Hamel-Panicola article in Health Progress represents, I presume, the position of the Catholic Health Association, and claims the status of “moral certitude”, my reservation and objection is that the article makes a claim that is neither available nor permissible. Since Probabilism cannot apply here, then the safer course with its extra efforts must be followed. Dr. Diamond’s critique is correct, I believe, and will reward a careful reading.

Endnotes:

[18] Dr. Eugene F. Diamond, “The Ovulation or Pregnancy Approach in Cases of Rape?” National Catholic Bioethics Quarterly 3, no. 4 Winter 2003: 689–94.

[19] Ronald P. Hamel, Ph.D., and Michael R. Panicola, Ph.D., “Emergency Contraception and Sexual Assault”, Health Progress 83, no. 5 Sept./Oct. 2002: 12–15, 51. I presume this article from Health Progress to be the formal position of the Catholic Health Association, and, if it is, I judge that to be both unfortunate and imprecise.

[20] Catholic Health Care Ethics: A Manual for Ethics Committees, ed. Peter J. Cataldo and Albert Moraczewski Boston: National Catholic Bioethics Center, 2002, pp. 8–14.

[21] U.S. Bishops’ Committee for Pro-Life Activities, “Fact Sheet on ‘Emergency Contraception’ and Treatment of Victims of Sexual Assault”, Origins 33, no. 30 Jan. 8, 2004: 507–8.