Update on Connecticut Law

A new law passed by the state of Connecticut regarding treatment for victims of sexual assault, and specifically its effect upon Catholic hospitals in that jurisdiction, has created considerable controversy and confusion. Therefore, I asked Fr. Tadeusz Pacholczyk of the National Catholic Bioethics Center (NCBC) for clarification.

Fr. Tad holds a doctorate in neuroscience from Yale and has also completed advanced degrees in theology and bioethics in Rome. He combines fidelity to the Holy See with scientific expertise, so he seemed to be right person to ask. Fr. Tad kindly emailed me the NCBC’s official statement on the matter, which was just published yesterday. Here is the complete text:

NCBC Statement on Connecticut Legislation
Regarding Treatment for Victims of Sexual Assault
October 3, 2007

Recently the Bishops of Connecticut permitted a protocol in Catholic hospitals for the treatment of victims of sexual assault. This action on the part of the Connecticut bishops received national attention and requires some commentary. This is a complex moral matter and does not lend itself to brief explanation. This difficulty was rendered all the worse by inaccurate reporting and inappropriate, indeed misleading, terminology.

Catholic hospitals have always provided contraception for the victims of sexual assault. This was usually done with a medication or medications which would prevent ovulation. If an egg is not released from the ovary, the victim cannot become pregnant. There was a difficulty here, however, because some medications appear to have a negative effect on the lining of the womb that might prevent an implantation of a new human embryo if one is engendered as a result of the assault. This would amount to an early medical abortion that would not be allowed.

In light of these facts, two protocols were generally developed and approved by bishops. One protocol allowed for no use of a medication for contraceptive purposes because it might have an abortive effect.

Another more commonly used protocol tried to take into account the variety of circumstances surrounding a sexual assault in such a way as to allow the use of a contraceptive medication – if it truly worked as a contraceptive.

The protocol with the ovulation test.
A rather simple (ovulation) test is used to determine whether or not a victim has begun to ovulate or has already ovulated. If the victim has not ovulated she is given the drug that will prevent the release of the egg from taking place. If the woman has already ovulated, the drug is not given because (1) it will not have the desired effect of preventing ovulation and (2) it might, if a new life is present, have an effect on the lining of the womb and prevent implantation.

The role of bishops.
Bishops do not write medical protocols; health care professionals and medical institutions do that. If a protocol concerns a procedure that has ethical implications, it will be submitted to a bishop for his ethical judgment reached in consultation with medical and ethical experts. If the bishop is convinced the procedure will not violate the moral law, he will not stand in the way of its being implemented. He will basically grant what is called a “nihil obstat” which basically means there are no moral objections to the implementation of this protocol. Bishops simply do not have the competence to adjudicate between competing scientific claims about the mechanisms of drugs.

Connecticut.
The legislature in Connecticut passed a law that mandated that “emergency contraception” be given to any victim of sexual assault upon her request. This law went into effect October 1, 2007. Catholic hospitals do not object to providing emergency contraception because they had been providing it all along. However, under the new law the state would not allow physicians to give a test to determine if ovulation had occurred and then to refuse to give a drug to prevent ovulation on the medical grounds that the drug could not prevent what had already taken place.

The state does allow a pregnancy test. However, this test can have nothing to do with the sexual assault. This test only identifies a conception that had taken place before the assault. It takes an embryo 5 to 7 days to make its way down the oviduct and implant in the womb. Only then does it secrete a hormone, or chemical, which can be detected in the woman’s urine or blood. It is the pregnancy test that detects this hormone. In fact, there are no tests available that can tell us if a woman has conceived right after the assault and during the time the embryo would travel down the oviduct.

The Catholic hospitals and bishops objected to the Connecticut law because it did not allow a physician to do a simple test to see whether or not the medication he or she was considering prescribing would actually have the effect for which he or she wanted to administer it. In other words, the physician would have to administer a drug preventing ovulation even if ovulation had already occurred. Frankly, that makes no medical sense. The state was preventing a physician from exercising his or her best medical judgment about a procedure he or she was considering.

A second objection centered around the fact that the medication(s) might prevent an implantation if a conception had occurred. To intend and to do such a thing is immoral. However, there was considerable debate among medical and drug experts whether or not the drugs actually had that effect. And everyone agreed there was no test even to know whether a new life had been conceived.

Finally, attention should be drawn to the fact that the Federal Drug Administration includes the intra-uterine device as “Emergency Contraception” which is a misnomer since it is known to have an abortifacient effect.

Unlike the state of Colorado, for example, the state of Connecticut would not allow physicians to exercise their best medical judgment and provided no conscience protection to physicians or hospitals to refuse to administer the drug when requested.

The decision of the Connecticut bishops and hospitals.
The Connecticut Catholic bishops and hospitals, under strong protest, have allowed a new protocol to be used that was developed by Catholic health care institutions. Furthermore, they made it clear that if a test were ever developed that allowed one to detect a conception after an assault, and if it became clear (as is not yet the case) that the medication(s) would work as an abortifacient, they could no longer accept the protocol. Finally, the Connecticut bishops pointed out that the Doctrine Committee of the United States Conference of Catholic Bishops had studied this matter for years and could not come to the conclusion that the protocol previously allowed by the Connecticut bishops (the ovulation test protocol) would have to be used by all Catholic institutions.

The NCBC.
In matters that have not yet been decided definitively by the Holy See, The National Catholic Bioethics Center has refrained from adopting one or another position on a disputed question. However, in the matter of protocols for sexual assault, there is virtual unanimity that an ovulation test should be administered before giving an anovulant medication. The protocol the NCBC has supported requires the ovulation test because it provides greater medical and moral certitude that the intervention will have its desired anovulatory effect. The NCBC objects strongly to state mandates, such as those passed by Connecticut and Massachusetts, that do not allow health care professionals and facilities to exercise their best medical judgment and which do not protect the consciences of all parties. We also object to state mandates that do not allow the victim of sexual assault to have all the information necessary for a medical intervention so that she might make an informed judgment. However, the NCBC understands the judgment of the Connecticut bishops that the administration of a contraceptive medication in the absence of an ovulation test is not an intrinsically evil act. However, it is immoral to violate one’s conscience, including the corporate consciences of health care agencies, and the unwillingness of the state to allow an exemption of conscience makes the law unjust and onerous.

Next week on this blog we will provide further explanation of the moral principles that govern the administration of contraceptives to rape victims.

7 responses

  1. Respectfully and fraternally, I disagree with both the National Catholic Bioethics Center (NCBC) and CUF on the Connecticut bishops’ capitulation to what the NCBC and CUF acknowledge to be an unjust law.

    As an individual Catholic, I do not “understand” the Connecticut hierarchy’s refusal to defy this law, and I consider their abdication of responsibility a scandal–one of the many scandals in the human dimensions of the post-Vatican II Catholic Church. All these scandals reflect the “diabolical disorientation” of which Sister Lucy of the Fátima apparitions spoke.

    The NCBC acknowledges that there is no way in which to know for certain whether a woman victimized by rape has conceived a new human life before presenting herself in a hospital emergency room: “In fact, there are no tests available that can tell us if a woman has conceived right after the assault and during the time the embryo would travel down the oviduct. [. . .] And everyone agreed there was no test even to know whether a new life had been conceived.”

    Furthermore, the NCBC also admits that the “emergency contraceptive” medication may kill that newly conceived human life, for it also states: “A second objection centered around the fact that the medication(s) might prevent an implantation if a conception had occurred. To intend and to do such a thing is immoral. However, there was considerable debate among medical and drug experts whether or not the drugs actually had that effect.” If scientists are debating whether “emergency contraception” can act as an abortifacient, then it is possible that it acts in that manner.

    In such a situation, the principles of Catholic ethics are clear: if one knowingly administers a drug which may kill an unborn child, one is willing to commit homicide. Consequently, the administration of such a medication is gravely sinful. The moral imperative underlying this conclusion is the one that warns a hunter not to shoot at a distant object that may be another hunter.

    For a sound approach to the scandal that is unfolding among our Catholic brothers and sisters in Connecticut, I recommend the statements issued by American Life League. Please see its Web site: http://www.all.org.

    Like the recent Supreme Court action upholding coerced contraceptive coverage by Catholic employers, the Connecticut law demanding “emergency contraception” in Catholic hospitals is an indication of the fact that governmental persecution of Catholics has begun in the United States.

    Let us pray to Our Lady of Fátima for the courage and wisdom to confront this persecution.

    Keep and spread the Faith.

  2. I agree with the first commenter. It would have been better for the Connecticut Bishops to take the name Catholic from the hospitals and sell them than to follow this decision. I know if it were me I would defy the state and let them do what they would.

    Based on Catholic principles already enumerated by the Holy See, by sainted Theologians, it should be obvious that it is intrinsically evil to administer a drug that might kill a human being without an ovulation test to determine if a human being is there.

    Donum Vitae I.1 declares:

    The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life. This doctrinal reminder provides the fundamental criterion for the solution of the various problems posed by the development of the biomedical sciences in this field: since the embryo must be treated as a person, it must also be defended in its integrity, tended and cared for, to the extent possible, in the same way as any other human being as far as medical assistance is concerned.

    As such one must always lean on the safest course for that life. If there might be a human being there, and you administer a drug which BARR, the manufacturer, claims will destroy a fertilized egg, and a human life is killed as a result, one has been complicit willingly or unwillingly in an act of murder. The Catechism of the Catholic Church, and the Tridentine Catechism, teach respectively:

    The fifth commandment forbids doing anything with the intention of indirectly bringing about a person’s death. The moral law prohibits exposing someone to mortal danger without grave reason, as well as refusing assistance to a person in danger.

    Unintentional killing is not morally imputable. But one is not exonerated from grave offense if, without proportionate reasons, he has acted in a way that brings about someone’s death, even without the intention to do so.
    -Catechism of the Catholic Church, #2269

    There are, however, two cases in which guilt attaches (to accidental death). The first case is when death results from an unlawful act; when, for instance, a person kicks or strikes a woman in a state of pregnancy, and abortion follows. The consequence, it is true, may not have been intended, but this does not exculpate the offender, because the act of striking a pregnant woman is in itself unlawful. The other case is when death is caused by negligence, carelessness or want of due precaution.
    -Catechism of the Council of Trent, on the 5th Commandment

    Lastly St. Thomas Aquinas teaches, (though I forget where) that if you are in the woods with a bow and arrow, and you shoot into a bush, and you think there may be somebody in the bush but you are not sure (and there may not be), you are just as guilty as if you knew there was a man in the bush, because of the simple possibility of a human being there, which you knew but disregarded. A want of due precaution.

    The failure to administer an ovulation test is precisely that, a failure of due precaution. We really need the USCCB or the Holy See to override the CT Bishops on this decision. Even if they sell the hospital it is better than obeying this decision, even under protest. Who could possibly accept the spectacle of military officers obeying orders “under protest” to blow up a house that might have civilians in it without checking first? It is the same thing, only different by degree and means.

  3. <p>The action of the Connecticut bishops with regard to Plan B has already proved quite controversial, and the Bishops have drawn considerable fire from critics. When CUF posted the Statement of the National Catholic Bioethics Center (NCBC) on its website, it was as a news item of interest to readers already concerned with the difficult subject of “emergency contraception” and the growing effort by state legislatures to force the Church to conform to secularist values. I myself did not view the posting as constituting CUF’s endorsement or outright agreement with the CT bishops’ decision since it was abundantly clear that here was a puzzling incident of bishops not only reversing their previous moral stance but possibly changing it once again when more “scientific evidence” became available. The consequence is a debate where moral theologians will enter, and the Vatican may well have to engage and settle.<br />
    I well understand the criticisms made of the Bishops’ position; they are well stated and weighty. Speaking for myself, I personally think the CT Bishops erred on a serious moral matter. It is their original decision that seems to me to express the authentic Catholic position. However, since we have bishops and moral theologians and medical experts now at odds with one another, it should be apparent that CUF as a lay organization is not in a position to lay down the moral law on a disputed matter demanding the attention of all our bishops. Obviously lacking hierarchical authority, lay organizations should hardly proceed to denounce bishops and the Catholic proponents or opponents of Plan B. On matters where members of the hierarchy disagree, CUF has always adhered to the position that the very principle of Church authority (papal and episcopal) which are being so seriously undermined by dissenters since Vatican II must be especially respected and safeguarded by faithful laity. Surely, strident or extreme criticism of our bishops must be avoided as doing much more harm than good, and lay concerns and even objections should be directed to the bishops themselves with respect for their office as successors of the Apostles. With regard to Plan B do we not have to await the Magisterium’s clarification of a disputed matter with its scientific and theological complexities?<br />
    It is distressing that the CT Bishops’ reversal of moral teaching was in response to the pressures of an immoral law of the State that should have been outrightly opposed and resisted. The CT bishops surely could have benefited from more lay support in their fight for more stringent standards, but once again we see the effect of serious weaknesses and divisions among the laity reflecting what <em>The New York Times </em>has triumphantly called “the loss of political clout” among Catholics. “Catholics for Free Choice” and other enemies of the Church have left no doubt of their glee at the CT bishops’ reversal.<br />
    There is no question that CUF will continue to do what it can to reach people with the Church’s authentic dogmatic and moral teachings and to help establish that solidarity among Catholics indispensable to making the Church a real moral force (“political”, say our secularist foes) for good on the American scene. I am sure that CUF will keep on top of the issue and keep readers informed of the progress of the debate on “emergency contraception” and the manner in which the Church will resolve an issue of such importance to all pro-life people.</p>

  4. Excellent. I didn’t mean to insinuate that CUF endorsed their position, hence I didn’t make any criticism of CUF, though you and I probably are on different sides of other issues.
    Nevertheless, as we are all lay theologians, it is important to stress, as you have and I have, that the USCCB or the Vatican needs to correct this problem.

  5. Can we get a further explanation of this statement above please: “However, the NCBC understands the judgment of the Connecticut bishops that the administration of a contraceptive medication in the absence of an ovulation test is not an intrinsically evil act.”

  6. Mr. Gill raises an excellent question that deserves some response.

    First, it’s clear that even assuming a Catholic worldview and appropriate terminology (e.g., conception begins at fertilization, not implantation), there are nonetheless some honest disagreements in the implementation of the principles given the current state of medical knowledge and the inherent complexities of the situation. Because this is a matter of ongoing research and debate, the Magisterium has not definitively weighed in on the specific application of Church teaching when it comes to developing protocols for providing contraceptives to rape victims.

    For now, I do think the best source of information is the National Catholic Bioethics Center, which is run by Dr. John Haas, a top-notch, solidly Catholic moral theologian, and which has an impressive array of orthodox scholars (e.g., Fr. Tad Pacholczyk, Janet Smith, William May, etc.) who regularly contribute to their publications. The Center has two publications, in fact: the “National Catholic Bioethics Quarterly” and “Ethics and Medics.” I know that Archbishop Chaput and other outstanding bishops regularly turn to the National Catholic Bioethics Center for expert assistance when it comes to difficult questions of medical ethics.

    When it comes to “emergency contraception” after rape, the opening point of discussion should be Ethical and Religious Directive no. 36 (2001), issued by the United States Conference of Catholic Bishops:

    “Compassionate and understanding care should be given to a person who is the victim of sexual assault. Health care providers should cooperate with law enforcement officials and offer the person psychological and spiritual support as well as accurate medical information. A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications 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.”

    This directive sets forth the desire to minister compassionately to rape victims while also refusing to participate in abortions–including early abortions–that would result from impeding “implantation of a fertilized ovum.” As Archbishop Chaput has written, “Genuine emergency contraception–i.e., steps to prevent ovulation following a rape–poses no problem for Catholics. The Church and her health care institutions already allow for this as an act of defense against violent sexual assault.”

    One of the key difficulties at this time is that the data regarding how various emergency contraceptives actually work is inconclusive. RU-486 is clearly abortifacient, acting after the implantation of the embryo. Other forms of emergency contraception are intended to delay ovulation, slow the transport of sperm, or incapacitate sperm to prevent conception. Some people legitimately fear that these forms of emergency contraception may also impede the implantation of an embryo. Even with the most recent scientific research, it is disputed whether some forms of emergency contraception actually have an abortifacient effect, at least as administered in rape cases.

    As medical knowledge increases and new medical options become available, the protocols followed by Catholic hospitals will adapt to meet these changing circumstances. Currently, however, given the present state of scientific knowledge about the effects of emergency contraception and current limitations in testing for ovulation, Catholic facilities may use one of two approaches to protect against conception within 72 hours of the sexual assault:

    (1)Pregnancy Test Approach—after ruling out an existing pregnancy, emergency contraception is administered. If a woman is found to be pregnant, she can be sure that the pregnancy resulted from an earlier sexual encounter, not from the assault. The approach maintains that there is sufficient moral certitude that a fertilized egg will not be destroyed (because of the low rate of pregnancy from a sexual assault and the likelihood that the medication would not have an abortifacient effect).

    (2) “Peoria” or a modified “Peoria” protocol—endeavors to determine the phase of the victim’s ovulation cycle before administering emergency contraception to ensure that the emergency contraception will in fact prevent conception, not impede implantation of a newly conceived human being. When ovulation is imminent, emergency contraception would not be provided.

    While I am not a moral theologian, it seems clear to me that the “Peoria protocol” or ovulation method (choice #2) provides greater safeguards for any unborn human life that may be present without compromising the compassionate health care that should be given to the rape victim. Even saying “ovulation method” is a bit too summary, as there are local variations, some of which are necessitated by lack of facilities to test both lutinizing hormone (LH) levels and progesterone levels. This is the method endorsed by many of the top Catholic bioethicists in this country, including Dr. Haas and the leadership of The National Catholic Bioethics Center.

    That was also the protocol favored by the Connecticut bishops. However, the oppressive, anti-Catholic law that was passed in Connecticut prevents Catholic hospitals from doing ovulation testing. In other words, Catholic hospitals are required to follow approach #1 (above) in Connecticut.

    The Connecticut bishops fought against this, but they lost. Do they follow the law or conscientiously object?

    The U.S. bishops’ doctrine committee has said that approach #1 (i.e., pregnancy test only) is consistent with directive 36 and may be used. Some Catholic hospitals go that route already without being so compelled by state law.

    I think most pro-lifers not only favor approach #2, but also would say that approach #1 is morally deficient. (Some even think that the Peoria protocol provides inadequate safeguards.) For now, though, in answer to Mr. Gill’s question, the Church has to this point allowed for the less stringent approach now required under CT law. So while that approach is less desirable, it’s not intrinically immoral such that the Connecticut bishops would be obliged to disobey the law and subject Catholic hospitals in the jurisdiction to the consequences of such conscientious objection (see generally Evangelium Vitae, nos. 73-74).

    Here is how Bishop Lori, the Bishop of Bridgeport, Connecticut, explains the CT bishops’ action (on his blog, no less):

    “Plan B, an issue previously discussed in this blog (“Sad State of the Constitution State”, April 24th—see “Archive”) is back in the news. Many of you posted comments about those media reports, so I’d like to offer a number of clarifications and some additional perspective.

    “Last spring, the Connecticut Bishops worked hard to defeat the so-called “Plan B” legislation. It’s not that the Church opposes administering Plan B to victims of rape; these women have suffered a gravely unjust assault. Last year, nearly 75 rape victims were treated in the four Connecticut Catholic hospitals; no one was denied Plan B as the result of the Catholic hospital protocols which required both a pregnancy test and an ovulation test prior to the administration of that drug.

    “What’s really at issue here is how much testing is appropriate to ensure that Plan B does not induce the chemical abortion of a fertilized ovum. There is uncertainty about how Plan B works. Its effect is to prevent fertilization of the ovum. Some believe, however, that in rare instances Plan B can render the lining of the uterus inhospitable to the fertilized ovum which must implant in it in order to survive and grow; many other experts dispute this. For their part, the Bishops of Connecticut felt it was best not only to administer the standard FDA-approved pregnancy test, but also an ovulation test. However, this course of action was only a prudential judgment, not a matter of settled Church teaching and practice. Other bishops and moral theologians hold that a pregnancy test alone suffices. Indeed, the Church does not teach that it is intrinsically evil to administer Plan B without first giving an ovulation test or that those who do so are committing an abortion.

    “Unfortunately, Connecticut Legislature decided last spring to settle the question of whether both tests are necessary, instead of letting the Church do so in her own way. The Governor signed into law a measure that forbids health care professionals from using the results of an ovulation test in treating a rape victim. We bishops, as well as health care professionals, continue to believe this law is seriously flawed and should be changed. You should also know that we carefully explored with very competent experts the possibility of challenging the law. Unfortunately, such a challenge would most likely not succeed. Failure of the hospitals to comply would put them and their staffs at risk.

    “In the course of this discussion, every possible option was discussed at length with medical-moral experts faithful to the Church’s teaching, with legal experts especially in the area of constitutional law, and with hospital personnel. “Reluctant compliance” emerged as the only viable option. In permitting Catholic hospitals to comply with this law, neither our teaching nor our principles have changed. We have only altered the prudential judgment we previously made; this was done for the good of our Catholic hospitals and those they serve.

    “At the same time, we remain open to new developments in medical science which hopefully will bring greater clarity to this matter. Above all, we continue to pray for the healing of those who are victims of sexual assault.”

    I hope this helps, Mr. Gill.

  7. Probabilism may *not* be used in instances in which there is a risk of the commission of murder. Redemptorist Father Francis J. Connell, a prominent theologian before Vatican II, states in *Outlines of Moral Theology*:

    “When there is danger that some grave evil, either spiritual or temporal, may come to a neighbor through my use of a reflex principle I may not use a probable opinion in favor of liberty. I must follow the safer side. For example, a druggist has twenty bottles bearing the label of a helpful remedy; but he knows that in some way poison has got into one of the bottles. He may not sell even one of the bottles to a customer desiring the remedy, even though it is much more probable that the bottle contains good medicine; but he must destroy the entire lot. He must fulfill the law that he may not inflict even probable danger on his neighbor; he must follow the safer side” (page 43).

    The application of Father Connell’s common-sense words to the Connecticut scandal should be obvious to every Catholic: a hospital may not administer a drug even it is merely a possible abortifacient.

    As for waiting for the Magisterium to pronounce on the Connecticut scandal, while it is true that we should implore the Holy Father to intervene to countermand this scandalous capitulation to an evil law, the Catholic moral principles are already clear.

    If the Connecticut bishops had issued a pastoral letter telling the faithful that there are four persons in God, it would be outrageous for CUF and other Catholic laypersons to say: “We are only members of the laity. We must await the decision of the Magisterium.”

    Right?

    Keep and spread the Faith.

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