Bioethics Forum Essay

Dusting Off Double Effect for the Post-Dobbs Era

In states with restrictive abortion laws, patients are presenting with life-threatening pregnancies, and distressed medical professionals are confused about what care they can legally provide. Compounding the confusion is the claim, to which pro-life activists are increasingly committed, that “abortion is never medically necessary.” This seems hard to believe, especially after reading the harrowing story of Elizabeth Weller, a Houston woman who was made to wait until her moribund 18-week pregnancy caused “severe infection” before labor was induced. Or the even more harrowing story of a pro-life missionary doctor who had to “decompress the skull” of an 18-week-old fetus to save the life of the mother who had already lost half her blood volume. How could abortion not be medically necessary in these cases?

Clinicians working in the emergency setting need to know. They are required, under the federal Emergency Medical Treatment & Labor Act (EMTALA), to respond to patients who present with emergency medical conditions, including those that complicate pregnancy, labor, and delivery. In July, the Department of Health and Human Services issued a guidance to protect physicians from liability if they provide an abortion to save a pregnant woman’s life, stating, “When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”

Lawsuits over the guidance in two states with abortion bans reached opposite conclusions: a court in Texas blocked the federal government from enforcing the guidance, but a court in Idaho affirmed the guidance. Enforcement of the guidance in other states with abortion bans is in question. There may be a way to help enable clinicians legally provide appropriate medical care to at least some of their pregnant patients who are experiencing a medical emergency. It hinges on two things: the definition of abortion favored by contemporary anti-abortion legal philosophy combined with Double Effect reasoning, according to which it is sometimes permissible to cause harm as a side effect of bringing about a good result.

Double Effect reasoning, which will be explained more fully below, is acceptable to abortion foes because it has a long history in Catholic moral philosophy, beginning with Thomas Aquinas arguing that causing death in self-defense can be justified. Double Effect reasoning is not merely a religious approach to ethical problem-solving, however. It is also recognized by the United States Supreme Court as a form of common law that resolves apparent conflicts between end-of-life care and homicide law. In particular, it permits patients to refuse unwanted lifesaving treatment and to receive palliative care, either of which may have the unintended effect of hastening death. (See Vacco v. Quill.)

In relation to emergency medical care for a pregnant patient, “termination of pregnancy” need not mean the same thing as “abortion.” When abortion foes say “abortion is never medically necessary” they mean “intentional feticide” — or, in more direct words, “the purposeful destruction of the unborn child”— is never medically necessary. By this definition, removing a fetus from the uterus (or fallopian tube) by means of induced labor, medicinal intervention, or surgery to end a life-threatening pregnancy is not necessarily an abortion. The fetus’ death, which may or may not be caused by these means, contributes nothing to the life-saving effect of these actions. Therefore, even if the unborn child’s death is certain, it need only be foreseen but not intended. Rather, the fetus’s death is to be understood as a “side-effect” of an act justified by the good it aims to secure, namely, the preservation of the pregnant patient’s life.

This sort of reasoning is an instance Double Effect, which permits an action that has two effects, one “good” and one “harmful,” if four traditionally recognized criteria are met:

1. The act itself is either good or morally neutral (Considerability).

2. The good effect cannot be caused without also causing the harmful effect (Unavoidability).

3. The harmful effect must not be intended as an end or a means to an end (Pure Intention).
   
   
4. The good effect must be on par with the harmful effect (Proportionality).

What defines “good” and “harmful” in these criteria is hotly contested in abortion debates, but a place to start is with what the law says. In Texas, abortion is defined by the 1989 Texas Abortion Facility Reporting and Licensing Act as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.” (Emphasis added) Thus, intending the death of the fetus is to be avoided under Texas law. (Texas’ recent “fetal heartbeat” act (S.B. 8) carves out an exception for a “medical emergency” — something to be revisited in a moment.) Cases that concern providers in the acute care setting are those that satisfy Unavoidability and Proportionality, but raise questions about Pure Intention and Considerability. What options, if any, are considerable under the law? Can an act of removal be done without intending death?

Insofar as Pure Intention goes, if “termination of pregnancy” means killing the fetus first to remove it later, then it is not satisfied since death is chosen as a means to removal. But what if the team decides to remove a nonviable fetus first and let it die afterwards? Then death need only be accepted as an inevitability, not as an end or a means. Moreover, emptying the uterus—not the death of the fetus–is what causes the threat to maternal life to be avoided, even if the fetus’s death is certain. Therefore, if a plan is chosen to empty the uterus by way of induced premature delivery, without referring to death as part of the plan, Pure Intention is satisfied.

What about Considerability? According to the law, intent to kill is forbidden and premature delivery need not involve that. Indeed, the same procedure could be chosen to facilitate a stillborn birth. Likewise, induction of labor acts directly upon the pregnant patient’s reproductive organs, not on the body of the fetus. Thus, it is “neutral” in the sense Considerability requires.

To be sure, how far Double Effect’s framework can be extended is a difficult question. For example, it does not seem that crushing a fetus’s skull could satisfy Considerability or Pure Intention. Nonetheless, some staunchly pro-life thinkers  would have counseled the missionary doctor to “alter the child’s physical dimensions and remove him or her” (allegedly satisfying Considerability) without intending death, arguing that death plays no role in causing life-saving delivery (allegedly satisfying Pure Intention). These thinkers represent what is called the New Natural Law Theory in Catholic bioethics and public affairs. Supreme Court Justice Neil Gorsuch trained under one of these thinkers, John Finnis, and his book on assisted suicide draws upon Finnis’ theory of intention. One of Supreme Court Justice Samuel Alito’s former clerks, Sherif Girgis, also defends this type of craniotomy as permissible by way of Double Effect. He writes:

[New Natural Law] theorists hold that in the consensus cases, involving uterine cancer and ectopic pregnancy, the child’s death can be a side effect of the procedure, rather than a means, because his death is not pursued as contributing anything at all to the agent’s end of saving the mother’s life. But the same can hold in craniotomy, where an unborn child’s head is too large for the birth canal and must be crushed and removed before it causes the mother to die. The same is also true in “physical incapacity” cases [a technical name for cases like Weller’s], where a child is removed before he can survive on his own, because the mother’s physical condition makes continued pregnancy an immediate lethal threat. Again, the goal in both craniotomy and physical incapacity cases is to save the mother’s life, and it is the child’s removal and not his death that contributes to that end (Girgis 2013, p. 235).

This is not to say that Double Effect reasoning informed Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, the Texas fetal heartbeat legislation, or Justice Gorsuch’s interpretation of constitutional law. Far from it. It does mean, however, that it is a seriously considered view held by influential leaders in the pro-life movement.

Many will find this view hard to accept, and so laws making provisions for abortion in medical emergencies are needed. Laws lacking provision for medical emergencies risk criminalizing the actions taken by the medical missionary. Even so, if supporters of exceptionless anti-abortion laws can accept what the missionary doctor did with Double Effect reasoning, then they must accept the inducement of labor as soon as the treating team diagnoses the rupture of membranes in a pregnancy like Weller’s. There is no need to delay inducing labor to satisfy the meaning of medical emergency because an abortion—defined as an act intended to secure the death of the fetus—is not performed.

It’s reasonable for the doctors and lawyers involved in cases like these to be skeptical of this analysis, especially in the light of legislation that makes for easy prosecution and hard punishment. No one wants to be the test case to determine if it is legally sound. Nonetheless, there is reason to think that skepticism may be misplaced. In response to the Weller case, officials representing Texas Right to Life and the Charles Lozier Institute agreed that premature induction of labor would have been consistent with Texas law. Others, representing the Catholic moral tradition, responded to the missionary doctor, saying his case was easily resolvable with Double Effect, something that could have been learned in “Medical ethics 101.”

Whether approaches like premature delivery could become standard practice is another matter. Medical professionals will be concerned with the enumerable ways pregnancies can go wrong and they need clarity on what constitutes exceptions for medical emergencies so that they can be protected from liability. But premature delivery methods may be worth a second look because they would (1) be consistent with exceptionless laws, (2) empower physicians to act decisively on behalf of their patients, and (3) perhaps provide opportunities for closure in tragic situations where the child was wanted. Expectant parents would not need to consent to the killing of their unborn child and, depending on the circumstances, they might have a chance to benefit from perinatal hospice care.

In short, medical professionals who work in the acute care setting and their supporting institutions should consider dusting off Double Effect reasoning to better serve their patients if they work in jurisdictions that restrict abortion. The alternatives, given the legal landscape, are surely worse.

Adam Omelianchuck, PhD, is an assistant professor in the Center for Medical Ethics and Health Policy at Baylor College of Medicine. He expresses gratitude to the editor for updating him with the most current information about the legal dispute over the Biden Administration’s EMTALA guidance. @AdamOmelianchuk