AN INVES'l'igation of the HORAL PRINCIPLES

AN INVES'l'IGATION OF THE HORAL PRINCIPLES

EMPLOYED BY FATHER GERI\LD KELLY , S. J .

I N DISCUSSING ABORTION

Sister Mi ldred Cheramie, D. C., B.S. in Nr .

A Thesis Submitted to the Faculty of the Graduate School, Marquette Univers ity, in Partial Fulfillmen t of the Requirements for the Degree of Master of Arts

Milwaukee , Wisconsin Sept ember, 1975

TABLE OF CONTENTS

I NTRODUCTION 1

Chapt er I . THE PROBLEH OF THE NATURAL RIGHT 'I'O LIFE PRINCIPLE 6

II. BASIC MEDI CO-MO RAL PRINCIPLES 1 8

The conse nt of the individual The i nviolabi l ity of innocent human life The principle of totality The intrinsic finality of the sex faculties Doing good and avoiding evil The principle of the double effect The principle of "liberty"

III. FOID1ULATION OF SPECIFIC PRINCIPLES CONCElli~lNG ABORTION . . . 37

According to Divine Law and Specifically with Reference to the Fifth Comma ndment According to the Sacrame nt of Matri~ony According to Ecclesiology Specific Princi ples Governing the Morality of Abortion

IV. APPLICATION OF THE PRINCIPLES OF GERALD KELLY, S.J. 64

V. THE VALIDITY OF FATHER KELLY'S PRINCIPLES TODAY. 67

Ecumenism Legalism Situationism Roman Catholicism

CONCLUSION ...... 79

SELEc'rED BIBLIOGRAPHY 93

ii I NTRODUCTION

The purpose of this thesis is to investi gate the basic moral principl es i n the thought of Geral d Kelly, S.J., in r eference to the problems of abortion. In attempting to i solate these principles and to des cribe the ir development

(or formulation) an attempt ",as made to follow the major avenues of thought present in his writings. Any attempt to recapture the thought of an intellectual giant of past years necessarily entails a purification of the strata of experience, tradition, and thought in which he lived and wrote.

His writings reve al an incorporation or compilation in large portions of the thought of others, i.e., writings of popes, theologians, legal and medical experts, etc~ At times it is an impossible task to isolate his thought from the person he i s quoting. This me·thod of development which runs the gamut of his writings is emphasized because it is crucial for an understanding of Father Kelly's position on the morality of abortion.

Father Kelly received a doctorate in theology from the Pontifical Gregorian University in 1937. A scholarly

~ presentation of The Theologians' Concept of Venereal Pleasure was his dissertation. In 1941, his first book, Modern Youth and Chastity, was published. It was translated into several languages and sold more than a million copies. In 1942, he

1 2 was cofounder of the Revi ew for Re ligious and was its editor for s eventeen years . Gui dance for Religious, a v olume of selected \vri tings, was com:;?iled from his wri-tings i n the

Review.

In the l ate 19 40s at t he invitation of John J . Flana- gan, S.J., Executive Director of the Catholic Hospital Asso- ciation, Father Kelly began to direct his writings to the unique and complicated problems of medicine and hospitals .

Many of his articles appeared in Hospital Progress, the official journal of the Catholic Hospital Association, and in The

Linacre Quarterly, journal of the Federation of Catholic

Physicians' Guilds. The Ethical and Religious Directives for

Catholic Hospitals, a model of theologica l preciseness, was principally a work of Father Kelly's genius. He wrote a serieb of booklets calied Medico-Moral problems,l a detailed co~mentary on the Directives, which were revised in 1958 into a book by the same title.

His process of formulation of basic medico-moral principles is a long and arduous one as Father Kelly tells in his article, "The Moral Code of Catholic Hospitals.·,2 Before his principles were formulated , a special committee was organized, diocesan codes of united States and Canada were reviewed and a preliminary draft of a new code was sent for ... lThe revised book, Gerald Kelly, S.J., Medico-Moral Problems (St. Louis: Catholic Hospital Association, 1958), does not contain all the material published in the booklets.

2Gerald Kelly, S.J., "The Moral Code of Catholic Hospitals," Review for Religious 12 (July 1953): 205-06. 3

c r iticism to a l arge number of doctors and moralists in var-

i ous parts of the United States and Canada. The consultants,

Catholic and non-Catholic, were chosen for proficiency In

their profession and not because of religious belief. After

the consultants had given their cri ticisms these were care-

fully studied and new formu las were devised. The formulas

were submitted again to t he origina l critics; more sugges-

tions were offered; and the code was finally formulated in a manner that met with universal approval. 3

His book, Medico-Moral Problems , had a sales record

of more than 33,000 copies at the time of his d eath in 1 96 4 .

It has been the unofficial "bible" of Catholic Hospitals and

has been given great approval by theologians, physicians , and

administrators of other religious affiliations as well.

For fifteen years Geraid Kelly continued as special

consultant to the Catho lic Hospita l Association and initiated

the popular medico-moral institutes for hospital and medical

personne l. These institutes have b een attende d by thousands

over the y ears and h ave presented an opportunity for discus-

sion and interpretation of specific moral questions and prob-

lems.

3 . John J. Lynch, S.J., "Death of Rev. Gerald Kelly, S. J . ," Linacre Quarterly 31 (August 1964): 110 . Father Lynch r emarks: "His files at St. Mary's College literally · bulge with a lifetime's correspondence with physicians all over the world. Because he talked the langua ge of doctors with medica l and theological e x actitude he was, to a large extent, personal\y responsible for the mutual understanding and respect which has long existed between Catholic physi cians and moral theologians in this country." 4

The Cardinal Spellman Award was given to him in 1953 for outstanding theological wri t ing and particularly for his work in the medico-moral field .

From 1947 to 1954, he wrote the annual "Notes on

Moral Theology," a comprehensive review of the y ear's work in t he fie l d , publi shed in Theological Studies. With Rev. John

J. Ford , S.J. , he coauthored two volumes of Contemporary

Moral Theology . These two volumes were published in 1963 and have been cited by many a u thors who are knowl edgeabl e and reputable physicia ns and the ologians.

Father Kelly was a charter member and former presi- dent of the Catholic Theolog ical Society o f America. As an eminent teacher, lecturer, and writer , he was intern ationally know~ and recognized for his keen p erception and clarity of I . \ expr~ssion of solutions to moral problems . "The outstanding ability shown in Fa ther Kelly's writings to enter into the most complex problems and emerge with comprehensiveness and clarity h as its background, no doubt, in continued succe ss in breaking the ground of moral issues for beginning theolo gians.,,4

For a year an endeav or was made to locate Father

Kelly's professional correspondence which Father Lynch men- tlons. ln. Llnacre . Quarter 1 y. 5 It was never 1 ocate d .

4"Editorial," Theology Digest, winter 1963, p. 194. Also r e leased to secular and diocesan newspapers by Catholic Hospital Association at the time of Father Kelly's death in 1964. 5 See above, p. 3, n. 3. 5

Apparently the correspondence was misplaced or destroyed in the move of the School of Divinity of the Jesuits from St.

Mary's, Kansas, to St. Louis university in St. Louis, Mis- souri. It would have added an interesting comparison between the challenges in the theological and medical thought of his actual time and the challenges of the 1970s. CHAPTER I

THE PROBLEM OF THE NATUR~L RIGHT

TO LIFE PRINCIPLE

Among the many problems moral theolog i ans are called upon to solve, perhaps none are of more frequent occu rrence than medical problems. This is not surprising, for t hough medicine a s a science i s not directl y concerned with morality, yet the practice of medicine is inevitably bound up with such things as the right and duty to pre s erve life and bodily integrity, and these are definitely moral problems. l

In this prece ding quote, Father Kelly succinctly states the importance of medico-moral problems and the principles formulat ed to govern the solving of them. The problem is not the questioning of the importance of moral principles; even the antinomians regard the moral principle of love.

Rather the problem i s how doe s one come t o form moral principles which govern or guide man in his behavior. The po~nt under question is Father Kelly's formulation and explanation of the p rinciple of the inviolability of innocent human life.

It should be noted that contemporary theologians,

Catholic and non-Catholic, are seriously questioning the "old codes" of morality because of new insights and practice. The

"old codes " of morality were formulated iri a former time, and

lGerald Kelly, S.J., Medico-Moral Problems, I (St. Louis: The Catholic Hospital Association, 1949), 15.

6 7

Fathe r Kelly i s historically viewed as of this past era.

More modern theologians would consider Father Kelly a "traditionalist, natural law defender , a manualist, a moral theo- l ogian using a picture-book concept of reali ty , and solving conflict situations by emphasis on physical structure and causality of act alone, i.e., physi calism or biologism . n2

The "manualis-t" 3 way of teaching has been taken as the official moral stance of the Roman Catholic Church. Em- bodying this tradi t ion is the ethical position which rejects the existence o f any conflicts b e t ween moral values. What may appear as a conflict in this s phere must be on the physical stratum, since the universe, being perfectly ordered, has in its essence a natural law which cannot contradict itself.

A harmonious hierarchy within the nature of the universe spells out a natural law, moral rights, and moral responsi- bilities. Such would be the framework within which Father

2Joseph Fletcher, Morals and Medicine (Boston: Bea con Press, 1950); Daniel Callahan, "Authority and the Theo logians," Commonwe al, June 5, 1964, pp. 321-23; Charles Curran, A New Look at Christian Morality (Notre Dame, Ind.: Fides Publishers, Inc., 1968), pp. 243, 248; John Milhaven, "Abortion Debate: Epistemological Interpretation," Theologi cal Studies 31, No. 1 (March 1970): 106-24; Charles Curran, "Absolute Norms and Medical Ethics," in Absolutes in Moral Theology, ed. Charles Curran (Washington, D.C.: Corpus - Books, 1968), pp. 108-53; Charles Curran, New Perspectives in Moral Theology (Notre Dame, Ind.: Fides Publishers, Inc., 1974), pp. 163-94.

3"By manualist is meant not only the author of a manual but all who wrote or taught in the same tradition to the extent that they conformed to its basic approach and its precise points of doctrine." This method of teaching has been in use in the system of Roman Catholic ethical teaching since the first manual, Institutiones Morales, by J ohn Azor in the early l600s. Nicholas Crotty, C.P., "Conscience and Conflict," Theological Studies 32, No.2 (June 1911): 209-10. 8

Ke lly formu l ated his mor a l princi ples .

The natural law of the manualist, being ordered and s et , cannot a llow for change, and all men must b e held to c ertain universal principles. ~dhering to this orientation,

Father Kelly would alleviate most clashes of ~oral values , for moral value or i t s oppos i te resides respectivel y in the harmony o r nonharmony of t he moral agent 's will with the per f e ctly ordered hie r archy of demands of t he n atu r al l aw . The

-traditional position maintains that moral dutie s c an ne v e r conflict, for conformity of the will, with the demands of the natural law, is always possible. Though moral value s cannot conflict in Father Kelly's reasoning, the intertwining of physical good and evil is less clear, and thus conflict on this level does occur. When conflict situations of this nature do occur these are resolved by the application of the principle of direct and indirect effect.

contempor ary proponents of such moral issues a s abor tion do not always accept this traditiona l system of solving conflict situations . To them there would seem to be less dichotomy betwe en moral and physical, thus allowing for more elements of conflict. For example, not all are in agreement on the traditionalist assumption of the inviolability of in nocent human life and would allow a more relational method ology in approaching a decision. All the different human values in the situation are examined carefully. In this ori entation moral r~ality is not always identifiable with the 9

4 physical structure of the action. That their ideas are having an i mpact on society today is seen in the increasing signs of loss of absolute reverence of life. The CUErent i nterest in abortion i s apparent , not only in the numerous articles , books, and newspaper reportings , but especially in the l egal courtroom battles and theological debates . The 5 right to life is seriously being questioned.

It is to be recognized also that even in Father

Kelly's day, Some moralists did not accept or understand the hospital code and the n atural law on which it was based.

Father Kelly reflects this in his statement:

Even Catholics, I think, seldom realize what goes into a code. In fact, many seem to have the impression that a Catholic hospital moral code consists in one supreme p~inciple (which, incidentally is "best-seller nonsense" at its best or worst) that mothers must die for their babies. 6

Father Kelly believes that all who really understand the meaning of the natural law wi ll admit that its basic principles apply to a ll persons regardless cif religious orientation. He notes, "Non-Catholics may l egitimately ask:

4BishOp Francis Simons, "The Catholic Church and the New Morality," Cross Currents 26 (1966): 429-45; Archbishop Denis Hurley, "A New Moral Principle: When Right and Duty Clash," Furrow 27 (1966): 619-22; Archbishop Denis Hurley, "In Defense of the Principle of Overriding Right," Theologi cal Studies 19 (1968): 301-09; Curran, New Perspectives in Moral Theology, pp. 1-47.

5John Milhaven, "Moral Absolutes and Thomas Aquinas," in Absolutes in Moral Theology , ed. Charles Curran (Washing ton, D. C.: Corpus Books, 1968), pp. 154-85; Curran, "Abso lute Norms and Mefiical Ethics," p. 153. 6Kelly, "Moral Code of Catholic Hospitals," pp. 205~ 06. 10

By what authority doe s the Catholic Church claim to have the on l y correct expression of the n atural law? ,,7 F ather Ke l ly says:

The Church is a perfect society found~d by Christ . The Church can make laws for i ·t s own subjects. The Church c l aims that besides lawmaki ng power , i t a l so has teaching aut hority f r om Ch rist. It claims further t hat , by His Will, this t eaching a uth or ity extends t o t he whole of Divine Re v e lation. Since revelat i on c ont a ins the nat ural moral l aw , it follows that the Church has the p ower, n ot to make , but to i nterpret , to teach, to declare the true meaning and extent of, that l aw. In interpre ting it , ·the Church is expl aini ng the d emands of huma n nature itse lf- of that human nature whi ch is t he same in all men and at all time s. Therefore , the Church c annot admit one inter pretation of natural law as valid for Catholics only and another as val id for non-Catholics. . The Church not only claims divine authorization to inte rpret the moral l aw; it a lso claims tha t its t eaching is a practical necessity for a clear and adequate knowledge of t his law. 8

Although Father Ke lly realizes that his words are

\ necessarily limping and inadequate to e xpress the full truth, ! he, nevertheless , tries to make as cl e ~r as possible the meaning of the natural law, as he understands it. In a dis - tinct explanation, h e uses a "time-worn" analogy of an inventor who constructs a new t ype of machine , e.g., a c ar . At its sale, h e issues a book of instructions on its correct and incorrect use. It i s granted that the inventor acted r eason- ably and, therefore , these instructions would not be arbitrary reflections havi ng no r eference to the nature of the machine. On the contrary, the instructions would b e "do's a n d don'ts" valida t ed by the inventor's intimate knowledge of

7Ke lly, Medico-Moral Problems, 1,_ 7.

8Kelly, Medico-Moral Problems . (1958), pp. 30-32. 11

the machine. He p l anned it f or a specific purpose ; he chose

the materials and arranged them according to a certain de-

sign; he kno",s its parts and his instructions make known his knowl edge in a practical way . Another gifted mechanic might examine the same machine and studying its composition and purpose could reach substantially the same conclusions, which the inventor expressed in his book of instructions. The in ventor a nd the examining mechanic both know that the very nature o f the machine requires that it be operated in a cer tain way or ways to accomplish its purpose.

Father Ke lly sees a s i milar thing taking place when

God creates human nature . He has a plan for and endows man with certain powers and functions. When the nature of a new human being is use d according to its inherent design, it will

accomblish its purpose ; whe n it is used contrary to this de sign, its purpose is defeated. God, in creating the huma n body with its particular design, expresses His will that it 9 be used in accordance with the des ign.

The book of instructions for human beings i s the

Decalogue given to Moses by God. These commandments contain

the main directives concerning the right and wrong use of

human nature--they are not arbitrary afterthoughts--not just

additions to human nature. They are, with the exception of

the command to keep the Sabbath~ a divine formulation of the

laws a l ready inherent in human nature. Any man with an

9Ibid., p. 29.

...... 12 adequately developed r easoning power and sufficient opportunity could arrive at the same conclusions expressed in the

Ten Corrrrnandme nts. Perhaps man cou ld arrive a-t even more de t ailed conclusions by an intense study of human nature. 10

This l aw o f human nature, existing in nature, existing i n n ature itself, i s called natural law and , more specifically, a divine natural law to show that God, not man, is the c r ea- tive originator of it. This also distinguishes it from laws expressive of the nature and property of i rrational things.

In a rare reference to Scripture, Father Kelly sUbstantiates this position--"the natural moral law is often said to be written in the heart of man."ll This signifies that God

10 In commentlng' on Pope PlUS" XII s encyc 1'lca 1" Humanl' Generis," Father Kelly admits that " .•• in life as it is actually lived, many obstacles hamper men in attaining an adequkte knowledge of the natural truths just by the use of reason . For one thing, the truths themselves, as the Pope observed, are supra-sensible: long study and close reasoning are often required for gaining a clear knowledge of them. Moreover, as regards the natural law, the principles and prejudices make it difficult to see , and particularly to accept, these conclusions. To these difficulties, the Pope might have added others explained by St. Thomas in Summa Contra Gentiles, Book I, Chapter IV,. many men lack the leisure for a serious study of these fundamental natural truths; others lack interest; and still others lack the riec essary mental equipment. In Su~~a Theologiae (I,q.l,a.l), St. Thomas Aquinas says that supernatural revela-tion is n e c essary, even as regards the truths about God that can be known by reason, because without this revelation only a small number of men would gain this knowledge, and even they would take a long time and would not avoid many errors." Cited in Kelly, Medico-Moral Problems (1958), pp. 152, 166.

llIbid., p. 30. John Ford, S.J., and Gerald Kelly, S.J., Contemporary Moral Theology, I (Wes tminster, Md.: New man Press, 1963), 5; "written in the heart of man" appears to have reference td Jer. 31:33. Father Kelly qubtes this same passage from the encyclical "Humani Generis" which refers to Rom. 2:14-16. 13 expresses His will in the very creation of human n ature .

This wil l of God exists and can be known independently of any wri tten or oral formulation . Th i s shows , therefore, -tha-t i -t binds all men , not just a certain few or group. As a consequence, a doub l e standard cannot be acceptable when there i s a q uesti on of the principles of natural l aw . Catholic moral- i sts are not standing against the whole world. There are many non-Catholics who accept and rigidly adhere to the moral principles and application formulated by Catholic moralists.

Father Ke l ly explains, "though our moralists may claim to have the only correct expression of the natural l aw , the y are not the only ones who possess that knowledge. ,,12 He illus- trates this by citing that e specially among jurists who h ave no sound r e ligious background, there is a tendency to ignore t he notion of divine laws and even deny their existence.

However (still in 1958), "fortunately, this tendency seems to be disappearing. There are many signs of a return to the kind of thinking t hat c haracterized Sir William Blackstone and the jurists o f this time" (1778) .13

12Ke lly, Medico-Moral Problems, I, 7. In the revised edition (1958) this quote appears with "the Church" instead of "our moralists" claiming to possess the only corre ct inter pretation of the natural law. Since "Humanae Vitae" these terms could not b e inte rchangeable as indicating that all Catholic moralists are in conformity with the teaching author ity of the Church.

13"This law of nature, being coeval with mankind and dictated by God himself, is of course, superior in obligation to any othe r. It is binding over all the globe, in all coun tries, and at alIt times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their authority, mediately or immediately, from this

, 14

In further making clear why a doubl e standard cannot be used when there is a questi on of the principles of natural law and especially in their application to medical cases, h e stresses that the law canno"t change . He does conce de, though, that due to the development of competence in Catholic moral theologians , the power to understand these principles, b ased on natural law and t heir imp lications , can grow and deepen ; t h us, one can l earn to formulate principl es more precise ly. He also admits that in c oncrete c ases, the application of principles can change from time to time , and even from case to case , according to the changing facts upon which the principle depends.

In explaining the moralists' competence, he touches two areas--the religious and the scientific--since both as I pects are involved. But, because one cannot expect that non-

Catholics accept the religious authority of the Church,

Father Kelly stresses the scientific competence more heavily.

By scientific competence, he does not mean that the

Catholic moralists are experts in the field of medicine ; although that may h appen occasionally. Mo s t moralists , not claiming to be medical experts, l eave medical judgments to competent medical me n. An exception would be in rare instances when bad medicine is apparent to anyone.

Father Kelly appeals to the competence of moralists by referring to their educational preparation and experience,

. t . . . original." Sir William Blackstone, Commentaries on the Laws of England (Oxford: The Clarendon Press, 17?8) , pp~ 39-42, quoted in Kelly, Medico-Moral Problems "(1958), pp. 1-2. 1 5

which i s i ntense and comprehensi ve. Their years of teaching

kept them up-to-date by constant practical application of

their science. Apart from any reference to religion, the

Catholic moralists represent by far the world's largest group

o f specialists in the science of study, which extends ove r . 1 4 c en t urles.

Therefore , declares Fa -ther Ke lly , wh en t hese mora l - ists a g r ee on the s t a t eme nt of a principl e of the natu r a l

law, or on the a pplica tion of a princip l e to a d e finite ethical proble m, their una nimity is worthy o f at l east the same intellectua l res p e ct that i s given to the agreement of e x- perts in other fields. "Their united opinions can only b e rightfully challenged by those who have made an equally pene- . trating study of the natural law and who offer sound reasons for their dissent.,,15 It appears that Father Kelly is not convinc ed of the competence of those who challenge the tradi-

tional understanding of the natural law.

And in regard to abortion, one might well ask, it seems to me, that these authorities establi~h some proof of their right to terminat e innocent lif e. Whence do the y derive this supreme prer~gative which sound reason tells us belongs to God alone?

14Fletcher, Morals and Medicine, p. 23. Fletcher agrees on this point and seconds the statement made by Father Kelly. .

15Kelly, Medico-Moral Problems (1958), p. 34.

16Kelly, Medico-Moral Problems, V, 16. Also see Gerald Kelly, "Rubella and Abortion," Hospital Progress, April 1953, pp. 64-65. Daniel Callahan comments in Abortion: Law, Choice and Morality (London: Macmillan Co., 1970), pp. 310-11: "But even Father Kelly having asserted that we can understand the sanctity of life and the right to life 16

I n the newer system of contemporary moral t heology, the personalist approach will definitely come to moral con- clus10ns. 1n. a dOff1 _ - erent way. 17 "'I'o d e scribe ·the morality of an action solely in terms of the phy sical nature of the faculty apart from any other existing re l ationships and circum stance appears to be inadequate ."l8 In the manualist system , the t e rms "dire ct" and "indirect" and "per se " a nd "per acc i- d ens " cause much consternation to the personalist and he accuses the manualist of making a moral conclusion exclusively o n the basis of physical structure of the act. This seems to leave a glaring credibility gap when the decision i s based on the physical structure, or on causa lity with in ten- tionality of the agent b e ing the nebulous differentiator between what is morally acceptable or unacceptable. Is there i . a burden of proof? Or, do the "manualist system" and the

"personalist system" both converge at the same point of con-. cern for the person and the principle?

However, the mistake of reading contemp orary through the natural law, concedes that it is not easy to prove the point by reason alone: 'The reason for this diffi culty seems to be that to those who really believe in cre a tion and the supreme dominion of God, the principle is too obvious to need proof; but for those who do not believe in creation there is no basis on which to build a proof. ,II

l7curran, New Perspectives in Moral Theology, p. 6: "The major problem with the concept of natural law as found in the manuals of moral theology and in papal pronouncements stems from the failure to recognize and employ the Thomistic distinction between 'lex naturalis' and 'jus naturale.'"

18Curran ~ "Absolute Norms and Medical Ethics," p. Ill. 17

pre occupations into the theories and j udgments o f the past

mus t be avoided , especially by the fervor of research stu

dents eager to proclaim a me ssage relevant for the modern world. It is, therefore, essential that in order to discover

the genuine thought of Father Kelly, that one must read it

against the b a ckground of his time , his psychology , and from

his world view. CHAPTER II

BASIC MEDICO - MORAL PRINCIPLES

Spe aking of basic medico-mora l principles, Father

Kelly comments, "I suppose it is only human to want to reduce things to their l eas t common denominator. In my own case I have for quite some time tried to formulate what might be termed basic principles of medical ethics. "I The follmving principles are the evident, "main principles that form the core of Father Kelly 's reasoned medico-moral code."

The consent of the individual

The realization of the true dignity of the person is the key to acknowledging the need of his consent. The funda mental reason for this principle of the natural law that each individual is constituted by Almighty God as the administra tor of his own life and he alth. Each individual has "power of attorney" over the members of his body and has the right and, generally, the duty to use l egitimate means to care for his life and health. The individual's consent is a necessary factor when giving medical care to that person. The medical person is simply acting for the individual and exercising 2 that individual's own right of self-preservation.

lKelly, ~edico-Moral Problems, V (1954) I 1.

2Kelly, Medico-Moral Problems (1958) I pp. 5-36.

18 19

The consent must b e a free and a rational act . It may b e i mp lici-t or explic i t. Fundamental and sound morality requires consent in one of these forms. Civil law requires even more than the natural l aw , e.g., the consent must be writt en for the protection of t he patient , medical personnel ,

and the hospital. 3 For infants and others who are incapable o f acting rationally , the parents or guardians h ave the r ight and , in many instances, the duty to give the consent .

What i s understood in Father Kelly's principle of right and duty of consent is the right and duty to preserve

life and no t to destroy it. This b asic principle applies also to the unborn child. It is of utmost i mportance in abortion . The p a rents and, more p articularly the mothe r, are not the owners of the fetus. They simply a ct for the child I who is unborn, just as any other parent or guardian of a child who is already born.

The fetus has a distinct right to life and h ealth

just as any human being, "mother and child have an inalien able and clear right to life. o4 °In the crisis of pregnancy in which there is a question of t wo innocent persons , there simp ly is no question of a 'conflict o f rights. ,,,5 Conse- quently, no decision or consent can b e given to deprive the

fetus of life. Each person is a distinct entity with a dis

tinct finality. "No matter how lowly his condition, he i s not subordinat e d to others in the order of b e ing.,,6

3Ibid., p. 40. 4Ibid., p. 74.

5Ibid . 6Ibid., p. 247. 20

Father Gerald Ke lly notes that this principle is expressed and explained strongly and clearly by Pope Pi us XII i n his October 29, 1951, address on the moral problems of married life.

Now the child, even the unborn child, i s a human being in the same d egree and by the same title as its mother . Every human being even t he. child i n the mother's womb re ceives its right to life d irectly f rom God not from its parents, nor from any huma n society or authority. There fore, there i s no man, no human authority , no science , no " indication," whether me dical , eugenical, soci a l, econom ic or moral, that can show or give a valid juridical title for a deliberate and direct disposing of an inno cent life. 7

God gives to no one the power to directly destroy inno cent human life. 8

The inviolability of innocent human life

God is the creator and master of human life and no one may\ tak' e It Wlt.. h out HlS . auth' orlzatlon. . Father Kelly admits a casuistic approach in giving sound arguments for the

State to punish criminals and the right of private individ- uals to defend their lives and precious possessio ns against unjust aggression eve n to the extent of killing the aggressor. However, h e says that neither the State nor any private

7Ibid., p. 63. See also Gerald Kelly, S.J., "Notes on Moral Theology," The ologic'al Studies · (1952), p. 38; also Acta Apostolicae Sedis 43 (December 20, 1951): 838-39; trans lation in Clergy Review 36 (December 1951): 382-83. This quotation cUlminates almost 2,000 years of Christian thinking about the nature and dealing with the unborn as a p erson cre ated by God. George Hunston Wi lliams, "Religious Residues and Presuppositions in the Ame rican Debate on Abortion," Theological Studits 31, No. 1 (March 1970): 40-41.

8Kelly, Medico-Moral Problems (1958), p. 5. 21 individual can establish any authorization to k ill the inno cent. 9 His conclusion i s that innocent life i s absolutely lnVlO" "1 a bl.e . 10

He applies this principle specifically to abortion.

"By reason of t h is principle we exclude all 'direct' killing o f the i nnocent , e.g., by destructive craniotomy of a living f etu s, by mercy killing , by direct abortion even for therapeu"tic r easons ." To authenticate this principle he again

9In an article , "Abortion," America, June 19, 1965, pp. 877-78, Father Richard HcCormick, S.J., explains: "It is a basic principle o f the Catholic Church that every man pos sesses his right to life from God--not from man or society. Here, in a word, i s the rationale of the Church's stand on abortion. . Innocent human life is stipulated in order to prescind from this principle the question of capital pun ishment and that of defense against unjust aggression. It is commonly (perhaps not universally) admitted that legitimate authority does not exceed its comoetence when it exacts the supreke penalty for very serious ~rimin a l offenses if this is neceskary in given historical instances. Not a few Christian thinkers explain in similar fashion each one's right to pro tect himself against unjust attack, eve n by killing, if no other defense would avert serious harm. Finally, it is com monly accepted tha"t, in time of justified warfare, combatants of an aggrieved nation may directly kill enemy combatants. These exceptions represent struggling (and not altogether successful) attempts to retain a minimal place for force within the Christian ethic."

10Milhave n, "Abortion Deba "te," pp. 112-15, esp. pp. 112-13, comme nts: "Mentality A which is found conspicu~ ously in the Roman Catholic tradition and has found technical expression in the works of moralists such as John Ford, Gerald Kelly, etc., prohibits unconditionally ~ll direct abortion, just as it prohibits unconditionally all direct killing of an innocent person. H~man life is sacred and in violable. But the full meaning of the principle is hidden since Mentality A permits indirect killing. This does not mean that Mentality A is inconsistent or arbitrary or that any of its positions are false . It does , however, point to one of the hidden principles Mentality A 'does not appeal to, but acts on,' an~ raises the question what the principle pre cisely is." 22 uses Pope PlUS. XII , s wor d s. 11

Any direct att.ack on an innocent human being violates one of the fundamental laws '.vi thout which i t is i mpossible for people to live safely in society, and above any human law, above any "indication"12 Ivhatsoever , -there stands the i ndefectible law of God. 13

The dir ect tak i ng of human life in direct abortion i s mur- 1 4 d er .

The princip le of totality

The principle of "totality,,15 i s a principle of ut- mo s t i mportance i n the practi ce of medicine. It i s used often to determine the mora lity of mutilating procedures.

Father Ke lly quotes Saint Thomas Aquinas ,16 who expl a i ned

llKelly, Medico-Moral Problems (1958) , p. 63.

I 12Father Kelly comments: "The Pope 's words are obvi ously' directed against doctors and others who think tha t in certain situations there are good r easons (they c a ll them 'indications' ) for the direct killing of an unborn child . Against these men h e defends the right of the child. But, he does not limit his words to the child; he defends all inno cent human life." Kelly, "Moral Code of Catholic Hospitals," p. 210. - .

13Kelly , Medico-Moral Problems (1958), p. 63.

14I bid., p . 75. In the booklet by t he same title (Part V, p . 17), Father Ke lly adds "apart from divi~ e authorization." .

15Father Kelly admits having take n this word "tota l ity" from Pope pius XII who used this expression in his ad dress to delegates to the First Internationa l Congress on the Histopathology of the Nervous System , Se ptember 13, 1952. His address was directed to the moral limits of 'medical re search and experimentation.

16"Since any member is a part of the whole human body, it e x ists for the sake of the whole as the imperfect for the sake of the perfect. Hence, a member of the human body is to be disposed of according as it may profit the whole. Per se, however, a member, by reason of its diseased 23

this principle several centuries ago as "thepart-for-the-

whole principle. " In -the exposition of Sain-t Thomas, -this

principle was applicable only to the -removal or mutilation of

diseased members of the body. In Father Kelly's explanation

he maintains that removal of a diseased member of the body is

only one facet of the part-for~the-whole principle. There

a re other situations in which a healthy part of th~ body may

be r emoved; for example , a man may amputate his foot to save

his life if it is caught i n a railroad track; a perfectly

hea lthy man who is ordered by a t yrant to "cut off your hand

or I'll cut off your h ead" is legitimately u sing this prin-

ciple when he cuts off a h ealthy hand in order to save his

life. The sacrifice of the healthy part of the body is per-

missible as a n ecessary me ans of preserving life . The indi vidua ~ may allow ind ividual parts of his body to b e d estroyed or mutilated when and to the extent necessary for the good of

his being. Good mora lity and good medicine demand that the

benefit d erived regarding total well-being should be comme n-

surate to the d estruction wh ich mu st t ake place. It is not

necessary that it b e a matter of life and death, b e cause

bodily parts and func tions exist for a r e a sonable state of 17 health as we ll as for survival. But, cautions Father Kelly,

condition, should endanger the well-being of the whole body, it is p e rmissible , with the consent of him whose member it is, to remove this diseased member for the well-being of the -whole body." Saint Thomas Aquinas, Summa Theologica , II a, IIae, art. 65, as quoted by Kelly, Medico-Moral Problems (1958), p. 89.

17 Because t h'"lS prlnclp 1 e was con f'uSlng and 24

i n order to j ustify q mutilati on , i t is necessary to verify 1 8 tha t a part exi sts for the good o f the whole.

rl' here are a number of situations in ''''hich this principle cannot be used . It c annot be used to justify seriously h armful experimentation , with or without the subject's con- s ent, i f the experimentation is o n ly for the advancement of me dicine or the good o f socie t y . The r eason f or t h i s i s t hat

the individ u a l is not subordina t e d to s oci ety as part to whole .

The dignity of the individual and his p ersonal r e ~ sponsibility for the care of his health d e ma nd tha t the individual consent to e xperimentation or the therapeutic care of his body. However, the individual is only the administrator of his life and body arid body functions; consequently, his \ power to dispose of his body parts is limited . He h as to ob- serve a "hierarchy of values." Proced ures which would deprive him of his highe r faculties such as inte llection and

troublesome to a number of people, Pope Pius XII speci fic a lly speaks of the destruction or removal of h ealthy organs for the good of the whole in an address on Octobe r 1, 1953. The decisive point here is not that the organ which i s remove d or rendered inoperative be itse l f dise ase d, but that its prese r vation or its functioning entails dire ctly or indire ctly a serious threa t to the whole body. It is q u ite poss ible that , by its normal function, a h e althy organ may e xercis e on a ' diseased one so harmful an effect as to aggravate the disease and its repercussions on the whole body. It can also happe n that the removal of a healthy organ and the suppression of its normal function may remove from a dise ase, cancer for example, its area for development or', in any case, essentially alter its conditions of existence. If no other reme dy is available, surgical intervention is permissible in hoth cases.

l8This is of critical importance in the problem of abortion. . 25

.-- t he use of free will are prohibited. Procedures related to the reproduction system have q ualifications attached. The reproductive power, i.e., the function itself is primarily for the good of t he species and not for t he individual. This reproductive function is not d irectl y subordinated to the individual's well-being. However, even if this power is not subordinated to the individual's well-being, if disease of the reproductive organs or system occurs, it is justifiable to suppress endocrine function or remove the organs themselves, if no less drastic therapy would suffice to remedy the condi~ tion. Father Kelly notes that from the point of view of civil and canon law, mutilation usually connotes some kind of wrong- doing. This is not the case in medicine or moral theology

', for mutilations are justifiable if they are in accordance w'ith sound principles, unjustifiable if they are contrary to these prlnclp. . 1 es. 19

The principle of totality cannot be used in justify-

lng. organlc. transp l antatlons' 20 f rom one In. d'lVl . d ua 1 to anot h er

19Kelly, Medico-Moral Problems (1958), p. 8. Justi fied and unjustified mutilation will be discussed at greater length under "Specific Principles Concerning Abortion."

20"It may come as a su+"prise to physicians that theo logians should have any difficulty about mutilations and other procedures wh i c;::h are performed , with ,the consent of the sUbject but which have as their purpose the helping of others. By ~ sort of instinctive judgment, we consider that the giv ing of a part of one ' s body to help a sick man is not only morally justifiable but, in some instances, a c tually heroic. My own opinion is substantially in accord with this instinc tive judgment: Yet I should be less than fair if I did not indicate here that some eminent theologians are against this and that, as a re~ult, there is considerable controversy today . . a more satisfy ing reason aside from physiological replenishing of the parts or non-replenishing is found in the law of fraternal charity , according to which one's neighbor 26

although this is j usti f i able using o ther principles, such as

charity. His reason is that no human bei ng i s subordinated

to another as part to the who l e . (Because of this objection, the principle of totality cannot be used to j ustify a muti-

lating procedure on a mother wh ich entail s the loss of a

fetus. ) This principle may not be used to justify abortions.

Father Kelly maintains plainly that the child is a distinct 21 person in his own right. Therefore, a removal of a child

under this principle is not morally justifiable b ecause the

child is not a part of the totality of the mother. 22 liLittle

need be said concerning this principle . it is evident

that one may not simply apply the principle of totality when

the treatment of the mother entails danger for her child be

caus ~ the child cannot be included under subordination of the \ . 23 part of the whole."

On the other hand, the principle of totality may be

used when there is a question of performing procedures proven

is "another self." Kelly, Medico-Mora l Problems (1958), pp. 246-47. 21 See above, p. 19, nne 3-6.

22"Those who would claim that the fetus is just an other part of the mother's body seem to be ignoring biologi cal facts that have been known for centuries; i.e., that the fetus has its own brain, its own heart, its own circulatory ·system, etc." Joseph T. Mangan , S.cT., "The Wonder of 1'1yself : Ethical-Theological Aspects of Direct Abortion," Theological Studies 31 (March 1917): 131. In Fletcher 's opinion the embryo before birth is only a "portion of the mother" which may be excised if it threat ens. Fletcher, M2rals and Medicine, pp. 150-52.

23Gerald Kelly, S.J., "Pius XII and the Principle of Totality," Theology Digest 4 (Autumn 1956): ISO, 152. 27 or experimentally beneficial to the health 6f the unborn child . Surgery in utero is permissible as l ong as it con- tributes to the well-being of the child, e.g. , an intra- uterine blood exchange for an erythroblasticfetus. The pro- c edure " craniotomy" is a subject of con-troversy for many reasons . One o f the probl ems concerning this procedure i n- volves a misunderstanding of t he t e rm, "craniotomy ." It has been understood to mean the crushing of a child's h ead t o facilitate delivery in pelvic disproport ion; 24 however, i t can also refer to the aspiration of t he cranial c avity t o relieve hydrocepha lus, or other abnormalities of the cranium which may present themse lves. Father Kell y makes this distinction in Directive 19 in Medico-Moral Problems (1958) , page 96. "Crania l and other ope rations for the destruction I 25 o f fetal life are forbidden . Procedures designed to preserve fetal life are permitted even before delivery when such procedures are medically indicated ."

24Because of the advance of medical science in labor atory, X-Ray and Obstetrics and Gynecology , the probl em of pelvic dispr oportion and other related problems are practi cally speaking nonexistent. Because of mixture of nationali ties in marital situations a nd premarital situations this is a unique problem in our more sophisticated civilization. This is hardly a problem in countries such as Laos, Africa , Asia, where there is minimal inte rmarriage.

25Father Charles Curran argues against Father Kelly's position regarding craniotomy or fetal head crus hing. "Logi cally, one could defend craniotomy (fetal head crushing ) to preserve the life of the mother according to the principles of Thomas (II II,q. 64 a . 7) even though moral theologians and Church statements deny the morality of craniotomy in thos€ cases." Curran, A New Look at Christian Morality, p. 241. 28

The intrinsic finality of the sex faculties

The sexual faculty and act, the divinely planned sources of new life , have a specific inviolability against human intervention. To destroy the physica l integrity of coitus or to deprive the procreative faculty of its power of generating new life is not a prerogative of man. The faculty and the act are designed by God to be life-giving and God does not give man the power to tamper with or frustrate the natural purpose. The act of contraception is not in the cate- gory of acts which are sometimes justified for good reasons 26 (e.g., mutilations); it is absolutely and always wrong.

The sexual faculty and act are for the procreation of a new human life which consequently keep the human species existing and are for the good of the species. Father Kelly points out that the act of contraception is not for the good of the species.

There can be no question of a justifying reason, nor of a "permission," for even one act of contraception. The only possible excuse is a subjective one, e.g., ignorance of

26"The only reasonable explanation of this consis tency is that from time immemorial the Church held and ap plied the natural-law principle that forms the basis for the teaching of Pius XI and Pius · XII, that the inherent procrea tive purpose, the procreative design of the conjugal act must always be respected; therefore, it is never licit to perform the act and try to frustrate · that purpose or mutilate the design." John C. Ford, S.J., and Gerald Kelly, S.J., Con temporary Moral Theology, II (Westminster, Md.: Newman- Press, 1963), 277. For a full explanation of this doctrine see ibid., chaps. -13 and 14, pp. 256-314. 29 t he divine prohibition.

The Church i s so completely committed to the doctrine that con·traception is i ntrinsically and gravely i mmoral that no substant ial change i n this t eaching i s possible. I t is irrevocable. 27

The intrins ic finality o f the sex faculties has been 28 taught by the Church who has spoken through r e cent popes and has rei terated what used to be uniform and un inte rrupted

27Ibid., p. 277. 28pope Pius XI in his encyclical "Casti Connubii" (D ecember 31, 1930) a sserts: "Since , therefore , openly de parting from the uninte rrupted Christian tradition some r e c ently h ave j udged it possible solemn ly to declare another doctrine regarding this question, the Catholic Church, to whom God has entrusted the de fense of the integrity and pur ity of morals , standing erect in the midst of the moral ruin which surrounds her, in order that she may preserve the chastity of the nuptial union from being defiled by this foul stain, raises her voice in token of her divine ambassadorship and through our mouth proclaims anew: any use whatsoever of matrimony exercised in such a way that the act deliberately frustrated in its natural power to generate life is an of fense against the law of God and of nature; and those who indulge in such are branded with the guilt of a grave sin." Cited in Kelly, Medico-Moral Problems (1958), p. 154. The whole text can be found in AAS, 22 (1930): 560. The same argument concerning fina lity is given more completely by Pope Pius XII in his address of October 29, 1951: "The order to be observed here has been established by God's sovereign in telligence and is directed to His creative purpose; it con cerns the external activity of hu~ a n beings and the internal adherence of their free will; it determines what they are bound to do and what it is the ir duty to avoid. Nature puts at man's disposal the whole chain of causes which will result in the appe arance of a new human life; it is for him to re lease this vital force and it is for nature to develop its course and bring it to completion. When once man has done his part and set in motion the marvelous process which will produce a new life, it is his bound duty to let it take its course. He must not arrest it or frustrate its natural development. "Quoted in Gerald Kelly, "Contraception and Natural Law," Catholic Theological Society of America Pro ceedings 18-19 (1963-64): 29. Also Medico-Moral Problems (1958), p. 157. 'the full text can be found in AAS 43 (1951): 836. 30

C_rlstlanh · . t ra d ltlon" . 29 Father Kelly notes that the popes

consider t heir interpretation of the natural law to be con-

f lrme· d 'Dy d l.Vlne" reve l atlon.' 30

29 T~e1 unl. nLerrup..... t e d Ch rlstlan" trad ltlon" seems to rest upon the biblical passage Gen. 38:8-10. The reference is to the Levirate Law. A difference of interpre·tation observed by Father Kelly is that some non-Catholics i nterpret Onan ' s slay ing as a punishment from God for not fulfilling the l aw (a selfish disregard of his deceased brother's interests ). He states that both Catholic Scripture scholars (there is a question about whether this is unanimous among Scripture scholars today) and Catholic tradition reject the punishment for breaking the law theory and say that Onan was slain for frustrating the marriage act. Pope Pius XI in "Casti con nubii" (19 30), (pp. 19-20 of the N.C.W.C. translation) q uotes St. Augus tine (De adulterinis coniugii II, 12), not for the saint's personal view, but because his teaching may b e take n as typical of early Christian tradition. Father Kelly quotes Saint Fr~ncis de Sales in deEense of the traditional teaching of the Church. In the sevent eenth century he wrote, ". although certain heretics of our age . . . have tried to : prove that it was the perverse intention of this wicked man (Onan) which displeased God, the Scripture nevertheless speaks quite otherwise, and asserts emphatically that the thing itself which he did was detestable and abominable in the sight of God." St. Francis de Sales, . Introduction to a Devout Life, trans. Allan Ross (Westminster , Md.: Newman Press, 1953), p. 210, quoted in Kelly, Medico-Moral Problems (1958), p. 160.

30 In the book, Contemp orary Moral Theology, Father Kelly with Father Ford offered this summary of conclusions regarding the doctrine of finality of the s ex faculties taught by the Church through revelation and Christian tradi tion. "Our conclusion is that the t eaching of the Church on contraception is eithe r revealed, or pertain to revelation in such a way that it can be infallibly defined by the Church . . It isn't easy at present to assign a technical dogmatic note to the doctrine. But it is safe to say that it is 'at least definable doctrine,' and it is ver;y likely already - taught infallibly e x jugi mag isterio .... And sinae the doctrine is at l east definable~ it is part of the secondary object of infallibility and may be proposed as a truth which is absolutely tenenda. And there are good, though not yet convincing, reasons for holding that this doctrine is a part of the depositum fidei and can thus be infallibly taught as credenda ..•. W~ would hope for further elucidation of both alternatives from competent scholars or from the Church it self." Ford and Kelly, Contemporary Moral Theology, 11,. 275- 78 . .. Also see "Is This Revealed Doctrine?" Ibid., pp. 271-75. 31

In the l ast analysi s , the argument from finality i s the argument against b i rth prevention . Nevertheless, it must be admitted , as Monsignor John A. Ryan once pointed out, t hat the argument is t o a g r eat extent intui"tive: one either grasps it or o ne does not. Moreover, being meta physical , the argument has n o appeal to the emotions; whereas the so-called arguments in favor of ar"tificial birth prevention are cast i n a highly emotional frame work: the s ick mother, the dire poverty of a tenement family and so forth . For these r easons Catholics who write against a rtificial birth prevention often develop indirect arguments t hat are in r eality secondary but wh ich may have more popular appeal. For exampl e , these writers show the harmful effects of artificial birth prevention on the individual character and o n soc i ety ; they explain h ow the justific ation of contrace ptive practice s for any reason whatsoever, leads logically and inevitably to the undermining of sex ethics; and so forth. 31 .

Father Kelly points out that when speaking of the

"good of the species" he does not mean that the act or faculty is subordinated to society or to the common good. The reason he emphasizes this point is that some people think that in a time of population crisis the faculty may be sup- pressed and t he structure modified for the good of socie ty.

To avoid misunderstanding he stresses that the "good of the species" is identified with the life-giving finality of the faculty and the act, and the subordination is not to the

31Kelly, Medico-Moral Problems (1958), p. 158. Daniel Callahan makes this comment in "Authority and the The ologian," Commonweal , June 5, 1964, p. 323, with Father Kelly as his particular target: "The reason, for instance, why the natural law arguments against contraception are so unpersua sive today does not stem from suddenly discovered fallacy in one step of the argument. . or a rejection of one of the premises. . rather , because of a radical shift of perspec- tive, the development of a new group consciousness, the shaping o f new co~ceptual and linguistic tools, and the im pact of history and social circumstances." 32

32 common good or to society but directly to GOd.

The first four princ i p l es presented have a specific

r elevancy to medical ethics . The following principles to be

discussed are more general and apply to the whole field of

morality.

Doing good and avoiding evil

While this principle, which incorporates the affirma-

tive and negative precepts of the natural law, sounds so

simple in itself i t is r eally very comp licated in explana-

tion. It actually is composed of two principles: firstly ,

"the end never justifies an evil means," which is taught to

us by reason and by revelation;33 and secondly, "the basic

: distinction b etween avoiding evil and doing good." Father

\ Kelly' asse rts that to the the ologian the "basic distinction" I principle is of extreme importance. The principle does not

mean that no evil may be done in order to obtain good.

It refers primarily to moral evil ; and in this respect it is absolute, because moral evil may n ever b e done to obtain any kind of good. The principle is not absolute as regards physical evil , because the r e are some physi cal evils that we have a right to c a u se in orde r to

32Kelly, "Contraception and Natural Law," CTSAP 18-19 (1963-64): 38.

33The scriptural passage used is Rom. 3:8, "If so, why should we not do evil so that good may come of it?" "That is what we are accused of prea:ching by some of our detractors and their condemnation of it is just," as cited by Kelly, Medico-Moral Problems (1958), pp. 4-5. The itali cized section is Father Kelly's way of bringing attention to the accusation leve led against the Jesuits. See Bernard Haring, C.SS.R., The Law of Christ, I (We stminster, Md.: The Newman Press, 1966), 291-92. 33

3 4 obtain a good effect.

There are two other principles invol ved in making moral decisions. One has already been discussed, namely, the principle of totality which allows man the right , and sometimes the obli gation, to mutilate parts of his body for the good of -the \vho l e body . The second is t he pr :_ncipl e of double effect which will be discussed as the s i xt h principle.

Taki ng t o task some who do n ot uphold the principle,

"a good end cannot justify an evil means," Father Kelly offers this s ever e criticism: "It mu s t b e admitted that those who are not soundly trained in the science of morality are much inclined to judge things as i f a good end did just i fy an 35 evil means . Thus , the re are sincere defenders of such

34Kelly, Medico-Moral Problems (1958), p. 4.

35such an approach is espoused by Joseph Fletche r who claims that non-Roman Christians ought to be as clear and articulate about their own principles, their application and ethical method. He s e riously suggests five propositi ons: "1) Making babies is a good thing but making love is, too, and we can and should make love even if no baby is in-tended. There ought to be no unintended or unwanted babies. 2) The best way to accomplish this fact is to preve nt their conce p tion; nex t best to prevent fertility; and least desirable end a pregnancy already begun. But any of these methods is good if the good to be gained is great enough to justify the means. 3) All medicine and art and science is an 'interfer ence' with brute nature, using or outwitting it creatively and artificially, for the sake of human chosen ends. To be artificial or against natur ~ is often the highest good, in terms of moral values. 4) Only one thing is intrinsically good. Nothing but malice and ill will is unconditionally evil. Every thing is good or bad according to the circum stances, including abortion and contraception, etc. This is theological relativism based on God as unconditional and absolute love. 5) Finally, if there are people who believe that these things are wrong or sinful, let them act accord ingly. But let them not try to deprive their neighbors, who 34 things as the therapeutic abortion, masturbation to obtain semen for analysis , donor insemination, etc." His objection to these and similar things is that , though t he ult imate purposes are certainly good (e . g ., to save a mother's life , to promote fertility ) the means used to attain these purposes are morally evil and never permitted.

The principle of the double effe ct

The principle of the double effect supposes that an action has two effects, a good effect which is intended and an evil effect which is not intended. This principle may be used to justify an action under certain conditions. The conditions are: 1) The action, considered by itself and inde-

' pendently of its effects, must not be morally evil, e.g., blasphemy, perjury, murder, which are intrinsically evil.

2) The evil effect must not be the means of producing the good effect. 3) The evil effect is sincerely not intended but merely tolerated. 4) There must be a proportionate reason for performing the action, in spite of its evil consequences.

This principle, remarks Father Kelly, is used by con- scientious people every d ay, even without being aware, to solve the practical problems of life. It has special sig- nificance medico-morally in its application to procedures

~ee differently of their freedom and responsibility." See Joseph Fletcher, Moral Responsibility (Philadelphia: westminster Press, 1967), pp. 123-24. 35 which cause evil effects that are outside the scope of man' s direct rights. Many still are shocked by its application in difficult cases, such as i ndi rect sterilization and indirect abortion. But ,

i n i ts application , an extr emely subtle principle, i t, neverthel ess, is absol u t ely sound. It i s j usti fiable in the light o f reason and conscience. It is practi cally i mpossible to question the principle even though it may , at times , be applied to justify procedures which result in the death of innocent persons. 36

Two examples of j ustifi able procedures under this principl e are removal of an ectopic pregnancy and the removal of a cancerous uterus which is pregnant. Th i s princ i ple will b e discussed in the nex t chapter when the specific principles concerning abortion are investigated.

The principle of "liberty" I There are pros and cons to many moral problems and it usually takes a long time before unanimous opinion is reached or some moral issue i s d ecisively s ettl ed by the Church.

Theologians and doctors have differences of op inion on many questions of moral principle especially when the p r oblems presented are, to a degr ee , new. In this situation, sound morality provides the practical principle of liberty which may be used in legitimately debated matters.

36T . Lincoln Bouscaren, S . J., Ethics of Ectopic Oper ations, 2nd ed. (Milwaukee: The Bruce Publishing Co., 1944), pp. 37-38, as cited in Kelly, Medico-Moral Problems (1958), p. 15. Father Bouscaren gives a full e xposition of this principle in the teaching of St. Thomas and Cardinal De Lugo in "Fundamental Principles" found in Ethics of Ectopic Opera tions, pp. 30-38. 36

Obligations, such as pr e c epts a nd p roh ibit i ons , should not be i mpos ed unle ss they a r e c e rt"ain. 37 Fat her

Ke lly , howe v er, e xplicate s:

The pr inci p l e that oblig ati ons a re not to be imposed unl ess ther e i s c e rta i nty i s n ot t he same as saying that when " i n doub t" t h ere is "liberty ." There are doubts and doubts; and not a ll doubts can be resolv ed into free dom from definite obligation, e.g., in all cases in which the presence of pregnancy would make a procedure illicit, the doctor must make use of such tests and consultation as may seem necessary.38

This is a "doubt of fact" and reason dictates that means should be taken to remove doubt when a dangerous procedure is followed.

Thus, after research and study of Father Kelly's explaining basic medico-moral principle, at this point one may conclude that he admits no conceivable rationalization where- by mother, father, doctor, or any other person, make take a civil or moral right, or a duty decision to destroy the life of an unborn child. In essence, "God gives to no one the power to directly destroy innocent human life.,,39

37"It is easy for dissatisfaction with obligationism to boil over into dissatisfaction with obligations; for irri tation with legalism to believe irritation with law, for affection for the concrete, the personally creative, and the subjectively satisfying to verge on disparagement of the abstract, universal and obj ective values of Christian moral ity." Ford and Kelly, Contemp orary Horal Theology, I, 102- 03. I

38Gerald Kelly, S .J. , Medico-Moral Problems, II (St. Louis: Catholic Ho s pital Association, 1950), 4-5.

39Kelly, Medico-Moral Problems (1958), p. 5. CHAPTER III

FOfu~ULATION OF SPECIFIC PRINCIPLES

CONCERNING ABORTION

According to Divine Law and Specifically with Reference to the Fifth Commandment

Directive 12 or the first of Father Kelly's specific principles conce rning the morality of abortion i s a systema~ tized statement reduced from a Judaeo-Christian tradition which upholds the sacredness of human life as some thing more than mere custom. This explicit statement is confirmed by a tradition that reaches back into the Old Testament times and I extends without any break through the centuries of Christian civilization.

Stressing again the already mentioned point of the natural law righ-t to life (" every human being even the child in the mother's womb receives its right to life directly from God, not from its parents, nor from any human society or authoritY"),l Father Kelly reinforces his basic principle by adding the scriptural prohibition of the Decalogue,"Thou shalt not kill."2 He qualifies this prohibition or divine

I pius XII, "Moral Questions Affecting Marri~d Life," Address to the Catholic Union of Midwives, October 29, 1951, as quoted by Kelly, Medico-Moral Problems (195 8), p. 63; full text NCWC translation, particular citation, p. 6.

2Ibid . Pius XII, Address to the National Congress of

37 38

command wit h further scriptural quotations from Exodus and

Da niel: "The innocent and j ust man thou shalt not put to death.,,3

Father Ke lly reasons that any movement that favors

the direct killing of innocent persons is contrary to the

divine and natural l aw and revelation. All t he expediences

in t he worl d may be offered as mitigati ons, but the unquali-

fie d prohibition, "The i nnocent and just thou shalt not kill," remains; and any moveme nt directed against the appre-

ciation of the meaning a nd value of human life is clearly un 4 Chris tian and likens man to a mere animal.

What is direct killing? Father Kelly gives various

definitions. Pius XII defined it as an action which aims at

the destruction of life, either as an end or as a means to

some end. Father Kelly explains that it was inevitable that

the Family Front, and the Association of La rge Families, November 26, 1951, cited in Kelly, Medico-Moral Problems (1958), p. 64; NCWC translation, p. 26. See Kelly, "Notes in Moral Theology, 1952," Theological Studies 1 4 (1953): 39.

3 Ex. 23:7; Dan. 13 : 53.

4An inte resting and ironic note (especially i n view of the happenings in legislation today ) is recorded by Father Kelly:" . the essentia l distinction between man and ani mal as something basic to the legal and religious traditions o f Wes-tern civilization puts primary emphasis on the ethical principle that no man has the right to kill the innocent. This argument is stated very neatly in the ' American Way' when we say that all men are created equal." "Editorial," Boston Traveler, January 9, 1950; reprinted in The Catholic Mind, March 1950, pp. 178-79; cited in Kelly, Medico-Moral PrOblems (1958), p. 125. 39

the result of the Pope ' s AllocutionS would lead theologians

to sub j ect the definition to a more minute analysis. He note s that J. McCarthy ,6 with Louis Bender , o.p., 7 define killing as direct when the destruction of human l ife, f e tal or other, i s the immediate and per se object of the l ethal act or omission. Indirect killing according to t hese two the ologians i s used to describe the situation in whi c h death arises per acci dens, by reason of the presence of factors which are r eal but are not the direct inte ntion or aim of the act or procedure accomplished. In other words , the death of an inviable f etu s is per accidens when a pregnant uterus is removed because of cance r. The aim of the procedure is good: to save the life of the mother by removing the cancer site; the evil effect, the death of the fetus, is not the direct aim or intention of the procedure performed.

Also quoted is the t heologian Father F. Hurth. Father

Hurth offers his e xplanation of direct and indirect killing as follmvs : an action can have two equally immediate and per se effects, admitting a close similarity between an actio directe occisiva and an actio per Se occisiva but denying their identity. In the case of t wo equally immediate and per se effects, only one of which is death, the determination of

5pius XII, "Conjugal Morality," AAS 43 (December 20, 1951): 838-39.

6J . McCarthy, "Recent Papal Address and Indirect Killing," Irish Ecclesiastical Record, January 1952, pp. 38- 41. .

7Louis Bender, O.P., "Occisio directa et indirecta," Angelicum 28 (August-September 1951): 224-53. 40

whether the action is a direct killing cannot be made from

the nature of the action itself , but must be looked for in

the finis operantis. So, in the situation of two or more

equally immediate and per se effects , the direct effe ct is

the one chosen by the agent himself and those which he merely

tolerates are indirect effec-ts. Fathe r Kelly adds, "'1'11is i s

not t o say that Father Hurth denies the existe nce of any

direct killing ex fine operis; but t h is would be verified, i t

appears, only in t he c ase in which the sole immediate effect

of the action i s destruction of life .,,8

Of t hese present ed definitions and anal yses Fathe r

Kelly prefers Father Hurth's presentation o f direct and in-

direct effects. He gives his own interpretation of the im-

' portant idea of effectus indirectus in the English wor d "by

prodJ ct." He translates effectus indirectus to the term "by-

product" in the complete sense that it is an unintentional

by-product of an action which is intentially aimed at pro-

ducing anothe r effect. "By-product" doe s no-t necessarily 9 mean a per accidens effect. He d enies tha t the d eath of an

inviable fetus caused by a hysterec-tomy during pregn ancy for

the treatment of cancer is merely a per accidens effect. It

is known with certitude that the operation will result in the

8periodica 40 (Octobe r-December 1951): 405-06. See also an unsigned analysis of direct killing, Ibid 29 (1940) 346, cited in Kelly, "Notes on Horal Theology, 1952," pp. 38-45.

9 See Father Kelly's analogy, "Notes on Moral The- ology, 1952," p. 41 .

. f,,::';'" ...:~ . .~.," 41 death of the non-viable fetus , but the death is an unavoidable "by-product" and r etains the character of " indirectness" as _'L ong as l' t lS' not lnten' d e d as a d'lrect k l' IIlng.' 10

In view of the preceding discussion the direct effect of the action, theologically, must be determined by the finis operanti~. Therefore, direct abortion for Father Kelly means the interruption of a pregnancy i n itself, or as a means to some other end. Practically speaking, the life of the fetus ll is directly attacked by some mode or method with full in- t ention of t erminating its life.

Fathe r Kelly's position is that direct abortion may n ever be done even when it is "euphemistically" labeled

"therapeutic. ,,12 His principle seems to be fixed totally in the physical causality and structure of the action allowing for no exte nuating circumstances of a psychological, emotional, or socio-economic nature or for a life and death situation. Naturally, this position is being seriously chal lenged by a number of theologians today, Catholic13 as well

10 I t a I'lCS mlne., 11 Ita l'lCS mlne.,

12This statement is made by Father Ke lly after con sideration of official statements of the Holy See and pro nouncements of Pope Leo XIII, Pope Pius XI, and Pope Pius XII. This point will be expanded in a section of the thesis investigating the formulation of his specific principles according to Ecclesiology. .

13The main objection to this absolute certitude that direct therapeutic abortion is immoral is the too easy iden tification of the physical action itself, or the physical structure of the effects, with the moral determination of the human action. See' Archbishop Denis Hurley, "A New Moral Principle," The Furrow 17 (1966): 619-22; ibid. (1967), pp. 167-70, 275-77; Denis Hurley, "Principle of Overriding 42 as non- Catholi c.

Promine n t on t he l i st of ob j ections i s t he suggestion t hat in an ext reme case , when the life of t h e mother .can be s a ved only by the t ermination of an i nvi able pregnancy , it should b e allowable ·t o tre at the f e t us as a "mate riall y " un- j ust a ggressor. Father Kell y s tates:

This absolute stand condemn ing the rapeuti c ab ortion has b e e n hel d by a ma j ority of Cathol ic mora lists . Neve rthe l ess , a s ma ll number and among t hes e a few e minen t the o logians were not conv i n c ed o f the neces sit y o f this ab so lute pos ition; they suggest e d v a rious solut ions tha t we r e eithe r a jus tif icatio n o f direct abort ion in ver y e x treme cases or an avoida n ce of the dif ficulty by making the abor tion seem an indirect killing o f the fet u s. In a c e rtai n s e n se , it might b e cons i dered fortunate that some of the theologians inv olve d in the early dis cussions of this topic were oppose d to the more commo n position. For in suggesting some reas ons why t he f e tus might be s a crifice d to save the mothe r's life , t hey dis cussed and brought answer s to most of the obj e ction s tha-t are urged even today aga inst the Catholic position .14

\ The child in utero who threatens the life of its mother is frequently comp are d to a me ntally ill person who attacks an innocent person. The me ntally ill person is called a "mate rially" unjust aggressor because he cannot b e forma lly (subj e ctive ly) r e sponsible for the att ack.

Father Kelly's t e aching on the subject of the unjust aggressor is based on the theological e xplanation of the morality of ectopic operations, but adds that the argument holds more weight in a normal pregnancy. The two theologians

Right," Theological Studies 29 (1968): 302-04; and Cornelius J. Van Der Poel, "The Principles of Double Effect," in Abso lutes in Moral Theology, ed. C. Curran (Washington, D.C-.-:- Corpus Books, 1969), pp. 186-210.

14Kelly, Medico-Moral Problems (1958), pp. 71-72. 43

. 15 , 1 6 he quotes are I . Aertnys, C.SS . R., and A. Lenmkuhl , S.J .

Father Aertnys rejects the analogy and states that the infant could be licitly kille d or aborted if the analogy we r e correct , but in his estimation the analogy is not sound. The i nfant i s no·t carrying out an " aggres sion. " The fetus is making no attempt on t h e mother ' s l ife , t he chi ld is only t rying t o be born a nd t h e d anger t o the mother or the d eath o f the mo ther wou ld b e a natural c ourse of e ve nts .

Fa ther Le hmk uhl's first pos ition on the subje ct of removal of an ectop ic fetus was that the fetus relinguishe d its right to r e ma in in the uterus so that its mother could b e save.d 17 He 1 ater reSCln" d e d t h"lS posltlon"" a f ter realzlng1" " . " 18 the weakne ss of hlS argument.

15Aertnys, Ecclesiastical Review 9 (1893) 354.

l6Lehmkuhl, Theologia Moralis, 1: 1010.

17"It is lawful for the fetus to deprive himself of a vital eleme nt, or, since he is as yet incapable of actual volition, it is lawful for another acting for him in accord ance with his interpretative volition, to deprive the fetus of a vital element, in order that the mother may be saved and that the child himse lf may have a chance of baptism. I said it is lawful for him to deprive himself, and not to b e de prived, so as to avoid having to discuss the question whethe r and under what circumstances it is allowed, when two lives are in danger, to deprive one against his will of an instru ment which is n e cessary for his life, in order to save the life of the other. For in our case it is not necessary to argue that question." Lehmkuhl, Ecclesiastical Review, 9: 348. His full statement may be compiled from ibid., 9: 347; 10: 10, 60, 64; 11: 9, 45, 125; translated in Bouscaren Ethics of Ectopic Ope rations, p. 19. The problem of unjust aggressor and conflict of rights and supposed consent of the fetus was debated by the noted theologians--Lehmkuhl, Sabetti, Aertnys, and Eschback and appeared in Ecclesiastical Review, vol. 9 (1893). A prief presentation and translation appears in Bouscaren, Ethics of Ectopic Operations.

l8Father Lehmkuhl's position is as follows: "The

- 44

Part o f Father Lehmkuhl's rescinding statement considerations which seemed to me to have some we i ght were the following . It is true that per se the fetus has a right to that vital element--I mean his inherence in the uterus- since nature has provided it for him. But one may p e rhaps say that under those circumstances the right may b e forced to yield to a prior right of the mother; or, to put it anothe r way , that the fetus can renounce his right , and i f so that he does renounce it. For, i f one may consider this i nherence of the fetus though ne c essary for life, then it would seem that , in the first place, the fetus can renounce his right to it in favor of the mother's life, just as in shipwreck a man may yield a place to his friend and slip off into the water , even though he must soon drown; and, secondly, it would seem that the fetus does in fact renounce his right, at l east in every case where the risk to him of dying without baptism is not aggravated but rather lessened by the abortion, for in that case, his right to inhere in the uterus has become quite void of any advantage for him. On the other hand, if we must re gard the inherence of the fetus in the uterus as an element belonging intrinsically to the fetus and to the fetal life, yet it would seem that the thing which is attacked primarily and per se is not the living fetus himself but something ~hich one might say with equal justice belongs to the mother 'as to the fetus. The latter's right thus coming in conflict with that of the mother seems to become less certain, just as does one's right to the common air we breathe, if we may imag ine a case where that were not sufficient both for me and for a guest. For these reasons it seemed to me that the opera tion in question was essentially different from craniotomy." According to Bouscaren, Lehmkuhl held that the death of the fetus in medical abortion could be positively permitted using the principle of double effect, but he also appealed to a fiction of consent on the part of the fetus~ Aertnys argued against Lehmkuhl's position maintain ing that "It makes no difference if the child's consent is presumed, for it is not master of its own life." Ecclesias tical Review, 9: 354. See Waffalaert, Nouvelle Revue Theo logique, 16: 379ff. Father Bouscaren states that Father Lehmkuhl never claimed t h at the child could consent to deprive himself of a vital element~ However, the consent argument is weak and irrelevant for if it is a direct killing, the con sent of the child, actual or interpretative, i~ of no avail for the child has no more right to terminate its life than an adult for God alone has domination over every individual life. If the killing of the child is indirect, no consent is neces sary for the principle involved in the morality of indirect killing is the principle of double effect and not consent. When Father Lehmkuhl realized that he could not distinguish his medical abortion from direct killing he repudiated his own position calling it "specious rather than true." Bous caren, Ethics of Ectopic Operations, pp. 19, 52-53. 45 appears in Medico-Moral problems ,19 but in the ful l text it is seen that part of the reason for his rethinking of the problem is the official statement of the Holy Office of

May 28, 1884. He admits trying to present reasons to show that such a violent attack on the fetus and "its vital element" might be allowed in an effort to save the life of the mother. He proposed the opinion as doubtful, because he was unwilling in so grave a matter to trust entirely to his own judgment ; nevertheless, he was against imposing a strict obligation, at least until the obligation was seen as absolutely certain or had bee n so declared by the Church.

The Holy Office however, thought otherwise. They have held that such an attack upon an element vital to the fetus is, no l e ss than craniotomy, a direct killing of the child, and hence intrinsically wrong.

And in truth, the reasons which I adduced were specious rather than truly convincing. For the truth is that the fetus himself is primarily and per se the object of attac~ just as is a person whom another might strike with a mor tal wound. To tear asunder violently the membranes and tissues which connect the fetus to the womb of the mother, is nothing else than to inflict a fatal wound upon him. There is no parity with the case of subtracting from com mon supply of air which might be sufficient for one but not enough for two. Rather the case here is like the withdrawal or extraction of n ecessary air which one has already breathed, to place it at the disposal of another. This; as anyone can see, is a direct killing and intrin sically evil. 20

19Kelly, Medico-Moral Problems (1958), p. 72: "To tear asunder violently the membranes and tissues which con nect the fe-tus to the womb of the mother is nothing else than to inflict a fatal wound on him." 20Lehmkuhl, Theologia Moralis, 12th ed., Vol. 1, N. 1008. Latin and English translation in Bouscaren, Ethics of Ectopic Operatibns, pp. 14-15: "Verum aliter visum erat Sancto Officio, quod eiusmodi invasionem in vitale fetus ele mentum craniotamiae aequiparet atque pro directa occisione 46

Another argument offered is the "conflict of rights"

principle which admits that "where there is a conflict o f

rights, the stronger right should prevail." Father Ke l ly

writes,

A few t heologians thought that the killing or aborting of a fetus might be justifi ed by appealing to this prin ciple. On this basis they argued that the mother had the prior and stronger right t o l ife; therefore, when both cou ld n ot b e saved , the fetus might b e sacrificed. 21

According to Father Kelly, this a r gument won no favo r with

great mora l lS' t s. 22 The valid application of this principle

supposes that there is a situation regarding a dispute over

-the possession of alie nable goods or rights which are capable

of being possessed by differe nt persons . An individual's

,habet, proin re intrinsecus illicita." . I "Et revera rationes illae mox allatae speciores sunt . ~ quam reriores. Re ipsa enim primo et per se ipse fetus vivus invaditur eodem modo quo quis, que, l eta Ii volnere alter con fodit, invaditur. Violenter enim disrumpere membranes et fibras, quibus fetus cum utero materno concrevit, rever a nihil est nisi letale vulnus fetui infligere. Neque simili- tudo est cum subtractione commus aeris, si quando is pro duo- bus non sufficeret, sed potius cum subtractione seu verius cum extractione aeris necessarii iamhausti, ut alterius ser - viret vitae servandae; quod certe a quolibet utpote directa occisio pro in-trinsecus malo habetur."

21Kelly, Medico-Moral Problems (1958), p. 73.

22Much of the material Father Kelly presents on the subject of therape utic abortion i s from Bousca ren, Ethics of Ectopic Operations. He mentions this on p. 69 of Medico Moral Problems. Father Bouscaren states: "A solution drawn from a supposed 'conflict of rights' was invented about one hundred years ago by Naegele (D e lure Vitaeet Neeis Quod Com petit Medico in Partu, Heidelberg, 1826). It was developed with much parade of philosophic lore by Apicella (La Crani otomia Considerata in Riguardo alIa Morale, 1879) and other craniotomists; and it has been thoroughly refuted by Eschbach (Disputationes Physiologico-Theologicae, Disp. 4, prop . 7.) and Waffelaert (Nouvelle Revue Theologique, Vol. 16, pp. 37ff.)." Bouscaren, Ethics of Ectopic Operations, p. 54. 47 life is not a thing that is alienable. It is by nature itself so attached to that person , so clearly subordinated to his use for the attainment of his last end , that it is incon- ceivable that it can be claimed by another person. In the case of pregnancy, both mother and child are t wo innocent persons and there is no question of a "conflict of rights. "

Each has a clear and ina lienable right to life . 23

The "conflict o f rights " thesis has been resurrected and proposed as a modern-day principle in the form of comparison o f t he s o cial value of t he life of the mothe r and the life of the ch ild. The force of the argument rests on the fact that t he mother's life is of greater value t han that of the fetus. In a situation, which may not be proven as medically accura t e, but at l east is valid in principle, crucial from the viewpoint that death will occur in both mother and ch ild, the conflict of right of life appears ; and some have advance d a solution of applying a principle used in the case of a perplexed consci ence. Faced with two evils, the doctor must choose the lesser one, e.g. , it i s a l esser evil to sacrifice the b a by by therapeutic abortion when it is a fore- gone conclusion that both baby and mother will die. Father

Kelly is convinced that those who advocate this solution are

23This brief treatment of alienable rights versus the right of human life is taken from Bouscaren, Ethics of Ec topic Operations; and Arthur Vermeersch, S.J., Theologia Moralis, vol. 2, n. 590; and Quaestiones de Iustitia, n. 258, who give a more lengthy explanation of this idea of conflict of rights. 4 8 not thinking of the "perpl exed conscien ce" s i t u ati on, b u t are ins i sting that it is better to h ave one death rather than t wo . He admits that if it were j ust a case of death, the sol ution would be correct. However, the problem which rema ins i s e ither dir e ctly t aki ng o ne l ife o r permitting two deaths . "In o ther wo r ds , t here is a question o f one murder agains t t wo deat hs , and , of the s e t wo e vils, the moral evil of murde ring the fetus is far greater than t he me r e ly phys i - cal evil involved in the unavoidable deaths of both mother and fetus. 24

According to the Sacrament of Matrimony

Marriage is a sacrament of the New Law in which a man land a woman in the marriage bond through their union encounter Chris1t 25 I • As a sacramental analogy Father Kelly uses a quote I from The Doctor's Profession for the Lambeth Conference in

1948. It brings out the essential point that the marriage act and the generative faculty have a sacred, inviolable character which sets them above and beyond man's dominion.

24Kelly, Medico-Moral Problems (1958), pp. 74-75.

25"The union 'in one flesh' of ma n and wife is analo gous to that union between Christ and his members which is effected by Ba ptism and the Eucharist; and the 'specific act' of marriage is in some respects analogous to those sacra ments. A sacrament is an outward visible rite to which God has attached an inward and invisible effect. If the rite is not performed with careful observance of the divine institu tion, there can be no assurance that the inward and invisible effect will follow at all. The question is raised whether the introduction of contraceptives into the sacramental rite of intercourse does not interfere with the divine institution and thus become impious." Ford and Kelly, Contemporary Moral Theology, II, 308. 49

He theorizes that the essence o f marriage is the bond

of matrimony . This bond consists of rights and duties wh i ch essentially constitute the relationship of man and wife ,

which c onstitute marriage i tself . This bond is brought into 26 effect by e x change of consent. To illustrate better, he

26"It is of the nature of love to wish to gi ve good things to the beloved. But , we do not think conjugal love is sufficiently distinguished from other loves merely by saying that h usband and wife desire to communicate any kind of good thing to each other. Any act of love whatever between hus band and wife helps, it is true, to strengthen the conjugal bond and may be made conjugal by the intention of the part ners . But it does not seem, for instance , that a Christmas . gift which a wife makes for her husband is in itself essen tially an act of conjugal love even if it is given lovingly . Conjugal love must be distinguished from other love not only in the persons loving and loved, but also by the kind of good or benefit, which through love they desire to give each other. The fact that a man loves his wife in any way is un doubtedly a virtue, and in an imperfect sense can be called the virtue of conjugal love. But we take conjugal love to mean something more. It refers to an interchange of conjugal benefi ts. " "What are these benefits (bona) which conjugal love as distinct from every other kind of love wishes to communi cate? They can be nothing else than the acts of conjugal life; that is, all the acts by which the essential ends of marriage are realized. These are the benefits marriage is calculated to produce (the bona producenda); these are the ends for which marriage was instituted." "Considering marriage in facto esse, the only assign able elements are the bond consisting of rights and obliga tions, and the ends, to which the rights and obligations are directed . In conjugal love proper to marriage as a state it is not in giving the bond to each other that the partners desire to show their love; they have already given that for better or for worse. The e ssential marriage bond is a bene fit -undoubtedly, and a conjugal benefit. The elements that make it up are the bona constituentia of marriage. But, as a good thing lovingly given, it pertains to the marriage in fieri . When the partners gave their consent to the bond,- that was in a certain sense an act of conjugal love. But, that act of love is past a nd gone now that they are married. The bond is there and they can no longer give it or take it away. We are lo ok~ng at conjugal love which is proper to the state of matrimony, and we say that this love can actuate it self only by a communication of the acts of conjugal life, 50 quotes St. Bonaventure ' s "writing of the bond of matr i mony .

. A union which is marriage essentia lly i s not the affection of the spirit or the contact of the bodies of t he partners , but a certain obligatory bond 'vinculum obligatorium' wh ich endures whethe r or not the partners are separ ated ."

The community life of the spouses, their life partnership, the perfection of their conjugal love both spiritual and sexual and their mutual, supernatural formation are all part of the matrimonial bond. Father Kelly stresses quite vehemently that marriage is not a physical bond, but a moral one.

While it is extremely difficult to distinguish Father

Kelly's personal thoughts from the explicit traditional

'teaching of the Holy See, he is most open and in agreement with the position of some theologians who put more stress on the secondary ends, which he refers to as the personalist which realize the ends for which the bond was instituted. These are the bona producenda of marriage." "No acts could more perfectly serve the purpose of love than these. In the marriage act, when properly per formed, there is a living union of the most intimate act of self-surrender in which two become one flesh, one principle of generation. Love .desires union with the beloved by a communication of good and by a donation of self. The mar riage act which makes two in one flesh is a unique expression of this love and a unique realization of this desire for union, while always retaining its primarily procreative char acter." "Likewise the acts of mutual help are by their very nature suited to be acts of love. We have not attempted to define exactly what they are, but are inclined to give a broad meaning to the concept. In any case, it will be ad mitted that mutual help includes the acts of co-habitation and the acts by which the lifelong partnership and the rear ing of a child are realized." Ford and Kelly, Contemporary Moral Theology, II, 113-15. 51

values in marriage. These personalist values bring about

personal mutual fulfillment, personal mutual satisfaction,

and mutual perfection of husband and wife. It would be a mistake, maintains Father Kelly, to suppose that these theo-

logians set out to attack the Christian doctrine of marriage.

Their intent was just the opposite . They were in search of a

theoretical expl anation which would strengthen Ch ristian marriage by recognizing the importance which the pers c:.' nalist v a l ues h ave i n themselves especi a lly, per haps, in t he mind s of modern men and women. They were convinced, as many thinkers still are, t hat these v a lues h ave not r eceived in moral treatises and juridical literature the attention they de- s erve. The reason for this is that the matri monial courts have b een preoccupied with the pathological view of marriage 27 rather than the intangible positive a spects. The personalist factors are imp ortant because they are intrinsically

the conjugal love between the partne rs and the fulfillment of

tha"t love. "Th i s fulfillme nt is achieved not merely on the

sexual level in the mutual self-giving of the marriage act

lovingly performed, but most of all in the wider sphere of

life companionship, or life partnership, which i s a permane nt

sharing of each other's lives in all the acts of c onjugal

27"Because the Canon Law of marriage has been consid erably influenced by what happens in the lega l tribunals of the Church, an exclusively canonical viewpoint (even though marriage is essentially of the juridical order) is likely to be incomplete and one-sided , and tends to depreciate the other essential, but less tangible, eleme nts of Christian marriage. " Ford 'and Kelly, Contemporary f.ioral Theology, II, 34. 52

life and love. ,, 28

Father Kelly f u rther defende d these Ca tholic the o-

l ogians i n 1 964 by ·this comment:

They did not, of course , as a r esult of their s pecula t ions come to the conclus ion that contraception is e ver just.ified , . i n a t tempting to re-emphasi zethe per s onalist values and g i ve t h em t he p l a c e they deserv e i n the ph ilosop hica l, c a nonica l, theologi cal and a s c e t i cal t radition o f Chris tian marriage. They sdme times ch a l l enge d the tra ditional terminology according to wh i c h procreation and rearing of childre n are called the pri mary ends of ma rriage and questioned the teaching that the s econdary ends of marriage are essentially subordi nated to the primaryends. 29

He mentions a 1944 decree against these writers,30

and while agreeing with the de cree's d enunciation that the union of lives is the only end of marriage, he laments the

fact that "it is unfortunat~ that when an official act of

this ~ind takes place there is a tendency to neglect and for- I .' get the valuable, positive contributions made by the writers

in question to the theology of marriage. "31 Some of those writings may still contribute to a solution of the problem of

the relation of marriage to its ends. For, he continue s,

"the decree does not e xplain the esse ntial me aning to b e at-

tached to the phrase 'primary end,' nor does it make clear

the nature of the 'essential subordination' of the secondary

'personalist' ends. These points, in view of the teaching of

28Ibid., p. 17. 2 9 Ib i d., p. 16.

3°A..7:\S, · 36 (1944) 103, translated in Bouscaren, Canon Law Digest~II, 401-02, and notations on the decree in Peri- odica 33 (1944): 219-28 . • 31 Ford and Kelly, Contemporary Moral Theology, II, 29. 53 modern popes and theologians as t o the place of love and sexual union in marriage, need still further exploration and clarification.,,32

Father Kelly is not arguing that the primary end of the conjugal act is procreation, but that one of the ends of t he conj uga l act is givi ng human l ife; and since "an essentia l purpose of t h i s a ct i s to give l ife , i t i s b y thi s fact inviolable. ,,33 "Huma n g e n e ration b egins with the union o f ovum and sperm. . when the union of these bvo produces a new living thing, that thing must b e considered human. the union of sperm and ovum in such a way that a new living thing is produced is the first step in human generation, and this uniting of sperm and ovum must be terme d as a human generative act.,,34 In conclusion, Father Kelly say~: \ Abcording to Divine plan, these functions are life giving, and the life that they help to give is human life. This is the ultimate and specific reason for their inviolability; just as innocent human life itself is in violable, so those things which immediately pertain to the beginning of human life are also inviolable. 35

32Ibid., pp. 29-30.

33G. Kelly, S.J., "Contraception and Natural Law," CTSAP 18 (196 4 ): 37, 45.

34Gerald Kelly, S.J., "The Morality of Artificial Fecundation," Ecclesiastical Review, August 1939, pp. 109-18; also "Notes on Moral Theology," Theological Studies 5 (March 1944): 512-13. 35Kelly, ~The Morality of Artificial Fecundation," p. 18. 54

According t~_E ccl es iolog y

From the earliest tradition of the Church, abortion

and infanticide have remained substantially unchanged,36

though ecclesiastical sancti ons i mposed on offenders have

v ari ed , and definitions of the precise nature of the moral

i mp lications o f i nducing an abortion at various stages of -the

d evelopment of the embryo or fetus have d iffered to the e x-

tent that theologians and philosophers h ave held diffe rent

Vlews° concernlng• t h e t'lm e 0 f anlma° tolon. 37

Father Kelly points out " . for a long time this

theory (delayed anima-t ion) was very common ly held by

36At the time of the early Christians the comb ination of magic and drugs purported to produce sterility and abor , tion was s -trongly condemned . A few references appear in the 'Scriptures which seemingly refer to a conde mnation of sorcery: Gal. \5:20, Apoc. 9:21, 21:8, 22:15.

37From the very early tradition of the Church, sup pression of all fetal life, regardless of the stage of embry onic development was considered gravely sinful. Some of th ~ Fathers called it murder. Didache 5:2 : "Do not kill a fetus by abortion or commit infanticide." The Letter of Barnabas 19:5 repeats the same command. Athenagoras in 137 A.D . in Embassy 835 says: "Again we call it murder and say it will be accountable to God if women use instruments to procure abortion." Tertullian, Apology 9:8, ever bold and eager for battle, was familiar with Aristotle's theory of delayed en soulment and in the second and third centuries A.D. defends Christian teaching: "But, with us, murder is forbidden once for all. We are not permitted to destroy even the fetus in the womb. It makes no difference whether one destroys a soul already born or interferes with its coming to birth. It is a human being and one \vho is to be man, for the whole fruit is already present in the seed." Basil, a prominent Greek Father of the Church, wrote in the fourth century, in his Letters 188.1, as though he were in the center of the modern battle on liberalizing abortion laws: "She who has deliberately destroyed a fetus has to pay the penalty of murder. And ther~ is no exact inquiry among us as to whether the fetus was formed or unformed." 55

phil osophers and theol ogians ; then it was more or less aban doned. ,, 38

Father Kelly refers specifically to St. Thomas

Aquinas, who held the theory of mediate animation. The

majority of the Latin Fathers, with the exception of Tertul-

l ian, favored the theory of mediate anima-tion; and once the 39 'No r ks of Aristotle became avai lable to scholastic -thinkers, 40

t h is -positi on gained widespread a cceptance, remaining domi-

nant until the s eventeenth c e ntury. In s pit e o f t he univer-

s a l agreement among the Fa t hers and t heologi ans o f the Church

that induced abortion was gravely sinfu l , the e xac-t animati on

or ensoulment (the point and time in developme n t o f t he f e tus when the rationa l soul is infused) is a disputed ma t ter . In i 1958, Father Ke lly wrote:

Tod\ ay. . the theory that there must be some d e velop - ment of the material before the infusion of the rationa l soul is propo sed as the more acceptable expla nation of human life by ma ny philosophers and theologians. The other view , with many adherents, is that the rational soul is always infused at the moment of fertili zation. 41

His conclusion on the subject of ens oulme nt is tha t

38Kelly, Medico-Moral Problems (1958), p. 66.

39The Aristotelian theory holds that the male is ani mated by a spiritual soul after forty days and the female after eighty days. See Aquinas, "De generatione animalum," De Animalibus IX.

40 St. Thomas Aquinas held that the soul was not- pres- en-t at conception and that actual homicide was commi-tte d only when an embryo having a soul \vas killed. (He held -the Aris totelian t heory.) Even though he considered contraceptives and abortifacient usage a sin against nature, this sin at early stages was ~otdestroying a man.

41Kelly, Medico-Horal Problems (1958), p. 66. 56 the Church has n e v e r de finitely d e t e r mined the time o f i n f u - sion of t he ratio n a l soul. "We h ave no Divine r evel a tion on t his point, nor any o fficial pronoun cement of t he Church whi ch clearl y condemns or approves either t heor y. Ca.tholics are still fre e to specula te on the ma tter ." 42 But , he e n - j oins:

. we mu st, in the practical oider, fo l low the safe r c ourse and a l ways t reat a living fertilized ovum, what ever h appe ns to be its state of development, as a human person, with all the rights o f a human person. Canon 7 47 of the Code of Canon Law orders that e very aborted f etus , no matter when expe lled , should be baptized absolutel y i f c ertainly alive and conditionally i f t he presence of life is doubtful. And, in the case of rape , theologians give the doctor a practical rule of doing anything med~ca l ly possible to remoVe the aggressor's semen, but the doctor may not do anything to remove or kill a f ertilized ovum. 43

Regarding the theori es or pos itions on ensoulme nt, mediaFe or immediate, Father Kell y is able to write that for , a more comp lete answer to the teaching of the Church on abortion, there is a nee d to distinguish b e twee n the official teaching of the Roman Catholic Church and the theories ven- tured forth by individual theologians. "The official teaching of the Church h as not suffered the slightest change ; every official pronounceme nt from 1884, when the Holy See was first asked for a statement, to t he present day has condemned thera- peutlc. a b ortlon.. ,,44 But he acknowledges that "whe n the subject first became a burning issue, there was a small number of Catholic moralists who thought that therapeutic abortion

42Ibid" t'p. 66-67. 43Ibid., p. 67.

44 Ibid. I p. 68 . 57

c oul d probably b e jus tif i ed ."45 · 46 f T h ere are f l ve statements 0 the Holy See to which

Fathe r Ke lly r e f e rs, ranging from 1884 to 1930 , i n special r efer e nce to the r apeutic abortion. One of t hese i s Pope

Pius Xl ' s emphatic pron ouncement i n his encycl ical on Chris- tian Marriage , December 31, 19 30, a gai n s t v arious moder n attemp t s to jus tify direct abortion .

As to the "me dical and the rape utic indications " to which, using the ir own words, "We have made reference, Venerable Brethren, however much We may pity the mother , whose heal,th and even life is gravely imperiled in the performance of the duty all alloted to her by nature , nevertheless what could ever be a sufficient reason for excusing in any way the direct charge of murder of the innocent?" This i s precisely what we are dealing with here. Whether in flicted upon mother or upon the child, it is against the precept of God and the law of nature: "Thou shalt not kill." The life of each is equally sacred, and no one has the power, not even the public authority, to destroy it. 47

Both addresses of Pius XII are quoted and apparently have great influence on the formation of his principle on the inviolability of innocent human life.

This principle holds good for the life of the child as

45Those theologians to whom he is r eferring have al ready been discussed in the section on Formulation according to the Fifth Commandment. For a more complete discu ssion of the history of abortion in the Catholic Church, B. Haring ' s, The Law of Christ gives an explanation of St. Alphonsus Liguori's posi tion on therapeu,tic abortion in which h e held that therapeutic abortion might be justified at times. See also John T. Noonan , Jr., "Abortion and the Catholic Church," Natural Law Forum 12 (1967): 85-131.

46Kelly, Medico-Moral Problems (1958) , pp. 69-70; AAS 17: 556; 22: 748; 28: 383.

47pope Pius XI, "Casti Connubii" (Dec. 31, 1930), AAS 22 (1930): 560, as quoted in part in Kelly, Medico-Moral Proble~~ (1958), p. 71. 58

well as that of the mother . Never and in no case ~as the Church t aught that the life of the child must be pre ferred to that of the mother . It i s erroneou s to put the question with this alternative: either the life of the child or that of the mother . No , neither the l ife of the mother nor that of the child can be subj ected to an act of direct suppression. In the one case as in the other, there can be but one obligation: to make every effort to save the lives of both, of the mother and of the child .

It is one o f the finest and most noble aspira-tions of the medical profession to sea rch for eve r new ways of ensur ing the life of both. But , i f , notwithstanding all the progress of science, there still rema in and will rema i n in the fu-ture, cases in wh ich one must reckon with the d eath of the mother, when it is the mother's wish to bring to birth the life that is within he r, and not to destroy it in violation of the command of God : Thou shalt not kill--nothing else remains for the man (i.e., the doctor), who will make e very effort right up to the l ast mome nt to h e lp and save , but how respectfully b efore the l aws of nature and the dispositions of Divine Provi~ dence.

But--it is objected--the life of the mother, espe cially the mother of a large fami ly, is of incomp arab l y greater value than that of a child not yet born . The application of the theory of the ~quiva l ation of values to the case which occupies us has already been accepted in juridical discussions. The reply to this harrowing obj e ction is not dif ficult. The inviolability of the life o f an inno cent human being does not depend on its greater or lesser value. It is already more than ten y ears since the Church formally condemned the killing of life considered to b e "without value"; and whosoever knows the sad events that preceded and provoked that condemnation, whosoever is able to weigh up direful consequences that would re- suIt, if one were to try to measure the inviolability of innocent life according to its value, knows well how to appreciate the motives that d etermine that disposition. 48

It should be noted that Father Kelly relies heavily on these papal pronounceme nts in stating his principle of the inviolability of innocent human life. From the foregoing

(papal pronouncements just quoted) it should be clear that

48pope Pi';s XII , Address, "Family Front" (Novem b e r 26, 1951), AAS 43 (1951): 855. 59 the direct (i.e., the intentional) taking of innocent life is never permissible. Any procedure which would result in death for either mother or child (or for any other innocent person) can be justified only when the death is an unintended and unavoidable by-product of the procedure. This by-product, death, is called indirect killing. The principle he uses to justify this type of killing is the principle of doub le ef f ect,49 which is being questioned today by a number of theologians. This principle opens a wide horizon of discussion.

I t is evident in investigating Father Kelly ' s position on abortion that he is convinced of man ' s need for authoritative gui dance concerning the moral law and its application to t he various spheres of human activity. "It was

Christ 's will that His Church should give the guidance . ,150 I The distinctive function o f t he t heologian goes b eyond just acceptance of the papal teaching; as a theolog i an he must

49 Pope PlUS. XII g lv. es t h e esse nce 0 f t h'lS prlnclp. . 1 e in his address , "Family Front": "On purpose We have always used t he expression ' direct attempt on the life o f an inno c ent person,' 'direct killing. ' Because if, for examp le, the saving of the life of the future mother~ independently of h er pregnant s t ate, should urgently require a surgical act or other therapeutic treatment which would have as ~n accessory consequence, in no way desired or intended but inev itable, the d eath of the f etus , such an act could no longer b e called a direc-t attempt on innocent life. Under the s e conditions the operati on can be licit like other similar medical inter ventions, granted always that a good of high worth is con c erned, such as life , and that it i s not possible to postpone the ope ration until after the birth of the c h ild, or to have recourse to other efficacious remedies ." Kelly, Medico-Moral Problems (1958), p. 66; ~~s 43 (1951): 855; Catholic Mind , 50: 307.

50Ford and Kelly, Contemporary Moral Theology, I (1964), 29. 60 s t udy the papal pronouncement s a nd i nco rpor ate them i nto h is teachi ng and his writing . A theol ogian must study a nd u se and , to some e xt e nt, interpre t pap a l prono unce me nt. In i nterpre ting them , h e should have respect not only for v e rba l formu l as , but also for the papal i n -t en-t i on as manifes t e d in the h istorical contex t of the pr o nouncement. " Wh en t here i s o fficia l t eaching t hat wou l d e nd i n l egitimate controversy , t h i s d e cis i ve c haract e r should b e evident . 11 51

When -t here i s a q uestion of medi co- moral p roblems , t he study a nd un ite d t e achi ng of the moral t heologians have u s ually precede d of ficial d ecl a r ations of the Holy See , so tha t these decl a r ations wer e r a the r a religi ou s confirmation of the mora lists' t each ing than a guide t o such t each ing.

The usual p rocedure of the Church was to allow the mor alists to discus s and clar i f y que stions of mora lity a nd sanc tion them by "quiet a c c ept ance " rather than official pronouncements.

Speci f ic Princip les Governing the Mora l ity o f Abortion 52 Abortion a s d e fine d by Fathe r Kelly is the e mpty ing of a uterus of a fetus or embryo which is nonviable. Fathe r

5lIbid., p. 32; Pius XII., Allocution : "Magnificate Dominum," AAS 46 (1954): 673-74.

52The wor d "abortion" comes from the Latin "abortio" which means the e xpulsion of the mammalian fetus prematurely, particularly at any time before it is viable; miscarriage. It is taken from the verb "abortare" meaning to give birth prematurely. Also, biologically, it connotes being checked in development, so as to remain rudimentary or shrink away. 61

Kelly qualifies the word "abortion " with many adjectives p r o - viding a medical i ndex of the state of abortion and consequently presenting a complexity in appl ying principles in medical treatment. S·tandard mecl ical terminology used by

Father Kelly to distingui sh types of abortion are: i nvolun- tary abortion and voluntary abortion, comp l ete and incomplete, t h erapeutlc. or crlmlna. . 1 a b~orLlon.· 53 Involuntary abortion indicates that there is no human interference except nature's in the process of terminating a pregnancy. Voluntary abortion indicates that interference is caused by an aggressor or iritruder, with a resulting arresting of the growth process or removal of the living embryo or fetus from the uterus. The word "aborticide " is given by Webster as the medica l t e rmi- nology for the act of destroying a fetus in the womb , or an agent that destroys the fetus and causes abortion. Therefore , grammarwise , it would b e more accurate to use "aborticide" for a true distinction.

These are the principles evident i n Father Kelly's writings:

1 . The direct killing of any innocent person, even

53Complete abortion indicate s t"ha·t the fet.u s and placenta are already expelled. Incomp l ete abortion means t hat the place nta remains but the fetus is dead and a l ready partially or totally expe lled. Threatened abortion refers to the nonviable fetus still living . Inevitabl e abortion refers to a ca~ e in which the fetus and placenta are dis t urbed to such an extent that the mother' s life i s in danger and the fetus, if still alive , cannot b e saved. This last defined term is c ontroversial , accor ding t o Father Kell y. Some o bstetrician~ think that "inevitability" is too often i n t he mind of the physici an . See Kelly , Medi co-Moral Prob l ems (19 58 ) I pp. 86- 87 . 62

at his mlln request , i s always morally wrong. (Any procedure

whose sole immediate effect i s the death of a human being is

a direct killing.) The particular applicati on for abortion

is as follows: direct abortion is a direct killing of an

unborn child,·and it is never permitted , even when the ulti-

mate purpose is to save the life of t he mother. Neither

eclampsia , heart disease , nor any serious condition of preg-

n ancy, 5 4 const1tute, an except10n' to t h'1S proh 1' b 1tlon." Every

procedure whose sole i mmediate effect is the termination of

pregnancy before viability is a dire ct abortion.

2. Risk to life and even the indirect taking of life

are morally justifiable for proportionate reasons. Life is

taken indirectly when death is the unavoidable resu lt of a

! proce8 ure which is immediately directed to the achievement of \ some bther purpose, e.g., the remova l of a diseased organ.

Operations, treatments, and medications during pregnancy,

which have for this direct end the cure of a proportionate l y

serious pathological condition of the mother are p e rmitted ,

when they cannot b e safe ly postponed until the fetus is

5 4As the b enefits of modern obstetrics are extended more and more to women , the justifications for therape utic abortion b e come fe\"rer. And even though the r e is a tendency today to attribute psychiatric disturbances t o pregnancy or a condit ion o f pregnancy, and to make a case for therapeutic a bortion, the findings clinically a re not always convincing. See Howard F. Conn , M.D., et al., Current Therapy (Philadel phia: W. B. Saunders Co., 1970), pp. 458-59; Ke lly, Medico Moral Prob lems (1958), pp. 80-83; Roy Hefferman, M.D ., and William Lynch, M.D., "Is Therapeutic Abortion Scientifically Justified?" The L.inacre Quarterly, February 1952, pp. 11- 27; also printed in The Catholic Medical Quarterly, July, 1 952 , p. 138. 63 v i ab l e, and there i s no other l ess l i fe-threateni ng trea tment that could be used , even t hough t hey cause a n abortion In- d i rec t l y .

3. Every unbor n child must be con s i dered a huma n person , with all t he right s of a human person , f r om the mo - me nt of c onception. A particular application of this principle with reference to abortion would be as follows: regarding the treatment of hemorrhage during pregnancy before the f e tus is v iable, no procedure which has as its primary inten - tion the emp tying of the uterus is permissible, unless the physician is reasonably sure that the child is dead, or the placenta is already detached from the uterine wall. Proce- dures that are intended to stop hemorrhage (this is distinct

',from procedures which directly empty the uterus) are permitted as they are necessary even though an abortion may result in- d lrect' 1 y. 55

55Ge rald Kelly, S.J~, Code of Ethical and Religious Directives for Catholic Hospitals (St. Louis: Catholic Hos p ital Association of the United States and Canada, 1949), p. 4; Kelly, Medico-Moral Problems (1958), pp. 62-89; Gerald Ke lly, S.J., "Rube lla and Abortion," Hospital Progress 64 (April 1953): 64-65. The above mentioned principles appear as Directives 12, 13, and 14. CHl\PTER IV

APPLICATION OF THE PRINCIPLES OF

GERALD KELLY , S.J.

In the prec eding chapte r s , th~ princ iples o f Geral d

Kelly, S.J., h a v e b een isolated and discussed to some degre e.

One comes to the conclusion that he is convince d that the unborn child, at wh a t e ver stage of developme nt in utero, i s a human being. The three specifically mentioned principles,

Directives 12, 13, and 14 mentioned in Chapter III of this thesis, succinctly state t his . "Human life at whatever stage of development, from the time of fertilization, has all the rights of a human person, and the direct killing of any ~nno cent person, even at his own request, is always morally wrong because this life is given by a Creator."

While Fa ther Kelly gives these principles as " abso lute" in order to safeguard human life, t he application o f the principle becomes a rather perplexing situation. There seems to be two things operative in making an application of principle to a situation: the factor of direct physical attack and the factor of agent intentionality.

An illustration, for example, is the treatment of hemorrhage during pregnancy and before viability of the fetus.

It is permissible to give ergot (a medication which contracts

64 65 uterine muscle and controls bleeding) i f the physician has good reason to believe the fetus is dead or that the placenta has become completely detached or the majority of the placen- tal tissue is disengaged from the uterine muscle. It is not permitted if the re is good reason to believe the fetus is still alive ; but, i n the case when the fetus i s still alive and still attached to t he u teru s , t he physician may and should use some treatment which is precisel y c alculated to control the h emorrh age; but, if he has a choice of procedures , he should use tha t which b est safeguards the lives of b oth mother a nd child. In those c~ses i n which he c annot success- fully stop the hemorrhage without, at the same time, risking the expulsion of the fetus , he is justified in treating the hemorrhage . The expulsion of the fetus i s the n unavoidable , and indirect.

It is inevitable tha t if the hemorrhage continued the fetus and the mother would die. Yet, in the treatment of pelvic disproportion , when the feta l head is too large to come through the pubic pelvic bones, or for some anomalic reas on the head is enlarged and locked in the birth passage , it is not permissible to touch the fetus directly to kill it in order that the mother may not die, even though mother and child will probably both succumb in the ordeal. Fa"ther Kelly sees the interruption of this pregn ancy as a murder , and the right thing to do in this case is to have t wo natural deaths.

In the case of a pregnant uterus, which is cancerous where an early removal of the uterus is therapeutically 66

feasible, Father ReIly I s princip l e \'lOu l d allow for a hyster- ect omy even -though it i s absolu-tely certain the fe-tus VJil1 die. He allows for -the removal of a pregnant fal lopian tube , but would forbid the sh ~ lling out of the e mbryo or f etus even i f the tube c an be saved.

Fath er Kelly d escri bes d irect kil ling as a procedure whose sale immediate e ffec t i s the d eat h o f a h uman being.

The sole i mmedi ate eff ect of -t he action i s determined by the physical structure of the ac tion itsel f . The in~ed i a t e e f- fect has to be the curing of some p a tholog ical condition .

The principle in ope ration here is the principle of d ouble effect, trying to solve a complex problem in which there are both good and evil consequences . If the evi l effect is only permitted and not directly intended, the e v il effect can be

I permitted for a commensurate reason. The idea of "direct" in the principle of double effect is closely associated with the physical structure of the human act and the sale immedi a te physical effect of the action.

The progress of modern medicine has invalidated the old wives tales of the preference of life--moth er versus baby--in physical difficulties of delivery. with new im- proved X-ray t echniques, new t echniques in surgery and modern- d ay medications, the number of i nfant and maternal deaths has been reduced to a fraction of one percent. CHAPTER V

THE VAL I DITY OF FATHER KELLY'S

PRINCIPLES TODAY

Father Kelly was cognizant of the challenges to the absolute principle of right-to-life. He was not without challenge in his own day and, as seen in the body of the discussion within the thesis, he researched , examined closely , and speculated on those theologians who were "avant garden in their speculations in moral theology. There were quite a number through the years. Some Father Kelly mentions by name in his writings and some he probably was aware of, though he does not mention them by name. By his own admission he sees these theologians' opinions as necessary in the development of a sound, well-thought-out, moral theology. Fath~r Kelly was well aware of the changes in the thinking within the non-

Roman Catholic theological circles.

Ecumenism

In a l engthy article, "Christian Unity and Christian

Marriage,"l Father Kelly outlines chronologically the proceedings of the World Council of Churches, focusing mainly on the problem of contraception. He alludes to the fact that

lGerald. Kelly, S.J., "Christian Unity and · Christian Ma rriage," The Catholic Mind, 1963.

67 68 t he one pur pose of the Sec ond Va t i c an Council was to foster

Chris tian u n i ty a n d p roceeds t o say t hat this t ask shoul d not be so d iff icult, as it s e e ms the re is a world-wide cravi ng for un i ty on the par t of a ll Chris t ians. However, he c annot be t oo op timi stic a bout t he future o f t he unity a nd par t of his non-optimistic e xplanation is due to the progressive evolution of the World Council of Churches on the matter of accepting contraception and, consequently, abortion (cf.

Mansfield Report 1959).

This report, no doubt, was influenced by the Lambeth · conference of 19.58, in which the Anglo-Protestants accepted family planning with contraception and abortion. Although abortion, or the destruction o f human life, is denounced; this rejection is not absolute . The Anglican Committee Re- port of Lambeth (1958) permits the direct termination of the fetal life in lithe dictate of strict and undeniable medical necessity." The Mansfield Report permits direct abortion when it is necessary lito save the life of the mother." lilt is hardly necessary for me to spell out in any great detail how the Anglo-Protestant change of thought on the morality of contraception has widened the breach of dis-unity with the

Cath olic Churc h ,,,2 says Father Kelly.

For instance, those Ang lican bishops who drove the firs t w~d ge i nto t h e tradit ional opposition to contraception would certainly have o pposed sterilization as a means of family pla nning a nd a me thod of population control. But, as we h a ve see n, there has already been a weakening i n the Chri stian opposition to these things; and this shows

2 Ibid., p. 15. 69

that once population control is fostered by governments, steriliza-tion, and abortion almost inevitably become the rule. 3 ----

Before 1900 it would have been difficult to find any organized Protestant body defending the moral lawfulness of contraception. And , consequently, though the duty of responsible paren-thood was recognized by Ca-tholic, Pro-testants, and by everyone else, hardly anyone thought that contraception was permissible, much less obligatory, as a measure of human providence in fulfilling the duty of r esponsi b l e parenthood.

What h as brought about these changes? Fathe r Kel l y suggests this point. One is the growing t endency of Protes- tants to accept situations with its r e j ection of absolu te moral principles and its suspicion, if not comp l ete rejection , of abs trac-t, universal and moral negatives . Another is the i l ack bf infallible teaching authori-ty. The more i mmediate reasons seem to be: 1) the gradual eme rgence in modern thought of s exual fulfillment in marria ge as a positive value o f intrinsic human worth, needing not to b e e xcused. This is due in part to the important findings of dynamic psychology in the present c e ntury, but also to theological d evelopment which took place over the course of centuries in both Catho- lic and Protestant thought; 2) the discovery of new phy sio- logical facts about spermatogenesis, ovulation, the nature of the sex act and its rela tion to the physiology of reproduction; 3) more recently the pressures of the popUlation

3 Ibid., p. 17. 70 problem . Finally, it i s i mportant to point out, even now , that the concept of the "natural marriage act" as a criterion of sexual morality, so f u ndamental to Catholic theological t houg·ht , seems to make f if any, little impression on Protes- t ants . Perhaps this i s due not mere l y ·to the metaphysical character of t he c onsiderations involved , but also to the fact that Protestant conceptions o f original sin and the fall of man t end to make them adverse to finding the moral l aw and the will of God in the natural ope rations of an essentially corrupted human nature. 4

There are polarities in the Protestant camp. Helmut

Thielicke, Dietrich Bonhoeffer (d. 19 45) , and Paul Ramsey5 argue from t he naturalistic point o f view in r egard to abortion and would s ee Father Kelly 's n atural l aw reasoning as the correct reasoning . Paul Ramsey, in p articular , supports the Roman Catholic position of distinction b e tween direct and indirect abortion. For him, there can be no question of preference of maternal or fetal life in a conflict of equals.

Howeve r, one exception to his rule i s that if both the fetus and the mother will die , it is permissibl e to incapacitate the fetal life. "In this circumstance, it is permissibl e ,

4Ibid., p. 15.

5Helmut Thielicke , The Ethics of Sex , trans. John Doberstein (New York: Harper & Row, 1964), pp. 227-45; Dietrich Bonhoeffer, Ethics, trans . N. H. Smith (New York: The 11acmillan Co., 1955), pp . 130-31; Paul Ramsey, "The Sanctity of Life," Dublin Review 241: 3-23. 71 nay, it is even morally ob lig a t ory , to kill the f etus d i rect- l y i f , wi thout t his, b o th mother and chi ld will die to get her.,,6 "Por him to want -to s ave -the mother does not entail the i ntention of this action is not the killing , not the d e ath , o f t he fetus but t he i ncapaci tati on of it from carrying ou t the mater ial aggr essi on t hat i t i s e ffecting upon the l ife of t he moth er. " He concludes -t hat , in t h i s s i tuation ,

-there is no mo ral e v il done , e v e n though it i s termed direct abortion because -the age nt of the action ne ither wishe d or in-tended the death of the fetus but only the "incap a cita tion of a life materially aggressing with fatal force upon another. " In all points except the l ast mentioned , Ramsey would agree with Father Kelly's position. The main thread through the three aforementioned Protestant t heologians i s the inviolability of human life . The sacredness of human life arises not out of the worth (re lative ) put on fetal l ife by man , but it i s sacred because its au thor i s God. Thie licke d e f ends fetal life as i nviol able because t he fetus h as its own autonomous life . The fetus has its own circulatory system and its own brain. The elementary biological fact should be sufficie nt to establish. its status as a human being.

Thielicke gives room for therapeutic abortion, by arguing that we live in the order of necessity in the fallen world and what we s ee in the world as disorder c an never b e related

6"The Morality of Abortion--Life or Death," in Ethics and Options, ed ~ Daniel Lobby (Seattle: University of Wash- ington Press, 1968), pp. 64-65 . 72 directly to God the Creator and His government of the world.

It is not God's real will that is at work in the perversity of the world. 7

Barth's respect for fetal life is couched in the sim ilar r easoning of Thielicke and Bonhoeffer. The fetus, or the embryonic matter, is autonomotis. It is not merely a part of the maternal whole , and it is its relative independence

-that establishes nascen-t species life as a "human being in its own right." Thus , it is that "he v.Tho destroys germinating life kills a man and -thus ventures the monstrous thing of decreeing concerning the life and death of a fellowman whose life is given by God and therefore , like his own, belongs to

Him." With this position he answers the question of abortion with a positive "no." But , for Barth human life, in- eluding germinating life, is not an absolute or supreme value, and it cannot claim to be preserved in all circumstances, whether in relation to God or to other men. When there is a case of both mother and infant dying, then , in Barth's j udg ment, it is permissible to destroy the fetus in the mother ' s womb, and not only permissible but, at times , commanded.

Human life--one 's own and that of others--belongs to

God. It is His loan and His blessing. Therefore, respect is due it, and with respect, protection against each and every callous negation and destruction. Obedient abstention from such destruction and, therefore, the obedient protection of

7Thieli ~k e, The Ethics of Sex, pp. 227-28, 237, 242- 45. 73

li f~ , will natur all y inc lude knowl edge of its limitat i on. It i s not divine life , but creaturel y. It i s not t he eternal life promised to man, but temporal. Thus, the protection of life required of us is not unlimited, nor is it a bsolute. It i s simply the protection which God wills to demand of man as t he Creator of this l i fe , and the Giv~r of t he future eternal life. It s i mply refers to t he f a ct tha t h uman life h as no absolute great ness o r supre me value , tha t it i s n ot a kind of second god. But, s i nce human life i s of relative gre at- ness and limite d value, its prote ction may also cons ist 8 ultima r a tione in its s urrende r and sacr ifice.

At the opposite side of the spe ctrum, and certainly in complete dicho·tomy from Father Kelly's position, Joseph

Fletche r argue s that the basic problem of those who oppose direct abortion i s their commitment t o a position which at- tributes personal status to a pre-personal organism and as- signs that organism rights which belong to a human. The way out of this p r oblem is r elativel y easy for Flet cher; deny the val idity of the right of life claimed by n ascent organisms on the ground that a fetus is not a moral or personal be ing , since it l acks freedom, self-determination, rationality , the ability to choose either means or ends, and kn()wledge of its circumstance . His rati onale for this is that the embryo or fetus is only a "portion of the mother, which may b e e xcised

8Karl Barth, Church Dogmatics , III, 4, trans. A. Mackayet al. ( ~dinburgh: T. & T. Clark, 1961), pp. 397-98, 416, 420. 7 4 i f it threatens her life " on the premise of the principle that it is licit to sacrifice a part for the sake of the whole. 9

Legalism

Pres en-tly the proble m of abortion has move d to a ne w area unheard of in Father Kelly 's time. The questi on of abortion has become a full-blown issue in the political arena. The famous Supreme Court d eci s ion o f January 22; 1973, has occasioned growing debate within society about abortion and aborti on Imvs. Through the Supreme Court d eci sion , abor tion on demand has become the rule , rather than the exception.

The state a nd i ndividual s propose that there is no certainty that a human being exists physiologically, psychologically, sociologically or theologically, before six months gestation or viability outside the womb . Politics and medicine in gen eral no longer adhere to any absolute princip les r egarding the sacredness or inviolability of the unborn inno c~nt life .

Opponents of the present "pro-life " position, as well as Father Kell y 's pos ition and that of the Roman Catholic

Church , do not have mu c h patience with the continued insis tence on the principle that an innoce nt human being may not be killed, even for a "good" purpose.

We can, in retrospect, view as far as is humanly pos sible, Father Kelly's position as regards direct _abortion for therapeutic reasons and human v a lue reasons. They (the

9Fle-tcher, Morals and 11edicine, pp. 150-52. " 75 pro-abortionists )

. say that we are sacrificing lives for a pri ncipl e . In thi~ they are d efinitely wrong, the p rincip l e that the life of both mother and child is i nviolab l e is, in reality , a life-saving principle . I t may mean that some lives are occasionally lost that might have been sav ed oy a t herapeutic abortion; but in the long run it saves many lives that wo uld have been 10st. IO

In the light of present day experience it is evident that morality may need to be legislated. Laws can certainly uphold essential principles which protect life and Father

Kelly's principles wo uld be verified in this regard.

Situationism

For the situationist, moral good is that which is conducive to one's freedom in his particular situation. It is usually a subjective decision and is according to the pattern of man's creative freedom, rather than being based on any objective moral norm. The moral norm is to act f ree 1 yln' t h e sltuatlon.' . 11

The Declaration on Religious Freedom in the Docu ments of Vatican 1112 supports the statement that the individual is free from external coercion so that he might act in accordance with his religious beliefs, if there is no harm done to a t hird party or the common good. But the document also notes that there are restrictions on

IOKe lly, Medico-Moral Problems (1958), p. 75.

IlJoseph Fletcher, Situation Ethics (London: S.C.M . Press, 1966).

12 The Documents• of vatican II, ed . 11alter M. Abbott, S.J. (New York: Guild Press , 1966 ). 76 the exercise of the right of religious liberty, s i nce it i s exercised within human soci ety . Society must provide a peaceful morality incorporating the rights of its citiz~ns.

Nature and human l aw are no longer seen as a detailed p l an which guides and directs all human activity. The contemporary view sees r eality more i n terms of r elations than of subs tances and n ature . In reviewing the writings of contemporary adherentsl3 to situati onism i t is more t han like ly that some woul d accuse Father Kell y of a dhering to the old classicist attitude of i mmutabl e and fixed laws o f nature.

To determine the morality o f an action , one mus t study its na ture.

That would verify Father Kelly's principles as stating that nature, therefore, tells what actions are to be done and what actions are to be a v oided, and which problems would restrict these principles. An interesting contemporary prob- l em was that, a ccording to the new interest in ecology, one would see a return to the t heory that man has to l ive in conformity with nature in order to survive . The environmental- i sts are, in fac-t , s aying t h is i and this, living in conformity with nature, may have some pertinence to the validity of the principles based on natural law.

In the system of objective natural law morality, it is precisely th~ function of conscience to apply the general principles to concrete cases with due insight into the

13 See above, p. 7, n. 2. 7 7

sit u ation. Si tua "tion i sm emphasizes t he exaggeration , t he

s ingularity and incommunicabilit y of the indi v i dual person,

of the individual action on the concrete situation . Situa-

tionism is only concerned with what seems to be good or bad

for the individual man in his concrete situation . The method by which i t stresses the indivi du a l ity supports t he idea that

it woul d sever a l l b onds wi th other b ein gs, even with t h ose

of the same nature .

Roman Catholicism

The Pas toral Cons titution on the Church in the Mode rn

World (V atican II Do c ume nts ) speaks of abortion as an infamy and an unspeakable crime. 14 Pope P2l.Ul' s " Humanae "Vi tae,"

1968, states that d i rectly willed and procured abortion is

condemned , even if i t is for therapeutic reasons. Condemn a-

tion of abortion h as been a consistent historical teaching of

the Church , with an occasiona l vacillating theologian. " Very

r e c ently , since the disse nt within Roman Catholic theological circles on the papal teaching on contraception {" Human ae

Vitae "}, the re are a f ew contemporary theologians who r eason

that it i s perfe ctly permissible to dissent from the Church ' s

teaching. Even so, there is no evidence that the re is a growing debate within Catholicism on the ques tion of abor tion.

In r esearching Father Kelly, it is seen that h e has

actua lly stud i ed like situations of rece nt concern and

14"Constitution on the Church in the Modern World," The Documents o ~ Vatican II, n. 51. 7 8

possibilities but, admits tha t there is a difference in omi s -

sion of an act and l etting a being die naturally and the com-

mission of an act which would intentionally destroy innocent

life. In evaluation of conflict situations and value judgments, he quotes Pope Pius XII ;

Besides who can j udge wi-th certainty which o f the two lives is in fact the more precious? Who can know what. path t hat child will follow' and what heigh-ts of achieve ment and perfection he may reach? Two grea·tne sses are b e ing compared here, one of them being an unknown quan tity.15

l5Kelly , Medico-Moral Problems (1958), p. 76 , quoting from an address given by Pope Pius XII , November 26, 1951. CO NCLUSION

In conclus~on, an investigation and s tudy of Father

Kelly's principles in discussing abortion and also a study of

t he opinions and views of a sel ect number of moral theolo

gians and wri-ters wh o argue against the natural law approach

to moral theology and the traditional teaching of the Church

with r egard to abortion were employed in -this thesis. As a

consequence a great number of opinions, views , and methods

are evident.

In t he last few years , Christian ethics and moral

theology have been involved in a controversy. The natural

law method of arriving at moral decisions is b eing challenged by the modern proponents of a primarily situational approach

to moral decisions. Moralists who u s e the natural law ap proach are accused of making decisions with principles that

emphasize the eternal, immutable, and unchanging, and operate with an objectivity based on a priori, deductive method which

is far removed from the reality of a situation. The situa

tionists b e lieve they are more involved in the reality of

the particular moral decision because they stress the indi

vidual , the particular, the temporal, and the changing . They

employ the a posteriori, inductive method taking into account

t he particular tra its that characterize man. Father Kelly is

usually identified with the class of moral theologians who

.)~:~! 80

use the a priori, deductive method of arriving at sol utions

to moral problems .

One of the important subjects of contemporary chal-

lenge is the dilemma: when does human life begin? One of

Father Kelly's main principles in discussing the morality of abortion states that every unborn child must b e considered a human person from the moment of conception. This position lS not un animously acceptable tod ay . Catholic and other moral - ists and ethicians are speculating about the b eginnings of human life. This is publicized and is consequentl y confusing to the laity. Some maintain that the embryo is only a por l tion of the mother which may be excised. Others opt that there is a question whether a newly conceived embryo i s I actually a human being or potentially a human being. Geneti-

\ cally and biologically the evidence is in favor of the embryo b e ing a separate entity and supports the fact that the embryo, or fetus, has all the genetic factors of an individual huma n person and that the f etus has its own brain , heart, anc eir-· 2 culatory system. The removal of the embryo or f etus i s not valid under the principle of totality b ecause the human being

in question is not just anothe r piece of tissue of the mother.

Another point brought to bear on the problem of the beginning of human life is the argument of the time of

IFor example, see Fletcher,Morals and Medi cine, pp. 150-52. 2 See Mangan, liThe Wonder of My self, II p. 131. 81

3 i nfusion of the spiritual s oul. This i s a question of philosophical specul ation and a t -this time in history it has not been proven definitely that the soul i s present at conception. Father Kelly concludes that in the practica l order one must follo-;v the safer course and always treat a living f ertilized ovum , whatever happens to be its state of developme nt a s a h uman person , wi th a ll t he r i ghts of a human person. This princ i p l e may be ch allenged by ma ny and i s open to speculation and varying interpretation. Neve rthe l ess , the authe ntic teaching of the Church r emains -that life from the moment of conce ption must be guarde d with the gre a test care .

Also more recently,

In reali-ty, respect f or human life is called for from the time that the process of generation begins. From the time that the ovum is fertilized, a life is b e gun which is neither that of the father nor of t he mother ; {t is rather the life 6f a new human being with his or h er own growth. It would never be made human if it were not human already.4

In today's society one is immersed in a milieu of ethical pluralism. There is much speculation about the beginning of human life in theological, biological, philosophical, psychological circles, etc., and there is no con- sensus that human life is inviolably present at the moment of conception. Further, for some t here is no r ecognition of the life present at conception as synonymous with human life

3See Callahan, Abortion, pp. 410-15.

4Sacred Congregation for the Doctrine of the Faith, Declaration on Ahortion (Washington, D. C.: United States Catholic Conference, 1975), p. 5. 82 or much l ess a human person, S even though it is evident biologically tha-t the human sperm and the human ovum come -to- gether in a process which begins a separate life process which becomes an ernbryo , a fetus, a child, an adult if the growth process is not interrupted.

Divine Revelation tells us that God created man and as creator he is Lord o f life and death. Not everyone accepts o r believes this central confession o f Catholic faith , which is t he b e lief of many other Chris-tians and non-

Christians. All men are under God's dominion because all creation i s under God 's dominion. Fathe r Kelly r emarks ,

"Only God h as the right to take the life o f t he innocent; hence the direct killing of the innocent, without the authority of God, i s always wrong. This truth we know through human n a ture and through Divine Revelation.,,6 This belief has been sustained by west ern culture and law until very recently. It is difficult for some me n to acce pt this truth or to reason to this truth without faith in God. Consequent- ly, there are some men who do not affirm that they owe their existence and ultimate destiny -to God. A further comme nt of

Father Kelly is, "The reason for this difficulty s eems to be that to those who really believe in creation and the supreme dominion of God, the principle is too obvious to need proof;

5see Callahan, Abortion, pp. 349-404.

6Gerald Kelly, S.J., Medico-Moral Problems (Dublin: Clonmore and Reynolds, 1955), p. 165. 83

whe r eas for t h ose vlho do n o t b e l i eve in c r eation t here is no

b asi s on which to build a p roof .,,7

In such a ~tate of affairs when the fundamental prln-

cipl e of the God-given right to life of the unborn is rejected

o r not recognized , and consequently of littl e or no value,

the n a ll human life i s endangered . Another o f Father Kelly ' s p r inc i p l es i s:

God gives to no one the power to dire ctly d estroy inno ce n t human I ffe . The direct ki l lin g of any innocent pers on, eve n at his own r eques t , i s always mo r ally wron g . Any proce dure whose sol e i mme d i ate effect i s t h e dea t h o f a human bei ng i s a dire c t kill ing. The part icul a r a pp licai{ on for abor t i on is: d irect aborti on is a d i r ect killing o f an unborn child , a nd it i s n e ver p e r mitte d, e ven when t h e ultimate purpo s e i s to save the l ife of the mo the r. Every pro cedure whose sole i mme diat e effect i s the t ermination o f pregnan cy b efore viability i s a d ire ct abortion. 8

For some the olog i ans and ethic ians F a t her Kell y ' s princ i p les seem to b e fixed totally in the phy sica l str ucture

and causality of the action allowing for no e x tenu ating cir-

cu.rns "tances . For these same theolog i a ns a nd e t h icians to de-

scribe the mo rality of a n action only in t erms of the physi-

cal nature of the act apart from other e x i s ting circ ums t ances

and/or r e lationshi ps is l e s s than adequa te . There i s d is-

satisfaction and the questioning stems from the t e n s ion tha t

is appar ent b e tween the absolute characte r of formal princ i- ples and the very complex reality o f modern life. Mod e rn

Catholic theologians, such as Milhaven, Simons, Curran, and

7Ibid . 8 . " Kelly, Medico-Moral Problems, pp. 62-95, 105-14. 84

others reject t he p ossibility of a negative moral absolute ; consequentl y the formal pri ncipl e "thou shall not k ill" can-

not be applied to all reality withou t admitting exceptions .

Callahan s t a t es , II A reading of the ' sanctity of life ' which

e stab lishes fixed moral entailments , rigid h ierarchies of values and rights, and a rigid exclusion of e xperience and

social data is an untenable position.,,9

In effect the new moralists such as Mi lhaven, Curran,

Van der Poel, Fletcher, etc. reject t he natural law objective principle that innocent human life can never be taken direct-

ly. Milhaven offers this observation, "Mentality A (such as

Gerald Kelly, John Ford, etc.) prohibits unconditionally all

direct abortion, just as it prohibits unconditionally all

!direct killing of an innocent person." Milhaven questions

the principle since Father Kelly and those of the traditional

school of moral theology permit indirect killing. "\\fhile it

does not mean that they are inconsistent or arbitrary, or

their position is false, it admits a hidden principle not

alluded to but which is acted upon. 1I10

Milhaven's own opinion in regard to direct abortion is that God in the Bible seemed to authorize a violation of

negative moral absolutes which the natural law theologians

uphold. He suggests that God could by a special initiative ,

authorize a manto perform acts such as direct abortion. He

9callahan, Abortion, p. 440.

10Mi lhaven , "Abortion Debate," pp . 112-13. 85 i nsists that modern man shares more of God' s dominion and authority over human nature because man has noltl " come oE

age. " Therefore I modern man has "fantastic po,1er over nature and human life and inescapable moral autonomy I so he must. be arrf' ect1ve an d creat1ve" 1n h1S' mora 1 J' u'gemend t s. ,, 11 He 1m-, plies t hat those who adhere to n egative moral absolutes are i nsensiti ve t o moral probl ems because they fail to respond to the r eal ity of t he s ituation .

Charles Cu rra n offers t his ev aluati on of Milhav e n' s position:

J ohn Giles Milh ave n has propose d and d eveloped a l ove ethi c based on a prop er e mp i rica l evaluat i o n of t he con s e que nce s of ou r actions in t h e light of l ove . Milhaven r ecognizes a close r e l a tionship between h i s the or y an d tha t proposed by J oseph F l e tcher , who also acknowl e dges that Milh ave n i s i n b a sic a gr eeme nt wit h F l etcher's own appr oach. 1 2

Fle tche r b e lieves tha t direct abortion i s acceptabl e and good if the good to b e a c complished i s g reat enou gh to jus tif y t he means. To b e arti f icial o r against n ature i s of t e n the h i ghe st good in t e r ms of moral values . Eve rything i s good or b ad a ccording t o the circumsta nce s, i nclud ing 13 abortion . Fletcher ' s s t a nce is t hat un l ess s ome end or purpose is seen to jus tif y or .sanctif y it an a ction p erformed is me aningle ss. Ther e fore, if the end is s ought in love the means is good by reason o f the good end; e.g. if the love of

11M1 'lh aven, "Moral Absolutes and Thomas Aquinas ," pp. 181-85.

12Curran, New Perspe ctives in Moral Theology , pp. 10- 11. 13Fletcher, Moral Responsibility, pp. 123-24. 86

the husband and wife could be served by direc-t abortion of the fetus, then love justifies the direct killing and it becomes a good means. Van der Poel holds much of the same theory when he says, " We do not say here that the end jus ti- fies -the means bu-t what we do say is that the end determines the human meaning of the means. n14

Curran in New Perspectives in Moral Theology says,

"as a Chris-tian any taking of life must be viewed as a reluc- tant necessity. However, in the case of abortion there can be circumstances in wh ich the abortion is justified for preserving the life of the mother or some othe r i mportant value commensurate with life e ven though the action itself aims at abortion ' as a means to t he end. ,,,15 Curran agrees with

Fletcher in the opinion that the moral theology of the manu

I alist h a s e x aggerate d the old a x iom "the end never justi fies the means ."

The third of Fathe r Kelly's princip l es invo l ved in the discuss ion of abortion is one which uses the principle of double effect.

Risk to life and even the indirect taking of life are morally justifia ble for pr oportionate reasons . Life is taken indirectly when death i s the unavoida ble r esult of a procedure which is immediately directed to the achieve ment of some other purpose, e.g., the removal of a dis eased organ. Operations , treatments and medications during pregnancy, which have for this direct end the cure of a proportionately serious pathological condition of the mother are permitted , when they cannot be safely

l4van der Poel, "The Principle of Double Effect," Absolutes, p. 205. - . 15curran, New Perspectives in Moral Theology, p. 191. 87

postponed until the fetus is viable , even though they cause an abortion indirectly.16

This principle has occasioned much discussion and is not acceptable to some Roman Catholic moralists, ethicians , and philosophers. Callahan, Curran, Milhaven, Van der Poel , a nd some of the above mentioned Protestant theol ogians feel that the direct and i ndirect approach of the principle o f double effect i s far too legalistic and rigid. Some , particularly Curran and Milhaven, reject the ontologically based moral theology of the Roman Catholic position. The ir desire is to see human a cts considered in t erms broader than their physical meaning and the disti nction direct and indir ect.

They maintain that decisions nust be made inductively and in concrete situations in which one i s placed. One l earns what , he ought to do not by objective l aws but by a certa in intimate I judgment and l ight within t he mind of each individua l. The criticism of the traditional Catho lic pos ition focuses on the f act that it does not allow a sufficient recognition in its theoretica l approach for t he eval uation of other rights and v alu es other than the right to life of the fetus. There must, they insist , be free dom from fixed absolute principles to make de cisions in favor of abortion in the event o f danger to the mother's life , p sychiatric disorders, grave f ami ly and societal r esponsibilities , incapacity for motherhood, violent impregnation, and so forth.

Van der Poelobjects to the principle of double effect

16Kelly, Medico-Moral Problems, pp. 62-95 , 105-14 . 88 as it is used in Catholic moral theology, asserting that:

A moral judgment is made not so much about a human act in itself as a separate entity , but rather the individ ual human act should be evaluated insofar as it con tributes to or destroys the building of society. The social aspect of man seems to be overlooked or at least to be de-emphasized in the application of the principle of double effect . . It is possible that the same physica l act and effect may have an entirely different human value because of the total environment (if you wish call it circumstance) in which the a ct is performed. 17

In short, Father Van der Poel sugge sts that things cannot be considered only in themselves because reality e xists in relationship with other beings and that the means used in an action is good or evil only in relation to the total human action.

The new moralists free themselves of any abstract absolute principles and admit only one absolute norm, love.

When this absolute value, love, is placed on a purely subjective level there is no way one can distinguish love from selfishness or self-interest obscured by emotion. In this moral position love justifies the means and the moralists who advocate such a position draw the conclusion that the end justifies the means . In such an individualistic approach by what criterion or criteria is one to decide i n a conflict situation who should have the priority of one 's love? In creating man in His image God commands man to imitate His love but God does not g i ve to man total dis- cernment or selection of means. Scripture teaches that God commands man not to kill; consequently, one concludes that

l7van der Poel, "The Principle of Double Effect." pp . 192, 204-05. 89

the means to directly kill human life is reserved to God

alone. To say that God grants man a special privilege to kill innocent life because exceptions occur in the Scriptures i s a question of fact which needs to be proven and not taken for granted. Those who espouse the position that the end

justifies the means are presuming this fact. The new moralists , whose only principle is l ove , have failed thus far to demonstrate that those who procure, perform , Or advocate abortion, are in deed loving God and the ir n eighbor as them- selve s . Tha t society is b e tter b ecause of freedom to directly abort innocent human life is certa inly not in evidence . Cre- ativi ty in morality should enable man to choose b e-t ween what is good and what is be-tter for mankind. Abortion of the innocent fetus does not cure the ills of society and is c e rtainly not dreative but destructive of human life .

The Sacred Congregation for the Doctrine of the

Faith's Declaration on Abortion states:

The first right of the human person is t he right to life . He has other goods of which some are more precious, but this one isfundame ntal--the condition of all the others. Hence it must be protected above all the others. . It is not r ecognition by another that 60nstitutes this right. This right is antecedent to its recognition; it demands recognition and it is strictly unjust to refuse it. 18

"Life is too fundamental a value to be weighed against even very serious disadvantages.,,19 Good intention can n ever b e the sole criterion for making a moral judgment. One cannot

18Sacred Congregation for the Doctrine o f the Faith, Declaration on Abortion, p. 5 . • 19Ibid . 90

use opinion in order to destroy human life. If t here are no

objective pri nciples to measure norms o f c onduct then each man is free to act. Without objective norms morality b ecome~

a pragmatic r elati vism , a moral anarchy which accepts erratic,

s elective and unpredictable moral decisions . The varied opini ons concerning the beginning of hu~an life and the speculations on the moment of animation r emain just that--opin- i ons and the ories. 1/ In ·the practical order I " states Fathe r

Kelly, ''we must fo l low .the safer course and always treat a

living fertilized ovum, whatever h appens to be its state of development, as a human p e rson , with all t he rights of a human person. n20 "The life of the child takes precede~ce over all opinions. One cannot invoke freedom of thought to destroy life. ,,21

The writer of this thesis does not see Father Kelly basing his principles exclusively on physical structure and causality of act. He is not so rigid that he does not e xamine

t he personal values involved in modern situations. To try to divorce the physical act from the moral action as some of the n ew moralists seem to suggest is to ignore the very important

fact that in direct abortion there is a commission of a physi-

c a l act upon a physi cal human b eing which results i n the directly intended killing o f t hat h uman being as an end or a means. It is not known to the writer o f this thesis that any

20Kelly, Medico-Moral Problems , p . 67.

21Sacred Congregati on for t h e Doctrine o f t he Faith, Declaration on Abortion , p. 9 . 91

Roman Catholic theol ogian espouses aborti on on demand or as an alternative to contraception . Charles Curran readily ad- mi ts f "AI.: -times I feel that some Catholic theologians are so involved in intramural discussions about abortion that they do not emphasize -that -their opinions differ quite markedly f r om many o thers in our society who seem to see nothing at all wrong with abortion . ,,22

The princ i ples of Fathe r Ke l ly c oncerni ng t h e morality of abortion a re for mulated from t he unite d opi n i on o f centuries of study and rese arch o f moral theologi ans . Calla 23 han and Curra n admit that the Catholic the ologians wh o dissent from the Church's t e a ching on abortion a re relatively few. Curran in 1974 stated:

In closing the summary of contemporary Catholic moral theology on the moral aspects of the ques tion of abortion it is important to recall t hat this cha pte r has prese nted jus t newer a nd different opinions which have appeare d in the last few years. These positi ons are not held b y the majority of Catholic theologians but the re i s a sizable and growing number o f Catholic theoiogians who do dis a gree with some aspects of the officially propose d Catho lic teaching that direct abortion from the time of con ception i s always wrong . 24

The Ethical and Re ligious Directi ves for Catholic Health

Facilities still v iew Father Ke lly 's principles on abortion as valid and operable.

The authentic and authoritati ve teaching of the Roman

Catholic Church con-tinues to c ondemn abortion . The Vatican

22Curran , New Perspectives in Moral Theology , p. 192.

23call ~han , Abortion, p. 442, n. 12. 24curran, New Perspectives in Moral The ology, p. 193. 92

Council II documents state:

Whal::ever is opposed to life itself , such as any type of murder , genocide, abortion , euthanasia , or willful s elf destruction . all these things and others of their like are infamies indeed . . From the moment of its conception life must be guarded with the greates-t care while abortion and infanticide are unspeakable crimes. 2 5

Pope Paul also condemns abortion, pointing out that "we must once again declare that t he direct i nterruption of the generative pr ocess already begun , and , above all, dire ctly wille d and procure d abortion , even for therapeutic reasons, are to be absolutely excluded as licit means of regulating birth."26

Father Kelly's principles are a clear explanation of the common doctrine which has been taught by the Church 27 through the c enturies . For those who cannot acce pt his principles, Father Kelly stresses "the united opinion of c enturies of study and research of moral theologians can only rightfully be challenged by those who have made an equally penetrating study of the natural law and who offer sound reasons for their d issent." 28 Thus far experience has shown that mora lity with no absolute principles has shown an in- crease in violence and the killing of innoce nt human beings.

Are there absolute values of love, possessions, tranquillity of mind that challenge the absolute right to life? The burden of proof seems to rest with the dissenters.

25Abbott, Documents of vatican II,pp. 226, 256.

26pope Paul VI, "Humanae vitae," AAS 60: 481.

27 Currqn, New Perspectlves. In . Mora 1 T h eo 1 ogy, pp. 41-46.

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