The Linacre Quarterly

Volume 67 | Number 1 Article 6

February 2000

Abortion: Correct Application of Natural Law

Theory
Diane N. Irving

Follow this and additional works at: https://epublications.marquette.edu/lnq

Recommended Citation
Irving, Diane N. (2000) "Abortion: Correct Application of Natural Law Theory," The Linacre Quarterly: Vol. 67 : No. 1 , Article 6.
Available at: https://epublications.marquette.edu/lnq/vol67/iss1/6
 Abortion: Correct Application
of Natural Law Theory

by

Diane N. Irving, M.A., Ph.D.

The author is Full Professor, History of Philosophy and Medical

Ethics, Dominican House of Studies and Lecturer in Ethics, at the
Catholic University ofAmerica.

Introduction

The rhetoric on abortion continues to embattle and confuse "pro-choice"

and "pro-life", "liberals" and "conservatives" alike. Many "liberals"
complain that it is irrational and brutal to expect a woman to die so that her
unborn child may live. Abortion should be permitted basically on demand,
certainly in cases where the health and life of the woman are at risk, and
even in cases of incest or rape. Besides, they remind us, it is legal. In
contrast, many "conservatives" argue that abortion can never be
rationalized or permitted, as it is fundamentally immoral to kill an unborn
child who is an innocent human being, no matter what the circumstances or
the law - regardless of the woman's health, life, incest or rape. At times it
seems that the advocates of either position are "talking past" each other,
oblivious to the possibility of any moral legitimacy in each other's position.
Further, there seems as yet to be no structured or principled means
commonly acceptable to both "camps" by which to circumvent this highly
politicized standoff or to address these tragic moral dilemmas.
To a significant degree this standoff is often due to misinformation or
to a reluctance to make some important moral distinctions. One moral
distinction is between: (I) inherently bad actions (e.g., abortion) and (2)
inherently good (or neutral) medical actions which are permitted, even
though bad effects would result, in order to save the life of the mother (e.g.,

February, 2000 45
the gIVIng of chemotherapy treatments, or the removal of a cancerous
uterus, etc.). Another moral distinction is between directly and indirectly
voluntary actions (that is, between directly willing an evil, and indirectly
allowing an evil to take place). Once these important moral distinctions are
correctly understood, then conditions allow us to apply a common moral
principle to this standoff, rather than leaving such a vital issue up to
personal emotions or to unprincipled political compromise. These
distinctions can also be applied to the many other issues related to abortion,
e.g., destructive human fetal and human embryo research, and human
cloning (which inherently requires destructive human embryo research).
The common moral principle oft(!n used in these difficult situations is
that found in the time-honored theory of natural law' known as the
principle of double effect. 2 Properly understood, the principle of double
effect evolved in order to address just these types of difficult moral
dilemmas - in this case where both of the lives of those affected are
innocent, and yet something must be done or will happen which inevitably
will endanger one of these two innocent lives. The obvious application for
our purposes here is when a woman., who is herself an innocent human
being, whose human life is precious and must be respected, is pregnant
with an unborn child, who is likewise an innocent human being (from
fertilization onwards), and whose life is also precious and must be
respected. Since, as natural law th,;:ory holds, one may never directly
intend to kill an innocent human being/ under what circumstances and
conditions is it morally permissible: (I) for a woman to undergo an
abortion procedure, or (2) for a physician to help one of these innocents to
live, by means of other and different morally legitimate medical actions,
and yet permit or allow the other, unfortunately, to die?
These are really two different a.nd separate moral questions, and so
must be approached differently. One concerns abortion procedures; the
other concerns other medical actions or procedures which could be taken in
order to save the life of the mother (and vice versa) when urgent and valid
medical circumstances arise. The solutions to these two very different
questions, I would suggest, could be applied in helping to resolve at least
the extremes of the current abortion debates, without at all compromising
long established moral principles. The resolution lies in seeing the moral
distinction between these two questions and then properly applying the
well-established principle of double effect.
But before developing thi s often used application of the principle of
double effect in more detail, it is important to stave off just a few possible
objections by clarifying quite briefly some facts about natural law ethical
theory - a theory often misunderstood, misinterpreted, or misapplied down
through the years.

46 Linacre Quarterly
 Natural Law Ethkal Theory4

Some examples of what natural law ethical theory is, or is not, and
why it could be considered useful in this debate, include the following:
I. It is a philosophical ethical theory, not a theological one - although
it can be and is related to theology. That is, natural law ethical theory aids
us in understanding which human actions are morally right or wrong
through the aid of human reason alone - without the use of Divine
Revelation or the teachings of the Magisterium. It has been studied and
refined over the centuries as a means of addressing what is the morally
right thing for us to do when faced with genuine moral dilemmas. It is not
some new, brash, untried or unscrutinized moral theory. One might agree
that although natural law ethical theory is by definition not a case of
imposing one's religious or belief system on others, it still might be
objected that it is a case of imposing one's ethical system on others.
In response one could point to several facts: first, natural law ethical
theory can well hold its own in complicated academic and heated debates
compared to other philosophical ethical theories (although I will not get
into that here). Second, there is simply no such thing as a "neutral" ethics
which might be " perfect" for our pluralistic society - no matter now
convenient such "neutrality" might be. This includes the ethical theories of
utilitarianism, relativism or communitarianism - none of which are
"neutral" and all of which are normative ethical theories. Therefore we are
in fact constantly "forcing" some non-neutral philosophical or social ethical
theory on others in this country, whether we want to acknowledge that fact
or not. Finally, as pointed out in the Declaration on Procured Abortion: "It
is true that it is not the task of the law to choose between points of view or
to impose one rather than another. But the life of the child takes
precedence over all opinions. One cannot invoke freedom of thought to
destroy this Iife."s
2. In counter-distinction to many other ethical theories, natural law
ethical theory is proximately and objectively grounded in our objectively
knowable human nature, i.e., on what is really good or bad for us as human
6
beings - as individuals and as members of our human communities. It is
not simply deduced from non-empirically derived and questionable
"philosophical" premises or religious dogmas, or from variable emotions or
personal opinions. For example, it is wrong to use cocaine because our
human natures are such that cocaine eventually seriously harms, sometimes
even destroys us - body, mind, and spirit. It can also seriously harm others
close to us as well as to our human society at large. That is just the way we

February, 2000 47
human beings are " made"; and we can know this fact objectively and
empirically.
3. Because the basic precepts of natural law theory are proximately
grounded on an objectively knowable human nature, they are applicable to
all human beings, precisely because we all possess such human natures.
The possession of natures which are specifically human is precisely what
we all have in common . This is true regardless of time, culture,
background, race, sex, religion or political affiliation.
4. Thus, if properly understood and applied, natural law theory should
be ideal for our " pluralistic" society -- since all of our citizens are human
beings, and hold at least that in common. What is fundamentally good or
bad for human beings in general will hold for us all. Certainly secondary
differences must be taken into consideration ; but the primary precepts of
the natural law will be the same for all of our citizens by virtue of their
common humanity, and these precepts cannot be changed because our
human natures, and what is objectively and fundamentally good or bad for
them, cannot change. It calls, indeed, for simply minimal moral
requirements to guide a human polity.
Finally, in natural law ethical theory, there are three determinants of a
human action which determine its rightness or wrongness, and all three
7
determinants must be good in order for an action to be considered good .
I. the act itself (what the agent wills), which is either good or evil by
its very nature (a major tenet of natural law ethical theory which is rejected
by contemporary " proportionalist" interpretations of natural law theory)8 -
e.g., the act of abortion is inherently wrong; the acts of administering
chemotherapy or performing a hy;terectomy are inherently good (or
indifferent) actions.
2. the motive or intention (consciously willed), which is what the
agent wants to achieve by the act - i.e., the end, purpose or goal of the
action; why the action is performed - e.g., in order to kill a person; or in
order to evade social disgrace, better spacing of children, or cure a deadly
disease.
3. the circumstances, which are the accidental surroundings of the
act, which include the consequences of the act - e.g., the act of intercourse
with a willing spouse or forcibly with a stranger or one's child; or that there
are no other medical treatments available.
It is critical to understand that an action which is evil in itself (by its
nature) cannot be made good or indifferent by any intentions, goals or
circumstances - no matter how good or praiseworthy these are per se. On
the other hand, an action which is good in itself (by its nature) can be
morally ruined by any gravely bad intentions or circumstances. These three

48 Linacre Quarterly
determinants of a moral act are explicitly incorporated into the following
short explication and clarification of the principle of double effect.

The Principle of Double Effect

That part of natural law ethical theory referred to as the principle of

double effect was gradually refined over the centuries in order to meet the
unfortunate but very real moral dilemmas in which , no matter what is
reasonably done, one or more innocent human beings may be harmed or
even die in the process of resolving the dilemma. The following
explication of the principle of double effect, as well as its four necessary
conditions, are taken almost verbatim from the work of Austin Fagothey,
Right and Reason. Its application to the abortion debate will be
specifically indicated under each condition of the principle.
The principle of double effect is based on the fact that evil must never
be directly and voluntarily willed for its own sake, and must never be
willed either as an end or as a means to an end. Nor may evil ever be
directly willed as a foreseen but unwanted consequence. But evil can be
reduced to an incidental and unavoidable by-product in the achievement of
9
some morally licit good the person is rightfully seeking.
Thus, although I am never allowed to will evil,lo I am not always
bound to prevent the existence of evil. Just as I may tolerate the existence
of evils in the world at large, since I could not cure them without bringing
other evils on myself or my neighbor, so I may sometimes tolerate evil
consequences from my own actions, if to abstain from such actions would
bring a grave evil on myself or others. Unfortunately then , as is sometimes
the case, I cannot realistically in fact will a legitimate good, without at the
same time permitting the existence of an evil which in the very nature of
things is inseparably bound up with the good I will. But I must not do so
indiscriminately. In short, sometimes I am bound to prevent evil, and in
these cases it would be wrong for me to permit it. But sometimes I am
permitted to allow evil effects to take place. How can we distinguish
between these two different cases? 11 This is where the principle of double
effect comes in .
The principle of double effect hold s that it is morally allowable to
perform an action that has a bad effect only under the following conditions:

I. Once again, the action to be performed must be good in itself, or at

least indifferent.
This is evident, for if the act is evil of its very nature, nothing can make it
good or indifferent. Evil would then be chosen directly, either as an end or
as a means to an end, and there could be no question of merely permitting

February, 2000 49
or tolerating it. '2 If the action is fundamentally and inherently morally
illicit, then it cannot be morally permitted regardless of any good intentions
or goals, or under any good circumstalnces.
Application: The act of abortion of its ve~y nature is inherently evil,
because it is the intentional and direct killing of an innocent human being.
This would apply to all abortions, including those in the case of rape and
incest (and to those involving human fetal and human embryo research, and
human cloning). Therefore it is never morally permissible to undergo an
abortion procedure. The principle of double effect as applied to the case of
abortion renders abortion procedures morally illicit, since the action by its
very nature is evil. However, other possible medical actions, e.g., the
giving of chemotherapy or the removal of a cancerous uterus - morally
good or at least neutral acts - could be permitted in order to save the life of
the mother, even if it could possibly result in the unintended death of the
unborn child, as long as all of the other three following conditions are also
13
met.

2. The evil effect must not be d i rectly intended for itself but only
permitted to bappen as an accidental by-product of the act
performed. 14
Application: In the case of abortion procedures, the death of the
unborn child is directly intended and therefore is morally illicit. On the
other hand, in the use of chemotherapy or the performance of a
hysterectomy to remove a cancerow; uterus. etc. , the death of the unborn
child may not be directly intended. but only permitted or allowed as a
15
possible by-product.

3. The good intended must not be obtained by means of the evil effects.
The evil must not be an actual factor in the accomplishment of the good. ' 6
Application: In the case of abortion procedures. the death of the
unborn child may not be used as a means of limiting famil y size, preventing
birth defects, enhancing a career, etc. (all legitimately good or neutral ends
in themselves.).17 On the other hand , the curing of the potentially deadly
disease of cancer could be obtained by means of the morally acceptable
actions of the administration of chemotherapy or the performance of a
hysterectomy. The death of the unborn child is not the means used to cure
the cancer.

4. There must be a reasonably glrave reason for permitting the evil

effect.

50 Linacre Quarterly
If the good is slight and the evil great, the evil can hardly be called
incidental. If there is any other way of getting the good effect without the
18
bad effect, this other way must be taken.
Application: In the case of abortion procedures, to maintain a slim
figure, to have a child of a certain sex, to prevent the birth of a child with
defects, or to evade social embarrassment would not be reasonably grave
reasons for permitting the unintended and unavoidable death of the unborn
child. On the other hand, to give chemotherapy or to perform a
hysterectomy in order to remove a cancerous uterus, etc., to preserve the
life of the mother (who is also an innocent human being) would be a
reasonably grave reason for permitting or allowing the unintended and
unavoidable death of the unborn child. If there is any other reasonable
medical treatment available to save the life of the mother which would not
entail undue harm or death to the unborn child, then it must be chosen
19
instead .
And finally, note that these examples of "other medical actions" are
not morally licit unless all four conditions of the principle of double effect
are fulfilled. If anyone of them is not satisfied, even though the other three
are, those medical actions are morally wrong.

Conclusion

In short, a pregnant woman who is faced with the grim reality of

impending death short of the use of, e .g., chemotherapy or hysterectomy,
may use these and other morally licit medical treatments and procedures for
the reasonably grave reason of saving her life, as long as the death of her
unborn child is not directly intended as the end (or purpose) of using these
procedures, or is the means by which her life is saved, and no other
reasonable medical treatment is available. However, the directly intended
death of an unborn child by means of procured abortion remains morally
indefensible - even to save the life of the mother, or for the best of
intentions, or under very difficult circumstances - even in the case of incest
and rape.
There is too much at stake to leave the lives of so many millions of
innocents - both women and unborn children - up to mere personal
whimsy or political bartering. The social fiber in this country has been
shattered and stretched to the limit. Presented here is at least a common
moral means of considerably reducing the rancor and misinformation
swirling about these abortion debates . The proper understanding and
application of the principle of double effect offers a commonly accepted,
morally legitimate, objectively grounded basis for clarifying the important

February, 2000 51
moral distinctions which need to be made within these very tragic and
difficult moral dilemmas - one on which most of us could reasonably
agree.

References

1. Although many of the quotations below are derived from traditional Catholic
documents, the truth of these statements has been acknowledged by most thoughtful
persons and religions over the centuries.

2. For a simple, brief summary of the Principle see Austin Fagothey, SJ., Right and
Reason (second or third editions only) (St. Louis: The C.V. Mosby Company,
1963), pp. 107-11 O. For a brief but accurate explication of the Principle, see Peter
J. Cataldo, "The Principle of the Double Effect," Ethics and Medics (Braintree,
MA: Pope John Center, March 1995), 20(3):1-2. See also Kevin O'Rourke and
Philip Boyle, "Double Effect", Medical Ethics: Sources o/Catholic Teachings (St.
Louis, MO: The Catholic Health Asscciation of the United States, pp. 102, I 03
(hereafter referred to as Sources ... ).

3. Pope Pius XI, "Encyclical Letter on Christian Marriage" (Dec. 31, 1930), The
Human Body: Papal Teachings, 1960, pp. 31-34, in Sources ... , p. 35 , 36:
" .. . Whether inflicted upon the mother or upon the child, [direct abortion] 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. . . Those who hold the reins of govemment should not forget that it is the duty of
public authority by appropriate laws and sanctions to defend the lives of the
innocent, and this all the more so since those whose lives are endangered and
assailed cannot defend themselves . Among whom we must mention in the first
place infants hidden in the mother' s womb." See also " Declaration on Procured
Abortion" (Nov. 18, 1974), Vatican Council II, Vol. 2, 1982, pp. 441-443 , in
Sources ... P. 38; " Divine law and natural reason, therefore, exclude all right to the
direct killing of an innocent man ."

4. For examples of several classic e~plications of natural law theory, see A.

Fagothey (note 2) esp. pp. 124-139; also, Vemon J. Bourke, Ethics (NY : The
Macmillan Col. , 1953); Ralph Mclnemy, Ethica Thomistica (Washington, DC: The
Catholic University of America Press, 1982); Mclnemy, Aquinas on Human Action
(Ibid, 1992); Charles Rice, 50 Questions on the Natural Law (San Francisco:
Ignatius Press, 1993).

52 Linacre Quarterly
 5. Sacred Congregation for the Doctrine of the Faith, Declaration on Procured
Abortion (1974) (Alexandria, VA: St. Paul Books & Media), p. 19 (emphasis
mine).

6. See Fagothey (note 2), pp. 128-131. See also Pope John Paul 11, Encyclical
Letter, Veri/alis Splendor (Boston. MA: St. Paul Books & Media, 1993), #72 (P.
91): "Acting is morally good when the choices of freedom are in conformity with
man ' s true good and thus expresses the voluntary ordering of the person towards his
ultimate end [good] ."; also, ibid, p. 92.

7. Fagothey (note 2) p. 112. See also Veri/alis Splendor, #74, p. 93 : "But on what
does the moral assessment of man ' s free acts depend? ... [It is] the intention of the
acting subject, the circumstances - and in particular the consequences of his action
[and] the object itself [i.e., the kind of action . i.e., inherently right or wrong or
neutral] ... "

8. Note that Pope John Paul II has clarified in Veri/alis Splendor that
" proportional ism", an ethical theory proposed by dissident moral theologians, is not
properly natural law or morall y acceptable - in particular because it rejects the very
possibility of actions which are morally good or morally bad per se, i.e. , by their
natures - see Veri/alis Splendor #79-80. pp. 100-102 : "One must reject the thesis,
characteristic of teleological [consequentialist, e.g., utilitarian] and proportionalist
theories, which holds that it is imposs ible to quality as morally evil according to its
species - its "object" - the deliberate choice of ce rtain kinds of behavior or specific
acts apart trom a consideration of the intention for which the choice is made or the
totality of the foreseeable consequences of that act for all persons
concerned . .. There exist acts which per se and in themselves, independent of
circumstances, are always seriously wrong by reason of their object [i .e. , the kind of
act willed] .. . [E]xamples of such acts: ' whatever is hostile to life itself, such as any
kind of homicide, genocide, abortion , euthanasia and voluntary suicide; whatever
violates the integrity of the human person . such as mutilation , physical and mental
torture and attempts to coerce the spirit ; whatever is offensive to human dignity,
such as subhuman living conditions. arbitrary imprisonment, deportation, slavery,
prostitution and trafficking in women and children ; degrading conditions of work
which treat laborers as mere instruments of profit, and not as free responsible
persons ; all these acts and the like are a disgrace. and so long as they infect human
civilization they contaminate those who inflict them more than those who suffer
injustice ... ' '' . See also ibid , #75 )p. 94), #76 (p. 77), #77 (p. 98), #78 (p. 99), #90
(p. I 12), #96 (p. I 19). #97 (p. I 19). See also John Finnis, Moral Absolu/es
(Washington , DC: The Catholic University of America Press, 1991).

9. Fagothey (note 2), p. 107.

10. Pope Pius XI , " Encyclical Letter on Christian Marriage" (Dec. 31 , 1930), The
Human Body: Papal Teachings, 1960 in Sources . (note 2), p. 36: " Evil is not to be
done that good may come of it. " See a lso, Pope Paul VI , Humanae Vitae (1968)

February, 2000 53
(Boston, MA : St. Paul Books & Media), p. 7, "If it is sometimes licit to tolerate a
lesser evil in order to avoid a greater ev il or to promote a greater good, it is not licit,
even for the gravest reasons, to do evil ~;o that good may follow therefrom ." See
also Veritatis Splendor. #80. pp. 102-103 .

I I. Fagothey (note 2), p. 107 .

12. Fagothey (note 2), pp. 107-108.

13. Pope Pius XII , "The Attempt on Innocent Human Life" (Nov. 26 , 1951), in
Sources ... (note 2), p. 103 : " ... Deliberately, we have always used the expression
'direct attempt on the life of an innocent person' . 'direct killing'. Because if, for
example, the saving of the life of the future mother, independently of her pregnant
condition, should urgently require a surgical act or other therapeutic treatment
which would have an accessol)' conseqL.ence. in no way desired nor intended, but
inevitable, the death of the fetu s, such an act could no longer be called a direct
attempt on an innocent human life. Under these conditions the operation can be
lawful, like other similar medical interventions - granted always that a good of high
worth is concerned, such as life, and that it is not possible to postpone the operation
until after birth of the child, nor to have recourse to other efficacious remedies."
See also, Pontifical Council for Pastoral Assistance. Charter For Health Care
Workers (Boston: St. Paul Books & Media, (995), pp. 122-123: " If the abortion
follows as a foreseen but not intended or willed but merely tolerated consequence of
a therapeutic act essential for the mothtT's health. this is morally legitimate. The
abortion in this case is the indirect result of an act which is not itself abortive"
(from Pius XII. To "Face o./the Fal1li~r " and the "Associations of Large Families"
Nov. 27, 1951 in AAS 43 (1951) p. 859). See also, Ethical and ReligiOUS
Directives for Catholic Health Care Services, (Washington, DC, 1995), pp. 19-20:
#47 , "Operations, treatments, and medications that have as their direct purpose the
cure of a proportionately serious pathol ogica l condition of a pregnant woman are
permitted when they cannot be safely postponed until the unborn child is viable,
even if they will result in the death of the unborn child."

14. Fagothey (note 2), p. 108.

15 . See note 13 .

16. Fagothey (note 2), p. 108. See also /"eritatis Splendor, #81, pp. 102-103: "If
acts are intrinsically evil, a good intention or particular circumstances can diminish
their evil, but they cannot remove it. They remain 'irremediably' evil acts per se
and in themselves ... Consequently, circumstances or intentions can never transform
an act intrinsically evil by nature of its object [the kind of act willed] into an act
'subjectively' good or defensible as a chaice."

17. " Declaration on Procured Abortion" (note 5), pp. 14-15 : ..... We do not deny
these very great difficulties. It may be a serious question of health , sometimes of

54 Linacre Quarterly
life or death for the mother: it may be the burden represented by an additional
child, especially if there are good reasons to fear that the child will be abnormal or
retarded ; it may be the importance attributed in different classes of society to
considerations of honor or dishonor, of loss of social standing, and so forth . We
proclaim only that none of these reasons can ever objectively confer the right to
dispose of another'S life. even when that life is only beginning."

18. Fagothey (note 2), p. 108 .

19. See notes 13 , 14.

February, 2000 55