One of the more controversial issues in the Supreme Court case concerning Hobby Lobby is the company's claim that some of the “emergency contraceptives” demanded by Obamacare and the HHS mandate are actually “abortifacients.” The mainstream denial of this claim, supposedly backed by science, has largely revolved around a tendentious use of terms and a confusion about the real moral issues involved.
The defenders of emergency contraception, such as Guttmacher’s Sneha Barot, like to claim that
major medical organizations . . . as well as U.S. government policy, consider a pregnancy to have begun only when the entire process of conception is complete, which is to say after the fertilized egg has implanted in the lining of the uterus.
So, according to this putatively scientific definition, conception is distinct from fertilization and pregnancy occurs only with the actual implanting of the embryo in the uterine lining. According to this definition of conception, anything that interferes with any part of this process, whether a physical barrier, hormonal regulation of ovulation (or sperm production), the destruction of the embryo prior to implantation, or prevention of successful implantation, can intelligibly be called contraceptive.
Similarly, if pregnancy only occurs once conception is complete with implantation, then it is intelligible to claim that abortion is best understood as the termination of a pregnancy—not the destruction of an embryo. This also explains the medical practice of calling early miscarriage “spontaneous abortion.” Along these same lines, a method could only properly be called abortifacient insofar as it can cause (from the Latin facio) an abortion, which, in turn, is only possible after implantation.
These definitions allow emergency contraception advocates such as the Office of Population Research at Princeton University to make blanket assertions such as: “There is no point in a woman's cycle when the emergency contraceptive pills available in the United States would end a pregnancy once it has started” (emphasis added). Using the definitions of contraception and pregnancy given above, that statement could very well be true, even if the “contraceptive pills” in question directly kill a living embryo or prevent its implantation.
The rhetoric sounds good. Emergency contraception does not prevent “pregnancy,” therefore no “abortion” is involved, and no “abortifacient” methods are used.
However, this tendentious exercise in lexicography leads these advocates to confuse the real issue. Consider Sneha Barot’s claim that
if pregnancy were synonymous with the act of fertilization, all of the most effective reversible contraceptive methods—including oral contraceptive pills, injectables and IUDs—could be considered, at least theoretically, to be possible abortifacients.
Barot apparently takes it as obvious that these methods are not abortifacients, and therefore that pregnancy is not synonymous with fertilization. But, of course, whether some of these methods are abortifacients is exactly what’s in question. It doesn’t matter whether pregnancy is defined as synonymous with fertilization, but whether the methods in question directly kill an embryo or prevent its implantation.
The Principle of Double Effect
Ultimately, the moral question of abortion has little to do with the proper understanding of pregnancy at all. We can see this by reflecting on the fact that terminating a pregnancy is not evil per se. Any time a child is delivered by caesarian section, the pregnancy is terminated, but obviously there is no direct moral evil in that procedure. In fact, some pro-life moralists have even argued that some terminations of pregnancy are morally legitimate even if they result in the death of the child.
This line of argument makes use of the Principle of Double Effect (PDE), which broadly holds that an act is morally permissible insofar as it meets four conditions (this formulation is derived from David Oderberg): (1) the intended effect of the act must not be intrinsically evil (e.g., aiming at the death of an innocent); (2) any evil side effects of the act must be unintended (though they may be foreseen); (3) the good intended effect must be at least as causally direct as any unintended side effect (i.e., one cannot do evil so that good may come of it); finally, (4) the intended good must be proportionate to any unintended evils (i.e., the good must “outweigh” the evil).
This method of moral reasoning has allowed some of these pro-life moralists to argue that in certain extreme circumstances it is morally permissible to terminate a pregnancy in a way that results in the death of the innocent child, so long as that death is not directly intended. Rarely, an embryo will implant within its mother’s body outside the uterus (an ectopic pregnancy). While there have recently been extremely rare cases of ectopic pregnancy that were safely brought to birth (through caesarian section), it had traditionally been considered a death sentence for both the mother and child. For these reasons, some adherents of PDE have argued that it is permissible to remove the child surgically from the mother (intact) even though this foreseeably results in the death of the child. Simultaneously, these same moralists argue that the use of a chemical abortifacient to destroy the embryo is impermissible.
They reason that the surgical removal of the intact child is a medical treatment directly intended to save the mother’s life. Killing the child is no part of that treatment (even as a means); were the technology available to save the child’s life that would certainly be done. So the child’s death is a foreseeable but unintended side effect of the surgery to treat the mother, and that foreseeable death is proportionate when weighed against the life of the mother. On the other hand, a chemical abortifacient would violate the PDE because, in treating the mother, the death of the child would be directly pursued. In other words, in the abortifacient case, the mother is being treated by means of killing the child. The child’s death is not merely foreseen, it is actively pursued. That is also why the surgeon must remove the child intact; otherwise, the child’s death would be directly pursued as a means.
Whether or not this particular analysis of ectopic pregnancy is ultimately correct, and we must be careful not to misuse the PDE as has sometimes been done, these examples clearly show that the moral defect of abortion lies not with the termination of the pregnancy, but with the direct killing of the child. In fact, one leading pro-life philosopher has argued that the ultimate solution to the abortion problem might lie in the technological development of artificial wombs. This would, at least in theory, allow the intact removal of “unwanted” embryos without necessarily resulting in their deaths.
If we return to the emergency contraception case, then it is apparent that the real issue is the mechanism by which they work, not what counts as pregnancy. While there are good reasons to think that contraception (understood merely as the prevention of fertilization) is itself morally defective, it is clearly a lesser evil than the destruction of an innocent human being. So I will mostly set the contraception question aside and focus on the destruction question.
The Unintended Evil: Killing an Innocent Human Being
On the one hand, the advocates of emergency contraception are quick to claim that “emergency contraceptive pills prevent pregnancy primarily, or perhaps exclusively, by delaying or inhibiting ovulation.” Obviously, if no ovum is released, then fertilization is impossible. In that case, the moral concern is solely with contraception, not homicide. However, as Donna Harrison previously argued at Public Discourse, there are good empirical reasons to believe that some of the methods in question in the Hobby Lobby case “can and do cause embryos to die after fertilization.”
It seems fair to say that the emergency contraception advocates’ hedge that emergency contraception works “primarily, or perhaps exclusively, by delaying or inhibiting ovulation” (emphasis added) reflects lingering doubt about exactly how the methods work, even among those committed to promoting their use. This is a telling hesitation, a kind of residual honesty in admitting the possibility that, in at least some of the cases, these methods directly result in the death of embryos. (Hedging phraseology of this sort occurs on numerous online discussions, including both of those previously linked and the Mayo Clinic. The New York Times approvingly notes a recent movement to remove these hedges.) I suspect this hedging represents a kind of bad faith, and this in turn explains their repeated appeals to authority and attempts to take refuge in medical definitions of pregnancy and abortion that are morally irrelevant.
In the end, of course, none of the linguistic hairsplitting matters. What really matters in the morality of abortion is not whether a pregnancy has been terminated, but whether an innocent human being has been murdered. Understanding the mechanism of how these methods work is an empirical, scientific question about which there seems to be controversy within the medical community itself. However, I think it is significant that even the advocates of emergency contraception admit uncertainty about how the methods work and whether they kill embryos or prevent implantation.
From a moral perspective, if there is any plausible reason to believe that one of the consequences of the drugs is—even occasionally—the death of embryo, then they are morally equivalent to abortifacients that work after implantation. The fact that the intended purpose of the drugs is to prevent ovulation is ultimately immaterial if their actual consequence is to kill living embryos or prevent implantation.
Ultimately, even if one thinks that the prevention of fertilization is morally indifferent, surely it is not worth pursuing at the cost of innocent human life. That is, it would not meet the proportionality requirement (4) of PDE. Furthermore, if contraception is itself an evil, then there is absolutely no good to set against even the possibility of killing an innocent human being, so proportionality would not even enter into it.
Mathew Lu is Assistant Professor of Philosophy at the University of St. Thomas in St. Paul, MN