200905_Needed_an_Ethics_Audit_of_Catholic_Sterilization_Policies 200905 Needed An Ethics Audit Of Catholic Sterilization Policies

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Needed, an Ethics Audit
of
Catholic
Sterilization Policies
by
Sister Renee Mirkes, O.S.F., Ph.D.
Sr.
Mirkes is director
of
the Center
for
N aProEthics, the ethics division
of
the
Pope
Paul
VI Institute, Omaha, Nebraska.
Abstract
The author proposes an ethics audit
of
Catholic sterilization policies
as a way to correct the disparity between the regnant moral directive
prohibiting direct sterilization
in
Catholic health-care facilities
and
the policy
and
practice
of
allowing tubal ligations
for
"medical"
or
"therapeutic" purposes. The proposed four-step plan
for
the ethics au-
dit involves dialogue
and
collaboration between
U.S.
bishops who have
Catholic health-care facilities
in
their dioceses
and
the respective hos-
pitals'
administration, sponsors,
and
medical staff. First, bishops clarify
for
Catholic hospital administrators, sponsors,
and
system leadership
the moral distinction between a direct sterilization
and
one that is thera-
peutic or indirect. Second, bishops instruct hospital CEOs
to
abide by
directive 53
of
the Ethical
and
Religious Directives
for
Catholic Health
Care Services by providing only indirect sterilizations. Third, bishops
encourage hospital leadership
and
medical/nursing
staff
to promote di-
rective 53
in
tandem with directive 52
and
its call
for
providing natural
family planning services within the hospital. And, fourth, bishops col-
laborate with the hospital
or
system leadership
in
conducting ongoing
oversight
of
sterilization policy/procedures
to
insure that their Catholic
health-care institutions practice durable compliance with directives 52
and
53.
The Linacre Quarterly 76(2) (May 2009): 163-180.
© 2009 by the Catholic Medical Association. All rights reserved.
0024-3639/2009/7602-0006 $.30/page.
May2009
163
Introduction
I concur with a suggestion from John Haas, director
of
the National
Catholic Bioethics Center.1 After decades
of
questionable accountability and
transparency, we need to conduct an ethics audit
of
sterilization policies in
our Catholic hospitals.2
Two types
of
professional data demonstrate compelling reasons for
such an audit. The first
is
anecdotal. Over the past thirteen years, I have
had hundreds
of
ethics consultations with physicians employed by Catholic
hospitals across the U.S.3 At least 80 percent
of
these teleconferences dealt
with the frustrating disparity between theory (the regnant ethical directive
prohibiting direct sterilizations in Catholic hospitals) and practice (the con-
siderable number
of
tubal ligations provided under the banner
of
"medical
necessity" or "therapy" within the physician's respective Catholic health-
care facility).
The second set
of
data4
-completely
objective in
nature-is
comprised
of
the hospital discharge records, including sterilization statistics, submit-
ted by forty Catholic acute-care hospitals to the Texas Department
of
State
Health Services over a four-year period.
5 The data revealed that twenty-three
of
the forty Texas Catholic hospitals provided tubal ligations to a total
of
10,597 women between the years 2000 and 2003.6 Preliminary analysis
of
public use data files from other states indicates that the tubal-ligation stats
out
of
Texas are representative of, rather than an exception to, a nationwide
trend in Catholic health care.
Given the implications
of
this data, I propose that local ordinaries who
have Catholic hospitals under their jurisdiction implement the four-step eth-
ics audit plan outlined in the body
of
this article. First, bishops clarify for
Catholic hospital administrators, sponsors, and system leadership the moral
distinction between a direct sterilization and one that
is
therapeutic or indi-
rect.7
Second, bishops instruct hospital CEOs to abide by directive
53
of
the
Ethical
and
Religious Directives
for
Catholic Health Care Services (ERDs)
by providing only indirect sterilizations.8 Third, bishops encourage hospital
leadership and medical/nursing staff to promote directive
53
in tandem with
directive 52. That is, the ordinary instigates and sanctions efforts to posi-
tion a department within the hospital(s) that provides women with a natural,
moral alternative to what is currently being billed
as
a "medically necessary"
or "therapeutic" tubal ligation. And, fourth, bishops collaborate with the
hospital or system leadership in conducting ongoing oversight
of
steriliza-
tion policy/procedures to insure that their Catholic health-care institutions
practice durable compliance with directives 52 and 53.
164 Linacre Quarterly
Preliminary Considerations
Directive
53
of
the Ethical
and
Religious Directives states:
Direct sterilization
of
either men or women, whether permanent or tem-
porary, is not permitted in a Catholic health-care institution. Procedures
that induce sterility are permitted when their direct effect is the cure or
alleviation
of
a present and serious pathology and a simpler treatment
is not available.9
Recent developments in Texas illustrate what is ostensibly a pervasive theo-
retical and practical misunderstanding
of
directive
53
and its definition
of
direct/indirect sterilizations. After it was brought to his attention that the
two hospitals under his jurisdiction had provided almost two thousand tubal
ligations between the years 2000 and 2003, Alvaro Corrada, S.J., bishop
of
the diocese
of
Tyler, Texas, instructed the two Catholic hospitals (Christus
St. Michael and Trinity Mother Frances) to cease doing tubal ligations and
other direct sterilizations.10 Such procedures, the bishop contends, violate
directive
53
and are intrinsically opposed to the dignity
of
the women be-
ing sterilized. Furthermore, Bishop Corrada and his representatives argue
that the administrators and physicians
of
Trinity Mother Frances Hospital,
despite "good faith,"
11
are misinterpreting the directive's approval
of
indirect
sterilization by applying that classification to tubal ligations.
St.
Michael Hospital immediately agreed to discontinue all tubal li-
gation procedures. While Trinity Mother Frances Hospital did eventually
obey the bishop's directive, they initially refused to do so.
12
Trinity Mother
Frances defended its original position by arguing that the tubal sterilizations
they performed were therapeutic (indirect) and, therefore, permitted under
directive 53.
Faced with these contradictory positions, the question is: Which one
correctly interprets directive 53?
1)
tubal ligations are always directly steril-
izing and, therefore, impermissible. Or, 2) some (most) tubal ligations done
for "therapeutic" purposes qualify
as
indirect sterilizations and, therefore,
are permissible.
To
answer that question, we need to examine pertinent mor-
al
principles that will help to resolve the current dispute over the liceity
of
tubal ligations in Catholic hospitals.
The first principle
of
morality, the fundamental canon
of
living a moral
life, instructs me (the patient or physician) to "seek out and do the good and
avoid evil." I am "doing good" when I take those means that will lead me,
and assist others, to attain the happiness for which God has created us. What
this principle means by "avoiding or not intending evil" is that I ought not
act so
as
to stand in the way
of
my
and others' attainment
of
the happiness
that God has willed for us. Hence,
if
I want to be a good person, that is,
if
May2009
165
.1
I
I want to pursue a good moral life, I must also
do
good in my actions, i.e.,
intend or realize the good and not evil in practical living.
It
is important that I comprehensively understand the term "intention"
or "intending," since it can be used to refer to three different kinds
of
"in-
tending."
1)
In everything I deliberately and freely do, I intend to strive to
attain true happiness for myself and for others. This is my intention
of
the
ultimate
end-that
for which I do everything else and, thus, what
is
most im-
portant to me in life. 2) But I can achieve happiness only by choosing to do
some particular act
as
a means
to
that end. This is my intention
of
the moral
object, the action I choose to do in order to achieve my end. These two inten-
tions
(1
and 2) are coincidental: one
as
the end; the other as a means to that
end. So,
if
my end
is
an intention
of
the true ultimate end and my intention
of
the moral object is a good means to that good end, my action is primarily
and essentially good, that is, both
as
an end and
as
a means. 3) Sometimes
I also have one or more accidental or circumstantial intentions or motives
that color and qualify the morality
of
what I primarily and essentially intend.
Good circumstantial intentions, however, can never make an essentially evil
action good.
If
my
action has only one
effect-its
moral object is essentially either
good or
bad-the
task
of
identifying whether I am doing good or evil by
executing that action is quite straightforward.
If
what I intend to do is sim-
ply good, i.e.,
its
sole effect
is
good, then I am doing good (and becoming
a better person proportionately). Thus, in choosing to make a donation to a
truly ethical charitable organization, I am doing a wholly good act;
my
con-
tribution helps the poor or disadvantaged without also causing bad effects.
On the other hand,
if
what I intend to do
is
totally bad, then I am doing a
morally evil action. So, in intending to embezzle money from the charitable
organization, I am doing something that has only one effect, and that is a bad
one; my action, therefore, is thoroughly bad.
But how can I be sure that I am doing good and avoiding evil when a
prospective good action
of
mine would result in double effects, one or more
good and one or more bad?
If
what I directly intend to do in that double ef-
fect action is good, would I really be avoiding evil
if
the action would also
have a bad effect, albeit one that I do not intend but only tolerate?
The principle
of
double effect, which
is
really a set
of
norms or condi-
tions, is designed to help me discern
if
I am doing good and avoiding evil
even when my action produces-simultaneously-both
good
and
bad effects.
This principle assists me to differentiate between a) a prospective double-ef-
fect action that would be morally acceptable because, in choosing it, I would
be directly intending the good and only tolerating the wrongdoing as an evil
166 Linacre Quarterly
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side effect and b) a double-effect action that would be morally unacceptable
because, in choosing it, I would be directly intending the evil. The principle
of
double effect has four conditions:
1)
the act itself can not be morally evil;
2) any bad effect may be foreseen but must be unintended; 3) the bad effect
cannot be the cause
of
the good effect; 4) the good effect must be morally
proportionate to the bad effect.
13
Applying the first principle
of
morality and the principle
of
double
effect to the question
of
tubal ligation (and vasectomy), I draw the follow-
ing conclusions. A tubal ligation or vasectomy is an action that has the sole
effect
of
rendering the patient sterile.14 Therefore, since the physician rec-
ommending the tubal ligation or vasectomy and the patient consenting to
either
of
these procedures deliberately intenctfto suppress the basic good
of
fertility, and since directly suppressing a basic good diminishes essential
human fulfillment, a tubal ligation or vasectomy
is
a bad act, that is, against
the patient's fulfillment.
If
a tubal ligation were a double-effect action,
as
some mistakenly
claim, the twin
effects-one
good (therapeutic), one bad
(sterility)-would
have to follow simultaneously from the single act ofligation. But no current
cure
of
any pathology, tubal or otherwise, immediately follows from a tubal
ligation. In fact, a physician recommends the ligation procedure precisely
because the woman's fallopian tubes are healthy, i.e., functioning normally.
A curative or preventative effect occurs only as a mediate possibility in the
sense
of
preventing a future pregnancy and then, perhaps, avoiding a partic-
ular pathology that might be caused or exacerbated
by
that pregnancy.
15
The
fact that tubal ligations do not cure any current pathology also means that,
in terms
of
a risk/benefit analysis, tubal ligations have only risks (surgical,
medical, and psychosocial).
But are there any surgical or medical interventions that could be classi-
fied as indirect sterilization? The answer is yes, under certain circumstances.
For example:
1)
A female patient who experiences uncontrolled hemorrhaging
at the time
of
a c-section from an atonic uterus (uterus fails
to contract) or abnormalplacentation (abnormal placental at-
tachment
of
the fetus to the uterus) could have her uterus re-
moved to save her life, even though she is rendered sterile as
a result
of
the hysterectomy.
16
2) A female patient who has uterine cancer could have her dis-
eased uterus removed as a cure for her cancer, even though
she is rendered sterile in the process.
May2009 167
/
t/
of
fertility. Its second sentence defines indirect sterilization: a procedure
whose direct, that is, intended effect is to cure or alleviate a present and seri-
ous pathology and whose indirect, only tolerated, effect is sterility. Thus, an
indirect sterilization is morally acceptable since the physician/patient who
chooses it directly intends the therapy or
cure-a
moral
good-and
only
tolerates the bad effect
of
sterility.
When an indirect sterilization is done for a proportionately grave rea-
son and no simpler therapy is available, it is morally licit. In other words,
the Catholic teaching on sterilization explains that, when a surgical, medical,
or other intervention cures or remedies a present pathology in the patient
but results in sterility, and when a simpler therapy having only good effects
is unavailable, the intervention is morally permitted. Although indirectly
willed, sterility is still an evil:
it
is, after all, no small matter for the person
to lose the gift
of
his or her fertility.
The confusion comes in when clinicians think that
if
they perform a
tubal ligation on a woman who is obese, suffers from anemia, severe asthma,
cardiac diseases, or Rh incompatibility or other blood factors, the act. will
be good
by
virtue
of
its good intention: alleviating the aggravation
of
these
diseases/conditions should she get pregnant in the future. But let us stay with
the distinction that directive
53
is making.
An
indirect sterilization cures or
mitigates an existing disease. Performing a tubal ligation to relieve or avoid
conditions exacerbated
by
a future pregnancy could only be considered indi-
rectly sterilizing
if
therapy were the procedure's sole intended (immediate)
effect and
if
sterility were the tolerated but unintended (mediate) effect.
To
argue this would,
of
course, be absurd. A tubal ligation, done independently
of, or in conjunction with, a c-section, does not cure or mitigate the diabetes,
heart disease, anemia, or neurological disorder that a female patient may be
currently experiencing. And
if
one contends that the tubal ligation will pre-
vent exacerbation
of
said diseases in the future, one demonstrates, first, that
the clinician directly intends the sterilization
of
the woman and, second, that
the.
so-called treated disease does not exist in the present (and, truth to tell,
may not exist in the future, even
if
the woman were to get pregnant), leaving
sterilization as the sole immediate effect
of
the tubal ligation.
The correct interpretation
of
directive
53
relies on Quaecumque steril-
izatio, a statement from the Vatican's Congregation for the Doctrine ofFaith,
which responded to questions posed
by
U.S. bishops about the legitimacy
of
performing tubal ligations as therapeutic, i.e., indirect sterilizations:
Any
sterilization which
of
itself, that is,
of
its own nature and condition,
has the sole immediate effect
of
rendering the generative faculty inca-
pable
of
procreation is to be considered direct sterilization
....
Therefore,
notwithstanding any subjectively right intention
of
those whose actions
May2009
169
are prompted by the care or prevention
of
physical or mental illness
which
is
foreseen or feared as a result
of
pregnancy, such sterilization
remains absolutely forbidden according to the doctrine
of
the Church.
And
indeed the sterilization
of
the faculty itself is forbidden for
an
even
graver reason than the sterilization
of
individual acts, since it induces
a state
of
sterility in the person which is almost always irreversible.
17
In a commentary on Quaecumque sterilizatio, the administrative committee
of
the National Conference
of
Catholic Bishops specifically delineated the
kinds
of
conditions to which appeal should not be made to justify s!eriliza-
tion
of
human beings:
As it was stated in the Roman document [Quaecumque sterilizatio ],
the Catholic hospital can in no way approve the performance
of
a ster-
ilization procedure that is directly contraceptive. Such contraceptive
procedures include sterilizations peiformed as a means
of
preventing
future pregnancy that one fears might aggravate a serious cardiac,
re-
nal, circulatory, or other disorder. Freely approving direct sterilization
constitutes formal cooperation in evil and would be "totally unbecom-
ing to the mission"
of
the hospital as well as "contrary to the necessary
proclamation and defense
of
the moral order."
18
Quaecumque sterilizatio is also crystal clear about the formal coop-
eration in evil that a Catholic health-care facility incurs when it allows the
practice
of
contraception, whether temporary or permanent:
Any cooperation institutionally approved or tolerated in actions which
are themselves, that is,
by
their nature and condition, directed to a con-
traceptive end, namely, that the natural effects
of
sexual actions delib-
erately performed by the sterilized subject be impeded, is absolutely
forbidden. For the official approbation
of
direct sterilization and, a for-
tiori, its management and execution in accord with hospital regulations,
is a matter which, in the objective order, is
by
its very nature (or intrin-
sically) evil. The Catholic hospital cannot cooperate with this for any
reason.
Any
cooperation so supplied is totally unbecoming the mission
entrusted to this type
of
institution and would be contrary to the neces-
sary proclamation and defense
of
the moral order.
19
II. Require Compliance with Directive 53
The general introduction to the ERDs summarizes a bishop's respon-
sibilities in respect to maintaining the Catholicity
of
health-care institutions
in his diocese:
170
Catholic health care expresses the healing ministry
of
Christ in a spe-
cific
way
within the local church. Here the diocesan bishop exercises
responsibilities that are rooted in his office as pastor, teacher, and priest.
As the center
of
unity in the diocese and coordinator
of
ministries in the
local church, the diocesan bishop fosters the mission
of
Catholic health
Linacre Quarterly
care in a way that promotes collaboration among health-care leaders,
providers, medical professionals, theologians, and other specialists
....
As teacher, the diocesan bishop ensures the moral and religious identity
of
the health-care ministry in whatever setting it is carried out in the
diocese
....
These responsibilities will require that Catholic health-care
providers and the diocesan bishop engage in ongoing communication
on ethical and pastoral matters that require his attention.20
Given the close working relationship that needs to exist between the
bishop and Catholic institutions within his jurisdiction, the general introduc-
tion just cited clarifies the moral authority
of
the local ordinary vis-a-vis the
Catholic hospitals in his diocese.
21
Within that authority and in the context
of
the ethics audit proposed here, we find the individual bishop's right to
require compliance with all
ofthe
ERDs, including directives 52 and 53. By
collaboration with the hospital's CEO and sponsor institution, the bishop
fulfills his duty
of
mandating ethically appropriate sterilization policies/pro-
cedures consistent with the Catholic vision
of
the healing ministry.
III. Promote Directive 52 in Tandem with Directive 53
Directive 52 reads:
Catholic health institutions may not promote or condone contraceptive
practices but should provide, for married couples and the medical staff
who counsel them, instruction both about the Church's teaching on re-
sponsible parenthood22 and in methods
of
natural family planning.
It
would be blatantly unfair
if
an obstetrician within a Catholic hos-
pital or clinic would fail to offer his patients
amoral
way
of
avoiding a fu-
ture pregnancy that might aggravate a serious disease/condition. How much
more just and charitable
if
that obstetrician were able to direct these women
to a natural family planning department within the
hospitaF
3 With such a
resource, the patients and their husbands would be introduced to an effective
way
of
avoiding a pregnancy through a method that both protects the great
gift
of
their fertility and respects their dignity as human persons.
It
is imperative for medical staff to understand why directive 52 re-
quires hospitals to provide instruction for patients and the hospital staff on
responsible parenting. First, the Catholic Church has never insisted that a
couple have endless numbers
of
children or have all the children that they
could physically, psychologically, or financially conceive, gestate, and raise.
The Church has consistently taught that, when there is a serious reason for
avoiding a pregnancy (and the medical pathologies discussed above cer-
tainly qualify as serious), the couple must achieve their good goal through
a good means. Which is to say: the couple must postpone a pregnancy in a
truly human way.
May2009
171
Second, previous to the 1930s all mainline churches and even secular-
ists taught that contraception is evil. Pre-1930, these religious traditions un-
derstood that contraception (and, a fortiori, sterilization) is not appropriate
human behavior.
It
allows men and women, even unmarried persons, to seek
sexual intercourse for the sole sake
of
pleasure, without fully embracing the
meaning and consequences oftheir sexual acts. In other words, the churches
and some secular philosophers agreed that contraceptive intercourse-like
actions
of
stealing, lying, or
killing-are
contrary
to
human nature, human
happiness, and to the good
of
society.
Third, using natural methods
of
family planning invites a couple to
intelligently reflect on the important truth that the procreative and unitive
meanings
of
their marital love and sexual union are inextricably linked,
i.e., they demand, activate, and define one another. The one-flesh union
of
genuine married loved demands an openness
to
life; openness to
life-pro-
creation-demands the love
of
their one-flesh union. Hence, a couple who
directly suppress their procreative capacity through sterilization or contra-
ception also erode and chip away at their interpersonal union and, ultimately,
at their love. This is precisely why it is crucial that a couple avoiding preg-
nancy for medical reasons
do
so in a moral
way-that
is to say, through
an intelligent means. The reality
of
direct sterilization-whether the couple
understands it or is conscious
of
it or
not-is
that it erodes married love, the
glue that holds their marriage together. A woman
of
reproductive age who
has been directly sterilized and
no
longer retains her procreative capacity is
also deprived
of
intercourse that is truly marital. And the sad reality is that a
marriage with this kind
of
sterilized sex is fragile indeed.
But consider the woman who avoids a pregnancy due
to
a serious med-
ical condition by confining her acts
of
intercourse to the infertile times
of
her cycle. The woman and her husband have recourse to abstinence during
fertile times
of
their cycle and express and deepen their interpersonal union
by engaging in intercourse during times
of
infertility. In doing so, they avoid
a pregnancy in a way that does not cripple the complete self-gifting that
should mark all their acts
of
intimacy. In retaining openness to
life-nev-
er deliberately suppressing the procreative capacity
of
their acts
of
sexual
union, the woman and her husband are avoiding a pregnancy in a way that
neither compromises their marital sexual union nor erodes the love that is
its foundation.
For the sake
of
the health and wellbeing
of
their married patients, it is
incumbent on Catholic hospital administrators, sponsors, and their medical/
nursing staff to understand and apply directives
52
and
53
in
tandem. By
grasping the philosophical vision behind the directives and allowing that vi-
sion to guide them in drawing upreproductive policies, Catholic health-care
172 Linacre Quarterly
r-
institutions not only adequately reject the evil
of
contraception/sterilization
but also offer alternatives that are moral, which is
to
say, truly human and
rational. In sum, the goals
of
a comprehensive sterilization policy within
a Catholic hospital (implementing directives
53
and
52) are to respect the
dignity
of
male and female patients, the truth about their sexuality, and the
basic human good
of
their fertility.
IV. Conduct Internal/External Oversight
to Insure Durable Compliance
The general introduction to the ERDs advises Catholic health-care pro-
viders and the diocesan bishop "to engage in ongoing communication on
ethical and pastoral matters that require attention.
"24 Experience with other
kinds
of
hospital audits dictates that only continuity in oversight guarantees
durable compliance. The same axiom applies to conformity
of
Catholic hos-
pitals
to.
the ERDs, including directives 52 and 53, as discussed above.
The model for a health-care ethics audit proposed here evaluates data
garnered from both internal and external oversight. Ideally, the substance
of
such an audit consists in standardized evaluative
criteria-drawn
up by an
appropriate national Catholic health-care organization25 and approved by the
USCCB-that
measure institutional compliance with the ERDs. The goal
of
this ethics investigation is to verify how well the hospital
is
exercising
stewardship over its Catholic identity and ministry
by
delivering health-care
services that are truly Catholic in the areas
of
1)
social responsibility; 2)
pastoral and spiritual responsibility; 3) professional-patient relationship; 4)
beginning-of-life issues; 5) care for the dying; and 6) forming new partner-
ships with health-care organizations and providers.
The system ethicist or mission director facilitates the internal ethics au-
dit. He or she works cooperatively with an ethics audit team in place within
the respective hospital comprised of: the CEO, the director
of
medical info-
matics, the vice-president for patient care or mission/ethics, the ethics com-
pliance officer,26 the hospital's legal counsel, and any other hospital manager
whose area
of
responsibility corresponds to those regulated by the ERDs.
The local ordinary and/or his personal health-care liaison representa-
tive, relying on the same standardized evaluative criteria approved by the
USCCB, directs the external phase
of
the audit. The diocesan representative
meets quarterly with the hospital's internal ethics-audit team and "audits their
audit,"
if
you like. The external audit not only allows episcopal oversight
of
the ethical state
of
the hospital( s) within his jurisdiction but also promotes
continuing discussion between the bishop, the hospital team, and the system
leadership
as
to the strength
of
the hospital's witness to the gospel oflife.
May2009
173
_,
In guaranteeing moral compliance in the area
of
sterilizations, the lo-
cal ordinary or his representative would, first, ascertain that the hospital's
sterilization policies and practices are in accord with directives 52 and 53.
Second, he verifies whether system leadership, administrators, nursing staff,
physicians, and members
of
the ethics team have completed their annual
educational training (from the bishop, his ethics liaison representative, and/
or from the modules
of
a USCCB-approved computer-based training for the
ERDs).
Finally,
if
the respective hospital passes muster, it should be commend-
ed for, among other things, exercising prudent stewardship over the Catholic
mission entrusted to it, protecting the basic human good
of
fertility and mar-
riage, and promoting the dignity
of
its patients.
If
the hospital fails to com-
ply, the CEO should demonstrate
clearly-at
the next quarterly
audit-how
the hospital has addressed and corrected any
of
its contraventions.
Conclusion
The ensuing dialogue about the merits
of
doing a Catholic hospital eth-
ics audit together with efforts to clarify the directly sterilizing nature
of
tubal
ligations will also help to resolve related debate about sterilizations within
Catholic health care, viz., the legitimacy
of
appealing to the principle
of
the
lesser evil. Should Catholic hospitals in the U.S., based on "duress" in the
health-care marketplace, cooperate with the evil
of
providing tubal ligations
for "therapeutic" reasons in order
to
preserve the greater
good
of
a Catholic
presence in health care? In respect to the latter, the USCCB either decides
that the intrinsic evil
of
sterilization demands that Catholic hospitals/clinics/
outpatient surgical centers refrain from offering the directly sterilizing pro-
cedures
of
tubal ligation and vasectomies, despite opposition. Or the bishops
determine that, for the sake
of
the greater good
of
maintaining a Catholic
presence in health care in the twenty-first century (i.e., for the sake
of
not
alienating ob/gyns and possibly losing obstetrician departments and then
entire hospitals), Catholic health-care facilities may tolerate (i.e., provide)
tubal ligations for whatever reason.
If
the U.S. Catholic bishops confirm the
conclusion that tolerating tubal ligations is, indeed, a lesser evil than losing
Catholic hospitals, then they ought
1)
to remove directives 52 and
53
from
the ERDs and from the ethics audit
of
a Catholic hospital as outlined here
and ought 2) to clearly and carefully explain the reason for their removal.
To
continue with policy-as-usual-disparity between the moral theory and
practice
of
sterilization in Catholic health-care
facilities-fails
to serve the
wellbeing
of
the thousands
of
women who entrust themselves to Catholic
health care every year.
174 Linacre Quarterly
l
References
1 In an Our Sunday Visitor interview, Dr. Haas made the point that, given the wide-
spread misinterpretation
of
directive
53
amongst physicians, patients, and moralists,
Catholic sterilization policies need to be audited: "Hospitals already have medical
audits and financial audits, and they should have ethics audits, too." (Ann Carey,
"Shocking Lack
of
Understanding," Our Sunday Visitor, July 13, 2008, 12.)
In a similar vein, the Milwaukee Guild
of
the Catholic Medical Association
has called for Catholic hospitals to conform to a "checklist"
of
procedures/attitudes/
values defining their Catholic identity (Milwaukee Guild, "Checklist for Catholic
Hospitals," Linacre Quarterly 74 [2007]: 159-163). Unfortunately, in the list
of
procedures that ought not be a part
of
Catholic health-care services, the guild fails to
specify the moral difference between direct contraception and sterilization, e.g., and
their indirect forms. Furthermore, the idea
of
"checking" compliance with all the
Ethical
and
Religious Directives
for
Catholic Health Care Services (ERDs) seems
to be left up to the honor
system-every
CEO,
if
you will, checking his hospital's
compliance on his own initiative and good will. As such, the guild's seminal idea
of
doing, what I would call, an informal ethics audit lacks teeth and a reasonable
executive plan.
Having said that, it is clear that guild members wrote the article to address
what they saw to be a problem: reality on the ground in our Catholic hospitals does
not always match the Catholic mission as presented theoretically in the ERDs. (Cf,
too, the conclusion
of
the authors
of
the Catholic Medical Association's "Report
of
the Task Force on Ethical and Religious Directives," Linacre Quarterly 72 [2005],
184: "All were
of
the opinion that to allow practices such as sterilization on the
premises
of
Catholic hospitals would compromise the legal protection provided by
the ERDs
in
contesting efforts to force Catholic institutions to participate· in abor-
tion or other life-terminating procedures.") Is every Catholic hospital guilty
of
com-
promising one or more ethical requirement
of
the ERDs, particularly directive 53?
Certainly not. I know
of
an entire health system ( OSF Healthcare, Peoria, IL) whose
member institutions are, according to its ethicist, Joseph Piccione, in compliance
with directive 53; they do not offer tubal ligations or vasectomies for any reason.
But I also know this: Based on the hundreds
of
ethics consults on sterilization I have
had in the past thirteen years with physicians working in Catholic hospitals across
the U.S., OSF Healthcare's sterilization policy/procedures is the exception, not the
rule.
2 The audit
of
sterilization policies described here would be one segment
of
a com-
prehensive ethics audit that monitors a Catholic hospital's compliance with all sev-
enty-two
of
the ERDs. The entire audit would evaluate how the hospital deals with
beginning-of-life and end-of-life questions, merger situations, and the social and
spiritual responsibilities
of
its services.
3 The ERDs also apply to physicians not employed by the Catholic hospital but who
May2009
175
request privileges to practice within in it. As directive 5 states: "Catholic health-care
services must adopt these Directives as policy, require adherence to them within the
institution as a condition for medical privileges and employment, and provide ap-
i l propriate instruction regarding the Directives for administration, medical and nurs-
ing staff, and other personnel."
:I,
i
ii
4 Compare the spreadsheet at http://wikileaks.org/wiki/Catholic _hospitals_ betray_ ·
mission.
5 All hospitals in Texas, except for rural institutions, must submit data on all inpatient
discharges to the Texas Health Care Information Collection Center for Health Sta-
tistics. The Texas legislature requires the Center to collect quarterly utilization data
including diagnoses, procedures, and outcome for all patients in order to promote
cost-effective, quality health care. Hospitals assign unique patient and physician
identifiers so that records may be submitted without violating patient and physician
confidentiality. The data is compiled quarterly into public-use data files, in this case,
into the Texas Public Use Data File (TPUDF) that may be purchased for research
or analytical purposes. When the TPUDF was analyzed to track tubal ligations in
Texas Catholic hospitals, it was simple to calculate total numbers in each hospital,
since the TPUDF utilize ICD-9-CM (International Classification
of
Diseases, Ninth
Revision, Clinical Modification) codes where the diagnosis of"sterilization for con"
traceptive purposes" is designated by code V25.2 and the procedure
of
tubal ligation
by treatment code 66.32 and variations according to different tubal-ligation methods
by treatment codes 66.2x and 66.3x.
6Twenty-three hospitals had explicit violations
of
the ERDs; nine more had potential
violations. seven hospitals did not provide sterilizations, but five
of
those did not
provide ob/gyn services. One hospital was not required to report to the state.
7 The local ordinary could use traditional means
of
ethics training, viz., through lec-
tures, conferences, panels, etc. In addition, and as a way to guarantee that everyone
who should be instructed really understands Catholic values and their application
within health care, the bishop could also rely on a computer-based training pro-
gram developed by an organization such as the Catholic Health Association or the
National Catholic Bioethics Center and approved by the United States Conference
of
Catholic Bishops (USCCB). Included within various modules
of
the computer-
based training for the ethics audit would be the appropriate background on pertinent
ethics principles and their application within the areas
of
health care outlined in
the ERDs. The health-care professional attempting to complete a computer-based
training program dealing with key ethical values and their applications would be
certified only after passing built-in quizzes that test adequate comprehension
of
the
material presented. A good format model for computer-based training for an ethics
audit is a program developed by HCS Incorporated to assist health-care providers in
understanding the rules and regulations for HIPAA compliance.
8 USCCB, Ethical
and
Religious Directives
for
Catholic Health Care Services, 4th
ed. (Washington, D.C.: USCCB, 2001), is a collection
of
guidelines drawn up by
the United States Conference
of
Catholic Bishops that explains pertinent Catholic
medical-moral principles and values and applies them to clinical practice within
176 Linacre Quarterly
Catholic health-care institutions. Directive 53, for example, applies the principle
of
double effect and its indirect/direct distinction to sterilization procedures. The
description
of
the ERDs included in the 4th edition is instructive: "This fourth edi-
tion
of
the Ethical
and
Religious Directives
for
Catholic Health Care Services was
developed by the Committee on Doctrine
of
the National Conference
of
Catholic
Bishops and approved as the national code by the full body
of
bishops at its June
2001 general meeting. This edition
of
the Directives which replaces all previous edi-
tions is recommended for implementation by the diocesan bishop and is authorized
for publication by the undersigned." The Directives are intended to inform sponsor
institutions, administrators, chaplains, health-care personnel, patients, and residents.
9 A revision
of
the second sentence
of
directive
53
might make the indirect distinc-
tion more clear: Procedures are permitted when
1)
their direct effect is the cure or
alleviation
of
a present and serious pathology; 2) their indirect effect is sterility; and
3) a simpler treatment is not available.
10
Since a vasectomy is the only other procedure that is directly sterilizing, it is rea-
sonable to imply that this was also a concern for Bishop Corrada and one that should
have been prohibited within the Catholic health-care facilities under his jurisdiction.
However, according to data submitted to TPUDF by Trinity Mother Frances and St.
Michael hospitals between 2000 and 2003, no vasectomies were provided.
11
From my consultations with physicians working in Catholic health-care facilities
across America, I am convinced that the near-universal misunderstanding
of
direc-
tive 53 is not malicious. After some thirty years
of
acting on a misinterpretation that
imposes little restriction on performing tubal ligations, Ob/gyns in Catholic settings
were and are only too happy to perform only "medically indicated" sterilizations.
Now many
of
these practitioners embrace and tenaciously defend the notion
of
so-
called therapeutic or indirect sterilizations with a certain righteousness, illustrated
in the comments from Trinity Mother Frances hospital representatives: theirs is a
"good faith" interpretation
of
directive 53.
Another way
of
viewing the issue
of
whether to allow contraception/steril-
ization within Catholic hospitals helps to account for the widespread disregard for
directives 52 and
53
and, further, why many CEOs and practitioners claim their
dissent represents the high moral ground. Father Kevin McMahon summarizes this
perspective by identifying fifteen themes articulated by the Catholic Health As-
sociation in 200 1 when the bishops were discussing revisions to the 1994 Direc- ·
tives, revisions that involved discussion
of
whether allowing direct sterilizations
would be unjustifiable cooperation in evil on the part
of
the health-care institution.
The Catholic Health Association made the case for allowing direct sterilizations in
Catholic health-care facilities either by appeal to legitimate cooperation in evil or
the principle
of
the lesser evil. Their essential message to the bishops was this: Cath-
olic hospitals should allow contraception and sterilization-practices that are not
considered immoral by many inside and outside
of
the Roman Catholic
Church-
for the sake
of
the greater good
of
preserving Catholic presence in health care and
especially in obstetrics and gynecology (both in Catholic sole-provider hospitals
and in partnerships
of
Catholic and non-Catholic health-care institutions). Only this
May2009
177
I l
I
!
approach will enable Catholic health-care institutions to resist the greater evil
of
abortion and to carry on the mission
of
healing in the name
of
Jesus so needed in
our anti-life society. Commenting on the proposed revisions, McMahon concludes,
and I believe, correctly that "the process underway to revise the ERDs
'94
[resulting
in the current fourth edition quoted here] is a new opportunity to accomplish this
illusive objective [eliminating the unjustifiable cooperation
of
Catholic entities
in·
direct sterilization]. This author believes that the mistakes
of
the past which have
permitted unjustifiable cooperation to continue are well on the way to correction as
the ERDs
'94
are revised." (McMahon, "Revising the ERDs'94: Goals, Opposition
and Resolution," Linacre Quarterly 68 [2001]: 101-123.)
For
a good summary
of
the debate about whether duress in the marketplace
counts as justification for a Catholic hospital's cooperation in the evil
of
sterilization
and contraception, see a series
of
articles in the Linacre Quarterly between James
F.
Keenan, S.J., and Lawrence
J.
Welch. (Keenan, "Institutional Cooperation and the
Ethical and Religious Directives" Linacre Quarterly 64.3 [August 1997]: 53-76;
Welch,
"An
Excessive Claim: Sterilization and Immediate Material Cooperation"
Linacre Quarterly 66.4 [November 1999]:
4-25;
Keenan, ''Not an Excessive Claim,
Nor
a Divisive One,
But
a Traditional One: A Response to Lawrence Welch on Im-
mediate Material Cooperation," Linacre Quarterly 67.4 [November 2000]: 83-88.)
Health Progress also dedicated several articles
of
its November/December 2002
issue (83.6) to the topic
of
sterilization and cooperation. Kevin O'Rourke, O.P.,
argues, in "Catholic Health Care and Sterilization" (pp. 43--48, 60), that "the most
common and clear-cut method
of
ensuring that cooperation between Catholic and
non-Catholic facilities is ethically acceptable is to have direct sterilization and other
prohibited procedures performed
by
a separate entity."
If
possible, these steriliza-
tions should take place
"at
a facility physically separate from both hospitals." But
under the right circumstances, it would be possible to perform direct sterilizations
within a specially designated section
of
the Catholic hospital campus. In the lat-
ter case, though, serious reasons for the situation would need to be present: First,
it might not be possible (for financial reasons, say) to construct another hospital. ·
Second, to avoid formal participation, all personnel performing the prohibited pro-
cedures would have to be employed and managed
by
the third party. Third, the dioc-
esan bishop would have to determine that scandal would not arise from the arrange-
ment." Peter Cataldo and John Haas, in "Institutional Cooperation: The ERDs" (pp.
49-57,
60), caution that "viewing the principle
of
cooperation as a creative source
of
morally obligated action reconfigures the principle into a moral mandate to cooper-
ate." Such an approach could lead to illegitimate institutional cooperation such as
"immediate material cooperation
by
an institution in direct sterilizations for the sake
of
a collaborative arrangement."
12
EWTN News, "Texas Catholic Hospitals Challenge Bishop: Announce Plans to
Continue Sterilizations," December 16, 2008 (Catholic World News Brief), http://
www.ewtn.com/vnews/getstory.asp?number=92682. Trinity Mother Frances, in a
public statement released on
April2,
2009, made it known that no direct steriliza-
tions would be provided through the hospital in the future: "In 2003, Trinity Mother
Frances Health System, in good faith, relied upon a misinterpretation
of
Church
178 Linacre Quarterly
teaching and specifically pertinent elements
of
the Ethical
and
Religious Directives
for
Catholic Health Services in the United States (ERDs
).
In subsequent years as the
authentic teaching
of
the Magisterium was clarified for the Health System, direct
sterilizations decreased and have ceased. Trinity Mother Frances Health System re-
grets any confusion about Catholic teaching on this topic that might have resulted.
Measures are in place to ensure that going forward no direct sterilization will occur."
13
Cf. the Catholic Medical Association and the National Catholic Bioethics Center,
"A Catholic Guide to Ethical Clinical Research," Linacre Quarterly
75
(2008): 191.
14
Doctors frequently suggest a tubal ligation at the time
of
delivery for a woman
with a history
of
repeat c-sections in order to avoid maternal and/or fetal catastroph-
ic complications that could occur should the woman become pregnant in the future.
This scenario underscores the point that the disease is not present at the time
of
the
tubal and may not occur at all should the woman become pregnant in the future. The
sole effect
of
the tubal ligation is sterility.
15
Some
of
the conditions or pathologies that may be brought on or exacerbated by
pregnancy and that comprise the medical reasons for which many Catholic hospital
policies justify tubal ligations include: significant risk
of
uterine rupture or addi-
tional anesthesia;
Rh
incompatibility or other blood factors; psychiatric disorders;
neurologic disorders (e.g., partially repaired aneurysm); auto immune disorders; en-
dometriosis; clotting disorder; seizure disorder; neoplastic disease; advanced mater-
nal age; obesity; anemia; asthma; cardiac diseases; diabetes; hypertension.
16
Indirect or therapeutic sterilization brought on by surgical removal
of
organs al-
ways involves excision
of
pathologically diseased reproductive
organs-uterus,
fallopian tubes, ovaries. The removal
of
the uterus from a woman suffering from
uterine cancer, for example, is therapeutic because it prevents the woman's death.
Applying the hysterectomy model to tubal ligation, we would have to demonstrate
that the fallopian tubes are diseased and that ligation or blocking
of
the tubes would
be a cure for that disease.
17
Congregation for the Doctrine
of
the Faith, Quaecumque sterilizatio,
n.
1,
empha-
sis added.
18
National Conference
of
Catholic Bishops, (1977), emphasis added.
19
Congregation for the Doctrine
ofthe
Faith, Quaecumque sterilizatio,
n.
3a.
20
USCCB, Ethical
and
Religious Directives,
6.
21
There is no reference in the 1983 Code
of
Canon
Law
to health care and its various
institutions. However, since Catholic health care is an apostolic activity, canon 394,
n.
1,
would apply (the diocesan bishop should
be
involved in its apostolic work) and,
more directly, the norms relating to temporal goods would apply (a Catholic hospi-
tal would qualify as a public juridic person, and its goods those
of
a public juridic
person). Therefore, Catholic health-care institutions, under the jurisdiction
of
the
diocesan bishop, do not exist per se but to spread the gospel and to nourish the faith
of
people
of
good will.
If
these health-care facilities cannot fulfill their apostolic
end, they should be reformed.
If
they are incapable
of
reform, or will not reform, or
May2009
179
I
i
will not refrain from illegitimate cooperation in evil, the bishop has the authority to
strip the institution
of
its Catholic title.
22 The common teaching
of
Christians, until contemporary times, was that contra-
ception is immoral. From the teachings
of
the Talmud to Paul's Letter to the Gala-
tians (5:19-21), from Justin Martyr
of
the second century to Clement
of
Alexandria
of
the third century, from St. Augustine in the fifth century to Pope Pius XI in the
nineteenth century, from Pope Paul VI and his teaching in the twentieth-century
encyclical Humanae vitae to John Paul II and his many reflections on the theology
of
the body, there is a coherent Catholic teaching concerning the nature
of
marriage,
marital love, and marital intercourse. Humanae vitae summed up this teaching when
it addressed the kinds
of
acts that ought to be avoided by a moral person: those
of
direct sterilization, whether perpetual or temporary, whether
of
the man or
of
the
woman.
23 The Creighton Model F ertilityCare System is a natural method
of
family planning
designed to be integrated into hospital ob/gyn departments. For more information
on setting up such a center, contact the Pope Paul VI Institute, Omaha, Nebraska.
To
those who insist that natural methods
of
avoiding pregnancy do not work,
it is wise to remember that no method
of
contraception is 100 percent effective in
avoiding a pregnancy, including tubal ligation. Pregnancy statistics following tubal
ligations range from 0.75 percent to 5.4 percent depending on the method employed
(Robert
D.
Hilgers, "Risk
of
Pregnancy After Tubal Ligation," ACOG review
[September/October 1996]: 6). The 5.4 percent risk
of
pregnancy following one
method
of
doing a tubal ligation or its 94.6 percent effectiveness rate in preventing
pregnancy compares favorably with that from a meta-analysis
of
Creighton Model
FertilityCare System involving 1,876 couples over 17,310 couple-months
of
use.
The latter study documents that the Creighton System method effectiveness rates
for avoiding pregnancy were 99.5 percent at the twelfth ordinal month and 99.5
percent at the eighteenth ordinal month. The user effectiveness rates for avoiding
a pregnancy were 96.8 percent at the twelfth ordinal month and 96.4 percent at the
eighteenth ordinal month. (Thomas.
W.
Hilgers and Joseph B. Stanford, "Creighton
Model NaProEducation Technology for Avoiding Pregnancy," Journal
of
Reproduc-
tive Medicine
43
[1998]: 495-502.)
24 USCCB, Ethical
and
Religious Directives, 4.
25 For example, the National Catholic Bioethics Center, the Catholic Medical As-
sociation, or the Catholic Health Association.
26 The position
of
an ethics compliance officer would assist the system and institu-
tional ethicist to carry out their work, particularly in respect to implementation
of
the ethics audit.
180 Linacre Quarterly
l

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