Two disparate cases have more in common than we might think

Charles E. Bouchard, O.P. and Richard Peddicord, O.P.

At first glance the death of an unborn child at St. Joseph’s Hospital in Phoenix and the death of convicted criminal Ronnie Lee Gardner in Draper, Utah, appear to have little in common. Yet analysis shows that both of them are governed by the Church’s teaching on the direct taking of innocent human life, by the technical but widely used principle of double effect, and by the principle of moral cooperation. It is not clear that these principles were applied equally in both cases.
In Phoenix, the life of the mother was threatened by a rare but dangerous condition that made it impossible for her to carry the child to term; attempting to do so would almost certainly have resulted in the death of both mother and child. The hospital’s ethics committee allowed the termination of the pregnancy. They apparently did so because they judged the case to be analogous to others, like uterine cancer or ectopic pregnancy in which therapeutic actions intended to cure the pathology have the unintended but inseparable effect of the death of the unborn child. Some moral theologians analyzed the Phoenix case and agreed that it was an indirect and therefore permissible abortion.

Bishop Thomas Olmstead of of Phoenix, however, saw the case differently. In his analysis, the mother’s situation did not meet the criteria of the principle of double effect. He judged the abortion to be an intentional choice to save the mother’s life by means of the child’s death. Because in his judgment this constituted a direct abortion, he declared that everyone else involved in the decision or the procedure itself had incurred excommunication.

Utah: Capital Punishment, Innocence and Double Effect

There is no doubt that Ronnie Lee Gardner’s killing was direct. He was strapped to the wall, a target was sewn to his chest over his heart, and five executioners (four of whom had real bullets in their rifles) fired on cue. Gardner was dead within moments.

The popular analysis of this case is a variation on an “eye for an eye.” Gardner had committed robbery and two murders. He was a convicted criminal and had to to pay for his crime by death.

This popular view is not consistent with Church tradition because Gardner’s death was also governed by the church’s teaching that killing an innocent person is never permissible. This is the difficult part. Gardner was both morally and legally guilty, but in the Church’s teaching on direct killing, it is not moral innocence that is at stake. Killing another person, legally guilty or not, is morally tolerable only if it is an unintended, secondary effect of some form of self-defense.

Latin etymology is instructive in this matter. The English word “innocent” comes from the Latin prefix “in” (in English, “not”) and the Latin “nocere” (in English “to harm or injure”). The Church’s teaching, reaffirmed by John Paul II in his encyclical Evangelium Vitae, has always been that the direct killing of the innocent is the epitome of moral evil. But who is innocent? It is simply someone who, in the here and now, is not posing a threat to anyone. In the Church’s teaching, “innocent” does not refer to moral innocence. Even though it sounds like a contradiction, someone who is guilty of murder and is being held in a maximum security prison qualifies as innocent. His or her death may not be the object of another’s intention.

The simplest case is someone who is the victim of assault or armed robbery. If the victim judges that her life is in danger, she can take whatever steps are necessary to stop the aggressor and preserve her own life. But her intention can only go so far as self-defense. She can never directly intend death, even of someone who threatens her life. The moral object – the end toward which the action is directed – must, in this case, be defense of self or others. If the victim shoots and aims for an assailant’s shoulder or knee, but kills him in the process, her action should be judged as indirect (that is, foreseen but unintended) killing. However, if she tortures or strangles a burglar, it is impossible that the intention was simply self-defense. Even courts recognize this when they characterize a killing to be first degree murder, second degree murder, manslaughter or self-defense. It is all about intention.

We find the same double effect reasoning in the just war theory. A nation may not initiate war except to protect itself (vengeance as an acceptable motive for war was ruled out long ago). An advancing army may not slaughter a village in order to secure a position, but may take whatever steps are necessary to defend national sovereignty or the life of its citizens, even if this results in unintentional “collateral” damage. An individual soldier may shoot to disable or to protect his own life, but he may not beat an opposing soldier to death out of anger. In each case, the principle of double effect insists that we may not intend death, but only tolerate it as an unintended secondary effect of a morally sound intention.

In criminal matters, the state has a right and obligation to protect its citizens. In a social version of self-defense it may even resort to execution, but only if the criminal poses an immediate threat to citizens and cannot be contained or isolated in any other way. The criminal’s death cannot be the result of an act of vengeance; it can only be the unintended and secondary effect of the state’s attempt to protect its citizens.

Moral complicity

In the Phoenix abortion case, the bishop judged those who had approved and participated in the procedure to be guilty of moral cooperation; inasmuch as they knowingly shared in the intention of this direct killing, they were guilty of homicide. No such judgment was made in the Utah execution, however. Even though Bishop John Wester of Salt Lake City protested the execution, there was no suggestion that involvement in it or approval of it might constitute cooperation in a direct moral evil. In our judgment, Gardner was just as “innocent” –- in the sense of posing no threat to the populace—as the unborn child. In fact, his execution is a much clearer example of direct killing than the Phoenix case, in which certitude about moral intention is obscured by complex medical circumstances which few persons were even privy to, much less fully able to understand.

The focus on capital punishment is usually about the criminal and what he or she “deserves.” But from a moral perspective, it is not about the criminal; it is about us and our growth in virtue. The virtue of temperance is not only about moderating our desire for food, drink and sex. It extends to satisfaction of all our desires, including those for anger, vengeance and retribution. The philosopher Seneca once said that there is a “certain roughness of soul” in those who do not shrink from causing others pain. Except in cases where it is absolutely necessary and where we as citizens and moral agents separate ourselves from direct killing by a very measured intention, direct killing motivated by anger or vengeance is a serious moral evil.

The Phoenix abortion case and the Utah execution case differ in many ways, but they both remind us of the continuing usefulness of the principle of double effect and the crucial role of intention in assessing moral responsibility. Perhaps these cases will help us to refine our understanding of these two concepts.

Fr. Charles Bouchard is Vice President for Theological Education at Ascension Health; Fr. Richard Peddicord is President and Associate Professor of Moral Theology at Aquinas Institute of Theology. Both live in St. Louis.

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