Plan B and the doctrine of double effect.
Subject: Oral contraceptives (Laws, regulations and rules)
Oral contraceptives (Labeling)
Abortion (Laws, regulations and rules)
Contraceptives industry (Laws, regulations and rules)
Author: Stangl, Rebecca
Pub Date: 07/01/2009
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2009 Hastings Center ISSN: 0093-0334
Issue: Date: July-August, 2009 Source Volume: 39 Source Issue: 4
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Product: Product Code: 2834127 Oral Contraceptives NAICS Code: 325412 Pharmaceutical Preparation Manufacturing SIC Code: 2834 Pharmaceutical preparations; 3069 Fabricated rubber products, not elsewhere classified
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Accession Number: 220561133
Full Text: Some opponents of abortion claim that emergency contraception, labels notwithstanding, is not merely contraceptive but also abortifacient in effect. Based on this, hey conclude two things. They conclude, first, that taking emergency contraception is morally equivalent to intentionally procuring an abortion, and thus impermissible. (1) And second, they claim that health care providers who sincerely object to abortion have a right to refuse to participate in the provision of such contraception. (2)

Supporters of emergency contraception question both claims. Against the first, some argue that the medications in question cannot possibly have an abortifacient effect because they do not stop a pregnancy. (3) Against the second, some object that, while such "conscience clauses" are an understandable attempt to respect the rights of medical providers, they would do so at the cost of patients' rights to obtain necessary medical treatment. (4)

In what follows, I raise a different issue. Suppose that emergency contraception works exactly as its opponents claim. Would it follow that taking emergency contraception is morally equivalent to intentionally procuring an abortion? Perhaps surprisingly, I shall argue that it would not. If one accepts the doctrine of double effect, there would be circumstances in which the former is permissible even if the latter is never permissible.

Emergency Contraception: Contraceptive or Abortifacient?

First, a word of clarification. The term emergency contraception can refer both to various hormonal medications and to the insertion of an IUD after sex. In what follows, I will use the phrase "emergency contraception" to refer only to the various forms of hormonal emergency contraception. Plan B, the most common emergency contraception sold in the United States, is a progestin-only form of emergency contraception. Certain forms of hormonal birth control that contain both estrogen and progestin can also be used as emergency contraception when taken in larger than usual doses. Emergency contraception, as I will use the term, refers to both.

The exact mechanism by which hormonal forms of emergency contraception work is not well understood. The primary mechanism seems to be inhibiting ovulation. But failing this, they may also prevent fertilization or impair the implantation of a fertilized egg in the uterus. Such medication may be toxic to sperm, which would interfere with fertilization. And it also causes minor changes in the endometrium. Whether the changes are sufficient to prevent implantation is not known; several studies suggest they are not. But definitive proof either way is unavailable at present. (5)

This last (possible) mechanism is the source of the controversy. Opponents argue that if there are cases in which (1) the first two mechanisms fail, (2) fertilization occurs, and (3) the changes in the endometrium prevent the fertilized egg in question from implanting, these cases constitute abortions. Of course, if the medication functions as hoped, then there will be no fertilized egg and no abortion. And we may never know, in any particular case, what exactly has occurred. But on their view, that does not absolve us of responsibility for the cases in which an abortion does occur, and the fact remains that emergency contraception should be counted as an abortifacient.

Supporters of emergency contraception have responded in at least two ways. Some have argued that, even if emergency contraception functions exactly as its opponents fear, it could not possibly cause an abortion. The longstanding consensus in the medical community is that pregnancy begins when a fertilized egg implants itself in the uterus. (6) And everyone agrees that emergency contraception cannot cause the termination of a fertilized egg that has already implanted itself in the uterus. Supposing that abortion is the deliberate termination of pregnancy, they conclude that emergency contraception cannot possibly cause an abortion. (7)

This is not a very promising line of thought. If someone opposes abortion on the grounds that a fetus is a person from the moment of conception, what he objects to is the destruction of that fetal life. The ending of a pregnancy, per se, is not the object of moral concern. For those who believe that personhood begins at conception, the key question is whether emergency contraception brings about the destruction of an already conceived embryo. The opponents of emergency contraception believe that, in some cases, it does. (8) They therefore conclude that it kills a human person, who has a right to life. That is the objection. From this perspective, whether we call emergency contraception abortifacient or contraceptive is more a semantic question than a moral one.

Supporters of emergency contraception do have a more promising line of argument. Leaving aside the question of whether any person is justified in using emergency contraception, they argue that health care providers have no right to deny legally sanctioned, medically necessary health care to patients. Or, at the very least, they owe the patient a referral to a provider who will dispense emergency contraception. I will not explore the details of this argument here, concerning which there is already a significant literature. But let me note two things: First, there is nothing in this argument that is particular to the debate over emergency contraception. The proper balance between a health provider's right to act in line with his conscience and a patient's right to obtain medically necessary, legally sanctioned treatment applies to a number of other issues. The most obvious of these is, of course, abortion. Second, the argument does nothing to question whether emergency contraception really is morally equivalent to an early abortion.

That is not necessarily a problem for defenders of emergency contraception, provided they are willing to defend the right to abortion as well. But there are at least two reasons why it is worth answering anyway. First, it is philosophically interesting in its own right, as I hope to show in the next section of the paper. Second--and from a more practical standpoint--the argument for emergency contraception is stronger if it does not depend on a general defense of abortion, which is itself so controversial.

Plan B and the Doctrine of Double Effect

Suppose all of the empirical facts are as opponents of emergency contraception presume them to be: such contraception works primarily by blocking ovulation or fertilization, but also alters the make-up of the endometrium, making the womb an inhospitable place for the fertilized egg to implant. Does it then follow that there is no moral difference between taking emergency contraception and obtaining, for example, a first trimester surgical abortion?

Not if one accepts the doctrine of double effect. There are a number of different ways of formulating the doctrine, and it is not my purpose here to decide among them. (9) For my present purposes, what they share in common is sufficient. The doctrine makes a crucial distinction between harm that a person merely foresees will be the result of her action, and harm that she intends either as a means or as an end. According to the doctrine of double effect, it may be morally justifiable to perform an action that one foresees will result in some harm even if it would be unacceptable to aim at that very same harm, either as an end or as a means. Whether this is so in any particular case depends on whether the good to be achieved is proportional to the harm that is foreseen. I will argue that taking hormonal contraception can be justified by the doctrine of double effect even if it is true both that it can have an abortifacient effect, and that one may never intentionally obtain an abortion.

Someone who obtains a first trimester surgical abortion directly intends to secure the death of the fetus, either as an end or as a means to some other end. But someone who uses emergency contraception need not intend the death of any particular fetus. I don't mean this in the trivial sense that she may not believe that emergency contraception has the empirical consequences we are supposing it does. I mean that she may believe that it acts in exactly the ways its opponents claim, and still take it without intending the death of any particular fetus. What she may intend to do, and what emergency contraception does do in the vast majority of cases, is prevent the conception of a fetus. She may believe that, under exceptional circumstances, the contraception will fail to prevent the conception of a fetus. And in a proportion of these cases, the changes in her body brought about by the use of emergency contraception may mean that the fetus will not be able to implant itself in the womb. But she need not intend for that to happen.

This use of the distinction between intending and foreseeing may strike people as sophistical. Suppose the woman taking the emergency contraception believes that there is a certain chance, however small, that such contraception may act as an abortifacient and takes it anyway. She then intentionally performs an action that she believes may cause the death of the fetus. How is that not intending to cause the death of the fetus?

But this is a mistake. Not every effect of a person's action need be intended. An example from another area of bioethics may help here. Opponents of euthanasia generally concede that we may give dying patients high doses of morphine even if we know that such treatment may hasten death. What we may not do, they claim, is directly intend the death of the patient and administer the morphine as a means to that end. So the same action--administering morphine--has a different moral status depending on the structure of our intentions. Because this one action has two different effects, it is possible to directly intend one of the effects and merely to foresee the other. If we take the morally good end (the relief of suffering) as the object of our intention, the action may be permissible. But if we take the morally bad end (the death of the patient) as the object of our intention, the action will be impermissible. (10)

But if this distinction works in the end-of-life case, it seems to me that it must also work in the case of emergency contraception. We know that emergency contraception is just that, most of the time--namely, contraceptive. In very rare circumstances, it may also be abortifacient. So the same action may have two different effects. When this is the case, it is possible to directly intend only one of the effects and merely to foresee the possibility of the other. We can then agree that directly intending the death of any particular fetus, either as a means or as an end, is impermissible, while allowing that if our intention is merely the morally good end--the prevention of a pregnancy--then the action may be permissible. (Not everyone will agree with my assumption that the prevention of a pregnancy can be a morally good end--an issue I address in the final section of this essay.)

Indeed, it seems to me that opponents of emergency contraception must accept something like the intend/foresee distinction. The bodily changes brought about by hormonal forms of emergency contraception can be and are brought about in other ways. It appears, for example, that breastfeeding causes changes in the endometrium that are similar to the changes brought about by the use of emergency contraception. (11) If such changes can have an abortifacient effect in the former case, then there is no reason to think they cannot also have an abortifacient effect in the latter. But no one takes this to be a reason not to breastfeed. The doctrine of double effect shows how this can be consistent with opposition to procured abortion. A breastfeeding woman does not intend the death of any particular fetus by breastfeeding. Even if there is an extremely rare risk of this occurring, it will occur only as a wholly unwanted side effect of her action.

Of course, even if all of this is correct, it does not yet follow that the use of emergency contraception in any particular case is morally justifiable. The distinction between directly intending a death and merely foreseeing it is morally important. Some might go so far as to say that the former is never justifiable, while few would deny that the latter is at least sometimes justifiable. But the distinction is not a get out of jail free card. That I merely "foresee" that someone may die as a result of my actions, but do not directly intend it, is sometimes no justification whatsoever. Suppose I wish to orchestrate a particularly impressive fireworks display, but the only way I can do that is by using very dangerous fireworks. It may not be my intention to harm anyone. But it would nevertheless be wrong to put on such a display. If I can foresee the possibility of severe injury to others, the entertainment value of the fireworks display cannot justify taking the risk. (12)

Some actions that foreseeably cause harm--or might cause harm--are wrong, even if we do not intend to harm anyone by committing them. For our action to be justified, the good we intend as an end must be proportional to the possibility of harm we foresee. A good case can be made that emergency contraception passes this test. If a young girl is raped, preventing the conception of a child from that rape is a genuine good. And it will have a dramatic effect on the life of the young girl. Even in a case where emergency contraception is taken by an adult who has consented to the sexual act preceding its use, the ability to prevent a pregnancy here and now may be a genuine good. Certainly, the conception and birth of a child is always a life-changing event of enormous proportions. When there are good reasons to prevent it, the good to be achieved is not a trivial good--it is not analogous to the entertainment value of a fireworks display.

One might object that such a good, while important, could never be proportional to the foreseeable possibility of the harm of the possible abortifacient effect. If the embryo really is a person with moral rights, perhaps only the risk of the mother's death would be proportional to the foreseeable possibility of the death of the embryo. But this doesn't seem right. (13) Even on the interpretation of the empirical facts most favorable to opponents of emergency contraception, the chance that it will result in the death of an embryo, in any particular case, is very small. And we do things that have a foreseeable risk of killing someone all the time. We drive cars to the store, for example, in the full knowledge that there is a very small chance we might be involved in a fatal car accident. The good to be achieved here is in fact rather trivial--but the chance of the bad side effect is so small that we view the risk as acceptable. In the case of emergency contraception, the risk may be somewhat higher--though that is, of course, not clear--but the good to be achieved is also greater.

Two Objections and Responses

One might object that my argument shows less than I claim. At one point, Catholic hospitals lobbied to be excused from a bill that required all hospitals to provide emergency contraception to victims of rape. The Catholic hospitals were in favor of providing emergency contraception to victims of rape, but only following a negative test for ovulation. The worry seemed to be that, if ovulation had already occurred, then the effect of Plan B could not be contraceptive. This is important to my argument because I have focused on the intentions of the person taking Plan B. If one knows that Plan B cannot function as a contraceptive, then one cannot take it with the intention that it will. So one might think I am committed to defending the position defended by the Catholic hospitals.

But a positive ovulation test would not show that it is impossible for Plan B to function as a contraceptive. We know it can inhibit ovulation. Failing this, it might either interfere with fertilization or impair implantation. Because interfering with fertilization is also a contraceptive effect, one could still take it with the contraceptive effect as one's goal, even if one has a positive test for ovulation. (14)

And in any event, this worry is not enough to give pharmacists a right to refuse to fill prescriptions for Plan B. The pharmacist does not know whether the patient has tried to obtain an ovulation test or, if she has, what the result is. So even if it were wrong to use emergency contraception without a negative ovulation test, the pharmacist cannot know that it will be used in this way. And the mere fact that a medication may be used in a morally illegitimate manner is not generally a good reason for a pharmacist to refuse to distribute it. If it were, pharmacists should be refusing to fill prescriptions for all kinds of medication--certainly, for example, for morphine, oxycodone, and other strong narcotics.

It is true, however, that my argument is limited in a different way. An appeal to the doctrine of double effect supposes that the end aimed at is morally good. I claim that women who use emergency contraception need only intend the contraceptive effect of the medication, and not any possible abortifacient effect it may have. If one denies that even the former is a permissible end, then the doctrine of double effect makes no difference.

This is all true. But if opponents of emergency contraception object to its use on these grounds, it needs to be made clear that they object to the use of all forms of birth control--including, for example, barrier methods of contraception. But opponents of emergency contraception seemed to have a special objection to emergency contraception. (We aren't hearing a chorus of demands for "conscience clauses" allowing pharmacies not to sell condoms, for example.) So it is hard to see how this point will help them.

We are left, then, with a complicated relationship between emergency contraception and abortion. Even if hormonal contraception functions sometimes as an abortifacient, its use is not morally identical to procuring an early abortion.

Acknowledgments

I would like to thank John Arras, Talbot Brewer, and Elizabeth Fenton for helpful comments on an earlier draft of this essay.

(1.) See J. Wilks, "The Pill: How It Works and Fails," Pharmacists for Life International, http://www.pfli.org/faq_oc.html, accessed August 28, 2008; R. Pear, "Abortion Proposal Sets Condition on Aid," New York Times, July 15, 2008; S. Simon, "Rules Let Health Workers Deny Abortion," Wall Street Journal, August 22, 2008.

(2.) Under the Bush administration, the Department of Health and Human Services appears to support the second claim. They have proposed that all recipients of aid from federal health programs be required to recognize a right of refusal to participate in abortion services. And the original proposal defined abortion in this way: "any of the various procedures--including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action--that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." Both opponents and supporters of the bill agree that the last clause in the rule was intended to bring emergency contraception under its purview. The clause in question was dropped from subsequent drafts of the policy, but opponents worry the policy remains essentially unchanged. See R. Stein, "Protections Set for Antiabortion Health Workers," Washington Post, August 22, 2008.

(3.) See Planned Parenthood, "Emergency Contraception (Morning After Pill)," http://www.plannedparenthood.org/health-topics/ emergency-contraception-morning-after-pill-4363.htm, accessed August 26, 2008.

(4.) A right of refusal to "participate" in providing emergency contraception is open to weaker and stronger interpretations. On a relatively weak interpretation, it might imply only a right of refusal to fill a prescription for emergency contraception. On a stronger interpretation, it might also imply a right of refusal to refer the patient to a pharmacist who will fill the prescription. Most critics seem especially concerned to argue against the stronger version. See A. Asch, "Two Cheers for Conscience Exceptions," Hastings Center Report 36, no. 6 (2006): 11-12; R. Dresser, "Professionals, Conformity, and Conscience," Hastings Center Report 35, no. 6 (2005): 9-10; L. Lomasky and E. Fenton, "Dispensing with Liberty: Conscientious Refusal and the Morning After Pill," Journal of Medicine and Philosophy 30, no. 6 (2008): 579-92. See also J. Blustein, "Doing What the Patient Orders: Maintaining Integrity in the Doctor-Patient Relationship," Bioethics 7 (1993): 289-314; and N. Zohar, "Cooperation Despite Disagreement: From Politics to Healthcare," Bioethics 17 (2003): 121-41.

(5.) A. Glasier, "Emergency Postcoital Contraception: Review Article," New England Journal of Medicine 337 (1997): 1058-64.

(6.) R.B. Gold, "The Implications of Defining When a Woman Is Pregnant," The Guttmacher Report on Public Policy 8, no. 2 (2005): 7-10.

(7.) See Planned Parenthood, "Emergency Contraception (Morning After Pill)," as well as Planned Parenthood, "Ask Dr. Cullins: Emergency Contraception," http://www.plannedparenthood.org/health-topics/askdr-cullins/ ask-dr-cullins-emergency-contraception-5363.htm, accessed on August 28, 2008.

(8.) Or, at least, they believe that it very likely brings about the destruction of an already-conceived embryo.

(9.) See W. Quinn, "Actions, Intentions, and Consequences: The Doctrine of Double Effect," in Morality and Action (Cambridge, U.K.: Cambridge University Press, 1993), 175-93; P. Foot, "Abortion and the Doctrine of Double Effect," in Virtues and Vices (Oxford, U.K.: Oxford University Press, 2002), 19-32; G.E.M. Anscombe, "Action, Intention, and 'Double Effect,'" in Human Life, Action, and Ethics (Exeter, U.K.: Imprint Academic, 2005), 207-226. There is wide agreement that the doctrine originates in Aquinas, although Anscombe dissents. See Aquinas, Summa Theologiae, II-II, Q. 64, art. 7.

(10.) See L.R. Kass, "Is There a Right to Die?" Hastings Center Report 23, no. 1 (1993): 34-43; E.D. Pellegrino, "Doctors Must Not Kill," Journal of Clinical Ethics 3 (1992): 95-102; and Council on Ethical and Judicial Affairs, American Medical Association, "Decisions Near the End of Life," Journal of the American Medical Association 276 (1992): 2229-33.

(11.) S. Diaz et al., "Relative Contributions of Anovulation and Luteal Phase Defect to the Reduced Pregnancy Rate of Breast-Feeding Women," Fertility and Sterility 58, no. 3 (1992): 498-503.

(12.) See Foot, "Abortion and the Doctrine of Double Effect," 22, and also W. FitzPatrick, "Surplus Embryos, Nonreproductive Cloning, and the Intend/Foresee Distinction," Hastings Center Report 33, no. 3 (2003): 29-36.

(13.) It also appears to be incompatible with the point I make above-that no one objects to breastfeeding, even though it appears to pose a similar risk. The benefits of breastfeeding for infants (and mothers) are well known, but not breastfeeding an infant is hardly life-threatening.

(14.) Note that the Catholic hospitals themselves eventually dropped their objection, partly because of the impossibility of knowing how emergency contraception would function in these cases. See C. Keating, "Catholic Bishops in CT Will Comply with Emergency Contraception for Rape Victims Law," Hartford Courant, September 7, 2007.

Rebecca Stangl, "Plan B and the Doctrine of Double Effect," Hastings Center Report 39, no. 4 (2009): 21-25.
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