Plan B and the Case of Rape

By Dr. Jeff Mirus ( bio - articles - email ) | Dec 14, 2007

Recently the bishops of Connecticut were faced with a new State law requiring that all hospitals (including Catholic hospitals) administer the drug known as Plan B to victims of rape, provided a pregnancy test is negative. Before the law was passed, the bishops stated that they could not comply if the law did not also include an ovulation test. But when the State passed the law anyway, the bishops changed their position.

Looking Bad in Connecticut

Plan B is both a contraceptive and an abortifacient drug. The bishops had initially argued that a negative pregnancy test was insufficient evidence that no new human life was present, because pregnancy tests typically do not detect the existence of a fertilized ovum until bodily changes begin after implantation, which occurs six to twelve days after fertilization. Even the best test can determine pregnancy only within 48 hours, but this test is time-consuming, expensive and seldom used.

For this reason, the bishops held that an ovulation test should also be required prior to mandatory administration of Plan B, because this alone could ensure that a baby had not been conceived. However, when the law went into effect without this provision, the Bishops created something of a scandal by changing their minds. Abandoning what they had advanced as representing the opinion of the majority of Catholic moralists, they instead focused on the fact that some moralists disagreed, and they concluded there was sufficient moral doubt, as well as sufficient doubt about how Plan B works, to permit compliance with the law after all. (See their final statement.)

The Points at Issue

It is extremely unfortunate that the bishops’ change of mind occurred in response to the bill becoming law, because the timing weakens their moral credibility. Therefore, I prefer to outline the necessary Catholic principles independently rather than attempting to draw them out of the shifting reasoning of the Connecticut bishops. Plan B does two things. It prevents ovulation so that there are no eggs for sperms to fertilize (contraception proper) and, if eggs are present, it prevents fertilized eggs from implanting in the uterus (that is, abortion). The Church’s teaching is very clear on the fact that direct abortion is always wrong, even in the case of rape. However, many who accept this position have expressed confusion on the two remaining moral points at issue:

1. In rape cases with a negative pregnancy test but no ovulation test, may abortion be tolerated as an unintended consequence of attempting to prevent ovulation?
2. In rape cases, is the prevention of ovulation (that is, true contraception) permissible?

The original position of the Connecticut bishops was based on a negative answer to the first question and a positive answer to the second. Their final position answered both questions positively. In the ensuing discussions, some Catholics have claimed that orthodoxy requires both questions to be answered negatively. I shall argue that the original position of the bishops was in fact correct: "No" to the first question; "Yes" to the second.

In discussing these issues it is important to recognize that an accurate understanding of the way Plan B works is critical to the analysis. My understanding is that Plan B is supposed to prevent ovulation. If ovulation occurs, it may also prevent implantation of the fertilized ovum in the uterus. For this reason, if ovulation has not occurred, the goal in the case of rape is to prevent it from occurring, thereby rendering pregnancy impossible. But if ovulation has occurred, the only possible goal is to prevent implantation—that is, to kill somebody. The moral problems connected with these issues are exacerbated by the fact that we cannot know with absolute certainty exactly what is going on in all cases.

Abortion as an Unintended Consequence

Unintended consequences do not render an otherwise moral act immoral. In a war, if I take care to destroy an ammo dump when no innocent civilians are present, the fact that an innocent civilian wanders into the ammo dump moments before I cause it to explode does not alter the moral permissibility of the action I have taken. On the other hand, if I deliberately ignore the known fact that the enemy randomly runs neighborhood children through the dump to deter my aggression, my plan is morally flawed from the first.

Presumably, the Connecticut Bishops had something of this sort in mind when they rendered their final compliance decision for Plan B. It isn’t certain whether Plan B will work through contraception or abortion, and while a positive pregnancy test can establish the presence of a new person, a negative pregnancy test cannot tell us that no new person is present. Presumably, the bishops concluded that, as the Catholic intention in administering Plan B to a rape victim is to prevent conception, and as it is unknown under Connecticut law whether no fertilized ovum is present, any resulting death may be construed as an unintended consequence.

It is a fairly complex business, but I believe this logic fails because the bishops have accepted the State’s order to keep themselves in ignorance of ovulation. Through a simple test, it can be determined whether ovulation has occurred. If it has not occurred, administration of Plan B may rightly be intended to prevent it. If this strategy fails, the unfortunate result may reasonably be viewed as an unintended consequence. But precisely because the test is possible, the failure to test indicates an unnecessary willingness to decide to administer the drug knowing that identifiable conditions may exist which render its purpose abortifacient. After all, if ovulation has occurred, the only possible purpose of administering Plan B is abortifacient. This seems to me to be morally flawed.

To add to the complexity, we have no choice but to acknowledge that no drug is 100% effective, and that Plan B is not always effective in preventing ovulation. Therefore, when it is used for this purpose, it is predictable that in some cases ovulation will still occur, and that fertilization may therefore also occur, and finally that implantation may be prevented. Does this invalidate the classification of the potential abortion as an unintended consequence? Though I am reluctant to say so, I believe this depends on the state of human knowledge, on percentages, and on intentions. If the normal operation of the drug is to prevent ovulation and the drug is generally regarded as very effective (both of which I understand to be true), then the decision to use it for this purpose, after determining that ovulation has not already occurred, appears to me to be morally valid.

Any consequent abortion, however tragic, would be similar to the unintended consequence of a stray civilian in the ammo dump: possible, but not likely, and certainly not intended. Note how much this depends on prudential judgements based on human expertise, which should always make us cautious, but note as well that, given enough instances of ammo dump destruction, the presence of a civilian could also be statistically predicted. If the likelihood were small, it would not alter the moral case. Absolute certainty concerning circumstances is seldom possible for man.

Contraception in Rape Cases

The difficulty of the foregoing discussion permits me to engage the bishops of Connecticut with some degree of sympathy, even though I believe they decided wrongly to comply with the State’s new law. As I have indicated, there is a great deal of necessary human calculation in this question which, without further clarifications from the Magisterium of the Church, renders it at the very least difficult to assess. It is with some relief, therefore, that I turn my attention to the second and far simpler question, namely, whether contraception is moral in the case of rape. In this discussion I am referring to true contraception, that is, the prevention of conception. I am not using the term contraception as a euphemism for certain kinds of abortion.

Some severe Catholic moralists who disagree with the Connecticut bishops have presented an argument based on the natural law. These authors contend that we know from natural law that the sexual act must be open to life and, therefore, all contraception is immoral. They cite the constant teaching of the Church on this question, most fully enunciated in Pope Paul VI’s great encyclical Humanae Vitae.

Unfortunately, they cite the Church’s teaching wrongly, and so they thoroughly misunderstand the natural law. They attempt to discern the natural law from biology by itself, which is impossible. The natural law is read properly only within the innate human perception of context, that uniquely human understanding which enables us to discern the teleology of natural things. The natural law is not found, therefore, in an isolated biological analysis. If it were, it would be immoral for humans to fly. In fact, according to the Church, the natural law governing the sexual act’s openness to life is dependent not on isolated biology but on biology within marriage.

The Natural Law and the Marital Act

Humanae Vitae makes this very clear, and I will add italics in the following citations to bring out the key point. In this encyclical, Paul VI says that the new questions regarding contraception require the Church to make a deeper reflection on the principles of “the moral teaching on marriage—a teaching which is based on the natural law.” He argues that the Church has always issued such documents “on the nature of marriage,” and that the reason he did not leave the issue to the majority report (delivered by the commission he established to study the question) was because some opinions had emerged which were “at variance with the moral doctrine on marriage constantly taught by the magisterium of the Church.” (#4 and #6)

The Pope then goes on to discuss “married love”, which he defines as human (“not just a question of natural instinct or emotional drive”) and freely willed “so that husband and wife become in a way one heart and one soul, and together attain their human fulfillment.” Such love is total, faithful, exclusive, and fecund. He then discusses “responsible parenthood”, which concerns “the objective moral order which was established by God” and in which the “husband and wife, keeping a right order of priorities, recognize their own duties toward God, themselves, their families and human society.” “From this,” he states, “it follows that they are not free to act as they choose in the service of transmitting life, as if it were wholly up to them to decide what is the right course to follow.” (#9 - #10)

Finally, Pope Paul goes on to treat sexual activity only in this marital context: “The sexual activity, in which husband and wife are intimately and chastely united with one another, through which human life is transmitted” is noble and worthy. And so the Church, “in urging men to observance of the precepts of the natural law, which it interprets by its constant doctrine, teaches that each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life” (#11). And finally:

This particular doctrine, often expounded by the magisterium of the Church, is based on the inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act. (#12)

Outside of Marriage?

For the Church, the term “marital act” is not merely a euphemism for “sexual intercourse”. The natural law enunciated in the constant teaching of the Church applies specifically and exclusively within marriage. Indeed, outside of marriage, the sexual act is simply wrong, no matter how noble its purpose, or how open to life and love it may be. And this too is governed by the natural law, which reserves the sexual act to marriage, something that cannot be determined by isolated biology, which produces its results either way.

In fact, when the sexual act occurs outside of marriage, the use of contraception is not intrinsically immoral; it does not compound the sin. Rather, it is intrinsically irrelevant. In the larger picture, of course, if someone is utilizing contraceptives in order to support a promiscuous lifestyle, the intention is evil, and so the act. Similarly, Church leaders have generally opposed all programs designed to solve problems through the widespread distribution of contraceptives because such programs have a severe tendency to justify or encourage promiscuity. The evil consequences are inevitably and always present, and they are disproportionate to any supposed benefits. But this does not speak to the intrinsic evil of a particular contraceptive act, which evil obtains intrinsically only within marriage.

Most Catholics would instinctively “feel” that in the event of rape, a woman would be justified in taking reasonable steps to prevent the attacker’s sperm from fertilizing one of her eggs, and in this case most Catholics would be correct. Certainly she must avoid intending to kill a newly formed child if he is present, and she must avoid any techniques which are designed to kill a child unless she can be reasonably certain that no child is present. But she is perfectly justified in attempting to prevent conception, by a thorough flushing or any other genuinely contraceptive means. It is only those Catholics who have gotten the Church’s natural law teaching wrong who fall into the contrary mental trap.

Not Easy

None of this is easy—neither the situation, nor the science, nor the moral reasoning which must be so carefully undertaken. The first argument, which involves an understanding of the effects of drugs, the weighing of probabilities, and the evaluation of human intentions, is exceedingly difficult to nail down. I can only say that I have tried to outline it correctly. The second argument—the argument that pure contraception is morally permissible in the case of rape—is, I believe, unanswerable. In the end, I am primarily concerned that the Church’s teachings on the natural law within marriage should be rightly understood. In this context, no Catholic should be driven by a mistaken sense of duty to require a rape victim to suffer anything she is not morally bound to accept.

[Note: A few days after I posted this analysis, a reader drew my attention to a recent study in The National Catholic Bioethics Quarterly concerning evidence that Plan B may not have an abortifacient effect, the manufacturer's literature notwithstanding. See the follow-up in my blog, Plan B: Not an Abortifacient?.]