In the New York Times this morning (27th January 2011) Nicholas Kristoff, in an article entitled “Tussling over Jesus,” addresses himself to the conflict between the Roman Catholic hierarchy and Roman Catholic health care. We have all become familiar with the case of the woman at St. Joseph’s hospital in Phoenix, Arizona, and of the dispute with the bishop of Phoenix, Thomas Olmstead, over the hospital’s decision to save the life of a woman even though that meant terminating the woman’s pregnancy. The nun who made that decision, Sister Margaret McBride, was excommunicated for her part in the life-and-death drama that unfolded in the hospital, and the hospital has refused to give assurances that it would not do the same thing again, should the situation arise. Bishop Olmstead accordingly stripped the hospital of its Catholic credentials because of what he considers its contumacy, since he is the only one entitled to interpret Catholic moral doctrine in his diocese, and all Catholic institutions must be subject to his Apostolic authority.
Other Catholic hospitals have refused to stop providing tubal ligations for women who ask for them, and in consequence have been stripped of their Roman Catholic credentials by a church increasingly presided over by conservative bishops — a shift which began in the pontificate of John Paul II. In some cases, where women have given birth in a Catholic hospital, they are required to go elsewhere for tubal ligation, if they wish it, since Catholic hospitals often refuse to provide such services, since it is, according to Catholic doctrine, strictly against the moral law to sterilise either the man or the woman, thus interfering with the primary purpose of the sexual act, which is, according to the church, the procreation of children.
This means that, in a number of cases, women have had to undergo surgery twice – instead of C-section and tubal ligation taking place at the same time, as they normally do – thus increasing the risk to the woman, as well as unnecessarily increasing the cost of health care. And since Roman Catholic hospitals comprise 15% of all hospital beds in the United States this means unnecessary risk for large numbers of women. It also means that women cannot be confident that necessary emergency care will be provided for them in cases, such as the one concerning the 27-year-old mother of four children in Phoenix, where church doctrine and appropriate medical treatment conflict.
The problem here lies in the way that Roman Catholic moral theology works. I have been trying for some time to understand what is meant by terms such as ‘natural law’ and ‘sane reason’ or ‘right reason’, which seem to play such a vital and central role in Roman Catholic ethics. How, for example, does “natural law” differ from the ”laws of nature”? According to Roman Catholic ethics both abortion and suicide are contrary to the natural law. But, if you point out, as Hume did in his essay “On Suicide”, that diverting the flow of blood so that a person dies is no different from diverting the flow of a river, the response would be that the first is contrary to natural law, whereas the latter, while changing the course of the river, in that it interferes with the way that natural forces (the laws of nature) have shaped the river’s course, cannot be considered to be opposed to natural law.
The distinction between natural law and laws of nature is clearly spelled out by Tom Beauchamp in his paper on Hume’s essay “On Suicide” (“An Analysis of Hume’s Essay “On Suicide”. The Review of Metaphysics, Vol. 30, No. 1 (Sep., 1976), pp. 73-95):
Aquinas and natural law philosophers have always drawn a distinction between laws of nature and natural laws. Presumably the former are descriptive statements derived from scientific knowledge of universal regularities in nature, while the latter are prescriptive statements derived from philosophical knowledge of the essential properties of human nature. (80)
Beauchamp goes on, further, to say:
Natural laws are the orderings of potentialities to their actualizations, and human goods are determined by reference to these orderings. (80)
Does this really help? I am not convinced that it does. In fact, I think Hume’s response to Aquinas, if that is what he was doing in his essay “On Suicide” (as Beauchamp suggests — although Hume never mentions Aquinas), is based firmly on his belief that you cannot derive moral principles from facts about the world.
Let us consider the distinction between laws of nature and natural law from another point of view, that of Pope Pius XII. In his Allocution to midwives of 29th October 1951, Pius expresses his concern about the spread of what he terms the ”personal values” ideal of marriage which was, apparently, much discussed in the early 1950s. According to this view,
The proper and most profound sense of the exercise of conjugal rights would consist in this, that the union of bodies is the expression and the realization of personal and affective union.
This emphasis on personal values in the relationship of marriage would, according to Pius, invert “the order of values and of the ends imposed by the Creator Himself.”
What, though, of the couple who, for whatever reason, cannot have children, if the primary end of marriage is the procreation of children and not, as Pius puts it, “the personal perfection of the married couple”? At this point Pius uses a very vivid example, an example which, in fact, hopelessly confuses natural law with the laws of nature — a confusion which is, I think, built into the concept of natural law. The primary end of marriage is the procreation of children; other ends are subordinate to this.
This is true [says Pius] of every marriage, even if no offspring result, just as of every eye it can be said that it is destined and formed to see, even if, in abnormal cases arising from special internal and external conditions, it will never be possible to achieve visual perception.
It is clear that Pius does not make a clear distinction between the descriptive and the prescriptive in this example. Both are in fact descriptive. The law of nature is that the union of a man and woman in sexual intercourse is intended primarily for procreation, just as the primary purpose of the eye is to see, even if, in either case, the natural end of sexual intercourse or of the eye is frustrated.
This law of the nature of sexuality is, however, in the case of human action, also prescriptive; for the law of nature defines the natural law regarding the human use of sexuality. Distinguishing laws of nature from natural law so far as they pertain to human action is not strictly possible. Considering certain things as potentialities ordered to actualisation, in Beauchamp’s language, is to give a descriptive account of the nature of the thing in question. The problem is that natural law theory wants to extract moral prescriptions from this descriptive account.
What makes it look possible is that there may seem to be some aspect of the descriptive account that is in some sense central; but there is also always a range of actions pertaining to any major aspect of being human that might be taken to be natural and central in the same way. This is why we have moral conflict, after all.
Affective bonding, for example, is obviously an aspect of sexual relationship, and could reasonably be taken, by some, at least, to be the primary purpose of their relationship. Pius would consider this use of sexuality wrong, and in conflict with what he takes to be the primary purpose of sexual relationship, which has to do with procreation. Both are ways of describing human sexual relationship; either could be used prescriptively. But in order to get from the description to the prescription, as Hume observed, we need something more.
Let us suppose, then, that affective bonding is primary. There is, after all, reason for taking affective bonding as the primary purpose of human sexual relationship. While Pius considers sexual intercourse without the intention to procreate animal-like — as he says:
… human beings made of flesh and blood, gifted with soul and heart, shall be called upon as men and not as animals deprived of reason to be the authors of their posterity –
the truth is that with animals that have an oestrus cycle (from the Greek ‘oistros’, meaning sexual desire) – that is, times when the animal is “in heat”, and ready to mate — sex is almost solely procreational, whereas humans are always capable of sexual intercourse. Therefore, affective, intimate relational sexual intercourse is almost uniquely human, whereas procreational sex is more common amongst the so-called “lower” animals.
There is also another very important reason why affective relationship might reasonably be taken as central and primary to the human relationships of which children may be at least one of the purposes in view. After all, this is not unreasonably thought to be adaptive in that it provides stability for the raising of children, and recreational sexual relationship is arguably an important contributor to the stability of such relationships.
So Pius may in fact be seen as almost exactly reversing the order of nature – recreational sex, after all, in contrast to other animals, being a human universal. This may disturb the celibates of the Vatican, who think of the human being primarily as rational, and therefore as subject to control over those things considered to be in some sense “lower” and animal like, but this is surely just a misunderstanding of the nature of what it means to be a human being.
Certainly, the human ability to make choices is reasonably thought to be central to human nature, but this is not the same as being purely rational, and making purely rational choices without any admixture of passion or emotion. Sometimes our choices are almost purely affective, and reasonably so. In fact, close personal relationships are probably, by their very nature, more affective than they are rational. Rational calculation undoubtedly enters into everything that we do, but without some affective ground, relationships simply would not endure. And, where sex is an integral part of the relationship, it is hard to see how the relationship would be improved by considering procreation as the primary purpose of sexual intercourse. Indeed, sexual play would seem to be a far more important aspect of any healthy sexual relationship, and talking about the natural law priority of procreation could only be a hindrance in such a situation.
This suggests to me, anyway, that the natural law point of view is seriously misleading if not simply defective. And I think it is just as misleading at the end of life too, just as it is at supposed beginnings. Just as affective relationship and sexual play may lead to unwanted and unexpected pregnancy, which would not only intrude upon the relationship, but possibly on the life plans of the persons involved, so, at the end of life, it is not unreasonable to suppose that affective concerns are uppermost in the mind of the very sick or dying person.
Aquinas suggests the prohibition of suicide follows from three things (of which we will consider only the first), namely, from self-love, for, says Aquinas, “everything naturally loves itself, the result being that everything naturally keeps itself in being.” (Summa Theologica, II-II, Q. 64, Art. 5) (The other two have to do with (i) the person’s belonging to the community, and therefore injuring it by his departure, and (ii) with God’s ownership of the person, and therefore as the one who both gives and takes life; but we will not consider these here.)
But it is clearly simply untrue that everyone is motivated by self-love as a natural tendency to keep themselves in being. This is precisely the question at issue, for some people are not motivated by self-love to keep themselves in being, but precisely the reverse: they are motivated by self-love to bring their lives to an end. The supposition that self-love must be directed towards self-preservation, and that this defines a natural law for human living is basically a petitio principii. It begs the question.
This is a point that is made most vividly by John Donne at the very beginning of his book Biathanatos, where he speaks of his “sickly clination” which, without any rebellious grudging at God’s gifts,
… whensoever any affliction assails me, methinks I have the keys of my prison in mine own hand, and no remedy presents itself so soon to my heart as mine own sword. [ll. 1100 - 1103]
After collecting a number of examples of people who had, in diverse circumstances, taken their own lives, Donne concluded that he had defeated “that argument which is drawn from self-preservation, and to prove that it is not so a particular law of nature but that it is often transgressed naturally” (ll. 1959-1963) – the word ‘naturally’ being the decisive point, for he is arguing against the supposed naturalness of the prohibition of self-killing based on the supposed unnaturalness of failing to preserve one’s life.
The point of the above is to show that sexual intercourse is not, by nature, reserved to the primary purpose of procreation, just as it is at the end of life not unnatural to seek to bring life to a close. The idea of natural death depends upon the unnaturalness of suicide, but there is no reason, as Donne says, to suppose that terminating one’s own life willingly is at all unnatural.
What is natural and unnatural for human beings cannot be dependent upon singling out preferred courses of action and simply denominating them actions in accord with natural law. There are simply too many normative presuppositions that are included in the notion of natural law for this to be defensible, for the presuppositions are such that they may well be, and often are, questioned. This is why many countries have decided that abortion should not be forbidden by law. It is not unnatural not to want to have a child; and it is an unjustified intrusion into the life of a woman to impose child-bearing upon her as a legal obligation. There are all sorts of situations in which this is a perfectly appropriate decision to make for oneself and one’s own future.
In the same way, there is nothing unnatural about a person deciding, when suffering has become, in that person’s own estimation, intolerable, that life is no longer worth living. The error of Roman Catholic natural law morality lies in supposing that it is possible to define, for all situations of a certain general type, that they are, of their very nature, opposed to right or sane reason, or, what comes to the same thing, natural law, and that these are based upon objective (descriptive) features of the human being.
The only thing that could force this determination is the belief that there is a being who reigns supreme over the moral law, and has purposed from the start those things that are and those things that are not in accord with this law. This may well govern those who think in this way, and believe in the existence of this being, but it need not govern the rest of us, including many religious believers who do not believe that a god who created us capable of rational choice would decide beforehand what must be rational for us in every situation. This is in fact a subversion of rationality, and of the capacity for choice which rational beings possess, and it should be rejected for this reason. Any authority which dares to say otherwise should be derided as the intruding supernanny that it is unjustifiably pretending to be.