Abortifacient effects of contraception and the Principle of Double Effect

Suppose that a contraceptive has the following properties:

• Fewer than 1% of users have a pregnancy annually.

• At least 5% of users annually experience a cycle where the contraceptive fails to prevent fertilization but does prevent implantation.

I think there is good empirical reason to think there are such contraceptives on the market. But that’s a matter for another post. Here I want to look at just the ethics question. So let’s suppose that the above stipulated properties obtain, and in fact that they are known to obtain.

The cases where the contraceptive prevents implantation are cases where the contraceptive kills an early embryo: in short, they are cases where the contraceptive is being abortifacient. The question I want to address in this post is this: Could someone who thinks early embryos have whatever property (personhood, membership in the human race, the imago dei, the possession of the soul, etc.) that makes it paradigmatically wrong to kill adult human beings nonetheless defend the contraceptive on the grounds that the deaths due to implantation-prevention are just an unintended and unfortunate side-effect?

Basically, the defense being envisioned would invoke some version of the Principle of Double Effect, which allows for some actions that have a bad side-effect that isn’t intended as a means or as an end. Of course, Double Effect requires that there not be other reasons why the action is wrong. But let’s bracket the question—which I address at length in my One Body book—whether there are other reasons the contraceptive could be wrong to use, and just focus on the abortifacient effect.

We can ask the question from two points of view:

1. Can the manufacturer justify the production of the contraceptive on the grounds that failures of implantation are just an unfortunate side-effect?

2. Can the user justify the use on those grounds?

Regarding 1, here’s a thought. For the contraceptive to be competitive, it has to be highly effective. If one does not count the 5% of annual cases where fertilization occurs but implantation is prevented as part of the contraceptive’s effectiveness, then one can at most claim 95% effectiveness for the contraceptive. And that effectiveness would put the contraceptive significantly behind the most effective formulations of the pill. In fact, it will put it somewhat behind the results that can be achieved by Natural Family Planning by a well-prepared and well-motivated couple. So for commercial purposes, the manufacturer will have to be advertising 99% effectiveness. But one cannot with moral consistency claim 99% effectiveness while holding that 5% of that is an unfortunate side-effect. By claiming 99% effectiveness, one is putting oneself behind the mechanisms that one knows are being used to achieve that effectiveness.

Suppose that a manufacturer advertises an analgesic that is guaranteed to be 99% effective at pain relief. But suppose that 5% of the time, the analgesic kills the patient and 94% of the time it relieves pain non-fatally. Then indeed the analgesic relieves pain 99% of the time, since killing the patient stops the pain. But by holding out 99% effectiveness, the manufacturer is showing that that it is really intending this to be a pain-relief-cum-euthanasia drug rather than a mere pain-relief drug.

What about 2? As we saw from the case of the manufacturer, the user cannot intend 99% effectiveness while saying that the deaths of early embryos are unfortunate side-effects. But the user, unlike the manufacturer, can say: “From my point of view, this is about 94% effective, with a 5% likelihood of a fatal side-effect, which side-effect I don’t intend.”

There are two points I want to make here. First, Double Effect requires there to be no reasonable alternatives to the course of action. But there are methods of fertility control that do not cause implantation-failure, for instance Natural Family Planning, and some of these methods are not less effective when compared against the 94% figure. And one cannot with moral consistency compare these method against the 99% effectivness figure while holding out that 5% of that is an unfortunate side-effect one would like to avoid.

Finally, imagine a hypothetical male contraceptive pill that works by releasing genetically engineered sperm-eating viruses that has the following annual properties:

• Fewer than 1% of female partners get pregnant.

• But 5% of female partners get a fatal viral infection from it.

• No men die.

Clearly, nobody would tolerate such a product. Both the manufacturer and the men using it would be accused of murder. Technically, it might not be murder if the deaths of the women were not intended, but the act would be closely akin to vehicular homicide through criminal negligence. Any Double Effect justification would have no hope of succeeding, because Double Effect requires that the unintended bads not be disproportionate to the intended goods. But a 5% annual chance of death is just not worth the contraceptive effect, especially when there are alternatives present. Indeed, even if the only alternative to using this nasty contraceptive were abstinence, which isn’t the case, surely total abstinence would typically be preferable to inducing a 5% annual chance of death (unless perhaps the woman were already suffering from a terminal disease).

Of course, my arguments are predicated on the assumption that killing an early embryo is morally on par with killing an adult. That's another argument.