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.

An argument against contraception

Suppose a couple uses contraception but conception nonetheless occurs. Then it is true that the couple have put obstacles in the way of their own child's life, indeed that they have engaged in activity directly opposed to their child's life. To stand to one's child in the relation of having directly opposed Johnny's life fits poorly with having an unconditional love for Johnny, unless one has repented of having opposed Johnny's life. But if the act of contraception was morally unproblematic and rational, then one cannot repent of it, since a part of repenting of an act is recognizing that the act was not to be done.

Therefore, contracepting couples take the risk (for surely there is always a chance of pregnancy) of standing in an inappropriate relation to their child—in the relation of having striven against that child's life.

I don't know how much this argument establishes. In the case of 100% effective contraception (e.g., complete removal of the ovaries, fallopian tubes and uterus), the argument is silent. In the case of typical contraception, whose effectiveness is less than 100%, the argument either establishes that the contraception is wrong, or that at least there is a very strong moral presumption against it.

Does the argument say anything about the couple who uses natural family planning (NFP)? Well, there are two ways conception can occur despite NFP. One way is because the couple engage in marital union despite the fact that the NFP method tells them that there is a significant chance of conception. If Johnny is conceived in this way, then the couple has not done anything that hindered or opposed Johnny's conception. (One might think that by abstaining on other days they hindered Johnny's conception. But Johnny could not have been conceived on those other days—they abstained from conceiving other children then.) In fact, in this case, it is right to say that the couple wasn't using NFP on the relevant day.

The other, and apparently rarer, case is where the couple mistakenly believe that they are infertile on a given day, but in fact they are fertile (either because they incorrectly used the NFP method or because the NFP method made a mis-prediction). In this case, I do not think we can say that the couple hindered Johnny's coming into existence. But we can say that they hoped Johnny would not come into existence, and that they would have refrained from bringing Johnny into existence if they knew there was a significant risk. The relation of having hoped one's child would not come into existence, and of its being the case that one would have refrained from bringing the child into existence, is not an ideal one. Thus there is a presumption against risking being in such a position, and hence there is a presumption against using NFP (which is closely related, I suppose, to the Catholic claim that a couple needs to have serious reasons to use NFP). But this is not a relation that is as morally problematic as the relation of having actively tried to hinder one's child's coming into existence. It is one thing not to have striven to further a child's life and another to have striven to hinder it.

But could one perhaps say that the NFP-using couple in the second case was trying to abstain from the act that would have produced Johnny, and trying to abstain from conceiving is an active opposition to life? But it seems to me that if it is an opposition to life at all, it is a much lesser one than active hindrance—just as it is one thing to try to abstain from giving an extraordinarily burdensome medical treatment (this may be hard—it may require a struggle for a conscientious health professional to refrain from offering the treatment) and another to kill. And perhaps the intention in abstaining is not to prevent Johnny from existing, but to prevent oneself from acting against the virtue of prudence (by having potentially fertile marital relations when one has grave reasons to the contrary).

Natural Family Planning versus contraception

Patricia and Marcus are a married couple. Each day, they prudently decide whether or not to engage in marital union. To make that decision, they weigh all the relevant factors they can, gathering information relevant to the decision ahead of time when appropriate. They do nothing to intentionally decrease the fertility of their bodies, and when they decide to unite maritally, they do nothing to intentionally decrease the likelihood of conception.

What I have described is not a contracepting couple. What may not be immediately obvious is that I have described a couple practicing Natural Family Planning (NFP). One way to look at NFP is precisely as the gathering of some of the information relevant to a prudential decision whether or not to engage in marital union at a given time, and then making the decision in part in light of that information. For, plainly, the probability of conception is information relevant to a prudent decision whether or not to engage in marital relations. The way the information is relevant will depend on other information. If, for instance, the couple is suffering from severe financial distress, the learning that the probability of conception is high will make the decision to engage in marital relations less prudent than these relations would be if the probability were low. On the other hand, if the couple is in good personal, financial and relational health, learning that the probability of conception is high will make the decision to engage in marital relations more even more prudent than it would be if if the probability were low. ("Prudence", here, is Aristotelian phronêsis, of course.). It is clear, by the way, how NFP is useful not just to the couple for whom conception would be imprudent, but also to the couple trying to conceive.

Information relevant to the decision whether to engage in marital relations includes how tired the two persons are, what privacy is available to them, what their feelings about each other are, what potentially time-consuming duties they may have, whether there are any relevant medical considerations, and so on, all enter into the decision. That this kind of information needs to enter into the decision is clear and uncontroversial. But likewise, information about further consequences of an action is relevant to deciding whether to engage in the action or not, and hence fertility information is likewise relevant.

Seen in this way, it is clear that one cannot object in principle to every instance of NFP without being committed to at leat one of two implausible views:

1. It is wrong for a couple to engage in sexual relations when the likelihood of conception is low.
2. It is wrong for a couple to refrain from engaging in sexual relations because the likelihood of conception is high.

For unless one holds one of these two views, one cannot object to a couple deciding to engage in sexual relations when the likelihood of conception is low, and one also cannot object to a couple deciding not to engage in sexual relations because the likelihood of conception is high. Nor can one fault a couple for making the decision whether to engage in sexual relations or not in the light of all relevant information. But making such decisions on a day-to-day basis is all that NFP need consist in. Catholic tradition rejects both (1) and (2). Hence, the Catholic tradition does not contain a prohibition against NFP. Moreover, the prohibition against contraception is a prohibition against intentionally rendering the body or act less fertile than it would otherwise would be, and does not imply either (1) nor (2). Hence there is a relevant difference between NFP and contraception.

Objection 1: Although (1) is clearly innocent, what the couple is doing is not just deciding to engage in sexual relations when the likelihood of conception is low, but because the likelihood of conception is low.

Response: Consider the sense of this "because". It is not so much that the low probability of conception is their reason for having sex--after all, there are many uncontroversial activities other than sex that have much lower probability of conception, say sharing ice cream. Rather, the low probability of conception may imply the absence of a defeater to their independent reason to unite maritally, this defeater being the bad consequences of conception in their special situation (e.g., one of financial hardship). When deciding whether to engage in any action that isn't an all-things-considered duty, we need to consider potential defeaters. So if (1) and (2) are innocent, it must also be innocent to take into account the presence or absence of defeaters, since one must always do that in the case of a decision whether to engage in marital relations.

Objection 2: Over and beyond the daily decision between engaging and not engaging in marital union, there is the "plan of action as a whole", which in the case of a couple who uses NFP to avoid conception involves the timing of intercourse so as to avoid conception, and it is this plan of action as a whole that is analogous to contraception.

Response: There need not be any such overarching plan of action. When I described Patricia and Marcus, I did not attribute any such plan to them. Rather, it is possible that the couple is deciding, on a day to day basis, whether sexual union on that day is prudent in light of all the relevant information they have gathered. Granted, there may be an on-going condition (say, financial) which renders sexual union imprudent when it has a non-low probability of conception, and they need not think through the details of that condition each day, but can simply be on the lookout for when, if ever, the condition comes to an end. But it is quite possible to decide day after day on the same grounds--and yet for it to be a genuine decision, though it may become somewhat habitual. The fact that it is a genuine decision is evidenced by the data that at times NFP couples do decide to have sexual relations even when it is imprudent to do so, apparently without a significantly prudentially relevant change in circumstances (this is probably the main source of pregnancies among couples using NFP to avoid conception).

That said, one can imagine a couple who instead of deciding on a daily basis decides that over the next six months they will try to avoid conception. Still, it seems to me that they are likely to be making a daily decision whether they ought to keep to their earlier resolution. That said, I do not need to defend the actions of such a couple. To argue that NFP is morally permissible, I need to argue that there is some set of circumstances and motives under which NFP is permissible. It is false that NFP is permissible under all circumstances and with all possible sets of motives, and I actually suspect that a married couple's decision to refrain from conception ahead of time, without reference to changing circumstances, is morally problematic. Note that it is different to decide once for six months not to conceive, and another simply to expect that over the next six months one will each day have all-things-considered reason to avoid conception, but to still be making the decisions on a daily basis, since after all the reason to avoid conception might go away.

Summary: One way for NFP to be practiced, and it is this one way that I am defending here, is to think of it as the gathering of certain information relevant for the decision (I talk of "daily", but that is just a convenience--it could in principle be hourly) whether or not to engage in marital union at a given time. The information in question is fertility information. The prudent couple, of course, will also gather other information, and take that into account. Seen this way, NFP is not only clearly morally permissible, both in light of reason and of the Catholic tradition, but is positively virtuous, involving the virtue of prudence, as well as, when abstinence is called for, the virtue of self-control. What is the alternative? To fail to gather relevant information?

A bad argument against the Catholic teaching against contraception

Fairly frequently, one hears the following argument against the orthodox Catholic view that the use of marital[note 1] contraception is wrong: If Catholics were consistent, they would also prohibit Natural Family Planning (NFP), because there is no morally significant difference between NFP and contraception. One reason that this is a bad argument is that, as many authors have argued at length (here is my version), there really are significant differences between NFP and contraception, for instance grounded in the doing/permitting distinction.

But I think there is a simpler reason why this is a bad argument. For what is the conclusion of the argument? It is that if one rejects contraception, one should likewise reject NFP. Suppose that the argument succeeds in establishing this (it doesn't). Now the Catholic has to choose between two views:

1. Marital contraception and NFP are both wrong.
2. Marital contraception and NFP are both sometimes right.

But if that is the choice, it is completely clear what the Catholic should choose--namely, option (1). After all, the Catholic's biggest reason for being opposed to contraception is the Tradition of the Church, and until the early 20th century, it has been the unanimous teaching of Christianity (Catholic and Protestant) that contraception is wrong. Now there has been some fallible papal teaching, starting with the late 19th century, allowing NFP. But the doctrinal weight of this teaching is of a much lesser order than the combination of the even more definite papal teaching against contraception coupled with the unanimous agreement of the Christian Tradition. If the Catholic has to choose, the right choice by orthodox Catholic lights is clearly (1) rather than (2).

The argument is a bad one for the following reason. The proponent of contraception believes that (a) marital contraception is sometimes right, and, presumably, that also (b) marital NFP is sometimes right. The well-informed orthodox Catholic denies (a) but accepts (b). But the argument, if it succeeds, will shift the well-informed orthodox Catholic to denying both (a) and (b). Nor will this shift affect much else in the orthodox Catholic's web of beliefs. While the teaching that contraception is wrong is interwoven with significant amounts of other Catholic beliefs, the teaching that NFP is right lacks that sort of interweave, simply because the teaching on NFP is of such recent date. Hence, the argument, if it succeeds, will increase disagreement. And surely that is not what the proponent of contraception wants. Indeed, since the proponent of contraception typically believes that unlimited reproduction is bad for people and the world, by offering the NFP-contraception argument to a well-informed orthodox Catholic, and thus convincing the orthodox Catholic that NFP is wrong, she is apt to contribute to the very problem she is trying to counter.

There is a general structure to this criticism. Suppose A believes p and q, and B believes p and not-q. A wishes to convince B of q. So A offers B the argument that p and not-q are logically inconsistent. This is not going to be a good argument if B's main reasons for holding not-q are much stronger than her main reasons for holding p, and if denying p does not force the denial of much else that B is committed to. If the argument succeeds in showing the inconsistency, it is more likely (at least if we limit ourselves to rational persuasion) to move B to believing not-p and not-q, which A believes is further from the truth.