More than nine times out of ten, my work as a physician in a hospital emergency room differs little from that of a general practitioner and presents no special moral problems. But sometimes, making the best of desperate situations, emergency physicians must do things that would be malpractice if done by another doctor. Similarly, it seems to me, in this practice it sometimes is right to do things that would be immoral in other situations. Here are three kinds of cases that illustrate this point. In regard to each, I would like to know whether you agree with me.
(1) Tests we routinely make often show that the driver of a vehicle involved in a traffic accident is intoxicated in the legal sense. Unless compelled by law to reveal this information, physicians are directed by professional ethics to treat it as confidential, just as they would if a patient asked for help in dealing with his or her alcohol problem. But the information is vital to public prosecutors, who should hold drunken drivers responsible for the carnage they cause, and to innocent victims and/or their families, who are entitled to compensation. When people involved in traffic accidents are legally intoxicated, I regularly give the information to the police and others involved in the accident, or their families, so that they can take whatever action they consider appropriate.
(2) Some emergency room fatalities resulting from accidents, heart attacks, and so forth are conscious when brought in. Usually, until these people lose consciousness, they suffer a good deal before we can do much about it. Their families and friends must be given the devastating news. A loved one, who was (or seemed) fine such a short time before, is dead and gone forever. They ask: “Did he (she) suffer?” The simple answer always would be yes, and the completely honest answer often would be to describe excruciating pain, groans, pleas for relief, and so forth. But that never would do any good and would only add to their grief. I reply: “Not really. He (She) died quickly despite everything we tried to do, and so hardly was aware of what was happening.”
(3) During the emergency room evaluation, most women who are victims of rape voice concern about possible conception. Many express a determination to abort should they become pregnant. Quite a few have no gynecologist of their own, and most will not see another physician about the rape after they leave the emergency room. After twenty-four hours, the morning-after pill is less effective or ineffective, so it must be given at once if it is going to be given. Unless the woman plainly is pregnant, I routinely do a pregnancy test; if the result is positive, the conception cannot have resulted from the rape, since there would not have been time for the embryo to implant, and so I do not dispense any medication. However, if the result is negative, the standard treatment is to offer two tablets of Ovral at once and two more twelve hours later. The effect depends on the timing of the woman’s menstrual cycle. If she is preovulatory, the drug prevents conception; if postovulatory, pregnancy is impossible, and the drug has no effect; if ovulatory, conception is possible, and, assuming it has occurred, the drug is abortifacient, but in such a way that neither the victim nor anyone else ever knows. I present these facts in an objective way, and dispense the pill to the woman if she wants it. My reasoning is that most often no harm is done, and that when, occasionally, the medication has an abortifacient effect, that is not as bad as it would be if the woman, finding herself pregnant a couple of months later, followed through then on her determination to have the baby aborted.
The question is whether the relevant norms admit of exception. (1) Maintaining confidentiality facilitates trusting communication by patients with their physicians, but exceptions may be made for sufficient reasons. (2) Lying is always wrong, and the questioner plainly lies to families and friends who ask about the suffering of deceased loved ones. (3) Conditionally intending to abort human individuals, even at the earliest stage of their development, involves the intention to kill innocent persons, which no good end can justify.
While most moral norms, like most rules of good medical practice, admit of exception in unusual situations, some are exceptionless. Any violation of such a norm violates some good intrinsic to the human person, and so the conditions of your practice do not justify making exceptions. The requirement of confidentiality does admit of exception in some cases, but the norms excluding lying and intentional killing do not.
(1) Your professional responsibility as a physician mainly concerns safeguarding human life and promoting health. Only for this reason do patients provide information they would prefer to keep secret or allow you to gather it by examinations and tests. To do your work, you need this information about patients, and communication by patients themselves and/or others almost always is necessary or helpful to obtain it. The practice of confidentiality by health care professionals facilitates that communication, which very often would be inhibited if people feared that what they tell physicians and other health care providers would be divulged and result in embarrassment or injury to them. Making unnecessary exceptions will tend to arouse people’s anxiety. Moreover, when opportunity offers, you should speak with drunken drivers before they are discharged from the hospital and urge them to obtain any help they need to forestall driving while intoxicated again; but they will be less likely to take such advice if they think you may have voluntarily acted against their interests. Therefore, you ought to maintain confidentiality unless there is a very strong reason for making an exception.
I do not see how the need of public prosecutors for information regarding the condition of drivers involved in traffic accidents can justify any exception. Since this need is neither unusual nor unpredictable, lawmakers perhaps have established—and, if not, should establish—appropriate procedures to meet it. If you think appropriate procedures have not been established, you should act as a citizen to deal with the problem. I suggest you begin by discussing it with a public prosecutor, who probably will be able to clarify what needs doing and how you can help. If appropriate procedures already exist, you, of course, should know and follow them. These might well include requiring physicians to report evidence of alcohol or drugs in the blood of certain persons involved in accidents. Reporting such findings only because and insofar as required by law, you would not make any unnecessary exception to confidentiality; indeed, such reporting, as you say, is permitted by the existing norm of professional ethics.225 Moreover, this legally mandated exception to confidentiality is unlikely to arouse people’s anxiety about confiding in their physicians, because the professional relationship of physicians who staff emergency rooms with drunken drivers is itself unusual. These patients do not choose an emergency room physician as their caregiver and deliberately confide in him or her, but are brought to the emergency room and found to be intoxicated in the course of a routine test.
As to providing information useful to accident victims and their families in obtaining fair settlements, that also should be regulated by law, and you should look into that matter. However, existing legal regulations may not be adequate to satisfy private citizens’ just needs for such information. So, occasionally you may have reason to believe that persons who were seriously injured or killed were innocent victims, and that they or their families may not take appropriate steps to obtain compensation due them unless you tell them that available information might support a legal case. If so, you should put yourself in the place of each of the parties involved and apply the Golden Rule. If you judge that fairness to victims or their families requires an exception to confidentiality, you may make it—but only insofar as necessary for the good purpose to be served. For example, you should not divulge precise clinical data but only tell those concerned that you think the other party perhaps should not have been driving and that the hospital’s records will contain evidence that might be helpful in a lawsuit.
(2) It plainly is a lie to tell people a loved one who suffered greatly did not really suffer. Likewise, saying someone died quickly and was hardly aware of what was happening is truthful only if it accurately describes what occurred, which certainly is not so in the circumstances you describe. Lying always is wrong (see LCL, 405–12), and lying by physicians undermines trust in the profession. Moreover, lying meant to spare people’s feelings condescendingly assumes that they are too immature to face the truth, and it often injures them, either by concealing truth that would benefit them, or by undermining their confidence in related, truthful statements, or in both ways. If an accident victim’s loved ones even suspect you have lied to them about one thing, they are likely to wonder whether you are not concealing something else. Such suspicions might well intensify their grief.
When you are asked whether a loved one suffered, you can give an entirely truthful answer without including all the unpleasant, heart-rending details. Provided one tells no lies and withholds no truths to which others are entitled, one is candid, that is, completely honest. The candid person can leave unmentioned facts that are likely only to hurt others, because nobody is entitled to such information. Even if a question as stated calls for a yes or no answer, one always can reply with a truthful but indirect statement, supplying less information—and so less likely to hurt—than a straightforward yes or no.
In considering how to respond to bereaved relatives’ and friends’ queries about the suffering of their loved ones, focus on the underlying concerns behind such questions and take into account the possibility that evils other than suffering usually motivate survivors’ grief. To most people, avoidable suffering probably is more abhorrent than suffering that is inevitable, and the fact that a loved one is dead and gone forever is, as you suggest, more significant than that he or she briefly suffered. So, an honest response pointing out that suffering was unavoidable and making the evil of death seem less by focusing on its side effect of ending suffering is likely to be consoling: “Given what happened, some suffering was inevitable, but we did what we could to help, and his/her suffering is over now.”
Sometimes dying persons, despite their suffering, display courageous self-control and/or express love for those near and dear. In such cases, try to console survivors by telling them how the dying person acted and what he or she said. In doing that you may be able to evade the question about suffering and leave it unanswered. Such information will not be entirely beside the point either, since it will assure survivors that their loved one, even in suffering, acted in a significant way they are likely to find consoling. Similarly, in some cases, the facts of a case will allow you to ignore questions about suffering and tell survivors: “He (she) had time to make his/her peace with God.”
If survivors press their questions about suffering, in some cases you may be able to lessen their anguish without dishonesty by taking advantage of our ignorance about the conscious experience of people under extraordinary stress. As you doubtless know, survivors of serious injuries whose outward behavior seemed to manifest severe suffering sometimes say later that, though conscious, they experienced little or no pain for many minutes or even hours. In appropriate cases, you might say: “We will never know. He (She) was conscious but in shock, and so perhaps felt very little.”
(3) From conception, a new human individual’s life is sacred (see LCL, 460–67, 489–97). Even if one cannot demonstrate theoretically beyond all question that such a tiny human being is a person, all those who are recognized as persons have nothing else in common beyond being living, human individuals, and there is no evidence or cogent reason for denying the incipient human individual’s personhood. So, deliberately killing such an individual involves intending to kill an innocent person (see LCL, 497–98). Such intentional killing, therefore, is a great evil, and no good end ever justifies it.226
You say you objectively explain how Ovral works to women who have been raped, and then dispense the drug to those who want it.227
A physician intending to avoid legal liability rather than intending to encourage acceptance and use of the drug might deal with such patients just as you do. In doing so, such a physician would not need to intend that the woman take Ovral and that it be effective. Even so, explaining the situation and offering Ovral as you do would lead many women to take the tablets with a twofold conditional intention: to prevent conception, if that is possible, and, if it is not, to abort any embryo that may have been conceived, or may be conceived, as a result of the rape. Moreover, regularly supplying the tablets to women who want them sooner or later will result in the destruction of some incipient persons who otherwise would survive. Therefore, though such a physician could act without an intention to kill, he or she would lead patients to act at least with a conditional intention to kill, and also sooner or later would cause the death of some incipient persons. In leading patients to act with a conditional intent to kill, such a physician would be giving grave scandal. And, inasmuch as such a physician, to avoid legal liability, accepted the death of some incipient persons, he or she would be doing a grave injustice.
Your moral situation is worse. You plainly intend that victims of rape who fear pregnancy take the Ovral tablets for both their contraceptive and abortifacient effects. Therefore, you conditionally intend abortion and, by proceeding as you do, you encourage women who have been raped also to intend it conditionally.228 The condition, moreover, does not limit willingness to abort; morally, your intentions and those of the women who, sharing them, ask you for the drug are no different from those of women who regularly use some method of contraception while planning to abort the unexpected pregnancy if the contraceptive method fails. The only difference is that, in prescribing and taking Ovral, the intentions to contracept and, if need be, to abort are carried out by one and the same outward performance.
The moral evil in such a conditional intention of abortion is always present, even if the condition for actually bringing about an abortion never happens to be fulfilled. In no way is that intention’s moral evil mitigated by the fact that you and the women do not know whether the Ovral had any effect at all and whether it was abortifacient. Furthermore, though the physical and psychological trauma of other methods of abortion might be greater, the moral evil of intending abortion in using Ovral is the same in kind as that of intending abortion in a later choice to use some other method. Indeed, in one respect, an induced abortion of which a woman remains unaware is a greater evil. Her ignorance is likely to facilitate self-deception, preventing salutary guilt feelings that could lead to repentance.
Therefore, you ought to change your present practice in this matter, and at once stop instructing rape victims as you do and dispensing Ovral in the way you do. If you can determine, by the history you take together with appropriate examinations and tests, that a woman is preovulatory, you can rightly offer a drug appropriate to inhibit ovulation, sperm capacitation, or fertilization and in the circumstances unlikely to act as an abortifacient.229 Your intention in offering the drug should be only to prevent conception, and to prevent it not as the beginning of a new life, but as the completion of the rape. Inhibiting ovulation, sperm capacitation, or fertilization in a woman who has been raped is morally similar to pushing the rapist away so that he ejaculates outside her vagina rather than within it.230
But what if you have no way of determining that the victim of rape is preovulatory or, even worse, find evidence that she is ovulatory? Then it is worth bearing in mind that very few women become pregnant as a result of rape. I suggest that you acquaint yourself with relevant studies and reassure anxious women by providing this factual information.231 If some women nevertheless ask for medication effective as an abortifacient, you should try to persuade them to forgo it; if a woman insists, you should refuse to provide it.
In some jurisdictions, that refusal might make you vulnerable to a lawsuit. I suggest you discuss that possibility with a lawyer who is faithful to the Church’s teaching and competent in such matters, and try to find a morally sound way of forestalling unacceptable legal consequences. Someone at the hospital may urge you to tell rape victims to whom other physicians would give Ovral that pregnancy is a possibility, and refer them to another physician who will explain their options and provide Ovral to those who choose it. Acting in this way would make you a reluctant accomplice in the intentional destruction of incipient persons, for you still would be leading rape victims to take Ovral (see q. 66, below). Moreover, even if you could be involved in that way without intending the use of the drug, you hardly would find similar involvement by someone else in killing you or someone you loved to be acceptable, and so it would be unjust. Therefore, if you cannot avoid excessive legal liability without such involvement, in my judgment you must stop practicing emergency medicine.
If that sacrifice is necessary, however, you should work to obtain legislation to protect you and other conscientious physicians from coercion to prescribe abortifacients. In this effort, you might seek the help of prolife organizations, which very likely will be glad to cooperate with you.
225. Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 1996–97 ed. (Chicago: American Medical Association, 1996), 5.05 (p. 77): “The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.”
226. See John Paul II, Evangelium vitae, 58–63, AAS 87 (1995) 466–74, OR, 5 Apr. 1995, xi–xii; LCL, 498–504; CMP, 141–71.
227. For a medical evaluation of the use of Ovral, see Eugene F. Diamond, “Rape Protocol,” Linacre Quarterly, 60:3 (Aug. 1993): 8–19.
228. On conditional intentions, see John Finnis, “On Conditional Intentions and Preparatory Intentions,” in Moral Truth and Moral Tradition: Essays in Honour of Peter Geach and Elizabeth Anscombe, ed. Luke Gormally (Portland, Oreg.: Four Courts Press, 1994), 165–70.
229. Eugene F. Diamond, “Ovral in Rape Protocols,” Ethics and Medics, 21:10 (Oct. 1996): 2, says that determining the stage of the cycle “will require objective laboratory evidence such as the Ovutest to detect the LH surge, urine pregnanediol, and serum progesterone levels.”
230. National Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (Washington, D.C.: United States Catholic Conference, 1995), directive 36, provides: “A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum.” If the attempt to prevent conception carried with it some slight risk of abortion, that could rightly be accepted as a side effect: see Joint Committee on Bioethical Issues of the Bishops’ Conferences of England, Wales, Scotland and Ireland, “Use of the ‘Morning-After Pill’ in Cases of Rape,” Origins, 15 (13 Mar. 1986): 633, 635–38; “A Reply: Use of the Morning-After Pill in Cases of Rape,” Origins, 16 (11 Sept. 1986): 237–38; LCL, 512, note 103.
231. Many recent articles assert that five or more percent of women who have been raped thereby become pregnant; see, e.g., Mary P. Koss, “Rape: Scope, Impact, Interventions, and Public Policy Responses,” American Psychologist, 48 (1993): 1065: “Pregnancy results from rape in approximately 5% of the cases”; L. L. Heise, “Gender-Based Violence and Women’s Reproductive Health,” International Journal of Gynecology and Obstetrics, 46 (1994): 223: “In the United States, the chances of becoming pregnant from a rape are estimated at 5%.” But a study (by a physician associated with Planned Parenthood) showed that the chance of pregnancy from any single unprotected intercourse is two to four percent; see Christopher Tietze, “Probability of Pregnancy Resulting from a Single Unprotected Coitus,” Fertility and Sterility, 11 (1960): 485–88; other studies have shown that the chance of pregnancy from rape is considerably less: see Eugene F. Diamond, “Rape Protocol,” 11–12. Pregnancy is less likely to result from rape than from a single act of consensual intercourse without contraception partly because sexual dysfunction is more common among rapists than among men engaging in consensual intercourse and partly because the rape victim’s fertility is reduced by her lack of sexual arousal and emotional reaction to the violence.