On June 20, 2003, the New York State Legislature passed "Emergency Contraception for Rape Victims" legislation. This mandated hospitals to provide survivors of rape with the so-called 'morning after pill' and to counsel patients that these pills are contraceptives and do not cause abortion. Similar bills have been introduced in Massachusetts and Illinois.
The New York State Catholic Conference, which represents New York State's bishops in matters of public policy, stated that they would accept the legislation "provided the drugs are not contra-indicated, the woman is not pregnant, and it is within a medically appropriate amount of time from the attack." The conference also requested that the language that states that emergency contraception "cannot and does not cause abortions" be removed from the bill. The Ethical and Religious Directives (E.R.D.) for Catholic Health Care Services of the United States Catholic Conference of Bishops (no. 36) states, in regard to a woman who has been raped,
"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 recommend treatments that have as their purpose or direct effect, the removal, destruction, or interference with the implantation of a fertilized ovum."
This recent New York legislation has focused public attention on some moral problems which Catholic hospitals must face and solve. The relevant biological facts are as follows.
The Pontifical Academy for Life states that "the absolute unlawfulness of abortifacient procedures also applies to distributing, prescribing and taking the morning-after pill. All who, whether sharing the intention or not, directly co-operate with this procedure are also morally responsible for it."6
Nonetheless, the New York State Catholic Conference agreed to the use of the MAP provided "the woman is not pregnant." Many Catholic hospitals interpret "appropriate testing" as a hcG pregnancy test, which is accurate only if a woman is at least one week pregnant by the time of the test. If she is already pregnant at the time of the rape, the MAP is not administered. If the test is not positive, it is assumed that she is not pregnant and the MAP is administered.
The problem is that the test may be falsely negative if the pregnancy is too recent. A further problem is that the woman may have ovulated at the time of the rape or shortly afterwards and there is, at present, no test that can detect this with certainty. Therefore, when the MAP is used, an abortion may result.
There is a wide spectrum of opinion among Catholic health care providers, ethicists and theologians, as to how "appropriate testing" and " evidence that conception has occurred" are to be interpreted.7 Some recommend that the MAP may be given after a single pregnancy test has proved negative.8 Others try to establish the presence or absence of pregnancy by more rigorous clinical and biological methods - the so-called Peoria Protocol.9,10
According to the Peoria Protocol, if a woman has been sexually assaulted in the pre-ovulatory phase of her cycle, emergency contraception may be administered if clinical findings show that she is in the pre-ovulatory phase, the urinary luteinizing hormone test for ovulation is negative, and the blood progesterone test for ovulation is negative. If these criteria are not fulfilled, emergency contraception should not be given. The virtue of this approach is that it gives a more accurate estimate of the probability that ovulation has recently occurred and that therefore conception may have taken place.
However, even the Peoria Protocol does not provide certainty that a woman is not recently pregnant. It must be remembered that the fertilization process can occur very soon after intercourse. It takes place in the proximal end of the Fallopian tube close to the ovaries, and begins immediately at the moment when a sperm binds with and penetrates the membrane surrounding the oocyte, called the zona pellucida. This process of fusion of the sperm and oocyte is completed in 12 - 14 hours. A new unique human being has now come into existence.
It is of interest to note that it is during this 12 - 14 hour period of the fertilization process that many researchers are currently doing extensive eugenic pronuclear genetic experimentation. These researchers argue, in justification of their research, as do many proponents of the notion that the MAP is only a contraceptive; that an embryo does not even exist before implantation. Their argument is based on the work of Clifford Grobstein, a frog embryologist, who in 1979 invented the false term "pre-embryo", and also on the moral theory of Father Richard McCormick, S.J. who, relying on Grobsteins's work, promoted the falsehood that it is not until approximately 14 days after conception (when implantation in the wall of the uterus has occurred) that a human embryo acquires moral status or "personhood". This theory implies that a human being does not come into existence until 14 days after conception. These biological, philosophical and spiritual errors have become widely accepted as true and have caused incalculable evil throughout the world.
Some Catholic moralists argue that a rigorous degree of certainty that a woman is not already pregnant is not required before the MAP is given.11 Brother Daniel Sulmasy, Director of Ethics for St. Vincent's Hospital in Manhattan and New York Medical College, goes so far as to say that the Peoria Protocol "goes beyond the normal protection given to any unborn child", and that it "lays upon the faithful an almost impossible burden."12
Others take a different approach. They consider that the doubt about whether the woman is already pregnant is analogous to the classic example of the hunter's doubt about whether a movement behind a bush is caused by deer or a human being. They would argue that tradition requires taking the safer course, since an innocent human life may be at stake.
Moral theologian Msgr. William Smith, who teaches at St. Joseph's Seminary in Dunwoodie, New York, says, "It's wrong to say, you can use anything that has abortifacient properties. Emergency contraception is double talk ... it's what I call 'verbal engineering'. Catholic hospitals are not free to prescribe or provide anything with abortifacient properties without contradicting their witness."13 Theologian Germain Grisez, Professor of Christian Ethics at Mount St. Mary's Seminary, Emmitsburg, Maryland, states that douching with spermicide as immediate post-rape intervention would be morally licit, since such means are not abortifacient in nature.
The mechanism of action of hormonal emergency contraception remains unclear, and more than one mechanism is thought to be involved.14 It has been estimated that the MAP inhibits ovulation in 25% of cycles, if taken just before ovulation. The predominant effect, however, is to cause an abortion.15 The MAP may unfavourably alter the endometrial lining of the uterus regardless of when in the cycle it is used, with the effect persisting for days. The reduced rates of observable pregnancy compared with the expected rates in women who use the MAP in the pre-ovulatory, ovulatory, and post-ovulatory phase are consistent with a postfertilization effect, an abortion.16
Some researchers state that post-fertilization effects are of minor importance.17 Dr. Chris Kahlenborn points out, however, that even though no control trials have been done with women using the MAP, his conclusions are based on the best available data of case series with historical controls.
A review of the literature concerning the mechanism of action of hormonal preparations used for "emergency contraception", published in January of 2001, stated that "Neither the minimum length of time from coitus to fertilization, when the oocyte is waiting for the sperm, nor the shortest interval when the sperm is waiting for the oocyte, have been determined in the human. Therefore, the exact theoretical amplitude of the window for acting before fertilization is undetermined, less so the actual window in real cases."
The review also indicated that no study to date had "used ultrasound to confirm follicular rupture and to pinpoint at what stage of follicular development treatment was given."18
Furthermore it stated that "Both logistical and ethical constraints prevent designing and performing experiments that can directly address what in fact happens to the crucial biological entities - sperm, oocyte, zygote or pre-implantation embryo - in the genital tract of women who receive emergency contraception, in comparison with those who receive a placebo."19 The contraceptive effectiveness of the MAP has been shown to depend on the interval between intercourse and treatment, which is easy to obtain. On the other hand, there are no data for the interval between ovulation and treatment. "Given that, in 15 - 25% of the cycles treated with emergency contraception, the expected pregnancy is not prevented, chances are that there is a specific window in the cycle in which treatment is more likely to fail."20 Therefore, at present, nobody can or should claim to know what happens when women are given the MAP.
One wonders what is happening in Catholic hospitals in the U. S. and Canada in regard to the use of the MAP in rape cases. Dr. Kahlenborn, an internist from Pittsburg, Pa., was surprised to discover that nine Catholic health facilities in the Archdiocese of Cincinnati, including six Catholic hospitals, were violating Church teaching by allowing the dispensation of oral contraceptives or Depo Provera and/or allowing dispensation of the MAP, or a prescription for it, through emergency rooms to women who were allegedly raped. Some were even giving Depo Provera, a long-lasting abortifacient, to post partum patients. The excuse given by the physician was that, if they stopped doing it, they would lose patients to other hospitals. Apart from the fact that the use of the birth control pill is at odds with Catholic teaching (Catechism of the Catholic Church, # 2370) Kahlenborn explained that a woman who is taking the birth control pill will have an early abortion once each year that she takes the oral contraceptive. One can only wonder why so many Catholics distribute the MAP so freely. Perhaps they have bought into the scientifically false, but widely popularized notion, that an embryo does not even begin to exist before implantation.21
It may be that in regard to rape and the use of the MAP, the ERD (Ethical and Religious Directives) needs to be followed more carefully. There is an unacceptably great variation in the way in which the words "appropriate testing" are interpreted in practice in Catholic health care institutions. The New York Catholic Conference allows the MAP, "provided the woman is not pregnant."
Two approaches to treating women who have been sexually assaulted have emerged in Catholic health care: the "pregnancy" approach, and the "ovulation" approach. Most hospitals use a hcG pregnancy test, to establish pregnancy. This test does not become positive until implantation of the embryo, which occurs usually around 10 days after ovulation. Some women who are pregnant may have a false negative pregnancy test at the time it is performed and the test may not become positive until the expected time of the next menstrual period, or even a few days later.
The ovulation approach, otherwise known as the Peoria Protocol, depends on a urine luteinizing hormone (LH) assay. This test is more accurate but may fail to indicate the presence of pregnancy, if taken too early in the pregnancy. Studies have shown that there are discrepancies between plasma progesterone levels and whether the woman is clinically in the phase before, or the phase after, ovulation22.
It should also be noted that manufacturers of urinary LH ovulation kits do not recommend their use for the purpose of contraception. Dr. Robert Barbieri, chief of obstetrics and gynecology, at Brigham and Women's Hospital, Boston, has stated that "by measuring hormone levels, doctors can often determine whether a woman has ovulated or whether implantation has occurred, but that it is nearly impossible to pinpoint fertilization, the step between."23
In a rape victim ultrasound diagnosis may be able to tell if the ovaries contain a corpus luteum, but not an ovarian follicle. This fact may be confirmed by an estimation of the serum progesterone level. If a corpus luteum is present, she has already ovulated and may be pregnant. On the other hand ultrasound may show that she still has a follicle in an ovary and not a corpus luteum. She may therefore, ovulate at any time unless ovulation is impeded in some way such as by administration of gonadotrophin-releasing antagonists.
None of these tests or interventions have yet been used in rape cases. These facts cast doubt on the belief that the Peoria Protocol gives a sufficient degree of probability that a woman is not pregnant, to justify the use of the MAP. "Moreover, the virtue of justice demands equality, and as such excludes the use of probability when the established rights of another are concerned."24
A human life is not a disease like cancer of the uterus, where the law of double effect might justify the performance of a hysterectomy, despite the indirect and unintended death of a fetus. The embryo did come into existence as the result of a violent and unjust act, the mother's rape, but her or his very existence is not an injustice in itself. To kill such an unborn child would simply add the sin and injustice of murder to the sin and injustice of rape.
In consideration of all of the above facts, I concur with Msgr.William Smith's opinion that Catholic hospitals are not free to prescribe or provide anything with abortifacient properties without contradicting their witness. Finally, it must be remembered that, as was stated by C.J. Doyle, Director of the Catholic Action League, this witness given by Catholic hospitals affects not only the patients and care givers in Catholic institutions, but those in secular institutions, putting pressure on them to violate their consciences or lose their jobs.25
4 WHO Task Force on Post-Ovulatory Methods of Fertility Regulation, Randomized controlled trial of levonorgestrel versus the Yuzpe regimen of combined oral contraceptives for emergency contraception. Lancet. 1998; 352: 428-33. [Back]
15 Keith Moore and T. N. Persaud, "The Developing Human: Clinically Oriented Embryology" (6th. Ed.) Philadelphia. W.B. Saunders Co. 1998 pp. 45,58,59, 532 Kubba A.A. et al., "The biochemistry of human endometrium after two regimens of postcoital contraception" Fertil Steril 1986; 45: 512-6. Ugocsai G. et al. "Biological microscopic and scanning electron microscopic investigation of the effects of postinor d-norgesterol in rabbits." Contraception 1984; 30 : 153-9. [Back]
17 Roberto Rivera et al. "The Mechanism of Action of Hormonal Contraceptives and Intrauterine Contraceptive Devices", American Journal of Obstetrics and Gynecology, vol. 181, Nov. 1999 p. 1267. [Back]
22 Glasier A. et al. "Comparison of mifepristone and high dose oestrogen-progestogen for emergency postcoital contraception." N Eng J, Med. 1992; 327: 1041-4, Webb AMC et al. "Comparison of the Yuzpe regime, danazol and mifepristone in oral post-coital contraception." BMJ, 1992; 305: 927-31. [Back]