A law, according to St. Thomas (_op. cit._ I. 2., q. 90, a. 4) is: "Ordinatio rationis ad bonum commune ab eo qui curam habet communitatis promulgata." Sometimes it is not evident whether or not a law binds in a particular case, and in such a condition, that is, in which there is question solely of the existence, interpretation, or application of a law, we may follow a probable opinion which a.s.sures us the act is licit, although the opinion which says the act is illicit may be just as probable or even more probable. This is the fundamental proposition of Probabilism, which is the doctrine especially of St. Alphonsus Liguori, but it was held centuries before his time. As the church has never condemned this doctrine, but rather tacitly approved of it, Catholics may safely follow it, and those that are not Catholics will find it very reasonable.

A law which is doubtful after honest and capable investigation has not been sufficiently promulgated, and therefore it can not impose a certain obligation because it lacks an essential element of a law.

When we have used such moral diligence of inquiry as the gravity of a matter calls for, but still the applicability of the law is doubtful in the action in view, the law does not bind; and what a law does not forbid it leaves open.

Probabilism is not permissible when there is question of the worth of an action as compared with another, or of issues like the physical consequences of an act. If a physician knows a remedy for a disease that is certainly efficacious and another that is probably efficacious, he may not choose the probable cure, at the least in a grave illness. Probabilism has to do with the existence, interpretation, or applicability of a law, as I said, not with the differentiation of actions.

The term probable means provable, not guessed at, or jumped at without reason. There must be sound reason {17} adduced to const.i.tute probability. The doubt must be founded on a positive opinion against the existence, interpretation, or application of the law. It must be more than mere negative doubt, more than ignorance, more than vague suspicion, especially must it be more than a sentimental impression.

There is a mental condition, which easily pa.s.ses over into disease, wherein a man habitually can not make up his mind. This flabbiness has nothing to do with Probabilism. The opinion against a law to const.i.tute Probabilism must be solid. It must rest upon an intrinsic reason from the nature of the case, or an extrinsic reason from authority,--always supposing the authority cited is really an authority. Many men sitting upon the supreme bench in the Court of Science and called authorities by friends and newspapers, are only fools in good company.

The probability must also be comparative. What seems to be a very good reason when standing alone may be very weak when compared with a reason on the other side. When we have weighed the arguments on both sides, and we still have good reason left for standing by our opinion, our opinion is probable. The probability is, moreover, to be practical. It must have considered all the circ.u.mstances of the case.

The principles presented here have been arranged, as we said, with a view toward application in judging the morality of actions that may occur in cases of ectopic gestation, and we shall apply the doctrine of probabilism in the question, does the commandment "Thou shalt not kill" bind in certain cases of ectopic pregnancy? It is also necessary to add the principles underlying our duty to preserve human life.

1. It is never lawful directly or indirectly to kill an innocent man. "Insontem et justum non occides" (Exod. xxiii. 7). An _innocent_ man is one that has not by any human act done harm to another man or to society commensurate with the loss of his life.

_Directly_ means to kill either as an end, say, for revenge, or as a means toward an end.

A man is a person, an intelligent being, therefore free, and autocentric; he belongs to no one except to G.o.d, who made {18} him; he is by that very fact distinguished from brutes or things which may belong to another. Now, if you kill a man, you destroy his human nature by separating his soul and body, you subordinate and sacrifice him wholly to yourself, make him entirely yours, which is unjust. Even the state has no right to kill an innocent man. A foetus in the womb, only a few hours old, is as much a human being as a man fifty years of age, and this natural law holds for the foetus as for the man.

2. It is, however, lawful _indirectly_ to kill a man provided this man is an unjust aggressor. Cardinal de Lugo (_De Just. et Jure_, 10, 149) and others hold you may even _directly_ kill an unjust aggressor. _Indirectly_ here means incidentally. An effect happens indirectly when it is neither intended as an end nor a means, but happens as a circ.u.mstance unavoidably attached to the end or means intended.

We may not, however, kill an innocent man even indirectly, because no end is proportionate to the sacrifice of an innocent man's life, but the case of an unjust aggressor differs from that of an innocent man.

By an unjust aggressor is meant some one that outside the due course of law threatens your life or the equivalent of your life, or the life of some one you should or may protect. You may stop such an aggressor, and if you happen to kill him while trying to stop him, there is no moral wrong involved. This aggressor may be formally or only materially unjust: he may be a normal man with a formal intention to kill you or your ward, or a murderous lunatic that tries to kill you or your ward, but he must be _unjust_ either formally or materially.

It is natural for every being to maintain itself in existence, to resist destruction. This is a primary law of nature. As Father Holaind well said (_Amer. Eccl. Rev._, January, 1894): "The ethical foundation of self-defence is this: Justice requires a sort of moral equation, and if a right prevails it must be superior to the right which it holds in abeyance. At the outset both the aggressor and his intended victim have equal rights to life, but the fact of the former using his own life for the destruction of a fellow man places him in a condition of juridic inferiority with regard to the latter. If we may be {19} allowed so to express it, the moral power of the aggressor is equal to his inborn right to life, less the unrighteous use which he makes of it, whilst the moral power of the intended victim remains in its integrity and has consequently a higher juridic value. When the person a.s.sailed cannot defend himself, his right _can_ and sometimes _must_ be exercised by those who are bound in justice or charity to protect the innocent. At the dawn of human life the physician or surgeon stands as the natural protector both of the mother and of the child; he is beholden to both.

"The right of self-defence is not annulled by the fact that the aggressor is irresponsible. The absence of knowledge saves him from moral guilt, but it does not alter the character of the act, considered objectively and in itself; it is yet an unjust aggression, and in the conflict, the life a.s.sailed has yet a superior juridic value. The right of killing in self-defence is not based on the ill will of the aggressor but on the illegitimate character of the aggression. Now, an aggressor is _at least materially unjust_ whenever he perpetrates an act destructive of the right of another."

Mark the words "right of another," at the end of the quotation. In a case of pregnancy at term in a woman with a contracted pelvis the foetus would be a contributing instrument of death to the mother, supposing there were no artificial means of delivering her, but such a child is not an aggressor even materially unjust. The child itself is normal, it has a natural right to be where it is, it did not put itself where it is; the mother's contracting uterus crushing the child against her narrow pelvic arch is the direct agency that kills the woman, and the child is only an inert instrument used by the contracting uterus. In such a case the mother might be considered an aggressor materially unjust against the life of the child rather than that the child is the aggressor.

Lehmkuhl (_Compendium Theologiae Moralis_, 1891, p. 238) says: "Medicus graviter peccat ... si media abortus procurat: nisi quando ad salvandam matrem ex probabili opinione liceat." On page 188 he says: "Ex consulto abortum inducere, etiam liceri videtur in praesenti vitae {20} maternae discrimine, quod per solam foetus immaturi ejectionem avert! possit ... Idque videtur applicari posse ad matrem quae tarn arcta est ut tempus praematuri partus exspectare non possit."

By _foetus immaturus_ here he means an unviable foetus, as is evident from the context. If this probabilism of Father Lehmkuhl's stands (but it does not), a decision in most of the cases that occur in ectopic gestation would be easily made, but even he himself would not take responsibility in the matter, and that before the decision of the Holy Office which defined abortion. Since this decision, made July 24, 1895, Lehmkuhl has entirely withdrawn his opinion.

On May 4, 1898, the Holy Office published the following decree, which was approved by the Pope:

BEATISSIME PATER,--Episcopus Sinaloen. ad pedes S. V. provolutus, humiliter pet.i.t resolutionem insequentium dubiorum:

I. Eritne licita partus acceleratio quoties ex mulieris arct.i.tudine impossibilis evaderet foetus egressio suo naturali tempore?

II. Et si mulieris arct.i.tudo talis sit, ut neque partus prematurus possibilis censeatur, licebitne abortum provocare aut caesariam suo tempore perficere operationem?

III. Estne licita laparotomia quando agitur de pregnatione extra-uterina, seu de ectopicis conceptibus?

Feria iv, die 4 Mali, 1898.

In Congregatione habita, etc ... EE. ac RR. Patres rescribendum censuerunt:

Ad I. Partus accelerationem per se illicitam non esse, duromodo perficiatur justis de causis et eo tempore ac modis, quibus ex ordinariis contingentibus matris et foetus vitae consulatur.

Ad II. Quoad primam partem, _negative_, juxta decretum, Feria iv., 24 Julii, 1895, de abortus illiceitate.--Ad secundam vero quod spectat: nihil obstare quominus mulier de qua agitur caesareae operationi suo tempore subjiciatur.

Ad III. Necessitate cogente, licitam esse laparotomiam ad extra-hendos e sinu matris ectopicos conceptos, dummodo et foetus et matris vitae, quantum fieri potest, serio et opportune provideatur.

In sequenti Feria vi., die 6 ejusdem mensis et anni ... SSmus responsiones EE. ac RR. Patrum approbavit.

{21}

The third question proposed by the bishop is:

"Is laparotomy licit when performed for extrauterine pregnancy or ectopic gestation?"

The approved answer of the Holy Office to this question is:

"In a case of necessity, laparotomy for the purpose of removing an ectopic foetus (_conceptus_) from the abdomen of the mother is licit, provided the lives of both the foetus and the mother, as far as is possible, are carefully and fitly guarded."

The expression, "dummodo et foetus et matris vitae, quantum fieri potest, serio et opportune provideatur," is capable of various translations and interpretations.

The words might have this meaning: "In a case of necessity you may do laparotomy and remove an ectopic gestation, provided you do not kill either the mother or the foetus." If that is the interpretation, the decree means that we may never remove an unviable ectopic foetus when we know that the foetus is alive, because removal will kill it.

The sentence can also be translated in this sense: "In a case of necessity, you may do laparotomy and remove an ectopic foetus from the mother, provided you take full care to save mother and child if that is possible."

If that is the signification, it is evidently very different from the first interpretation. It would mean: do the laparotomy, remove the foetus, and if you possibly can save both mother and foetus do so, but if you can not, take the best means you can to save one or the other.

If the decree refers only to cases in which the foetus is viable, it would appear to be unnecessary--we need no decree of the Holy Office to let us do a laparotomy to remove a viable foetus. If it does not refer to a viable foetus, it refers to an unviable foetus, but to remove an unviable foetus is to either kill it or to hasten its death.

Genicot (_Inst.i.tutiones Theologiae Moralis_, Louvain, 1902, vol. i. p.

358) has this interpretation of the decree:

"In conceptione extra-uterina licebit sane recurrere ad laparotomiam similemve operationem, quando aliqua etiam tenuissima spes affulget salvandi infantem, simul ac mater fere certo liberabitur... . Ubi vero nulla spes hujusmodi {22} affulget, neque in hoc casu licebit abortum directe inducere, etiamsi foetus certo moriturus sit antequam in lucem edatur, et baptismum recipere nequeat. Etenim S. Inqu., dum provocat ad responsum 19 August, 1888, satis indicat abortus inductionem a se haberi tamquam operationem directe occisivam foetus ideoque semper illicitam."

There is no question of an _abortion_ in a laparotomy for extrauterine gestation; abortion is altogether a different operation in method and nature. Secondly, the other decree of the Holy Office to which he refers speaks of a direct killing of the foetus, but there is no direct killing of the foetus in the operation for ectopic gestation, nor is the indirect hastening of the foetus's death a means to an end.

The decree on abortion is so clear it leaves no room for doubt.

Cardinal Monaco, in the _Epistola ad Archiepiscopum Camarcensem_, August 19, 1889, says the Holy Office decreed that "In scholis catholicis tuto doceri non posse licitam esse operationem chirurgicam quam _craniotomiam_ appellant, sicut declaratum fuit die 28 Maii, 1884, et quamc.u.mque chirurgicam operationem directe occisivam foetus vel matris gestantis."

Note the words "_directe_ occisivam." Craniotomy is a direct killing, and a direct killing used as a means to an end; moreover it is an altogether unnecessary killing. Artificial abortion in the case of an unviable foetus is also a direct killing as a means to save the mother's life, but the removal of an unviable ectopic foetus is neither a direct killing, nor is it a means toward any end.

Since the meaning of the decree concerning laparotomy in extrauterine pregnancy is by no means clear, we may discuss the question until the law has been fully promulgated, ready to conform to the real meaning of the decree whenever it is explained. In that spirit we may now consider the cases that occur in ectopic gestation.

Case I. A surgeon is called in to treat a woman and he finds her in a state of collapse. He makes a diagnosis of tubal pregnancy, which has gone on to rupture with hemorrhage, and the bleeding will evidently be fatal to the mother unless it is checked. Practically the only chance of saving the {23} mother's life is coeliotomy and the ligation of her open arteries. Dr. Howard Kelly (_Operative Gynaecology_, vol. ii. p.

437) says: "When the hemorrhage is sudden and excessive the patient falls in collapse; but, in spite of these alarming symptoms, she may survive a succession of similar attacks and the foetus and sac may continue to develop." This exception complicates the case slightly. If the surgeon were absolutely certain that the only possible chance to save the woman's life is coeliotomy and haemostasis, the case would be somewhat different from one in which there is some chance of escape by spontaneous haemostasis. That chance, however, is so slight, and so far beyond any means we have for forecasting, that it is mere luck, and it is to be neglected. The surgeon may safely consider the patient in the gravest actual danger.

(a) Before he opens the abdomen he can not tell whether the foetus is alive or not; but the stronger probability is that it is not, and the certainty is that it has no chance at all to remain alive more than a few minutes or hours, unless the surgeon is willing to trust to sheer luck in the expectation that he may happen to have one of Dr. Kelly's exceptions before him.

(b) The operation to save the mother is this: as quickly as possible he makes a vertical slit from four to six inches long through the woman's belly-wall. Then commonly the free blood begins to run out, or it may even spurt out some feet into the air. The surgeon can see nothing for the blood and the presence of the entrails. If the blood is not freshly welling up he bails it out with his hands or a ladle; if it is spurting he at once thrusts in his hand, feels for the foetal sac, lifts it up, and puts on clamps near the uterus on one side and near the pelvic brim on the other. This stops the hemorrhage, and he can then work more leisurely, but unfortunately this also stops the flow of blood to the foetus. He can not first examine the foetus and then stop the hemorrhage. He can not back out even if he finds a live foetus without letting the mother die on the table.

(c) If the placenta is already loose from the Fallopian tube the child is dead or it will die in a few seconds or minutes. If it was not loose the lifting out may tear it loose, and this {24} tearing loose will hasten the death of the foetus a few minutes (but give a chance for baptising it).

(d) If the lifting out does not tear loose the supposedly fixed placenta, the foetus either will die anyhow if the mother dies, or it will die if the mother lives, because to save her the surgeon must put ligatures just where the flow of blood will be shut off from the foetus. Commonly there is no time to even look for the foetus until after the maternal arteries have been closed.