By PAMELA SCHAEFFER
NCR Staff

Neither Sophie Horak nor Albert Brooks, both active Catholics, expected to become public figures characterized as opposing church leaders in the highly polarized abortion battle. But life often fails to produce the expected.

The medical decisions of these two people, whose stories are reported in these pages, have put them at the center of current, bitter controversies involving religion and politics, theology and ethics, law and medicine. These controversies often pit slogans against sad realities and are more often noted for producing distortion, demonization and rhetoric than compassion, civility and honest, useful information.

In both cases, their choices conflict with official church teaching, which opposes direct abortion for any reason and also forbids fetal tissue research. But their decisions do not necessarily violate the reasoning of many Catholic ethicists and theologians. Many Catholic thinkers point out that the church's official positions on abortion and other questions of sexuality are likely to be more rigid than positions on other ethical matters.

Horak, late in a pregnancy her entire family had rejoiced over, felt she had no option but to undergo a procedure that goes by various names. Her physician called it "intact D and E" (dilation and evacuation). Abortion foes prefer to call it partial-birth abortion. (According to Richard Doerflinger, associate director of the Office of Prolife Activities for the National Conference of Catholic Bishops, the procedure is called "intact D and E" to distinguish it from another procedure, labeled just "D and E," which involves dismembering the fetus.

Whatever it's called, the procedure Horak underwent involves removing a child from the womb by artificially dilating the cervix, pulling the fetus into the birth canal with forceps and then reducing the size of the head to allow it to pass through the cervix. This is done by making a hole in the baby's head and extracting fluid and tissue with a catheter. The child, if living, dies in the process.

Dr. James McMahon, the physician who performed Horak's intact D & E, told her, as well as a congressional subcommittee, that the fetus feels no pain because a narcotic analgesia given to the mother induces a medical coma in the fetus. McMahon has written, "There is a neurological fetal demise. There is never a live birth."

That claim has been denounced. Dr. Norig Ellison, president of the American Society of Anesthesiologists, told the same subcommittee that he believed McMahon's claim to be "entirely inaccurate." He noted that many surgical procedures requiring anesthesia are performed on pregnant women "with absolutely no adverse effect on the fetus, let alone brain death."

"In my medical judgment, it would be necessary, in order to achieve the neurologic demise of the fetus in a partial-birth abortion, to anesthetize the mother to such a degree as to place her own health in serious jeopardy," Ellison said.

Willing to risk surgery

In Horak's case, she was willing even to undergo high-risk fetal surgery if it could have saved her child. But she thought then and still thinks three years later that intact D and E surgery was the best option available in her situation, though one she hated to choose. She considers it important to keep the procedure legal for others like herself. She has engaged in public speaking and writing, putting herself at odds with leaders of her parish.

Horak resigned as a volunteer catechist at her parish, Holy Cross Catholic Church in Batavia, Ill., after leaders, including her parish priest, questioned her suitability for the job. She and her husband, Bob Horak, had taught religion to school-age Catholics in their home. Now Horak, who said she had been an active member of her parish, wonders, "How can someone else decide what's right for me and my family and my medical situation? I do understand the church's position, but they have to understand mine. The church has guidelines, but sometimes in tragic situations the guidelines can't be followed."

Horak and her husband are lifelong Catholics who attended Catholic schools. Sophie attended Catholic grade school, then public high school and community college. Her husband attended Catholic school and then Notre Dame High School, a Catholic school for boys in Niles, Ill., before going on to the University of Illinois.

According to advocates for keeping intact D and E legal, it is rarely used in the third trimester except in difficult medical circumstances where physicians determine that carrying a malformed fetus to term will risk a woman's life or health. Opponents, however, say that the procedure is often used electively in second-trimester abortions and sometimes even in the third trimester.

The procedure has become the subject of recent vociferous legislative battles. Opponents paint it as cruel and macabre, a form of euthanasia or even infanticide, often used to deny life to deformed human beings. Proponents of keeping it legal, who include Jesuit Fr. Robert Drinan, professor at Georgetown University Law Center, note that some physicians say the procedure may pose the least risk to women caught in a medical corner. The matter of least risk is disputed. Nevertheless, Drinan notes that other methods of performing late-term abortions remain legal, and it makes no sense to single out one for extinction.

Drinan is persuaded by medical views like one expressed to NCR by Dr. David Grimes, an obstetrician-gynecologist at San Francisco General Hospital. Grimes is also former chief of the abortion surveillance branch at the U.S. Centers for Disease Control in Atlanta. In a telephone interview, he said, "There are a number of ways one can empty the uterus," including inducing labor and performing a cesarean section. "Once you make the decision that it is in the best interest of the woman to have the uterus emptied, the decision boils down to which is the best method.

"In some cases, the intact D and E method may be considerably less dangerous" for the woman, he said. "To foreclose options is medically inappropriate."

As with many medical procedures, that argument is disputed. Some obstetricians disagree that the procedure is the safest method of late-term abortion. Among those, some still favor keeping the procedure legal and some do not, saying it is rarely, if ever, a medical necessity.

Earlier this year Congress passed a bill that would have outlawed intact D and E, but the bill was vetoed by President Clinton. Despite a campaign by U.S. Catholic bishops that resulted in 10 million postcards sent to legislators, Congress did not override the president's veto.

Using fetal tissue

In the other story reported in this issue, Albert Brooks, suffering from Huntington's disease, will benefit from abortion when he receives a fetal tissue transplant later this month at Good Samaritan Hospital in Los Angeles. His story was reported by the Kansas City Star and NBC news.

Brooks, whose condition is debilitating and fatal, does not see his decision as supporting abortion. Some ethicists would agree, arguing, for example, that putting fetal tissue to good medical use, even where abortion is considered wrong, brings good out of evil. Others strongly reject such arguments, contending that research and surgery using fetal tissue inevitably uphold and may well even advance abortion.

Members of Brooks' former parish in Kansas City are helping to raise the $50,000 he needs for his surgery. But members of his family have been distressed by some news reports about the decision. For example, Brooks' son Todd of Kansas City worries that his 57-year-old father has been characterized as a hypocrite rather than as a man watching his life drain away and reaching for a procedure that could help him.

Albert Brooks, who now lives in Centerview, Mo., said in an interview, "I certainly do not believe the abortion issue is relevant to this particular operation. I look at this on the same basis as a heart transplant or liver transplant. It's making tissue available from other donors."

But it is different, simply because the abortion issue is involved and, as in all debates involving abortion, emotions run high on both sides. The politicized atmosphere extends into the Catholic church, with the unfortunate result, many theologians say, of closing off reasoned discussion and obscuring the traditionally nuanced arguments of moral theologians and ethicists.

Lisa Sowle Cahill, Catholic moral theologian from Boston College, wrote in the May 22, 1993, issue of America: "Aggressive, competitive and ultimately destructive polemics and tactics are especially inappropriate for a movement claiming to derive its mandate from compassion for the most vulnerable." Cahill thinks the church has done far too little to discourage abortion, relying instead on efforts to change the law. "Misgivings about abortion should be the basis for an alliance in favor of social measures that will reduce abortion, even if not outlawing it entirely," she wrote.

Philip Boyle, senior vice president of the Park Ridge Center in Chicago, a center for research on health care, faith and ethics, said, "The agenda of both those who are for and against is so political that any moderate or nuanced voice is edged out. That's a loss for civic discussion."

Nuances ignored

Even the most conservative Catholic views on abortion -- the official church teaching coming from Rome -- contains nuances that are often ignored. For example, official teaching holds that abortions may be done in certain cases as long as they are indirect abortions, such as removal of a cancerous uterus from a pregnant woman or of a fallopian tube in danger of infection from an ectopic pregnancy in the tube. Further, the church has taken no definitive position on the question of when an embryo becomes a human life. The ambiguity on that issue was acknowledged in "Instruction on Human Life," published by the Vatican's Congregation for the Doctrine of the Faith in 1987. Nevertheless, official teaching holds that abortion performed even very early in a pregnancy is wrong, based on the theory that the embryo is at least potentially human and therefore has a right to life.

James F. Drane, author of Clinical Bioethics: Theory and Practice in Medical-Ethical Decision Making, and an active Catholic, is among those who think official church teaching is overly strict when it comes to abortion.

"In traditional moral theology you listen to the story before you decide what's right or wrong," Drane said. In terms of the Catholic church's natural law tradition, based on reason informed by faith, Sophie and Bob Horak's decision "is reasonable," he said. "She did the best she could. She chose the lesser of two evils and she certainly doesn't deserve public recrimination."

"Ethics, like poetry and history, tries to bring critical reflection, organization and deepened meaning to human experience," Drane wrote. "The alternative to ethics is to decide complex and difficult questions by slogans, rhetoric or preformed opinions couched in 'ethically loaded' ordinary language."

Drane, who teaches clinical medical ethics at Edinboro University of Pennsylvania, considers it "very difficult" to construct public policy, or even policies for Catholic or Protestant hospitals, on sensitive ethical issues. In a telephone interview, he told NCR, "An important underlying assumption is that when no clear conclusions can be drawn from ethical principles about a particular problem, the best policy is one of flexibility."

"The late-term abortion issue is one instance of the complexities that develop around childbearing and fetal development, and the idea that one can articulate a public policy, either pro-choice or pro-life, that would be adequate to all these complexities is simply naive," he said.

Politics, not theology

"What Horak is now fighting -- the result more of her speaking engagements than of her medical decision -- is not the church's theological tradition," Drane said, "but a relatively new political dimension. We are under a pope who believes we are struggling against a culture of death ... leadership formed in the solidarity experience in Poland.

"In that experience, you are in a death struggle with this evil empire and the only condition for surviving the struggle is to never deviate publicly from the standards," Drane said. "And so the Catholic church today is under the leadership of bishops who are in turn trying to please and imitate the pope, and we have a type of political policy in place that does not reflect any sympathy for persons caught in dilemmas and does not have much place for nuances in its political program."

Catholic moral theologians and even many bishops oppose "putting into place a public policy that would proscribe all abortion," Drane said. "Law has to address the reality in which we live, and nobody who knows anything about good law thinks you could legislate a complete pro-life policy." There is a need, he said, to "move toward the center" in the abortion debate, away from abortion on demand, yet allowing for exceptions. The protests that surround abortion, whether pro-choice or pro-life, "are more slogans than possibilities for public policy."

Jesuit Fr. Drinan, a former U.S. congressman, has incurred the wrath of abortion foes by his support of President Clinton's April 10 veto of the bill intended to ban partial-birth abortion. He expressed his support in opinion pieces published in the New York Times and in NCR. In a column appearing in NCR May 31, Drinan called for "comprehensive information and careful analysis" along with diligent efforts to make abortion rare. But it needs to be recognized both in ethics and law, he said, that when a woman's health requires that a fetus be removed late in pregnancy, the intact D and E procedure poses fewer risks to the woman than either inducing labor or performing a cesarean section.

Drinan cited a survey of legal abortions between 1972 and 1981 that found mortality in second-trimester abortions done by D and E to be 4.9 per 100,000. That compared to 9.6 per 100,000 for an induced-labor method, in which fetal life is first extinguished by chemical means, and 60 per 100,000 for abdominal surgery (cesarean section). The finding that intact D and E is the safest procedure is disputed by some medical professionals.

Nevertheless, Drinan said the procedure should remain legal. In a telephone interview he said, "We're all against late abortion, but once in a while it's needed for therapeutic reasons. When it happens, it's always gruesome, and the way it's done is really immaterial." He added, "A woman should not be censured for her decision."

The attitude that a law should be written, however poorly, to stop even one abortion "is ridiculous," Drinan said. It "misses the point," he said in his column, "that virtually all women who have carried their child for five months or more do not want an abortion but rather are compelled to take medical action when informed that the fetus will almost certainly die in the womb or shortly after birth.

"Even if one assumes that some of the 17,000 women who each year request an abortion after 20 weeks of childbearing are seeking a termination of their pregnancy for personal reasons rather than a compelling medical reason, it does not make sense for a federal law, for the first time in history, to enter into such a complicated arena of specialized professional and ethical issues," he wrote. "If members of Congress still desire to get involved in this complex area of medical practice, they can do it by simply adding 'health of the mother' in legislation citing reasons for permitting abortion."

Dominican Fr. Patrick Norris of St. Louis University's Center for Health Care Ethics, thinks that wider dissemination of Catholic teaching in medical ethics is needed. He said women are often pushed into abortion when a fetus is deformed because they don't realize that they aren't obligated under Catholic teaching to use extraordinary means to keep a child alive.

"The principle I use is that you can't act against an innocent life in order to save another," he said. However, in many cases if the mother's life is in danger, the fetus' life is also in danger, so it may be justifiable to induce labor. Then, "if the child has severe multiple congenital abnormalities, it may not be appropriate to treat aggressively," he said.

"In medicine, one of two things often happen," he said. Abortion is advocated "because of underlying pathology," or if a severely deformed child is born, "they treat overly aggressively. I would say at times there's a middle ground. Allow the child to be born, but realize that it's inappropriate to use aggressive measures" to treat the child. It's acceptable in such cases "to provide appropriate palliative care."

Proportionalism

Fr. Charles Curran, a Catholic priest who teaches at Southern Methodist University in Dallas, considers Horak's choice to be reasonable. Curran noted the church's official way of doing moral theology is under attack by "virtually everyone" doing moral theology today. Curran said revisionists in Catholic moral theology "have trouble with the principle of double effect." The principle, which undergirds official church teaching, has as one of its tenets "that you can never use a bad means to achieve a good effect."

The contemporary method preferred by many moral theologians is "proportionalism," which teaches that an act can't be declared a moral evil until all the circumstances surrounding the act are fully spelled out.

In Horak's case, Curran said he regarded her decision as morally justifiable even in the absence of an "ultimate risk of her death. Is it morally better to bring the child to term if it is going to die? I would say she is perfectly justified in doing what she did," he said.

The principle of double effect was heavily used in late 19th century conflicts over abortion -- an era in which the pope was declared infallible and when Roman documents were being used to solve problems in church life more than at any time previously in the church, Curran said.

Catholic tradition had always held that a person can kill an unjust aggressor in self-defense, Curran said. The question was posed in the late 19th century, "Can a fetus in the womb be considered an unjust aggressor" in certain cases, when it threatens a woman's life or health? The answer from Rome was no. The effect, Curran said, is that official church teaching today contains more exceptions allowing for killing outside the womb than inside.

Even so, he said, "official teaching on abortion is much more nuanced than it often comes across. There's lot of discussion going on today about the moment of conception." A number of theologians would argue "that you don't have a truly individual human being in the first three weeks. Others would go further."

Drane said he had spoken with "high level ecclesiastics" who, despite U.S. bishops' seemingly solid support for outlawing abortion, have admitted privately that such an absolute law would be a mistake. "But their reason for pushing as hard as they can toward an absolute pro-life stand is to get as much as they can in ultimate negotiation," he said.

"The trouble with people who adopt the slogan as the whole theology is that they eliminate moral theology by eliminating what has been essential to moral theology: consideration of all the details of the case before you articulate a particular response, one informed by reason and faith," Drane said.

He added; "Abortion properly understood has to do with the taking of a life that has potential for developing into a full human person. Where you have fetuses so essentially damaged that they could never survive perhaps even the fetal stage, the removal of that fetus is not like killing something that has potential for full human development. We have to be more careful about lumping all sorts of things under tags." Of Horak's decision, he said, "To call what she did an abortion, that's wrong."

As for Albert Brooks' decision to have a fetal tissue transplant, Drane said it's common for a person, when personally confronted "with the complexities of a particular situation," to "move to the center" on an emotionally-charged issue. Brooks' decision to have the surgery is unacceptable according to "the strictest interpretation of the pro-life stance," he said, but noted that the question of fetal tissue transplants is still being argued in Catholic theology.

Fetal tissue transplants -- an experimental procedure that consists of surgically grafting fetal brain cells to replace a degenerating part of the brain -- were first performed in Sweden in the mid-1980s. The procedure has been offered on a limited basis at a few U.S. hospitals, including Good Samaritan in Los Angeles, the only one to use it in treating Huntington's. As of late October, only seven such operations had been performed. The procedure is more common in treating Parkinson's disease, and researchers say it offers hope for people with Alzheimer's, spinal cord injuries and diabetes.

One of President Clinton's first acts after taking office in 1993 was to lift a federal ban on medical research using fetal tissue. The ban was in effect during the Reagan and Bush administrations. Since the ban was lifted, scientists and ethicists have questioned whether the effectiveness of fetal tissue transplants has been exaggerated.

Drane said, "Some people in the Catholic tradition, with reason informed by faith, come out and say on this (fetal tissue transplants) we draw the line and we are never going to publicly or privately accept this because we see it as the beginning of a slippery slope in which human life becomes an experimental subject." Others, he said, "would say that it's okay to use fetal tissue -- but only that derived from miscarriages."

Medical researchers, however, say that fetal tissue from miscarriages is often unusable because of deformities that caused the miscarriage in the first place.

Fr. Richard McCormick, professor of moral theology at the University of Notre Dame, is among those opposed. He strongly objects to fetal tissue transplants because he believes the American public is already so "desensitized" to abortion, he said in a telephone interview. To allow fetal tissue to be used for good would only advance that desensitization, he said.

Drane thinks that extremes on issues related to abortion do not merit "any sort of public commitment" from the church at this point. "It's not Catholic tradition to hold and embrace a particular view while something is still being thought through," he said. "The Catholic tradition attempts to use careful analysis of situations in order to come to responses that are human and at the same time reflective of our basic commitments. On issues that are not yet clearly articulated, that are still in some developmental stage, then the proper Catholic response is to be in dialogue, to reason together and to respect and embrace those who differ."

National Catholic Reporter, November 8, 1996

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