Catholic Hospitals Should Permit Physicians to Provide Emergency Contraception to Rape Victims as an Act of Conscientious Provision

Abstract

While many Catholic hospitals permit the prescription of the emergency contraception drug levonorgestrel for rape victims, some continue to prohibit this practice as a matter of institutional conscience. While the standard approach to this issue has been to offer an argument that levonorgestrel either is or is not morally permissible, we have taken a different tack. We begin by briefly describing and acknowledging that reasonable disagreement exists on this question (part one), and then arguing that the reasonable disagreement itself can serve as a compelling basis for Catholic leadership at hospitals that prohibit emergency contraception for rape victims to accommodate physicians who wish to provide levonorgestrel as a matter of conscience (part two). We end by anticipating and responding to some objections.

Introduction

Emergency departments are the primary source of care for rape victims where a commonly used treatment is the emergency contraceptive drug levonorgestrel (LNG), typically prescribed as Plan B, but also under generic names such as Take Action, My Way, Option 2, My Choice, and EContra (Bakhru, Mallinger, and Fox 2010). While many Catholic hospitals will provide LNG to rape victims for the purpose of contraception, some prohibit the provision of LNG on the basis that it may function as an abortifacient. Recently, 13 Catholic hospitals in Pennsylvania have given notice to the Department of Health that they will not provide emergency contraception (EC) due to a religious or moral belief. ¹ In one study, seven of nine Catholic hospital emergency departments in Massachusetts reported they would not dispense EC (Temin et al. 2005). A study of emergency departments in California Catholic hospitals found that 66% reported they would not provide EC (Polis, Schaffer, and Harrison 2005). A large nation-wide study of 597 emergency departments at Catholic hospitals found that 55% would not dispense EC (Harrison 2005). About half of the emergency departments in these studies were willing to provide a referral, but most of the referrals did not lead to a facility that provides EC (Harrison 2005; Polis, Schaffer, and Harrison 2005). Some Catholic hospitals go so far as to prohibit even discussing EC with rape victims (Smugar, Spina, and Merz 2000). ²

Physicians working in these Catholic hospitals may find themselves compelled by their conscience to discuss, refer, and provide EC for these rape victims. However, current U.S. law contains a legal asymmetry whereby conscientious objections in health care are protected, but conscientious provisions are not. For example, a physician enjoys legal protection when refusing to provide Plan B because of conscience when employed at an institution willing to provide Plan B, but a physician who insists on providing Plan B because of conscience will not receive the same legal protection when employed at an institution unwilling to provide Plan B. ³ This legal asymmetry permits Catholic hospitals to enforce an institutional prohibition of EC by sanctioning, and even firing, physicians who do not abide by that prohibition. ⁴

Standard approaches to determining the moral permissibility of prescribing LNG to rape victims in Catholic hospitals have attempted to give a definitive argument for or against the practice, but this approach has failed to produce a consensus (Cataldo 2017; Davis 2017). In this article, we adopt a different tack by first briefly describing and acknowledging that reasonable disagreement exists on this question (part one), and then arguing that such reasonable disagreement can serve as a compelling basis for Catholic leadership at hospitals that prohibit EC for rape victims to accommodate physicians who wish to provide EC as a matter of conscience (part two). Importantly, we only advocate for physicians prescribing EC to rape victims when one of the established protocols for pregnancy testing (e.g., Peoria Protocol or pregnancy approach) have been performed to meet the requirement of “appropriate testing” as dictated by the Ethical and Religious Directives for Catholic Health Care Services (ERDs). We conclude by anticipating and responding to objections.

Part One: Demonstrating Reasonable Disagreement Over the Prescription of Plan B to Rape Victims

Plan B is one of the most common forms of EC containing the drug levonorgestrel. When Plan B first came to market in 1999, the label warned that it may work by preventing ovulation, fertilization, or implantation of an embryo (Austriaco and The National Catholic Bioethics Center 2007). While Catholic moral teaching is generally opposed to the use of contraception, Directive 36 of the ERDs state that contraceptive measures are permissible in the case of rape. It reads, “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 already occurred, she may be treated with medications that would prevent 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” (USCCB 2018). Richard Doerflinger, former associate director of the U.S. bishops’ Secretariat for Pro-Life Activities and a member of the Pontifical Academy for Life, explains that, in cases of rape “you are not violating the teaching on contraception by seeking to stop ovulation or fertilization. [Rape] is not an act of unitive love; it is an act of violence [and] the woman has a right to defend herself against this attack” (Clarke 2013). Per Directive 36, Catholic hospitals should only permit usage so long as “appropriate testing” determines LNG will only work by either of the first two mechanisms (preventing ovulation or fertilization), not by preventing implantation or removing an embryo after implantation. The Catholic Church teaches that life and pregnancy begin with fertilization, and that interfering with implantation of a fertilized egg constitutes abortion (USCCB 2018). Abortion, even in the instance of rape, is not permitted by the Catholic Church. Uncertainty regarding the mechanism of action for LNG has caused hesitation among some Catholic leadership regarding the moral permissibility of physicians prescribing it in Catholic hospitals. ⁵

Since its debut over two decades ago, some researchers have argued that Plan B works as a contraceptive (ACOG 2015; Hamel 2010; Vrettakos and Bajaj 2021), while others have claimed that it also has abortifacient effects (Davis 2017; Peck et al. 2016; Mozzanega and Nardelli 2019). Those who affirm contraceptive effects point to data showing significantly lower pregnancy rates the sooner Plan B is taken. For example, a study by Novikova et al. demonstrated that Plan B, when administered to 34 pre-ovulatory women, produced 0 pregnancies out of an expected 4–5, and when administered to 17 post-ovulatory women, produced three pregnancies out of an expected 3–4 (Novikova et al. 2007). These authors maintain that if Plan B had post-ovulatory effects, this should have been reflected in the data, with fewer pregnancies than expected in the post-ovulatory group, concluding that “levonorgestrel emergency contraceptive pill has little or no effect on post-ovulation events but is highly effective when taken before ovulation” (Novikova et al. 2007). Those concerned about post-fertilization effects cite recent articles by Catholic medical professionals that examine the scientific corpus on the MOA of LNG that conclude it is a likely abortifacient. For example, an analysis by Raviele argues that if LNG is administered on day -4 to day -2 of the fertile window, it does not work by preventing ovulation or fertilization, yet is still highly effective in preventing pregnancy, which means the MOA must function after fertilization (Raviele 2014). In a recent review of these studies, Thomas Davis concludes that, “While no one knows with absolute certitude how LNG works in a given case, the suggestion that the scientific corpus establishes the MOA in the majority of cases is unfounded. Claims that post-fertilization MOA has been proven nonexistent or ‘rare’ has passed onto the ash heap of history” (Davis 2017). ⁶

Even if further research definitively demonstrates that LNG can work as an abortifacient, the ethical question remains as to what constitutes “appropriate testing” for ruling out pregnancy of a rape victim and determining that LNG may be administered for contraceptive purposes. Catholic hospitals are free to interpret the “appropriate testing” criterion of Directive 36 as liberally or conservatively as their diocesan bishop will allow. As a result, hesitation by some bishops and willingness by others has created inconsistency across Catholic hospitals regarding whether and with what testing it is morally permissible to prescribe Plan B for victims of rape (Smugar, Spina, and Merz 2000). Some bishops may adopt the position of the Catholic Medical Association (CMA) on LNG in cases of rape, which claims that scientific evidence shows the medication may function as an abortifacient by Catholic definition, ⁷ concluding that use of LNG is morally illicit (Catholic Medical Association 2015).

Among Catholic hospitals that will administer Plan B, there are conflicting interpretations of what constitutes “appropriate testing” to satisfy Directive 36. Hospitals with a demanding interpretation of “appropriate testing” permit LNG only after testing the patient for ovulation (Clarke 2013). This is because administering LNG prior to ovulation is the only way to rule out the possibility that it could work by preventing implantation of an embryo. Some hospitals use the strict Peoria Protocol, which requires a negative test for ovulation. A critique of the Peoria Protocol is that it delays the administration of LNG and unnecessarily limits Directive 36 because the directive explicitly affirms that medications can be administered to prevent fertilization, which occurs after ovulation. Thus, Directive 36 would permit administering LNG to rape victims, even if they are near ovulation or have ovulated recently, as long as they come to an emergency department within 24 hours of ovulating. In such a scenario, the medications would act by preventing fertilization from occurring—which is permissible according to the directive—rather than by destroying a conceptus because fertilization could not possibly have been completed, if it had ever actually begun (Hamel and Panicola 2002).

A less demanding interpretation of “appropriate testing” includes a simple menstrual history and a pregnancy test, termed the “pregnancy approach” by Ron Hamel and Michael Panicola (Hamel and Panicola 2002). Proponents of the pregnancy approach rely upon a method of moral reasoning based on probability, aptly called probabilism, originally developed within the Catholic Church to provide priest confessors a way to reason about the moral permissibility of a penitent’s act when the pertinent empirical or moral questions could only be answered with probability estimates, not with certainty (Satkoske and Parker 2010). In the case of prescribing LNG for rape victims, a Catholic bishop may use probabilism to conclude that, following the current research on the mechanism of action, there is moral certainty that the medication works as a contraceptive, not an abortifacient. Moral certitude in a decision means that the person must “exclude all reasonable possibility of error,” with error in this case being the prevention of embryo implantation, but they need not achieve absolute certainty (Hamel 2010). Moral certitude is “between mere probability, where alternative opinions are equally plausible, and absolute certainty, where any theoretical possibility of error is not only excluded, but is impossible” (Hamel 2010). Therefore, the pregnancy approach utilizes a less demanding interpretation of the “appropriate testing” required to satisfy Directive 36 aiming at moral certainty sufficient to justify administering LNG to rape victims (Hamel and Panicola 2002).

We have reviewed three approaches to prescribing LNG to rape victims in Catholic hospitals. The CMA concludes the provision of LNG is morally prohibited until further testing can provide greater certainty that it does not cause abortion. The Peoria Protocol permits the provision of LNG following a strict interpretation of the phrase “adequate testing” in ERD 36. The “pregnancy approach” adopts a looser interpretation of the phrase “adequate testing,” operationalized as a simple menstrual history and pregnancy test. Our analysis of the discourse over the moral permissibility of providing LNG to rape victims here is admittedly cursory, and there are a number of other relevant controversies that arise, such as which side bears the burden of proof (Cataldo 2017; Davis 2017) whether the doctrine of double effect can be applied to the analysis (Berg 2011; Davis 2017), and whether there is always a moral requirement to take the safer course on matters involving potential abortion (Cataldo 2017; Davis 2017). However, our purpose here is not to provide an exhaustive account of the debate, but only to demonstrate that reasonable disagreement exists among thoughtful Catholics on this issue.

Part Two: Prescribing LNG to Rape Victims as an Act of Conscience

The Catholic moral tradition places a great deal of value on the right of individual moral agents to be led by the dictates of their own conscience. Paragraph 16 of Gaudium Et Spes states, “Conscience is the most secret core and sanctuary of a man,” continuing “there must be made available to all men everything necessary for leading a life truly human … to activity in accord with the upright norm of one’s own conscience” (Vatican City 1965). While it is commonly accepted that refusing to prescribe LNG for fear of causing an abortion rises to the level of a conscientious objection, it is worth elaborating some of the moral concerns of those who wish to provide LNG in circumstances of rape to demonstrate that it also rises to the level of being an issue of conscience. A provider may have serious moral concerns about putting a rape victim in a situation where they must either pursue LNG at another facility or become pregnant and choose between an abortion or carrying their rapist’s child to term.

One may object that the issue of prescribing LNG to rape victims in Catholic hospitals has been rendered largely irrelevant given that generic formulations of LNG have been widely available over-the-counter for as low as $10 at pharmacies across the United States with no ID, prescription, or age requirements since 2014 (Sifferlin 2014; Planned Parenthood 2021). However, this objection is problematic for several reasons. First, low-income women are more likely to experience rape because of unsafe housing, transportation, and lack of access to resources (Greco and Dawgert 2007). LNG’s efficacy linearly declines over time until its 72-hour efficacy window has passed but it is most effective within 24 hours of unprotected sex (Turok 2021). Furthermore, brand name Plan B costs $40 to $50 at pharmacies where available, and lack of awareness of cheaper generic options may create another barrier to obtaining LNG as quickly as possible. These factors can combine to create worrisome accessibility barriers such as cost, unreliable transportation, knowledge of generic options, inadequate time, and geographic distance to a pharmacy that may be especially prohibitive for low-income women, resulting in delays that may reduce the efficacy of LNG (Chau et al. 2017).

Even where rape victims can make it to a pharmacy in time, low pharmacy stock rates (Chuang and Shank 2006; Samson et al. 2013) of LNG are problematic, and when it is available, it is often kept behind the pharmacy counter and not on the open shelf, which may restrict use by women embarrassed to ask the pharmacist directly (Grimes, Raymond, and Scott Jones 2001; ASEC 2018). Misinformation is especially problematic: in a study of pharmacies in five major U.S. cities, researchers were misinformed by almost 20% of pharmacies that teens could not access Plan B under any circumstances (Wilkinson et al. 2012). An even larger percentage falsely informed callers that over-the-counter access was restricted to people 18 and over (Wilkinson et al. 2012). Pharmacy employees in another study provided incorrect information to both men and women regarding age restrictions for purchasing Plan B One Step 51% of the time (Ritter et al. 2018).

Given these concerns, a provider has legitimate reasons to worry that simply informing a rape victim that LNG is available over-the-counter may put the patient in a position where they may undergo the trauma of becoming pregnant from rape and the potential abortion. Victims who choose to carry the pregnancy may experience any number of additional physical or psychological trauma. Rape victims suffer from riskier childbirth due to increased maternal distress during labor and delivery, antepartum bleeding, and prolonged first stage of labor (Gisladottir et al. 2016). An unintended pregnancy in a young teenager is more likely to result in an adverse pregnancy outcome and places her at risk for educational underachievement and poorer economic circumstances (Boden, Fergusson, and John Horwood 2008; Leppert, Namerow, and Barker 1986). The rape survivor who decides to raise her child faces the prospect of being legally tied to the rapist by his genetic (and potentially legal) parenthood of that child (Hoch 2017). For victims of intimate partner violence, having a child with an abusive partner makes it significantly more difficult to safely leave the relationship (Buel 1999; Cahn 1991).

Women request access to Plan B to avoid the trauma of a rape-related pregnancy, and physicians may feel a moral duty to help these women, an act that clearly rises to the level of conscience. The banner of conscience can be flown by both sides in this debate, not only those concerned to prevent abortion. Next, we adapt Jason Eberl’s reasonability view of conscientious objection to argue that the reasonable internal disagreement regarding the moral permissibility of prescribing Plan B to rape victims provides Catholic hospitals with a compelling reason to honor this instance of conscientious provision as they would an instance of conscientious objection and overturn policies that unilaterally prohibit administering Plan B to rape victims.

Eberl has argued that to be honored, a conscientious objection must be reasonable, meaning it must be possible to offer an argument for the objection that does not rely upon purely faith-based premises and is thereby defensible within the public sphere (Eberl 2019). Eberl uses this standard of reasonableness to support the refusals of Catholics to providing abortion, sterilization, contraception, or physician-aid-in-dying because both sides of these debates can be given an argument that is defensible using public reason. For example, secular arguments in favor of physician-aid-in-dying often appeal to patient autonomy rights (Lachs 1994), but secular arguments against physician-aid-in-dying can also be given, such as Daniel Callahan’s view that the practice falls outside the proper goals of medicine, which is the healing of broken bodies (Callahan 1992). Similarly, secular arguments in favor of abortion may deny the personhood of a fetus (Tooley 1972), or be grounded in bodily integrity (Thomson 1976), but secular arguments against abortion can also be given, such as Don Marquis’s argument that killing a fetus is wrong because it deprives a fetus of a future like ours (Marquis 1989). Eberl argues that the lack of social consensus around these issues and the defensibility of conflicting sides in terms of public reason require epistemic humility and toleration of opposing views in the form of conscientious objection.

While Eberl has relied upon the notion of reasonable external disagreement (that is, when plausible public reasons can be given on both sides of an issue) to broadly defend conscientious objection in health care, we advance the notion of reasonable internal disagreement (that is, when plausible arguments can be given on both sides of an issue using the resources of a particular moral tradition itself) to narrowly defend the conscientious provision of Plan B to rape victims in Catholic hospitals. As we have demonstrated above, the debate over the moral permissibility of prescribing LNG to rape victims admits of reasonable internal disagreement over how to interpret “appropriate testing” in Directive 36 of the ERDs. Several concepts internal to the Catholic moral tradition are active in this debate: the moral authority of the Catholic Church, the impermissibility of abortion, moral certainty, the doctrine of double effect, etc. If Catholics are to advocate for tolerance in the form of conscientious objection in health care based on reasonable external disagreement, then we see no reason to not extend this tolerance to permitting conscientious provision on the basis of reasonable internal disagreement regarding morally open questions. Because the provision of LNG to rape victims is an area of reasonable internal disagreement, Catholic hospitals should allow physician employees to be led by the dictates of their own conscience on this issue.

It may be objected that if physicians are permitted to prescribe LNG to rape victims in Catholic institutions, then this may lead to physicians performing all manner of medical procedures such as sterilizations or abortions based on conscientious provision. However, this slippery slope concern would not arise on our proposal because these questions are morally closed according to the ERDs, meaning Catholic teaching strictly prohibits these procedures and leaves no room for interpretation that admits of reasonable internal disagreement (e.g., “appropriate testing”). Our proposal only implores Catholic leadership to protect conscientious provisions that admit of reasonable internal disagreement on issues that have been left morally open by the ERDs.

It may also be objected that our proposal would force Catholic hospitals with prohibitions on providing Plan B to rape victims to become morally complicit in an evil act. This is a legitimate concern, as there would be some sense of material cooperation by Catholic institutions that permitted the stocking and conscientious provision of LNG to rape victims. We believe there are several reasons that outweigh this concern of material cooperation. First, material cooperation regarding an issue of reasonable internal disagreement on a morally open question in Catholic teaching is less problematic than material cooperation regarding a morally closed question. Second, permitting room for physician conscience on morally open questions is a way of demonstrating the “mutual respect among caregivers” described in Directive 2 of the (USCCB 2018). Demonstrating mutual respect upholds the good of protecting the moral integrity of physicians who wish to conscientiously provide LNG to rape victims, a good that Catholic teaching holds still matters even if the physician’s conscience is ultimately misguided. As St Thomas Aquinas notes, individuals have a moral obligation to follow the dictates of their own conscience, even when in error (James 1953). Finally, Catholic health care has a mandate to serve and advocate for those people whose social condition puts them at the margins of our society. As described above, rape victims who are also marginalized by any combination of social factors are made especially vulnerable when EC is delayed or denied. Permitting the conscientious provision of LNG when a standardized testing protocol has been satisfied serves the good of promoting access to medical care for this often especially vulnerable patient population.

If it is insisted that the institutional conscience of the Catholic hospital that prohibits prescribing LNG to rape victims ought to take priority, then a consistency problem arises. If Catholic hospitals with a prohibition on prescribing LNG to rape victims can prohibit all physician employees from prescribing LNG, then Catholic hospitals that permit prescribing LNG to rape victims should also be able to require all physician employees to prescribe LNG. This would mean that physicians with a conscientious objection to prescribing LNG to rape victims working in Catholic hospitals that permit prescribing LNG to rape victims would no longer be permitted to conscientiously object to prescribing LNG. Either Catholic hospitals should be able to impose their view of prescribing LNG, or they should not, and we have argued that because the ethical permissibility of prescribing LNG is one of reasonable internal disagreement, then it should not be imposed on physician employees. Instead, each physicians’ own conscience should be their guide as to whether they are willing to prescribe LNG following the satisfaction of a pregnancy testing protocol (e.g., Peoria or pregnancy), and those physicians who are led by their conscience to provide LNG to rape victims should have that conscientious provision honored.

ORCID iDs

Abram Brummett https://orcid.org/0000-0003-0511-574X

Victoria Whiting https://orcid.org/0000-0001-8685-4661