Monday, December 17, 2007

PVS and the Vatican: Sustain Life!

A controversy has erupted over the question of nutrition and hydration of PVS patients--and a couple of canonists/ethicists (O'Rourke and Hardt) are on very thin ice, indeed, according to Ed Peters, JCD.


(2004): Pope John Paul II tells an international medical-moral congress that ". . . the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory. . . ." The qualifications included in the pope's remarks and his citations to various Church documents show that his statement is basically an application of well-established Catholic moral principles to more specific types of medical situations.

"Moral principles" is highlighted for a reason, as we shall see.

(2005): The US bishops send two follow-up questions to the Congregation for the Doctrine of the Faith. The bishops ask: (1) Is the administration of food and water (whether by natural or artificial means) to a patient in a "vegetative state" morally obligatory except when they cannot be assimilated by the patient's body or cannot be administered to the patient without causing significant physical discomfort? and (2) When nutrition and hydration are being supplied by artificial means to a patient in a "permanent vegetative state", may they be discontinued when competent physicians judge with moral certainty that the patient will never recover consciousness?

The answers: to the first question, "Yes," and to the second question, "No."

Now come O'Rourke and Hardt, attempting to circumvent the Vatican decision--but on Canon Law grounds.

Claiming to be putting this CDF Response "in perspective", Hardt & O'Rourke assert that it "limits the free exercise of rights [and thus] will only apply to a restricted number of cases, specifically to patients with a firm diagnosis of PVS" and add that the Response only applies in the United States. They further assert that had CDF wanted to make its response more widely applicable, it would have used "another form of communication, for example, an Apostolic Instruction." Hardt & O'Rourke claim their conclusions are based on Pope Boniface VIII's Regulae Iuris (Rules of Law), which they say are applicable in "interpreting and applying the documents of the Holy See", and on Canons 18 and 52 of the 1983 Code of Canon Law

Peters, effectively stating "sed contra":

Canons 18 and 52 and the Rules of Law upon which they draw are, by their plain terms, meant to inform one's interpretation of laws and legal directives. In issuing its Response on nutrition and hydration, however, CDF was not issuing a law, or an authentic interpretation of a law (1983 CIC 16), or indeed any other kind of juridic decree (administrative or otherwise). Instead the dicastery is setting forth moral criteria for personal decision-making, a point reinforced by the CDF Response being posted among the dicastery's doctrinal statements, not its disciplinary ones. In other words, by subjecting CDF's enunciation of moral principles to interpretive techniques that were developed for assessing legal norms, Hardt & O'Rouke are basically criticizing the CDF Response for not being something it never claimed to be...

Peters, in sum:

The moral principles set out in the CDF Response are meant to be applied regardless of the fact pattern that lead to an individual's plight and regardless of where his or her suffering is taking place.

Or, put a more familiar way: "Thou shalt not kill."

It is not unusual for lawyers to attempt circumvention of the moral law with juridical arguments dealing with form or process. But the ACLU-patented approach in this case misplaced, at best.

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