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Nicaraguan abortion law update

I recently posted some observations about Nicaragua's new abortion measure here and here. Some readers felt those observations were premature since I did not have the exact wording of the law. That is now available at Nicaragua's National Assembly site. It's pretty straightforward:

Article 165 of the penal code is overturned (Artculo 1.- Se deroga el arto. 165 del Cdigo Penal Vigente) and the law will be entered in the assembly's official record (Artculo 2.- La presente Ley entrar en vigencia a partir de su publicacin en La Gaceta, Diario Oficial.)

Article 165, now void, said that a "therapeutic" abortion must be approved by at least three doctors and be consented to by the husband or woman's next of kin. (Artculo 165.- El aborto teraputico ser determinado cientficamente, con la intervencin de tres facultativos por lo menos, y el consentimiento del cnyuge o pariente ms cercano a la mujer, para los fines legales.)

The law passed the assembly unanimously, though the nation's association of gynecologists and obstetricians objected that the law makes it unclear about how they are to handle life-threatening pregnancies especially in public hospitals where adequate diagnostic equipment is lacking. If they treat a woman with an ectopic pregnancy, for instance, will they be charged with performing an abortion? If they fail to treat the pregnancy and the woman dies, will they be charged with negligent homicide?

It should be noted that the actual number of therapeutic abortions performed or reported under Article 165 in Nicaragua is hard to determine. Reports I've read estimate them at anywhere from six to more than 1,000. The total number of abortions each year is estimated at 30,000.

A different approach to the the abortion problem might have been to strengthen the enforcement of Article 165. Or to more closely define "therapeutic," which seems to have been construed as anything from from saving the life of the mother, ending pregnancies resulting from rape or incest, or aborting babies carrying birth defects.

As far as I can see, the current Nicaraguan law simply muddies the waters for doctors and does not reflect the Church's teaching on abortion--which recognizes that medical treatment is allowable in some life-threatening pregnancies--nor its concern for the health and welfare of poor women.

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Here's the question in my mind: Why doesn't the Church practice what it preaches? I agree that it is in some sense accurate to say the Nicaraguan law "does not reflect the Church's teachings on abortion." Nevertheless, all indications are that this is very close to the law the Catholic Church in Nicaragua wanted. Apparently the only thing the legislature didn't come through on was increasing the existing 6-year sentence for procuring and performing abortions to 20 years, as Church leaders had lobbied for.I'm going to put two quotes from the "Declaration on Procured Abortion" at the end of this message, along with the URL for the complete document. Maybe there is a lot that I am missing, but is the Church in Nicaragua, or is the "pro-life" movement in the United States, really doing much of anything to make sure "that there will always be a concrete, honorable and possible alternative to abortion," as the document calls for? Could any any "pro-life" group make this their motto: "One can never approve of abortion; but it is above all necessary to combat its causes." Or is the only thing on the agenda of the "pro-lifer: movement to enact the most restrictive abortion laws possible and let women with unwanted pregnancies fend for themselves?---------------23. On the contrary, it is the task of law to pursue a reform of society and of conditions of life in all milieux, starting with the most deprived, so that always and everywhere it may be possible to give every child coming into this world a welcome worthy of a person. Help for families and for unmarried mothers, assured grants for children, a statute for illegitimate children and reasonable arrangements for adoption - a whole positive policy must be put into force so that there will always be a concrete, honorable and possible alternative to abortion.One can never approve of abortion; but it is above all necessary to combat its causes. This includes political action, which will be in particular the task of the law. But it is necessary at the same time to influence morality and to do everything possible to help families, mothers and children.http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_...

Nice Try David. You sound admirably concerned. But the officials we call bishops are more concerned about their annual building funds than these poor women. And they are women. Persecuted and abandoned again by a church which favors the monarchy and those who give it power. For a church which demands immunity for its own crimes, flippant decisions to place women in jeopardy are perhaps easy. How much they miss those who cry to the heavens. Woe to them indeed.

Is it possible that no one in the legislature was skillful enought to draft an amended version of 165 that would correspond to Catholic teaching? Or that no one cared to take the trouble? Or that the bishops were not paying attention? Or did not care? There is no way out here, that I can see, even for the confirmed optimist.

Thank you, Jean, for clarifying the details of the Nicaraguan law. Here I'd like to offer the same clarification for official Catholic teaching on abortion. Here are the salient points, as I see them:1. Direct killing of a human embryo is never justifiable for any reason, including saving the life of the mother. The relevant portion of the CDF's Declaration on Procured Abortion is appended below. 2. Ectopic pregnancy, in which the embryo implants in the fallopian tube or in the cervix, is not an exception to this general rule, but is regarded as a distinct situation. The woman's life is seen to be threatened by a damaged fallopian tube (or cervix,) and so the tube or uterus may be removed to save her life. That the "damage" is caused by the implantation of an embryo there is a secondary considration. The embryo is, as it were, an innocent by-stander killed in the life-saving endeavor. A similar argument is made for cases in which a pregnant woman is diagnosed with cancer of the uterus: the uterus may be removed to save her life, and the embryo dies as an unintended second effect. (This is classical "double effect" reasoning.) 3. The case of Jazmina Bojorge would seem to be definable either as a case of abortion, which would be impermissible under Catholic doctrine, or a case of double effect, depending on how the situation is described. According to the description, she suffered from premature placental separation in the context of a miscarriage, which caused her to bleed to death. The least traumatic medical treatment would have been to remove the fetus and placenta--to perfom a second-trimester abortion. That would not be premitted under Catholic teaching, since it would be the fetus who is directly targeted. If instead we describe Bojorge's problem as "acute uterine hemorrhage, " then under Catholic teaching she could have had a hysterectomy--at age 19--without violating Catholic teaching. 4. Three observations come to my mind: first, it seems clear that defining acts that kill embryos or fetuses as structural medical problems of the mother--saying that the problem is the tube or the uterus and then removing that--tends to result in more medical harm to the woman than is necessary in order to save her life. In Catholic teaching, it seems that in order to avoid an act that looks like direct targeting of an embryo, one is willing to impair or destroy a woman's fertility, or, as in Bojorge's case, to allow her to die. Second, it is absolutely essential to note that not all life threatening pregnancies are ectopic. Bojorge's situation was not an ectopic pregnancy, but surely her life was endangered and ultimately lost, because of her pregnancy and the unwillingness of doctors to terminate it. Her life was sacrificed for that of a fetus who was certainly doomed, as is that of any pre-viability fetus in a life-threatening pregnancy. Third, it seems unreasonable to me to expect doctors and patients to be able to parse the delicate distinctions made in Catholic teaching between permissible and impermissible acts that result in embryonic or fetal death. Clearly Bojorge's physicians saw any intervention as potentially qualifying as abortion, so they opted to let her die. It also would seem to violate physicians' commitment to "first do no harm" to require them to perform a more invasive, and perhaps permanently damaging intervention like hysterectomy or removal of a fallopian tube in order to preserve the distinction between direct and indirect killing of a certainly doomed fetus, when the mother's life is threatened and potentially savable. 5. Finally, I would note that, to my knowledge, life-threatening pregnancy is the only situation in human life in which a person is required by Catholic doctrine to forgo self-defense and simply accept death. To require pregnant women to accept death in case of life-threatening pregnancy seems to me to disregard the mother's life in favor of that of the potential (even if vanishingly unlikely) survival of the fetus in every circumstance, which is not equitable. (The fetus is, in this case, an unjust attacker, not because the fetus has evil intent, of course, but because the mother has done nothing to warrant a threat on her life. Under any other circumstance, an unjust attacker may be resisted, even if the attacker is killed. Only pregnant women threatened by their pregnancy are not allowed to defend themselves.) In our tradition, we celebrate martyrs, but precisely because their acts are heroic, not required. We ought not require martyrdom of anyone, especially poor 19 year-olds whose only mistake was to seek treatment from cowardly physicians under threat from a misogynistic and draconian Nicaraguan law. From Declaration on Procured Abortion, 14. (CDF, 1974, Seper) After acknowledging that the reasons for which people might seek abortion are serious, Seper writes: "We do not deny these very great difficulties. It may be a serious question of health, sometimes of life or death, for the mother; it may be the burden represented by an additional child, especially if there are good reasons to fear that the child will be abnormal or retarded; it may be the importance attributed in different classes of society to considerations of honor or dishonor, of loss of social standing, and so forth. We proclaim only that none of these reasons can ever objectively confer the right to dispose of another's life, even when that life is only beginning."

Lisa writes: ... it seems unreasonable to me to expect doctors and patients to be able to parse the delicate distinctions made in Catholic teaching between permissible and impermissible acts that result in embryonic or fetal death. Jean notes: I don't think doctors or patients will have to parse Church teaching, Lisa, because the secular law does not admit any caveats or "double effect" defenses that the Church might allow.Doctors say litigation will likely result from the new law. So I supposed what could happen is that precedents will be created that will allow the definition of "abortion" to exclude those "double effect" procedures. It is also possible that the Nicaraguan Supreme Court will hear arguments about the law's constitutionality (the first article in the Nicaraguan Constitution guarantees the right to life to everyone and bans the death penalty).

It's true that doctors and patients won't have to parse anything in Nicaragua, but increasingly they do in Catholic hospitals in the U.S. Women who go to Catholic hospitals for maternity services often do not understand how their care might differ in cases raising ectopic pregnancy, early (pre-viability) placental abruption or acute pre-eclampsia, and sometimes I wonder about their doctors as well. Most hospitals are not forthcoming about this because it would certainly cause more than a few women to choose alternative facilities. Needless to say, I agree with everything Lisa wrote. I have never understood why it is morally impermissible to acknowledge those circumstances in which the fetus is doomed and preserve the life of the mother. To say that these cases are rare seems more than a dodge, and it seems contrary to the notion that every life is precious. How is it that the lives of pregnant women could be so little valued. I really don't understand.

Lisa,Two points - in the case of Jazmina Bojorge, the law at the time she was treated still permitted a life of the mother exception. It has been touted as a case where the new law failed, but the new law was not in effect. Second, this would not have been a case of self defense, but rather the choice between two innocent lives. The only "injustice" the unborn child commits is existing. Suppose two people awake from a sleep and find they are stranded on a plank over a precipice that can support the weight of only one, if one shoves the other off, that is not self-defense. The situation may provide an excuse or mitigation of punishment, but the killing is not justified as in self-defense.

Sean, I'm not sure that the analogy about women throwing babies off from planks insufficient to their weight is a good one.It assumes that both the woman and the baby have an equal chance of surviving, and that the plank is the problem. If that were the case, I'd jump gladly, and I'm not even that good a Catholic. There are cases, however, where the baby cannot survive but the mother could with quick treatment. If the Church does not tie the hands of doctors in these situations, why should the law?

Sean,Since you brought it up--the fetus is not merely existing, the fetus is growing and growing in a location and in such a way that she/he will cause her/his mother to die unless medical invention prevents him/her from doing that. It is true that the fetus is not morally responsible for growing, but must we always determine that an agent is responsible for acting in a certain way--when that action must resut, if not thwarted, in the death of another--before we are entitled to take whatever steps are necessary to prevent the inevitable result of that action? Take the general case. If X is acting in such a way as to cause inevitably the death of Y, must we determine whether X is morally responsible for acting as he is before we take steps, as necessary, to prevent X from contiuing in that course of action?

Jean,First of all, I said nothing about anyone throwing a baby off a plank. The point of my analogy is that the situation described by Lisa is not self defense. Self defense is a justification. That is, if I act in self defense I do it as a matter of right. Choosing between the life of two innocents is never a matter of self-defense. It may involve a moral choice, and weighing of outcomes, but it is not a moral good or a right.

Sean, you did talk about people shoving each other off planks, but I didn't understand that the analogy was meant only to refute the self-defense argument. Sorry.Above you say that "choosing between two innocent lives" not being self-defense.There is no choice under the Nicaraguan law; no treatment that would harm the baby is allowed, even if it is medically certain the baby will die and the mother could live.Not to seem like a lame brain or anything, but it seems to me that a dead baby and a live mother is still a tragedy. But one life is preferable to two deaths, if the death of one is certain, no?

Re Joseph's Dec. 17 posting:I would argue that all actions are events, but not all events are actions. What distinguishes actions from non-action events is the necessity that an agent decides to perform it and actually does so. Philosophically, among the important reasons for making this distinction in this way is that it allows one to determine which events, namely only those that are genuine actions, ought to be morally imputed to the performer. Non-action events are not candidates for imputation. Thus, if I sneeze without provoking it, there is no room for imputation. The sneeze just happened. But if I sneezed becuse I sniffed something that regularly provokes sneezing, then my sneeze is properly imputable.In the case of normal growth, the growing is simply an event. As such it is not imputable to the one who grows.Without this distinction, or something analogous, it would be very difficult to argue against philosophical determinism.

Bernard, Here's my problem, at least. I understand what you are saying -- and I understand what Sean H. is saying. At it's most simplistic, you are constructing an abstract proposition into which facts fit -- or don't -- in order to determine whether a given action is permissible or not: Yes, self-defense; no -- not self-defense. In most cases, for most events, it's important for purposes of fairness and justice to follow what is essentially an abstract principle or rule of law. But then, there are cases in which the application of those laws without deviation gives results that are simply and intuitively wrong under arguably larger principles -- in the case of ectopic pregnancy, preservation of one life instead of loss of two. A belief system that posits that abstract principle is all is one that risks letting smaller principles -- the making sense out of the mind of God by the mind of men -- get in the way of larger principles. I also note that the principles tend to give a lot more outs and exceptions where men are the moral agents in charge. Like so-called just war theory. It doesn't matter how many times I try to wrap my mind around this area, I keep coming back to the thought that it's better to let a woman die than go to bed fretting about how life is always outstripping the paradigms we fashioned to make sense out of it.

Barbara, so far as I can tell, you're reading too much into my comment. I was simply trying to point out to Joseph that there are important reasons to distinguish between events that are actions and those that are not. If I treat all events as actions, then I can be held morally accountable for what I do in my sleep, under heavy anesthesia, etc. Using this distinction, I take it that growth is something that human beings, along with plants and animals, perform or undergo. There is no choice or decision and hence no action involved.I know that philosophers, e.g., Judith Jarvis Thom[pson, tried to argue that a fetus might be an unwanted aggressor and so could be fought off. Sorry, to say that makes no sense as far as I can see. One is, in moral terms, an aggressor, only if one decides to do something aggressive, to take an aggresive action.That's all that I have said. Obviously, one can claim to see in what I say more than I realize. But i just don't see how you get what you do from what I've actually said.

To all my fellow bloggers, a joyous ahd blessed Christmas season and many blessings during the New Year. It's been a great pleasure to be able to hear and respond to all of you. I hope we'll all continue to stay in useful touch in the New Year "with good will to all."

Just a side observation:I've noticed that nothing clears a room of men faster than a discussion of obstetrical details. And when men talk about the morality of life issues, they tend to use generalities, rely on philosophical points and use analogies more. That sometimes makes them look cold and preachy. Women--especially those of us who have had miscarriages and crisis pregnancies--find it easier to imagine specific situations and having to make hard decisions under duress. I suppose that can make us look emotional and irrational.As a result, even when men and women agree on basic principles about the sanctity of life, they can annoy the heck out of each other with their rhetoric.

Bernard:Anything that happens can be described as an event. So all acts are events. All agents act, but not all agents are moral agents, i.e., agents we hold responsible for certain of their actions; and in fact moral agents are only responsible for their actions when they act as moral agents, i.e., when their actions are voluntary. However an involuntary act is still an act. Sneezing is something we do, an act, but not something most of us can do voluntarily. My cat does things but she is not responsible, morally.The fetus in the example I gave is not an actual moral agent--only potentially one, upon further development--and so we would not say it was responsible for anything it did or caused. My point was that it is appropriate to prevent an evil consequence of an agent's action even when we do not hold the agent responsible for the action. Take the case of someone who out of religious conviction believes he should blow himself and others up because it is God's will. Is he morally innocent? We are not in a position to say that he is not. But it would be appropriate even to kill him if that were the only way to prevent him from killing others.

Bernard, I acknowledge that you were making a discrete point. And no, I don't agree with Judith Jarvis Thompson's take on it either. However, I don't think that whether the fetus is a "moral agent" or whether it's just growing without intent is all that relevant, because, normally, no one is *required* to provide sustenance or protection to another, even an innocent other, at great peril to themselves. I am not required to donate my kidney even though, assuredly, I could without too great of a risk. It's a failure to acknowledge that as a practical matter, women are *used* by the fetus and that, on occasion if not typically or even frequently, their interests can become quite independent, even opposed, to that of their fetus. Moral agency seems to be beside the point when the death of both is the virtually certain result of refusing to let the woman extricate herself from being used to provide life support to the fetus.

I know that I'm late with this response. I returned home only a few hours ago from a Christmas trip.Jean, you're not the first person I've annoyed with my penchant for talking "in distinctions." Sorry. I don't mean to drive people to distraction with my quirks, but I'm an old dog without much capacity to lear3n new tricks.Barbara, let me take a stab at replying to your DEc. 19 comment. Let me limit my comments to cases in which the pregnant woman willingly engages in sexual inteercourse and knows that doing so can lead to a pregnancy. So far as I can see, she is morally responsible for having sex as well as for the consequences of her doing so. That the consequences turn out tragically is irrelevant to the objective moral responsibility to avoid harming the fetus. I do, of course, admit thatall kinds of reasons can mitigate her subjective culpability should she have an abortion. This is true in any case of the commission of an objectively moral wrong. Nonetheless, it is important to recognize the objective moral character of the case in question. In this case, she is not without a substantial objective duty to refrain from harming the fetus.