The Right to Life of the Unborn Child

by Hector Treub

• Prefatory Note to the English Edition
• I. Medical Abortion and the Church, by Prof. Hector Treub MD
• II. The Right to Life of the Unborn Child: Reply to Prof. H. Treub MD, by Rev. R. Van Oppenraay, DD, SJ
• III. Prof. H. Treub as Penal Legislator, by Dr. Th. M. Vlaming
• IV. Narrowness or Wholesome Consistency, by Dr. Th. M. Vlaming^[1]

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

THE RIGHT TO LIFE OF THE UNBORN CHILD. THE RIGHT TO LIFE OF THE UNBORN CHILD.

BY PROF. H. TREUB, M.D.

No one is bound to expose his own life to great danger to save another's temporal life, unless some other reason constrain him. A. Lehmkuhl, S.J.*

My article in the periodical " Tijdschrift voor Strafrecht " has called forth two replies, Dr. R. van Oppenraay's, S.J., and Dr. Th. M. Vlaming's. Both are published here, preceding this writing, and they afford me a welcome opportunity to go more deeply into the subject. Of a debate, in the strict sense of the word, between these gentlemen and myself there can be no question. Our stand- points are altogether different. For, as I heard one of my learned friends of the bar say on a certain occasion, it is quite impossible to fight a duel with an opponent, standing at the opposite end of the hall, when the weapons don't quite measure one-tenth of the hall's length. In the following I will try, by placing myself in the standpoint of my learned opponents, to fight them now and then on their own ground. Chiefly withal I will defend and explain

• Magnum subire vitae propriae discrimen pro aliena servanda vita

temporal** nisi aliud quid accedat, nemo tenetur. Theologia Moralis. Editis sexta, 1800, Vol. I., p. 502.

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more fully my own standpoint, though some polemical observa- tions can hardly be dispensed with, were it merely to show, that I am put in an undeservedly false light. That which I justly de- serve from my opponent's standpoint is bad enough.

In the first place, it is unjust to say that I charged the Catholic Church with Moloch-worship. I simply spoke of any ecclesiastical prescription which degrades the service of God into Moloch-service. Surely there is no need of my pointing out to Prof. Vlaming that this is unlike the charge which he preferred against me, as the decisions of the Holy Office are not a fixed and unchangeable part of the Catholic religion. They lay down the rules of morality to be observed by the faithful. They contain the ethics distilled out of the tenets of religion ; but to the distiller, the Holy Office, it may, ac- cording to its own admission, happen that one or the other element becomes overdistilled. The Catholic who does not abide by the decrees of the Holy Office sins, more or less grievously, according to the im- portance of the prescription which he disregards. Yet, even for the most faithful Catholic, these decrees are a lawful topic of com- ment and discussion, and he does not sin in the least by doubting their correctness. It would be otherwise if the Pope had decided the matter ex cathedra; for the Catholic who rebels against such a decision ceases ipso facto to be a Catholic, and becomes a heretic. Were this the case with regard to the subject which occupies us, then I should have to say from my standpoint that the Catholic re- ligion is a Moloch-worship. Fortunately, such is not the case, as

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it is but a decree issued by the Holy Office, which tends thus to degrade the religion in its practice.

Equally undeserved is Dr. van Oppenraay's accusation that I would put the Catholics to the test as to which they would recognize as Supreme Judge of morality, the State or the Church.

The capital difference between Drs. Vlaming, Rev. van Oppenraay, and myself, is this, that they see in the production of abortion a transgression of the commandment : " Thou shalt not kill," whereas I, even after carefully perusing their articles, abide by my opinion that such an interpretation of the precept in the case is narrow. They hold one life as valuable as the other ; / don't. To my mind, the life of a woman, the mistress of the house and the mother of a family, is worth more than the life of a three months' fetus, which, even barring extraordinary circumstances, such as the mother's death during pregnancy, has only about eighteen per cent, of a chance to be born alive, and, after birth, has only twenty per cent, of a chance to live beyond the first year. Therefore, I do not object to abortion where the pelvis is absolutely too narrow. True, here science and faith do not as yet perfectly agree, but by and by, as the technique of surgery develops, medical and theological ethics will come into closer harmony. The same holds good as regards craniotomy of the full grown fetus.

My celebrated colleague, Pinard, of Paris, had these words painted ^on the walls of his lecture-room: Craniotomy on the living child has had its day. With many other doctors I consider this

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utterance too sweeping. It is not long since I performed that re- volting operation in my clinic. Yet some months previously, I had published the following opinion showing that here also the ethics of medicine and of theology meet each other :

" At present one may scarcely ever decide to perform craniotomy on the living child. Even when the mother is already infected when coming to the hospital, I hold the wanton sacrifice of the strong and healthy child as unlawful, and I draw the line of consistency so far as not to allow either the patient or her family to have anything to say in the matter. The woman trusts herself to me, that I may de- liver her, and thus it is with me a matter of conscience how I shall dutifully perform my task."*

Alas ! also from recent experience I know better than Prof.

• Zur Indikation des Kaiserschnittes. Aertzliche Rundschau, No. 12,

1900. To prove that in regard to this, I adopt a rather uncommon standpoint, I here subjoin a quotation from the Semaine Medicale of October 23, found there by me just after having finished this essay:

" At the opening session of the Bordeaux Court, Mr. Maxwel, sub- stitute of the Supreme Judge, examined various medical cases of conscience, from which I cull the following :

" The surgeon is with a woman whose pelvis is so contracted that spon- taneous delivery is impossible. The child, to whom every natural entrance into the world is closed, is mature and living. The surgeon deems a bloody intervention necessary, but the mother refuses to submit to it, her parents and her husband are opposed to it, and want the surgeon to perform an apparently simpler operation, to which, however, the child must succumb. What must the physician do?

" According to Mr. Maxwel the relative rights of the child must yield to the mother's actual rights, as the child's rights depend upon the mother's willingness to renounce her bodily integrity, and as this renouncement is the condition to which the existence of those rights is subordinate. This con-

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Vlaming, what are the dangers of cesarian operation for the mother, yet I fully maintain the words quoted.

But, in the case that occupies us, circumstances were quite dif- ferent. By hastening the unavoidable death of the young fetus the mother's life could be saved; whereas, by letting the fetus die a natural death, the mother's life, too, was sacrificed. Thus, when Prof. Vlaming writes : " Because of its intrinsic aim the operation is and remains a deliberate taking of an innocent human life, and con- sequently unlawful in itself," I should like to submit : " By its in- trinsic aim the operation is, in this case, deliberately causing the death of an innocent life, ivhich would soon be extinct at all events, to save another life, and, consequently, the operation is not only lawful, but it is unlawful to omit it."

dition is altogether within the mother's power. Our judicial training can not see that the mother is obliged to yield to her child. As, on the other hand, the mother is in a state of lawful defense against all intervention injurious to her bodily integrity, and, on the ether hand, it is impossible to say that the cesarian section or symphyseotomy will not have untoward consequences, it follows hence that, as mistress of her body, free to authorize or forbid such intervention, the mother may object to cesarian section or symphy- seotomy, and may ask the doctor to resort to embryotomy. If she can not manifest her will, the choice will lie with her husband, her parents, or her relatives.

" If you operate on the mother in spite of her, or simply without the knowledge of herself and her family, and she dies as a result of the operation, will you escape a damage suit? I don't think so. In that case, the doctor's responsibility will flow from a certain judicial fact: The violation of the right which belongs to the patient alone or to those who represent her (or him), when she (or he) can not manifest her (or his) will of determining the con- ditions in which she (or he) will authorize any hurt to her (or his) bodily integrity."

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I modified the sense simply by substituting " causing the death " for killing, although, to satisfy sticklers, the proposition that causing abortion is not always killing the fetus could easily be defended.

Nor did I strike out " innocent," albeit one could, without quibbling, question the fetus' innocence in case of uncontrollable vomiting. But, I waive this also, because, to be honest, to me it is of no consequence. Nor does it matter that Prof. Vlaming takes it that I am of opinion that in this case the fetus is an unjust aggressor against the mother's life. What boots it to defend or impugn posi- tions arbitrarily ascribed to me ? I did not use the argument alleged by Prof. Vlaming, nor did I know that it is still current in universi- ties. Therefore, I have done with it.

There is no question of an immediate aim, as the reason why the operation is performed is ultimately the intrinsic aim of the opera- tion, and thus qualifies its morality.

By killing the fetus, in a case like this, in order to save the mother, I sin no more against the fifth commandment than I do when I lose the mother by performing the cesarian section to save the child. Neither in one nor in the other case do I commit murder, in the accepted meaning of the word. In the judgment of such as are not sunk in philosophical speculations, but who calmly and soberly consider the matter, the transgressor of the precept " Thou shalt not kill " is not he who, in a case like ours, hastens the destruction of a fetus doomed to certain death, and thereby saves the mother ; but, on the contrary, he who lets the mother die without gain or necessity.

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Hence my italicized exclamation, which Prof. Vlaming has quoted : There lies a young woman murdered by the narrotv decrees of the Holy Office.

Prof. Vlaming writes : " To a doctor like Prof. Treub, with whom his knowledge devoted to the relief of suffering humanity occupies the first place, it must doubtless be painful to see a patient, whom he believes he can save without fail, prefer death to the transgression of a certain principle, which to her is sacred, but which the physician does not thoroughly understand. Such spectacle must, no doubt, be painful, but that does not take away the reasonableness of the prin- ciple, and consequently the reasonableness of the decision which sets forth that principle."

To this I beg leave to make the following observation : To my mind the reasonableness of the principle is by no means proven by paraphrasing the precept, " Thou shalt not kill," and the principle, " One may not do evil that good may come."

Yet, these are the only weapons with which Dr. van Oppenraay and Prof. Vlaming fight me. On that we shall never agree. We are standing at opposite ends of the hall with short swords in our hands. To combat with any hope of victory is thus impossible, unless one of the parties goes closer to the other. I shall cheerfully try to do this, and I hope to succeed better in doing so than Prof. Vlaming has.

I am not interested in the unjust-aggressor argument, and, as to his subsequent remarks, I shall content myself with some marginal notes. "Nor shall I expatiate on the positions of the two drowning

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men. Such comparisons would, methinks, be of value only if they were quite perfect. But, as ever, the comparison is here also lame, and, what is more, it limps on both legs. I take the liberty of point- ing this out :

' The right to live of a drowning man comes, as a rule, after that of one as yet in a safe condition, and thus, also, the mother's right to live comes after the child's. These two rights don't clash, as long as one leaves the other unmolested." Thus speaks Prof. Vlaming. That is not correct. The two rights do clash. For the fetus' life wholly depends upon the mother's. If the mother dies, the fetus dies too. If, on the contrary, the fetus dies, the mother will be saved. Apparently it would be more correct to speak of a clashing of interests, but only apparently. For the fetus in either case is lost, and its life is not of the least importance to it. In this way does its right to live, which is of value only theoretically, clash with the mother's right to live.

I must also protest against the comparison which he brings up a few lines further : " To be partial to the life which is supposed to be of the greater value would be a deed not of right, but of expediency." In our case no partiality is shown to the supposedly more precious life, but simply to the only life which can be saved. The other can not be saved, and is, therefore, valueless. A few pages ahead my esteemed opponent has observed that I do a moral evil in order to ward off a physical one, but, on that account, I repeat that his para- phrases on " Thou shalt not kill " are no more convincing to me than

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my opinion convinces Prof. Vlaming that killing the fetus in this case is a merely physical evil.

That is just why Prof. Vlaming supposes that it is my utilitarian sentiment that led me to defend the procurement of abortion. He is right; and I'll also grant (overlooking the fault of the comparison) that for such as admit the fetus' absolute right to live, backing it by the decalogue, for such my deed would be based on expediency and not on right. If ever, here would be verified : " Supreme right is a supreme wrong " (Summum jus, summa injuria] . Against the cases cited by Prof. Vlaming, I will pit another, a case in which I, and, I trust, all physicians, would resort to a deed of expediency.

When at the term of pregnancy, the physician discovers on the neck of the womb a cancer so extensive that removing the formation is out of the question, he knows by experience that the delivery can take place spontaneously. The ulcerating tumor is then slowly split by the child's skull, and, thanks to this slow process, the blood vessels close up, and the bleeding is, generally at least, comparatively small. The woman has then a good chance to live.

But experience teaches also that, owing to this slow labor, the child usually dies under way, and is still-born.

In such a case the cesarian section is fatal for the woman. Not that she will necessarily succumb to it immediately, but because of it she certainly will die sooner than would otherwise be the case.

Well now, the physician who, in my opinion, has the right con- ception of his duty, will, in this case, perform the cesarian operation

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without hesitating, and thus he will take sides with the only life which can be saved. That is the child's.

Let no one object that there is no question of " positive " murder- ing of the woman. Has President McKinley not been murdered just because he lived for a few days after he was shot? Furthermore, I have just said that, for him who wants to stick to the letter, abortion will not be positive murdering of the fetus either.

In my judgment there is no ethical difference; if the Holy Office forbids the one, it should also forbid the other.

Before taking leave of the cases cited against me, I must show that Dr. van Oppenraay's comparison with Case A is not at all to the point. In that case, it is altogether unnecessary that one let alone two human lives should be sacrificed. Accordingly, what the woman does or does not in that case may be left out of consideration.

In our case, I repeat once more, one life was bound to be lost, not through barbarous man's will, but through, what I shall call, barbarous nature.

His comparison is furthermore, methinks, too lame to be of any service.

As I proceed I must first vigorously defend myself against a mis- conception put by Prof. Vlaming upon my former utterances.

Prof. Vlaming claims that I had said the fetus WHICH is NOT YET VIABLE may be looked upon not as a man, but as a conglomeration of cells, thus as something which has no "subjective right to live." I underscored some words, and will do so again in the following quota-

THE RIGHT TO LIFE OF THE UNBORN CHILD.

tions from my paper on " Abortion and Penal Law " : " If, on the contrary, there is a question of a subjective right, then it is not con- sonant with sound reason to compare an embryo in the first weeks of pregnancy with a fetus in the last months." And two pages further : " If one admits that there is question of subjective right, then the articles of the Penal Code are simply ridiculous as far as the FIRST STAGES of pregnancy are concerned. For in the BEGINNING OF PREG- NANCY there is nothing resembling a man, there being nothing else than a conglomeration of cells. One's brain must be frightfully muddled to speak of this conglomeration of cells as of something which has a subjective right to live."

The above words in small capitals show clearly that Prof. Vlaming has misconstrued my meaning. And I have quoted the last paragraph to bring out how unfairly he treats me when he exclaims : " With such a natural historical understanding one could indeed make up a fine system of ethics where one would need a microscope to discover the ethics."

Far be it from me to accuse Prof. Vlaming of intentionally mis- construing my meaning. No doubt he just read my article somewhat hurriedly, and I will be the last to find fault with another's haste.

As I am now busy defending myself against the groundless, false charges of Prof. Vlaming, I may make some observations relative to others of his remarks.

Instead of giving me credit for exhorting to prudence in diagnos- ing doubtful cases, the professor uses my exhortations to support his

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claim that the fetus' life is exposed to the carelessness and incom- petency of physicians. While I repel the supposition following there- upon as quite wanton and wholly unproven, I must confess my amazement that Prof. Vlaming deems it necessary to bring forth his claim as a new discovery. As long as there are among doctors, as well as among clergymen, and as well in all other walks of life, men who are unscrupulous, reckless, or of mediocre capacity, man runs the risk of having his life exposed to the carelessness or incom- petency of physicians. Oh ! the pity of it, but it is true.

Now, one thing which I should like to prevent is, that the preg- nant woman should be further exposed to this risk by a conflict of medical science with, what I deem, the narrow decrees of the Holy Office.

This induces me to make the effort of placing myself upon the standpoint of my opponents, in order to show that I am justified in speaking of narrow decrees.

Allow me first to quote some more lines of Prof. Vlaming's : " The case is different as soon as there is question, not of an ecclesiastical, or merely human law, but of the law given by God Himself, especially the law of nature. Therein not only the Church, but sound phi- losophy, sees an unchangeable standard of good and evil, a law which can no more be altered than the eternal and infinitely wise plan to which it is linked ; therefore, no matter what reasons of expediency may be on hand, there can be no question of derogation, dispensa- tion, or accommodation, consequently the Church must hold in-

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flexibly to the unlawfulness of whatever she finds intrinsically evil."

Those words are pregnant with fervor and dignity, and I realize how within the reader thereof rises the thought : " Say something against that if you can ? What objection can be raised against that ? "

For argument's sake, I will admit that, as Prof. Vlaming writes, we have to do here with the law laid down by God Himself, and par- ticularly with the law of nature. I trust I mistake not in thinking that by the law of nature is meant the decalogue.

Now, it says, " Thou shalt not kill," without any restriction. Then Catholic morals must also absolutely and unreservedly forbid capital punishment. This the Church does 'not do. That the su- preme public authority has the right over life and death, or has the right of the sword, is suggested by reason and confirmed by Holy Writ (Rom. xiii. 4). It is made the duty of the supreme public authority to exercise vindictive justice in order to guard and protect public safety, as well as to restore the disturbed order; that both may be done effectively, it is thought necessary that the death penalty should at times be inflicted. So speaks Lehmkuhl in his standard work, " Theologia Moralis," Vol. I., p. 837, which, I believe, is an authoritative text-book used in many seminaries. " But, you forget," cry out my adversaries, " that the chapter you quote bears as title, De Cruenta Punitione (on Blood-Punishment), and that it is written also : Whoso takes the sword shall perish by the sword." No ; I don't lose signt of that, but are not both, the decision: There can be no

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meddling with the law of nature, and the precept: " Thou shalt not kill," absolute commandments ? Yet here Catholic morals make an ex- ception. But man forfeits his life not only as a penalty for murder. Capelmann, known as the author of a " Pastoral Medicine " rather than as an authority in moral theology, but whose name and authority are eminent in Catholic circles, writes : * " The first right of all men is the right to life, and this life is inalienable and unassailable, unless man forfeits it by going against Divine and human legislation, and upsets all order of nature and society."^ If this is not tampering strongly with the law " Thou shalt not kill," I don't know what is. Still, to my knowledge, Capelmann's book has never been condemned by authorities in moral theology for that sentence.

It is a fact then, that, as regards capital punishment, the law es- tablished by God Himself, and particularly the law of nature, is not held as an immutable standard of good and evil. Nor has sound philosophy, or unadulterated Catholic philosophy ever set up an iron- bound law for the case on which we are engaged. To prove this, I shall content myself with some quotations from Lehmkuhl's afore- said book : " To cause abortion deliberately seems to be lawful when there is on hand a danger to the mother's life which can be warded off only by the ejection of the immature fetus."

Raising the question whether the causing of abortion is lawful in

• De Occisionc Foetus. Aachen, 1875, p. 23.

t Italics are mine.

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order to forestall the cesarian section, Lehmkuhl says : " No one is bound to put his own life in great danger to save another's, unless some other reason constrain him " ; and a little further on : " But, even should it be plain that the seven months' term can not be awaited, I think that as soon as it is evident that the fetus has grown so much that a further growth would become fatal to the mother, then it is lawful to cause abortion, but by no means before that time." Again : " But if other diseases are the cause of the mother's present danger, and the ejection of the fetus seems condu- cive to the mother's salvation, one must first use other remedies which afford some hope of saving the mother ; but, if these prove unavailing, then, as in the former case, abortion may be procured, if there is good hope of saving the mother, who would otherwise perish, pro- vided the hope of baptizing the child is not lessened by the abortion. For whether abortion is procured or not, the fetus shall certainly die immature ; in fact, there is danger of its dying before baptism can be administered ; whether this danger is greater or less, the doctor has to decide. If the fetus' ejection lessens this danger, it will be more lawful to eject it to save the mother. For then you have from the acceleration of childbirth a double beneficial effect: The removal of the danger to the mother's life, and the greater probability of con- ferring baptism."

A more brilliant justification I could not and do not wish for. In the las* lines quoted I have just what I have set forth as my own standpoint in this matter. Behold a true son of the Church, a

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famous Catholic divine, a man whom Prof. Vlaming will not consider lacking of sound philosophy, who shares my opinion that the precept ' Thou shalt not kill " must not be interpreted so narrowly as the Holy Office maintains, and who consequently must say that I am right in calling the Holy Office's decree narrow.

I could well afford to end with this the discussion of the moral side of the question. But it will be claimed that I quoted an old edition of Lehmkuhl's book. True, though that edition is only eleven years old, that what seemed lawful to him then, does no longer appear so to him now. Instead of the words given above, he has now : " Deliberately to cause abortion in a present danger to the mother's life, a danger which can be removed only by the ejection of the fetus, formerly seemed permissible to me ; but now we must deny that it is so, and it is not safe to act up to my former opinion, as will appear from a decree of the Holy Office which I shall give further on."

This proves nothing more than that Lehmkuhl is a very obedient son of the Church ; but it certainly does not justify Prof. Vlaming in speaking of an unchangeable law established by God Himself, as it is only in 1895 that the law has been so explained as to make un- lawful the abortion to save the mother's life. Honestly, I do not pre- tend to consider my personal opinion on moral subjects as final ; neither do I propose to accept as such the personal sentiment of the Holy Office, which, without meaning any offense, I can not qualify otherwise than a college of priests at Rome. I absolutely refuse to recognize such authority. I am totally indifferent to the decisions of

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the Holy Office in matters belonging merely to the moral and re- ligious domain. Not so when the Holy Office's decision encroaches upon my first duty as physician, to take care of the lives entrusted to me, and doubly so when the Roman congregation acts, as it were, out of respect for the natural life.

Accordingly, I hold it not only a right, but a duty, to declare my determination to resist it. I care not if Catholics blindly submit to the Holy Office's pronouncements. But mine is the freedom to defy such decisions, and to expose the harmful results they may have to the health and lives- of many women.

Let me point here to another pernicious result : The Catholic Church curtails the liberty not only of her own members, but also of outsiders. For the Catholic physician will not dare, as long as this decree obtains, to speak of the possibility of procuring abortion to any patient of his, regardless of her belief, not even in the case where the patient desires the operation on proper moral grounds, much less shall he dare to advise it, still much less to perform it.

Such is the natural consequence of the decree.

Yet I can assure my readers that there are many Catholic phy- sicians in Holland who concur in my judgment concerning the Holy Office's decree. I will not name any, and I care not if some do not take my word for it.

I now close my paper with an extract from Lehmkuhl's last edition, .which conveys the impression that he does not heartily bow to the Roman decision. Regarding the obliterated passages of the old

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edition quoted by me, I must say that abortion, there referred to, means craniotomy. Consequently there is no question here of passages of an old edition kept in the new by accident, but of a maturely con- sidered utterance which is pertinent here. Lehmkuhl holds : " As these cases, apart from Church pronouncements, are not so clear and evident, it may happen that the physician resorts to abortion or craniotomy in good faith, when otherwise the mother's condition is hopeless. Under such circumstances it lies with the priest's prudence to decide whether it is better to warn him or to pass the matter over in silence, if only the physician take care that the -fetus be baptized in the mother's womb ere he kills it with his instruments." *

Were Lehmkuhl really convinced that abortion is always for- bidden, always sinful, he would not leave the matter to the priest's prudence. Then he would have said : Should the physician be about to perform the operation in good faith, he must be forbidden to do so, and if he has already performed it, he should be punished

A few words on the juridical aspect of the question.

I say once more that I have not the least desire to see a Catholic priest go to jail, and in that respect the juridical side of the question does not concern me. I worded my first article as I did simply to obtain the views of the Dutch people or of their representatives.

I should have spoken of design, rather than of fault, I confess, but, unlike Prof. Vlaming, I am not a jurist. Again Prof. Vlaming

• Theol. Mor. ed. ix., i., 841 v. (Italics are Treub's.)

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is right in saying that in the literal sense the clergyman neither for- bids nor hinders aught by pointing to the duty of conscience pre- scribed by the Holy Office. But I called attention to the fact that the priest is here nothing else but the mouthpiece, or the tool, of the Holy Office. He is a conscious organ indeed, an agent endowed with free will and reason. Still, this being granted, I will also admit that, as far as the letter is concerned, there is neither forbidding nor hin- dering. But there is in reality. No one will maintain that a person brought up in a certain religion, remains altogether free in his judg- ment of the prescriptions of that religion. Education, instruction, and habit give the conscience of the Catholic, the Protestant, the Jew, and the freethinker, a peculiar bias. To prescribe and to recall to the mind a duty of conscience is really equivalent to forbidding or hinder- ing. On the basis of this argument, I hold the agent responsible for the precept. Still more significant than the foregoing question, is the query proposed to me by Prof. Vlaming, or rather his explicit contention, that deliberate abortion is before the Dutch law, under all circumstances, a misdemeanor.

Prof. Vlaming had no trouble to defeat me with the contention referred to above. It is an easy matter to prove by my own words, quoted from my published works, my admission that the letter of our Penal Code makes no exemption for medical abortion.

Yet my former writings leave no doubt that I have always held, and that I justly believe, that the penal lawmaker aimed to exempt

r

from prosecution the physician acting in accordance with the rules

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of his science. It is a mistake, in my opinion, that this aim has not been explicitly stated. Accordingly, it was a great joy to me that, upon proposing to remove from the penal law the inferred limita- tion (which makes the whole article illusory) that only abortion of the dead fetus is permissible, Minister Cort van der Linden desired it defined at the same time that abortion procured upon proper medical grounds shall not be punishable. The fact, however, that such ah erudite man as Prof. Vlaming writes down the aforesaid contention sufficiently shows that according to the letter of the law at present a physician, acting up to his duty, his conscience, and the canons of his art, runs the risk of being punished.

If the Christian interpretation is accepted, then the Penal Law is wrong in not consistently going further.

The penal legislator was unwilling to consistently go further, and thence follows, in my opinion, that the Christian interpretation can not be used as the basis of the Dutch Penal Code.

I don't wonder that Prof. Vlaming goes further. Of him I gladly say what I said about the Catholic Church decrees cited by him, that he has the courage of his convictions.

To prevent him, however, from showing by a display of his legal talent that I contradict myself, I emphatically declare that I am not at all convinced of the truth of his opinion. On the contrary, in the foregoing pages I strove to demonstrate that the Catholic Church and Prof. Vlaming have the courage of an unjust conviction.

Now, at last, we come to the medical aspect of the question.

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Whence the Holy Office derives its knowledge of this side of the question I am unaware, but I do know that Stohr's " Pastoral- Medizin"* which is generally used at present by the Catholic clergy of Holland, is a very poor source of knowledge. In it we read under the head of Abortion procured in cases of uncontrol- lable vomiting, the following : " Modern experience teaches that this procedure brings about the desired result only in one-half of the cases. "f This is decidedly untrue. By adding up all the cases in uncritical fashion, one may possibly reach such a figure. But all " accoucheurs " know that abortion no longer helps when ex- haustion has gone too far. Should one perform the operation only then, the bad result is not due to abortion, but to the untimely season at which it was produced. If abortion is caused in time, then the woman will almost certainly recover. Needless to say that it is extremely difficult to determine the right time.

That is why in my book on Obstetrics I recommended to hold a timely consultation with another physician.

The question whether the procuring of abortion is morally justi- fiable or not, arises not only when there is pernicious vomiting but also in other cases. Such is first the anomaly styled acute hy- dramnios, that is the presence of an abnormal amount of " the

• Handbuch der Pastor cd-Medisin von Aug. Stbhr, 4te Auflagc bearbeitet

von Dr. Kannamuller, Freiburg, 1900, p. 438.

t See *G. C. Nijhoff, Over Hyperemesis Gravidarum, Geneesk. Bidden, 1901, No. II.

THE RIGHT TO LIFE OF THE UNBORN CHILD.

waters." This trouble in a moderate degree is rather common, and amounts to nothing. When it develops slowly, it may reach a high degree without endangering the woman's life, and then one may at least await the period of viability, should this not as yet have been reached.

Rapidly developing hydramnios occurs generally in the early months of pregnancy. This is often a source of great danger to the woman's life, and here we have the same case as with exces- sive vomiting : when the woman dies, the fetus is lost ; but when abortion is procured, only the fetus, which would be lost in any case, dies, but the mother is surely saved. I will not bring forward in defense of the medical rule the fact that in case of hydramnios the child is often born deformed, immature, and unviable. My medical ethics, and not mine only, but those of every physician who does not hold himself bound by the decisions of the Holy Office are embodied in the following principle of my book on Obstetrics : " During the early months when the woman's life is really at stake, the life of the fetus is not to be reckoned with, as, in case of the mother's death, it, too, is invariably lost."

Needless to say that the Holy Office's decree holds good also for this case, and that, judged by it, my advice, which I consider in harmony with common sense, is altogether wrong. It will not do to reason as follows : " The woman's dangerous condition springs from the excessive quantity of amniotic fluid. By tapping that water, I save the woman's life. That this evacuation may be a

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

means of causing abortion is an adventitious result which I did not intend."

Still we come across such reasoning, although not unchal- lenged, for instance, on occasion of the second condition with which we have to deal, vis., the retro-displacement of the womb. In most cases we succeed (by drawing the water off) in bringing the womb back to its normal position, and when the doctor is called betimes, he can thus save both mother and child. Altogether false is Stohr's* contention : " Experience teaches that in these circum- stances the fetus never comes to maturity, but abortion is bound to follow in an early period, also -without the physician's intervention." To prove the falsity of this, I shall not give detailed statistics.! They who lack opportunity, or desire to examine the matter for themselves, and will not take my authority as " accoucheur," may obtain the same information from any other skilled obstetrician.

Stohr makes use of his wrong contention to attack the follow- ing rules of Capelmann (of which the italics are mine): "If all these means prove vain, if the womb resists all efforts to restore it to its place; if the emptying of the rectum, and particularly of the bladder, has been for some time absolutely impossible, if, moreover, there are symptoms of inflammation of the bladder and of the

• It is Kannamuller's view rather than Stohr's. The latter shared

Capelmann's view.

t Se^ Treub : Oorzaken van den dood bij incarceratio uteri gravidi retrofleci; also Ten Berge.

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l, then I consider it lawful to resort to the last means, the re- ducing of the womb to its normal size.

It seems to me that in this case all the requirements of right and morality are complied with. The mother is in direct and im- mediate danger of losing her life, and with her, or even before her, the fetus will die. All other means to save the mother's life have been tried, and no other salvation is left but to lessen the womb by drawing off " the waters." The direct and immediate effect of this diminution of the womb will be to make the replacing of the womb possible, and to rescue the mother from proximate danger of death, without necessarily first causing abortion. The good effect, i. c., the mother's recovery does not eventually follow from abortion, but it follows immediately from the diminution of the womb. Abortion, of course, follows from this tapping of " the waters," "although it was not intended."

Most frightful quibble is the only qualification we can give to the last part of Capelmann's argument where he owns that though he pierces the fetus-membrane, yet he does not intend to cause abortion.

Well grounded then is Stohr-Kannamuller's objection : " Direct abortion is not only that which is directly intended, but also that which is directly brought about." But Kannamuller might have spared us the foregoing contention. It is plain that, according to the decisions of the Holy Office, the procurement of abortion is forbidden also in that case.

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

But according to Stohr (Kannamiiller) this is not so serious. For he says : " I should under the given circumstances by all means perform the cesarian section which nowadays is made less danger- ous through antiseptic measures, thus replacing the womb (re- lieving the pressure) and probably saving both, mother and child."

The writer may now appeal to an authority in obstetrics, albeit many others could be brought forward against him. In order to put myself as much as possible on the standpoint of my opponents, I will betimes range myself with that authority. Kleinwachter* holds, since causing abortion by means of the probe, and more still by puncturing of the membrane, is a very dangerous measure, it is preferable to perform the cesarian section, and then to replace the womb from above. This sensible proposition made by Schwable, fourteen years ago, was first successfully carried out by Murdock Cameron. A like success in this operation attended Da Costa, Fry, Mann, McLean, Horer, Pinard, Kerr, and McLead.

I repeat, I'll not quarrel with Kleinwachter's utterance. At most, it appears from that citation that laparotomy has, in different cases, been successfully performed. Let us suppose that it was necessary in all those cases. Listen also to what Kleinwachter says right after the above : " If, however, consecutive inflammations have set in so that the expanded bladder is attached to the peri- toneum, then surgical operations are out of the question."

• Di Kunstliche Unterbrechung der Schivangerschaft, 3te Auflage, 1902,

P- 75-

THE RIGHT TO LIFE OF THE UNBORN CHILD.

Besides this possibility set forth by Kleinwachter, there are other cases where laparotomy would not only be much more danger- ous than the puncturing of the amniotic sac, but almost directly fatal, and where consequently no intelligent physician would want to undertake the operation. But this matters not; Kleinwachter himself owns that there are cases where the cesarian section is impossible, and then there is the alternative either to make an effort to save the woman through abortion or to let her and the fetus die.

In a hitherto unique case treated by Olshausen, the restoring of the displaced uterus was made impossible by a contraction of the entrance of the pelvis. He cured the woman by removing the pregnant womb.

This saving treatment is also unlawful according to the de- cision of the Holy Office. Stohr, however, says, rightly from his standpoint : " Our duties toward the budding life most strictly forbid direct killing, and especially the physiological and mechanical killing. By physiological killing, I understand the bringing about of abortion, as the fetus is thereby robbed of the requisites of life."

Such was altogether the case in the operation performed by Olshausen, as removing the pregnant womb from the body is evidently depriving the fetus of the necessaries to life. Also in this case the Holy Office would say : Rather let the mother and the fetus die, than save her by the " physiological killing " of the fetus.

The same holds good with regard to another diseased condition, viz., cancer of the womb. Recent experience teaches that the

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sooner the portion of the body attacked by cancer is removed, the greater is the chance of a radical cure of the trouble. Hence, with all surgeons the possibility of a radical operation on a cancerous tumor means the possibility to remove the growth. Experience has taught likewise that in cancer operations the removal of the whole infected organ (wherever possible) as a rule gives better results than the excisions of the tumor only. Thus, in case of a cancer of the breast, for instance, no surgeon will think of any- thing else than removing the whole pectoral muscle and lymphatic glands, where the seat of the disease lies. Exactly in the same manner do all gynecologists cut away the whole womb, in case of cancer of the neck of the uterus. What is to be done when preg- nancy occurs in a cancer-infected womb? Also about this not un- frequent case there exists a common opinion with present-day gynecologists.

If one discovers the cancer while it is still removable (radi- cally), one should operate as soon as possible, regardless of the stage of pregnancy. If, on the contrary, it is no longer possible radically to remove the cancer, one should not attempt anything which, while unavailing to save the mother, would endanger the life of the child.

Generally speaking, the first part of this rule clashes again with the decree of the Holy Office. When the cancerous womb is removed during the first seven months of pregnancy, the fetus is thereby deliberately sacrificed. There we have, just as in fore-

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going quoted instance of Olshausen, a physiological killing of the fetus, such as it is not customary to put under the head of abortion, but which ethically and physiologically in nowise differs from it.

Whether a decision of the Holy Office exist about this, I know not; but logic requires that it should forbid to the mother this saving operation. If I add that such cases are not rare, the severity of that decree becomes all the plainer. True, in some cases of this kind the child's life will be saved at the cost of the mother's life. Not often, however, as cancer frequently causes spontaneous abortion. Vulsteke, I confess, contradicts my argument. He says: " Even if the only and usual means of saving the mother in this case (of dangerous affection of the womb in normal pregnancy) were to remove the womb, one would be allowed to do so, despite the presence of the unviable child ; for then also we have an act in- different in itself, /. e., the removal of a diseased organ of the mother, which has two effects alike immediate in the order of causation the mother's cure and the child's death. But the latter is not a means to save the mother."

It is a pleasure to observe that nature gets with this writer the upper hand of the doctrine ; but he swerves widely both from logic and from the Holy Office. Two pages further back in his book, under the head of doing away with the unviable fetus in extra- uterine conception, he says : " Ordinarily the case will be this. It is physiologically impossible for that fetus to live in another place than where it is now unfortunately lodged; to withdraw it, is to

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cause the death of an unviable child it is a directly murderous act."

Is this reasoning not quite applicable to the removal of the pregnant cancerous womb? The killing is directly intended in one case as well as in the other, in order to save the mother's life, and the sentence, " Here the child's death is not a means to save the mother," I can not characterize any other way than a quibble.

When we look at the matter as it really stands, then it can not be .said that the fetus is killed accidentally. No ; the sacrificing of the fetal life is withal an integral part of the deed. Here, then, in the system of my opponents, Prof. Vlaming's words are quite to the point : " The ulterior object can not take away the intrinsic aim of an act." If they refuse to grant me this, then by a like sophism as Vulsteke uses, I can prove that it is lawful to remove the womb in case of pernicious vomiting, while causing abortion remains forbidden.

Such absurdities will, I trust, be beneath my opponents' notice, and, therefore, they will admit that I am right and that Vulsteke is wrong.

The same thing as for the cancer of the womb holds good in another case to be mentioned, viz., pregnancy in a womb in which are fibrqmyomata. This is a very common case. Fortunately, it does not necessarily cause any trouble or danger in pregnancy. Yet there are- not a few cases where during pregnancy, and be- cause of it, those tumors threaten the woman's life. Then operative

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

gynecology teaches that one can remove the tumor while leaving the pregnant womb. Every gynecologist of some experience has operated on such cases, and has eventually seen the child born at maturity. But every gynecologist comes also, now and then, across cases where, owing to prevailing conditions, this conservative opera- tion is no longer possible, and where the only means of salvation consists in removing the entire pregnant womb. At times the physician knows this beforehand; at other times this necessity will become obvious not before the beginning of the operation, and not until the abdominal cavity has been opened; sometimes again only after an incision has been made in the womb.

Here also, logically speaking, the Holy Office should come for- ward with its inflexible prohibition. Should the surgeon then de- tect the necessity of removing the pregnant womb in the course of the operation, he would have to stop short of it. Nor does it matter if it should become necessary to remove the womb to stanch the bleeding. According to the decree of the Holy Office, the doctor must let the woman bleed to death, for under no circumstances is any measure allowed which has for necessary consequence the ejection of the not viable fetus.* Thus we have already a long list of cases where the decrees of the Holy Office must conflict with the physician's efforts to save, at least, one of the lives at stake, and where two lives must be sacrificed to the obstinate main-

• Stohr, 1. c., p. 438.

Behandeling van eenen gcrupteerden Vruchtzak Ned. Tijdschrift voor Geneesk., 1901, p. 257.

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tenance and literal interpretation of the precept, " Thou shalt not kill."

Finally, there is still another condition with which I must deal, viz., extra-uterine pregnancy.

In this peculiar form of pregnancy the fetus has extremely little chance of reaching maturity. In most cases pregnancy is then stopped by the bursting of the fetus sac, or through a similar cause. Extra-uterine pregnancy is thus stopped generally in the beginning, sometimes only in the later stages. Coupled with this irregular pregnancy is a more or less serious bleeding of the abdominal cavity, which brings the woman into serious danger of death. From Dutch statistics it appears that in consequence of this bleeding in 331 cases, not less than 42 women succumbed. This means that extra-uterine pregnancy is fatal in 12.5 per cent, of all cases.

Hence Werth's view is generally adopted, i. e., extra-uterine pregnancy must be considered a malignant tumor, necessarily to be removed at once. Until quite recently I was one of the few who disagreed with Werth, especially because I accidentally succeeded twice in ushering into the world a living child at or near the term of extra-uterine pregnancy. One of these children is now a well developed boy of fourteen. I believed that in the later stages of pregnancy the life of the child should be reckoned with. In the face of above figures I can not adhere to my former opinion, be- cause .it is shown, furthermore, in these statistics, that through the puncturing of the fetus sac occurring after the fourth month of

77

THE RIGHT TO LIFE OF THE UNBORN CHILD.

pregnancy, the mortality runs up to fifty per cent. Therefore, I coincide with the view that " each case of diagnosed unpunctured extra-uterine pregnancy must be operated on as soon as possible," that consequently the fetus' life can not be considered. Here, then, we have a more serious conflict with the decrees of the Holy Office than the one which caused all this writing. For in that case both mother and child were doomed unless the operation was performed ; here, although the woman runs a twelve and five-tenths per cent, to a fifty per cent, danger to her life, there are chances of recovery, and it is even possible that the fetus may live. Precisely, there- fore, the Holy Office must adhere to its prohibition, and thus forbid that which all physicians consider necessary; it must require the woman to refuse all help, and to calmly suffer the probable fate of bleeding to death.

I had reached this conclusion as a logical result of the Holy Office's teaching. That my conjecture was correct I found out afterward, borne out by facts stated in the above quoted paper of Vulsteke. He cites a decision of the Holy Office, dated May 4, 1898, which determines that in case of extra-uterine pregnancy, doctors may, when compelled by necessity, perform laparotomy to extract from the mother's side the extra-uterine fetus, provided proper and conscientious care be taken of the lives of both mother and child as much as lies in their power.*

• Necessitate cogente licitam csse laparotomiam ad extrahendos e sinu

matris ectopicos conccptus, dummodo et foetus et matris vitae, quantum fieri potest, serio et opportune provideatur.

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

(That means that when the fetus is not viable, the cesarian section necessary to remove the extra-uterine fetus sac is not allowed. Note, by the Editor of the English translation.) That the operation is lawful when the fetus has become viable is self- evident, and required no decision of the Holy Office.

Thus the fact abides that according to the consistent mind of the Holy Office, it is forbidden to perform laparotomy just during that phase of extra-uterine pregnancy, when most women's lives could be saved, vis., during the first five months.

It is quite true that one will often remain in doubt whether one is dealing with an incipient extra-uterine pregnancy, complicated or not by a tumor. But what according to medical science justifies a quick operation is that one can not be sure of the existence of extra-uterine pregnancy. Could this be ascertained there would be no need of such hasty operating. The matter is not, then, ex- actly as Vulsteke states it : " One wants to cut out a tumor, and one finds out, but too late, that it is a fetus."

After the operation one may as well rejoice if such is found to be the case, for, if the fetus is alive, one can baptize it, and the mother is spared a great danger, whereas otherwise the fetus would probably have died without baptism. The fact is, however, that a physician can not exclude the suspicion of extra-uterine pregnancy, and, for the mother's sake, will even consider it as probably exist- ing. And, therefore, in operating he intends to remove the suspected extra-uterine fetus-sac, with the not yet viable progeny, in order

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

to rescue the mother from a serious danger. But, then, the Holy Office steps in with its strong arm, forbidding the undertaking of any operation with such intention.

The list of cases in which the Holy Office's views set at naught all human sentiment, all human reason, and all medical science, could easily be enlarged. But I will stop here. I believe that Dr. van Oppenraay is greatly mistaken in his expectation that the children spared through this severe interpretation will far exceed in number the few sacrificed mothers. If, through the decision, malicious abortion were hindered, he would be right. But one must be very unsophisticated to expect from it a result to which the Holy Office itself does not look forward, since it speaks only of abortion procured on medical grounds.

That the Holy Office forbids malignant abortion is self-evident, but that is not under discussion. The consequences of this severe decree can only be the following: i. That the patients aware of these facts will prefer non-Catholic physicians ; this would be sad, but not unlikely. 2. That Catholic doctors will not heed the pre- scriptions of the Holy Office, a very sad consequence in the esti- mation of Drs. van Oppenraay and Vlaming, but, in my judgment, a reason for congratulation and rejoicing. Or, finally, 3. That many women will be sacrificed, and thereby hardly ever a child's life saved. In my judgment, this is the saddest consequence of them all, and to forestall it, I have set out to attack the Holy Office's decree.

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

The Holy Office, over-anxiously clinging to the commandment, " Thou shalt not kill," has seen fit to promulgate an unwise decree, which has no other result than the sacrificing women's lives which could have been saved. That decree ought to be amended.

EDITOR'S NOTE. The unlawfulness of abortion does not date from 1895, but from the time of man's creation. A few theologians, no matter how eminent their learning and virtue, do not constitute, nor officially represent, the Church. This prudent and watchful Mother explicitly defines God's will (embodied in Divine revelation), only as circumstances call for such clear-cut statements.

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THE RIGHT TO LIFE OF THE UNBORN CHILD. NARROWNESS OR WHOLESOME CONSISTENCY.

BY DR. TH. M. VLAMING.*

The right over the child's life and death belongs neither to the father, nor to the mother, nor to the physician. Dr. A. Pinard.t

While bowing most respectfully to the learned writer of the fore- going paper, I take pleasure in resuming the debate. The more so because, after Prof. Treub's arguments and reflections, I need not rely any further on guessing, but his process of thinking lies broadly and plainly before me, and I am thus enabled to clear up, and de- fend more effectively than hitherto, this mooted point of ethics.

Honestly, I must confess, Prof. Treub has laid a heavy task upon me. Especially the medical part of his argument requires a somewhat extended answer.

On the other hand, Prof. Treub relieves us considerably by throw- ing out the law question, since he declares his unconcern regard- ing the juridical side of the matter. This is indeed a surprising statement, in as far as Prof. Treub published his protest in a law

• Under cooperation of Rev. R. van Oppenraay, S.J.

t Dr. A. Pinard, Professor of Obstetrics at Paris, in Du soi-disant Foeticide Therapeutique, Annales de Gynecologic, January, 1900.

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magazine. Moreover, because he submitted it in the shape of a proposed statute of law. We learn, however, that he did so be- cause he saw no other way to call forth the sentiment of the Dutch people, or of its representatives, but, even after vouchsafing this information, it remains somewhat strange that one should appeal to the Chambers for something about which one is not concerned, since the Chambers are not a tribunal for the deciding in disputes on ethics or medicine, but a legislative assembly.

At all events, I cheerfully note his declaration, and I hope the Chambers will do likewise, as we shall then be spared an extraordi- nary law, which its sponsor claims he did not propose in earnest.

My part* of this answer to Prof. Treub can conveniently be reduced to three points, which I shall at once indicate here, viz.:

1. To give attention to Prof. Treub's chief polemical ob- servations.

2. To point out the exact sense of the decision of the Holy Office objected to by Prof. Treub, and to define the influence it must exert on medical practice.

3. To maintain and vindicate this decision in its true mean- ing, claiming it to be the logical and wholesome result of the principles held by us in common.

Thus I hope to demonstrate once more the unjust and illogical position taken in this matter by Prof. Treub.

• At Dr. van Oppenraay's request I will insert his replies to Prof.

Treub's argument in suitable places here and there in my own article.

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THE RIGHT TO LIFE OF THE UNBORN CHILD. I. POLEMICAL OBSERVATIONS.

First of all, my esteemed opponent is displeased because I put him, as he claims, in an undeservedly bad light by quoting his phrase Moloch-worship. However much we appreciate that it was not Prof. Treub's intention to charge our religion thus, it, nevertheless, amounts to the same, because it is part of our religion to accept in their fullest sense the decisions of the Holy Office.

Pius IX. wrote to the Archbishop of Munich-Freising, on the occasion of the recent Assembly of German Theologians: " For well-meaning Catholics it is not sufficient to accept and respect the dogmas of the Church, but it is also necessary to submit to the de- crees of the Papal Congregations in matters of doctrine, as also to those points of doctrine which, in virtue of universal and constant agreement among Catholics, have been held as theological truths, with such obedience that opinions running counter to them, while not deserving the name heretical, are, nevertheless, deserving of censure."* If I did not fear Prof. Treub's charge against me of a certain cleverness, I should mention here again that he himself saw at one time in our Moloch-worship a consequence of the Chris- tian understanding of morality a consequence which he now opines ought to be rejected. Besides, I note, Prof. Treub insists

• Latin text in Denzinger's Enchiridion Symbolorum et Definitionum, No.

1537- Cfr. Granderath, S.J., "Die Machtvollkommenheit dcr Rom. Con- gregationen bei Lehrdecreten, in Zeitschrift fur Kath. Theol., Innsbruck," 1895, p. 630 and following.

NARROWNESS OR WHOLESOME CONSISTENCY.

on restricting the term " conglomeration of cells " to the fetus in the first stages of pregnancy. I sincerely regret that I mis- construed the writer's meaning by overlooking this in a first read- ing. But it is unconceivable to me how this mistake of mine can be taken as an accusation by Prof. Treub, who, whenever he deems it necessary, gives no more right to a fetus of the later months than to that of the earlier ones, and does not even stop at the (to him) revolting craniotomy, which, in Pinard's judgment, is condemned " without appeal."*

I hold it a great advantage that Prof. Treub cares not about the stupid unjust-aggressor argument. How could I know this, as I sought in vain for some argument in his first article? I am really glad that, in my guessing, I guessed wrongly there. But it seems strange to me that the fetus' innocence in case of pernicious vomit- ing is not placed above all doubt by Prof. Treub.

Again, he thinks that I wronged him by calling his definition of " medical abortion " a broad one. It appears I should have thus qualified the definition in connection with its general application. If I understand it rightly, Prof. Treub, by illustrating the applica- tion, means to throw light upon his definition, and to show in par- ticular what are good grounds for stopping pregnancy of which the definition speaks only in general. But, then, I am not really wronging him by styling the definition a broad one, broad, namely, in its ap-

• Df I'Avortement medicalement provoque. Annales de Gynecologic,

January, 1899.

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plications authorized by the definer himself. And this application had to appear very broad to me, acquainted, as I am, with Prof. Treub's Leerboek der Verloskunde (1897), (Text-book on Obstetrics), in which he teaches that the pregnant woman be left peacefully to choose between abortion and cesarian section; I was not, however, aware of his article published a few years later in Aertzlichc Rundschau (1900), in which he no longer leaves this choice to the pregnant woman.

And whatever store I set by his exhortations to prudence in diagnosing, I could not help seeing in it a warning that once medical abortion shall be considered lawful, we shall run the risk of un- necessarily resorting to it. Therefore, I was justified in pointing out the threat to the fetus' right to live, contained in the permis- sibility of medical abortion.

I perused Prof. Treub's proud and strong protest against ac- cepting as infallible the personal sentiment of the Holy Office and his refusal to recognize such an authority. Naturally, I can not but regret that Prof. Treub can not conform his judgment to that of the Holy Office; I am sure it would not tend to his dishonor if, in questions of morality, he should respect so competent a tribunal ; but there is no question here of forcing that judgment upon him. We demand, however, the inalienable right of liberty regarding our convictions. And as the professor impugned this liberty in his article, he has put us upon the defensive.

Now a few polemical observations on my part.

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NARROWNESS OR WHOLESOME CONSISTENCY.

When Prof. Treub comments on the juridical side of the ques- tion, he ascribes to me the desire to make the procuring of abortion, under all circumstances, punishable by law. Hence some might think that it is less Prof. Treub than myself who puts himself for- ward as a lawmaker.

This is a misunderstanding. Although the sentences I used, taken by themselves, would warrant Prof. Treub in ascribing such an intention to me, it appears sufficiently from the pre- vious and following remarks that I was not an assailant but a de- fender, and that I merely wanted to show that neither law nor law- interpretation could give Prof. Treub the right to accuse our priests of placing themselves above the law by forbidding abortion. For this reason I endeavored to bring out the fact that even medical abortion can but barely avoid to clash with our penal law, because it is very hard to sustain an unwritten definition such as appealed to by jurists in its behalf. From this explanation it is evident that neither my contention nor its application were quite grasped by Prof. Treub. Another remark on the professor's opinion and on his appreciation of the manner of my defense: I do not see why there can be no question of a debate between us, and how we should be placed in two different standpoints. For, although it seems left to us Catholics exclusively to take up the cudgels for the inviolability both of God's dominion over life and death, and of the fetus' right to live; and although this twofold right is strongly confirmed by Divine revelation, and, for all true Catholics,

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also by the pronouncements of Church authority the question we are dealing with is not a specially Christian, and much less a specifically Roman question. For the fetus' right to live, now at- tacked, is a natural right, a right whose inviolability is based by Dr. van Oppenraay and myself on the principles of natural and com- monly accepted morality,* principles which are also, I am sure, ac- cepted by Prof. Treub, and which, consequently, do indeed give us a common ground.

And since the weapons with which we are fighting consist for both of the same dialectics, the crossing of swords is made quite possible. Hence I beg leave to observe that the quaint illustration used by Prof. Treub is not a suitable one.

Should a combat, nevertheless, appear impossible, it can be only because the professor refuses to his opponents the right to turn against him the sword of logic, the weapon which he himself wields to the best of his ability. It seems a fact, that whenever his op- ponents strive to draw logical conclusions from principles, he re- jects them as philosophical " speculations," and if they try to illus- trate and corroborate their conclusions by analogy with other cases,

• These principles are: I. One may not kill the innocent. 2. One must

respect also the life in the womb. 3. The end does not justify the means. Cfr. Dr. van Oppenraay, above. Concerning No. 2, I believe to have certain knowledge that Prof. Treub really is what Dr. van Oppenraay calls him, namely, the " fierce enemy of unscrupulous abortion." Even that case of the two persons drowning is not so arbitrary as some might think. As late as 1884 Lord Coleridge, Chief Justice of England, sentenced to punish- ment two survivors of a shipwreck, who. in order to save themselves, had attacked the life of a comrade, whose condition had been altogether hopeless.

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whether of real occurrence or of arbitrary though not impossible supposition, he tells us that arbitrary statements of cases seem to him of little use, either to defend or to impugn a principle, and, finally, where, in order to apply the commandment " Thou shalt not kill " with due circumspection, trying to prevent the child from being thrown overboard, we make sharp distinctions between cases seemingly alike, but not so in reality, there Prof. Treub styles our argument as quibble.

Nevertheless, I venture again upon the arena, and I begin by in- quiring about the

II. MEANING AND SCOPE OF THE DECREE.

In 1895 the Holy Office condemned the procurement of abortion, i. e., the ejection of the living fetus at a time when it can not live outside the womb. This condemnation applied to all cases ; also such where medical science sees in it the only means to save the pregnant mother who is (with her fetus) in danger of death.

The ground for this condemnation appears from comparison with a like decision given in 1889: The Holy Office sees in it an operatic directe occisiva foetus (a direct killing of the unborn child), thus a direct transgression of the natural universal moral law, " Thou shalt not kill."* By using the word direct, the Holy Office lets us

• We know the natural moral law from. our sound reason {recta ratio).

Refer to my citation of Lactantius-Cicero, above. The ten commandments are, it is true, the setting forth and the positive promulgation of the chief principles of the natural moral law, but they neither constitute that law nor do they embody the whole of it. This is my answer to Prof. Treub's query as to the extent of natural law.

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infer that there may be operations which, albeit likewise deadly for the fetus, cause death only indirectly, and are, therefore, not ab- solutely forbidden.

What is meant by killing some one directly, and what by killing him indirectly ?

I kill somebody directly by doing something which necessarily has either his death, or, at least, his impossibility to live, for imme- diate consequence.

I kill a person indirectly by doing something which has some- thing quite different for immediate consequence, although in the long run his death, or his impossibility to live, must needs follow from my deed; in other words, I kill him indirectly by doing some- thing of which death is only a remote consequence.

Thus I kill a born man directly by giving him an outright deadly blow, or by doing something else which brings him immediately into the absolute impossibility of living; for instance, by poisoning him, by fatally wounding him, or by depriving him of the air neces- sary for existence (by drowning or asphyxiating).

I kill the unborn human being directly, firstly, by every opera- tion which kills him outright, such as craniotomy and the like; but then also by withdrawing him from the medium which by nature*

• I say by nature, for under No. 3 I shall speak of the adventitious

circumstances that in certain diseases make it really impossible for the fetus to live, i. e., that is of the invalidity of its right to live, upon which Prof. Treub builds his strongest attacks.

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is for him the only possible and preliminary* means to keep alive, viz., by withdrawing him from the mother's womb, more definitely from the fetus-sac and the amniotic fluid ; in other words, I kill the unborn fetus directly by bringing it outside the womb, whether or not by preliminary piercing of the membrane, then also by removing it from the mother's side before it is viable, in case of extra-uterine pregnancy.

In the cases mentioned above by Prof. Treub, the utterances of the Holy Office are, indeed, applicable, where there is in them really an operatio directe occisiva foetus, i. e., an operation which has as direct consequence the fetus' death, or its impossibility to live. As regards the direct-killing character of the puncturing of the amnio, I am happy to say that I, and Stohr as well, perfectly agree with Prof. Treub, and I hold the latter's castigation meted out to Capelmann as well deserved indeed, and in my turn I am glad to observe that, to use the language of Prof. Treub, theological ethics here join hands with medical ethics. Among the operations spoken of by Prof. Treub, there are some which are only indirectly fatal, to which accordingly the decisions of the Holy Office do not extend. I mean all those operations which are performed not directly on the fetus, but on the mother's diseased organs, with a view of saving her life by removing such affected organs. Such operations per-

• I say preliminary for, just as with the born man, one must hold the

idea of direct killing independent from the greater or smaller chances of the duration and further development of the life which is assailed.

THE RIGHT TO LIFE OF THE UNBORN CHILD.

formed also on the pregnant womb are, although through them the fetus' life is lost, allowed, according to the principles of a reason- able morality, as they are not a direct killing of the fetus. This utterance is a conclusion of the rule of ethics that man is not in every case responsible for the unavoidable fatal consequences of a deed which, taken by itself, is moral and good, provided that, on the one hand, the good effect that may be expected from the deed at least counterbalances the evil effect unavoidably entailed in the result, and provided that, on the other hand, one neither seeks nor immediately intends this evil effect. Under such conditions one may simply allow the unavoidable fatal consequence to happen by performing the lawful deed and intending its good effect. Were this not permitted, and were one obliged to abstain from a worthy deed, that has indirectly a harmful effect, then many of the most important works would have to be left undone, as, v. g., exploring expeditions, manufacturing under unhealthy conditions, mining, going to war for a good cause, etc. ; then no one should even venture to enter upon the practice of medicine, because in the practice of it every physician is liable to make a mistake that may prove fatal to some patient.

To prevent any one from rejecting as evasive my distinction be- tween direct (ever unlawful) and indirect (lawful for sufficient reasons) killing, I shall give some examples which bear directly upon our subject, and in which such distinctions will be allowed by every reasonable man.

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Suppose that in a lawful war the party that is in the right is compelled, by strategic necessity to blow up a certain fort. None will condemn in general the resorting to this strategic measure, albeit, he knows that there are in that fort defenseless women and chil- dren, who are thereby indirectly sacrificed. Yet everybody will rightly condemn the soldier who abuses the opportunities of war to murder wantonly the enemy's defenseless women and children. A man like Krueger must have foreseen the mortality of children in the Boer camps ; and yet who will blame him for having, in spite of that, declared war when he thought it necessary to preserve the liberty of his people? One could multiply examples in which ex- actly the same principle is applicable, as also in the case in which a mother, for instance, may take a medicine against a dangerous illness, or submit to a necessary surgical operation, even of the womb, although her fetus indirectly dies through it, provided the medicine, or the operation, does not directly assail the natural requisites for the fetus' life, but only the diseased organ, or organism, of the mother. From that distinction follows that I must give right to Vulsteke over Prof. Treub, that a pregnant woman's cancerous womb may be removed to save her threatened life, as the fetus is thereby killed only indirectly. The same holds good in regard to the case treated by Olshausen, i. e., retro-position of the womb and impossibility of replacing it, as also of the womb with fibromyomata. The con- clusion of Prof. Treub that he might just as well remove the womb, in a case of uncontrollable vomiting, thereby causing abortion, is

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wrong. Why ? Because in this case the womb itself does not cause the danger of death, and therapeutics do not, in this case, prescribe the removal of that organ. The removal of that not dangerously diseased, perhaps even perfectly healthy, organ, for the removing of which there is no cause in the organ itself, would amount not only to indirect but to the direct murdering of the fetus.

The fact is, if one will deal with these matters according to principle, one must sharply distinguish case from case.

Dr. Berend's essay has thrown light on the incorrectness of Vulsteke's view regarding the case of a tumor exterior to the womb, the true character of which tumor (as to whether extra-uterine pregnancy or not) can not be diagnosed with certainty. Here, I think, one must hold that, as long as the tumor is not in itself danger- ous to the woman's life, by its too quick growth, or its untoward seat (with a view to pregnancy), one may not perform the operation. Otherwise the surgical intervention would serve, not definitely to cut out a simple tumor, but to remove a fetus possibly lodged therein ; consequently, the operation would be intended as directly murderous to the offspring.

From the foregoing distinction it is clear that the alarm given by Prof. Treub, as though many women were being sacrificed to the Holy Office's decision, is, to a great extent, a false alarm. I sincerely hope that, in order to quiet some minds unduly excited through the rumor of our controversy, some physician will draw up statistics of the cases in which abortion directly procured, according to the

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rules of medical science, has really saved the lives of women. From my own casual observations I have acquired the conviction that both our Catholic women, and our Catholic doctors, will extremely seldom be placed before the dangerous choice between their hearts and their consciences. To substantiate my assertion, I refer to Dr. NijhofFs article in this year's Geneeskundige Bidden (Medical Journal), which Prof. Treub has quoted. We read there, precisely concerning the sickness so much in evidence throughout this dis- cussion, viz., pernicious vomiting, how obstetricians, such as Schauta, Frank, and Naquet, congratulated themselves on never having been compelled to procure abortion on account of uncontrollable vomit- ing. And another professor knows of but two cases in his long practice where abortion had a favorable effect* in this trouble.

• In regard to the more or less favorable effect of deliberate abortion in

cases of excessive vomiting, Prof. Treub vehemently gainsays Stohr's state- ment that the result of this operation is favorable in not more than one- half of all cases. On this score the professor stigmatizes Stohr's book as a very poor source of information. I must say, without disparaging Treub's authority, that, even were timely abortion a well-nigh certain cure for per- nicious vomiting, he seems unduly severe toward Stohr, as far as his sentence rests upon that argument. True, Prof. Nijhoff writes that the number of such patients cured through deliberate abortion is very great. Now, the difference between one-half of all cases, and a very large number, is not so striking, *he more so, because the same doctor assures us such reports are not made very critically, since favorable cases are eagerly published, whereas the others are seldom mentioned.

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THE RIGHT TO LIFE OF THE UNBORN CHILD.

III. THE DECREE OF THE HOLY OFFICE MAINTAINED AND DEFENDED.

Prof. Treub remarks : " Paraphrasing the commandment ' Thou shalt not kill ' and the maxim ' One can not do evil that good may come of it ' in nowise proves to my satisfaction the reasonableness of the Holy Office's decree. Yet such is the only weapon used by Drs. Vlaming and von Oppenraay to drive me from the stand I have taken."

In speaking thus our honorable adversary overlooks two things : i. That also in a fight with the pen quality counts more than quantity. 2. That our common sense tells us that where a principle appears self-evident from reason, the logical consequences of that principle (call them paraphrases or whatever you please) must also be admitted to be self-evident. To escape this necessity, one must show either that a certain conclusion has been drawn incor- rectly, or that a specific case evidently lies outside the reasonable application of the principle. The latter is demonstrated by those who claim that killing in self-defense, in a just war, and, in case of capital punishment, are manifest exceptions to the commandment " Thou shalt not kill." These limitations are based on maxims of the same natural law, dictated by the same sound reason which proclaims the principle " Thou shalt not kill." Or, rather, the law of nature, Holy Writ, and Canon law combine in teaching that this prohibition refers only to the killing of an innocent man and per-

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petrated on private authority. Therefore, Prof. Treub is wrong in charging us with inconsistency for excepting from that precept the case of lawful self-defense, and of capital punishment inflicted by lawful public authority.

But what right have Prof. Treub and his disciples to widen the limitations of this principle? Is it necessary to prove that the unborn man is innocent and not an unjust aggressor? And is not the operation we are discussing a direct killing of the fetus? To what sound principle can the professor appeal to show that here the propriety of killing an innocent man, instead of being against reason, is self-evident by reason? Can he bring forward a counter- principle, on account of which the law " Thou shalt not kill " should be limited according to his wish ?

Like many others, my honored opponent has really attempted to do so. But the reasons which he alleged as based on principle, can not bear careful examination. Not one of them is sound; none can serve as a constant standard of morality. Nobody, not even the very men who bring them forward, would dream of applying them, except to the single case for which they are put forth. They would never think of using those arguments to justify, under similar circumstances, the killing of an extra-uterine life, of a child on the mother's lap. This alone manifests the intrinsic weakness of their position ; it is clear that theirs are but arguments for expediency, deemed good enough to assail the life of the fetus that is still puny and out of the mother's sight, but not good enough to attack the

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life of the little one whose twinkling eyes have kindled a light upon the mother's face. The truth of this fact will appear from my further observation on the professor's arguments.

" In my judgment," quoth he, " the life of a woman, the mis- tress of the house, and still more the mother of a family, is of greater value than the life of a three months' fetus."

Were it a matter of mere sentiment, I would fain coincide with him. If, in the course of nature, there is a chance of saving but one of the two lives, I should wish with all my heart that the chance favor the mother. But we must debate with arguments of reason, and not with such of the heart. Accordingly, I must reject the argument of the greater worth of the mother's life as irrelevant, and unsupported by principle.

Firstly, the greater worth might thus be viewed physiologically: mother = a fully developed human being, and thus a subject of the law; fetus = a mere conglomeration of cells, and thus not a sub- ject of the law. Surely, if this view of the fetus may exert in- fluence on the respect or non-respect for its existence, then I can not see why the mother could not, for certain other reasons, some- times very urgent, have that cell-mass removed; then I can not conceive on what moral grounds Prof. Treub regards any kind of abortion as wrong.

I presume, however, that Prof. Treub has gauged the mother's greater value socially, as a member of society. But, then, I answer, with the professor's famous colleague of Paris, Dr. Pinard : " To

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discuss from an economical or social view-point the difference in value of the life of the mother and that of the child is simply monstrous."* In fact, to what extremes would not the approving of such a difference lead ? A pertinent illustration, which may, better than ordinary reasoning, open my opponent's eyes, is an incident which occurred in Russia a few years ago.f During a severe winter, a farmer, seated on a wagon with his wife and children, was driving through a large forest. The howling of the wolves was heard in the distance, and it came nearer and nearer. Suddenly a pack of hungry wolves appeared, following the vehicle. The farmer drove on faster, but the brutes gained on him.. It was a desperate task for the span to keep out of their reach. Finally they catch up with the wagon. What is to be done? The next moment the wolves will jump on the vehicle, and then the fate of the whole family is sealed. The frightened children crouch by their trembling mother. Suddenly the farmer, driven to despair, seizes one of the little ones and flings it among the pack of wolves, hoping that, by yielding one, he may save the rest. The hungry beasts stop a few moments to fight over their prey. But soon they are in hot pursuit again, fiercer because they have tasted blood. A second child is thrown to them, and, after a while, a third and a fourth. By this time the village was reached and the peril was past.

• Du soi-disant Feticide Therapeutique. Annales de Gynecologic,

January, 1900.

t Ccppens, S.J., Moral Principles and Medical Practice, New York, p. 72.

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Safe at home with his wife, the peasant felt no remorse of con- science. He had done no worse than saved the more valuable lives of himself and his consort.

Dudley and Stevens, the shipwrecked men spoken of before, laid the same flattering unction to their souls when, after seventeen days of starvation on the yacht Mignonette, they finally, turning canni- bals, attacked their much younger companion, then defenseless from exhaustion. He was single, while they were fathers of families. We learned above that Judge Coleridge declared their conduct in- human. Prof. Treub goes further : " In our case the fetus is lost in either event, and its right to live is no longer of any interest to it. ... No partiality is shown to a supposedly more valuable life, but to the only life which still can be saved. The other can not be saved, and has no value."

Thus he emphasizes the worthlessness of the fetal life in our case. That this argument has most weight with the champions of medical abortion is evidenced also in the writings of the other- wise conservative Dr. Pinard. Nevertheless, he wrote down as a fundamental article of his medical profession of faith, the words used for our motto : " The right of life and death over the child belongs neither to the father, nor to the mother, nor to the doctor." The child's right to live is sacred and inviolable ; no power can take it from him;* but, we must also notice, the French pro- fessor fails to see the sophism in his following words : " In these

• L. c.

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circumstances, then (such as in our case), the obstetrician has, by all means, the right and the duty to intervene to save, at least, the only existence whose salvation is possible. I want to emphasize my use of the word save, and I insist upon this word, as it gives the opera- tion an altogether different meaning from what it generally re- ceives. With many people, medical abortion signifies destruction sacrifice of the fetus. Words fail me to repudiate that deed. Keep- ing within the rules I set forth, by stopping the pregnancy, the accoucheur does not sacrifice the fetus in order to save the mother. He does not sacrifice the fetus, because it is irredeemably doomed whether the operation takes place or not, but the operation saves the mother's life at least, whereas, without the operation, she would perish with the fetus."* The great gynecologist believes to have thus demonstrated that procuring abortion in our case is not killing the fetus : " I showed that in therapeutic abortion, the only lawful one, the obstetrician strives to save the mother but does not cause the death of the child."f

Thus, in our case, the fetus is not killed, " because, whether or not intervention takes place, it is doomed," or, to let Prof. Treub speak again : " He is not guilty of killing who, in our case, sacrifices a little sooner the fetus which is positively lost." That amounts to

• De I'Avortement Therapeutique. Annales de Gynecologic, January,

1899-

Vindication de I'Operation Cesarienne. Congres period, internation. de Gynecologic et d'Obstetrique. Amsterdam, 1899.

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setting up the principle: When a person has no chance to live, an- other may freely dispose of his right to live.

They who, believing that God is the Supreme Lord and Arbiter of life and death, hold also that He alone has the right to take life, will ask at once how Prof. Treub and his disciples justify this pro- posed transfer of authority over life and death. Aye, even they who, while indifferent to their Maker's sovereignty, nevertheless still recognize the rights of man, even they will ask by what right a man, on his own or a third party's behalf, can assume the authority to dispose of the right of another, though it may have become value- less.

But rather than enlarge upon philosophical speculations, I shall inquire at once whether the advocates of this principle are willing to admit all its consequences ? If they are, then the validity of the prin- ciple will still be open for discussion. If not, then also the principle is disavowed by them, and it can not, therefore, be applied to our case. I venture to suppose the latter, and I put forth the follow- ing queries : Suppose there are on board of a ship some pest-stricken persons in a hopeless condition, thus " doomed " and " positively lost." Would you say the ship's physician or captain would do right in throwing those living victims into the sea in order to prevent others from becoming contaminated ?

Again suppose, that after a battle a number of wounded soldiers are lying on the field " doomed " and " positively lost." For strategic purposes it is imperative to do away with every trace

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of the engagement, and thus also with the wounded. It is found impossible to carry them along. Besides there is no time to lose. Would you not charge with inhumanity the general who, to do away with these mortally wounded would give them the finishing blow ?

Take up once more the example given by Dr. van Oppenraay. Prof. Treub, it is true, denies its relevancy, but wrongly. For in both cases, A and X, the mother has the choice whether there shall be one corpse or two. " Whether this necessity spring from a law of nature, or from an irresistible deed of a third party, can make no difference whatsoever," so Dr. van Oppenraay himself writes to me.

Finally, suppose a case (summing up all the others) where a doctor sees a positively doomed patient suffer untold pangs. Would you justify him if, in order to deliver the sufferer from his pains, he should, to soothe his pain, give him a deadly dose of morphine, so as to hasten his death ?

I could multiply such instances, and ask whether you admit the consequences of the principle you laid down. But I will not further importune Prof. Treub. The cases cited are plain enough.

Perhaps it may be objected: Such a general principle, as you shift upon us, is not ours. We hold that the authority to dispose of a life which has become worthless, I. Refers only to a fetal life; 2. That it belongs to the physician alone; 3. And then only if required in order to save the mother's life. I beg leave to reply that ea-Ji of these three limitations is quite arbitrary.

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Only the fetal life. Why that alone? For there is no ma- terial difference between fetal and non-fetal. Prof. Pinard himself says : " From the moment a child is conceived, no one has the right to hinder its development ; the obstetrician is always and everywhere bound to protect it, as well as its mother."* Again, if one does not yet consider the fetus as a real human being, on what grounds of morality can one oppose the destruction of its existence in certain other cases, particularly in a case where the mother will hazard the loss of her honor and reputation, and, perhaps, also (through adul- terous conception) of husband and home ? He who dares to proclaim as right such view of the fetal life unwittingly gives a mighty support to certain now justly censured practitioners.

Therefore, since no sound reason can be adduced for the limitation " only for the fetal life," one must drop it, and, consequently, the oft- quoted principle, too, unless one wishes to give it free rein for any and every life that has become worthless, not excepting the extra- uterine life, the life of a child on the mother's lap, nay, not even the life of the grown-up man.

Next, " this right of disposal is," quoth our opponents, " re- served to the doctor." But why, in emergencies, not also to others ? To others to whom, just as much as to the physician, the care of human beings is entrusted, captains of ships, military authorities, etc.? Why may not they, too, in extreme cases, such as indicated above, dispose of " positively doomed " lives by a death blow, and

• L.c.

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thus, from their point of view, save what may still be saved? He who can not answer this query is unable to maintain that, as Naegele contends, the right over life and death belongs in parturition to the doctor.

Then why " only in childbirth " is that right claimed for the doctor ? Why not also, as we asked above, to put a doomed patient out of suffering? It seems to me that, once the end may justify the means, it would be more reasonable to dispose of a worthless right to live for the supposed benefit of the owner himself, rather than in behalf of others.

As long as our adversaries do not satisfactorily answer this query, which is growing lengthy and, perhaps, wearisome, but was forced upon us by sound logic, we reject the theory of the greater worth of the mother's life and of the worthlessness of the fetus' right as groundless reasons for allowing abortion ;* and all there is left to our opponents is to retreat to the excuse of expediency.

In the long run, Prof. Treub does not hesitate to take this stand-

• The same holds good in regard to the appeal to the so-called clash

of rights, even though we should grant Prof. Treub that such really obtains in the case. But I do not grant this. A clash of rights in the true sense of the word can not, in my opinion, be aught but the moral right of two or more persons to claim quite simultaneously one and the same object (of right). There is no question of such a thing in our case. Here each of both claimants has, and retains, a claim to his own life, thus, to an object separately and exclusively his own. Nevertheless, as I said, even if we understood the term in the sense of our opponents, the appeal to a collision of rights is not valid, as it is not based on principle, and not warranting its logical con- sequences.

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point. " For those who admit that there is an absolute right, I will grant that my deed is a deed of expediency and not of absolute right." Let us see how he attempts to justify this standpoint.

First of all, if ever, here would hold the axiom " supreme right is supreme wrong." In the face of most of the cases alleged (which in tendency are perfectly alike, the Russian peasant, the cannibals, Dudley and Stevens, the pest-stricken seafarers), the appeal to Cicero's old adage is all too easy, and we say right out : " Qui nimis probat, nihil probat " = " Who proves too much proves nothing."

What seems of more importance is Prof. Treub's appeal to what is held as legitimate practice by all physicians, in cases of cancer on the neck of the womb toward the end of pregnancy. Prof. Treub sets forth the case as though the cesarian section, then performed, were also an act of expediency, an act through which, in reversal of our case, the mother is killed to save the child. Let me declare at once that if the cesarian section were in that case as certain a killing of the mother as the deliberate abortion is in regard to the fetus, it also would have to be condemned as breaking the com- mandment " Thou shalt not kill," and as an application of the per- nicious teaching " The end justifies the means."* I say if, for, with all respect for Prof. Treub's knowledge, I would ask him to answer, after due deliberation, the question: Would the cesarian section

• Cfr. Lehmkuhl, ed. ix., ii., p. 58, note I.

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in such a case entail the certain killing, or the certain hastening of the death, of the mother ? That the operation involves the increase of danger, thus possibly accelerating the mother's death, I understand perfectly well, but is there no likelihood of the operation resulting as usual ? If so, then the operation is not a positive and certain killing of the mother, but it only brings her in more or less danger of death. Now, to expose one's self or another to a danger, even a great danger to life, is not the same as causing certain death, such as deliberate abortion does. And, according to a generally accepted and applied rule of morality, one may, for grave and sufficient reasons, expose one's self, and also another, in our case the mother, to a danger of death, though it remains true that one may not wilfully inflict certain death. In the case proposed by Prof. Treub, there would, most likely, be an obligation both for the mother and for the doctor to let the operation be performed ; and, consequently, this obligation would justify the deed.

On the medical answer to this question depends the morality of the cesarian section. Should it be an absolutely certain and direct killing of the mother, then it would be one of those deeds of ex- pediency which are justly to be condemned. If it is not an absolutely certain and direct killing of the mother, then the deed is in keeping with the principles of sound morality, and, accordingly, it is alto- gether unlike deliberate abortion, which we condemn.

The foregoing remarks cover, I believe, all the arguments and strictures of Prof. Treub. Though I do not expect to have con-

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verted him, I cherish some hope of having convinced him that the matter is not so simple as he first represented it, and that he wrongly called the Holy Office's view " narrow," in the sense in which he intended it.

The general charge of narrowness would not have stirred us to protest, being accustomed to biased and uncharitable criticism of our faith and morals. But Prof. Treub sees in our defense of the fetus' right to live a violation of the woman's right to live; and, turning the tables, he points to us as breakers of the commandment " Thou shalt not kill," as offenders whose narrow religious views lead to the unnecessary and criminal sacrifice of lives of house- wives and mothers. Furthermore, he denies to our views all plausi- bility and all right to exist, and by his whole attitude he seems to demand that the law shall recognize his view in this matter as the only correct, incontrovertible, and safe one.

Against this pretension I confidently appeal to the judgment even of those who neither respect the authority of the Holy Office nor accept our arguments as entirely convincing. I trust that they also, after weighing our proofs and our replies to the arguments and strictures of our opponents, will see that Prof. Treub has no right to assume such a positive attitude as he did in his first article, and that they will acknowledge that the Catholic view has, at least, an equal title to acceptance.

On the other hand, the assurance and positiveness of Prof. Treub can hardly be squared with the fact that, even in the medical world,

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the opinion touching the lawfulness of abortion has been settled only during these last fifty years. " The procuring of abortion has probably been unknown or rejected after Aetius, a physician of the fifth century of our era, indicated the means, for we do not see it advised in later works, and it had fallen into oblivion, when, in the course of the last century, W. Cooper, at the end of a report on a cesarian operation which proved fatal to the mother, submitted to Dr. Hunter, to whom his report was addressed, the following ques- tion : ' In a case where it is positively known that a child arrived at maturity can not be born in the natural way, would not reason and conscience, in order to save the mother, authorize proper meas- ures to cause abortion, as soon as these measures can be taken safely ? ' This proposition created but little sensation. Neverthe- less, a great many doctors in England and in Germany accepted it."*

As late as 1852 the question of the permissibility of medical abortion was the subject of a public and very serious discussion in the French Academic de Medicine, at the close of which it had be- come quite clear that neither the origin nor the prevalence of the view now current with the faculties flows from the progress of medical science, but simply from the influence of empiric philosophy, and from its degenerate principles of right and morality.

Once more, it is hard to square Prof. Treub's positiveness with the fact that since this question first came up many physicians have

• Dr. Dubois, Gazette Medicale, 4 Mars 1843, quoted by Eschbach, 2d ed.,

p. 382.

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opposed the procuring of abortion. Suffice it to invoke the authority of a professor " emeritus " of obstetrics, Dr. L. Charles de Boisliniere, of St. Louis, author of " Obstetric Accidents, Emer- gencies, and Operations," published in 1896. In 1892 he delivered a lecture on the Moral Aspects of Craniotomy and Abortion* before the St. Louis Obstetrical and Gynecological Society. Relative to medical abortion he spoke as follows : " The principle once admitted that you are not justified in killing an innocent aggressor, except in self-defense, equally prohibits any interference with early gestation. From the moment of conception, the child is living. It grows, and what grows has life. Homo est qui homo futurus = ' the man to come is already a man/ says an ancient high authority. Therefore, foeticide is not permissible at any stage of utero-gestation. The killing of the defenseless fetus is sometimes done in cases of per- nicious vomiting, in cases of tubal or abdominal gestation, the kill- ing is accomplished by electricity, injections of morphine in the amniotic sac, the puncturing of that sac, etc. This practice is alto- gether too easily adopted by thoughtless or unscrupulous physicians. This practice is much on the increase. ... Is it not time that this wanton massacre of the innocents should cease ? "

Thus a noted colleague of Prof. Treub boldly compared de- liberate abortion to the slaughter of the innocents. His mind is unaccessible to the peculiar reasoning by which others, such as the

• Reproduced in part in Rev. Coppens' Moral Principles and Medical

Practice. New York, 1897.

no

NARROWNESS OR WHOLESOME CONSISTENCY.

celebrated Pinard, endeavor to persuade themselves that the direct extinction of a worthless life is, under the circumstances, no killing, no murder.

Here I am asked with some impatience : " What, then, about Lehmkuhl's view? He, too, the great Catholic moralist that he is, was at one time of the opinion that this operation in the circum- stances given was not a killing of the fetus, no murder."

Indeed, Prof. Treub seems to think that he gives us the death- blow by his appeal to that learned theologian ; nevertheless, he finds there no backing for so arrogantly stigmatizing the Holy Office's view as narrow.

Let us suppose that the decision which I have been championing be not invested with such an exalted character ; let us further suppose that the authority which gave us the decree is only just equal to Lehmkuhl's, then we should have nothing more than two opposite views of a mooted question of moral theology. Now, I should like to know in what branch of science prevails the custom of cen- suring those holding opposite views on questions, and, what is worse, of threatening them on that account with a penal law. Nothing of that kind is ever done among our Catholic theologians. They invariably advance their opinions with deference to better judgment (salvo meliori) and with respect for other opinions, salva reverentia opinionis contrarice. In keeping with this courtesy was Prof. Lehmkuhl's modest tone, as is evinced by his licere videtur, i. e., it seems permissible, and by his puto licere: I am of opinion that it is

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allowable, and still more by his postscript to Dr. Gassert's articles in the Kalh. Seelsorger (May, 1901) ; " As regards scientific abortion in those cases where, without it, both mother and child would die, while through it only the child would die, whereas the mother would most likely be saved, I believed that I could give in the former edi- tions of my Theologia Moralis such explanations as to make it appear doubtful whether it was a direct killing." And somewhat further he has : " Formerly I thought that this could, perhaps, be questioned."

Even had this theologian not modified, in deference to the Holy Office, the opinion he held prior to 1895, it would still be untrue that he would, from his standpoint, have to sustain Prof. Treub in styling the interpretation of the Holy Office " narrow."

Nor has the professor a shadow of reason to represent Lehm- kuhl as bowing somewhat reluctantly to the Holy Office's decision. For in his Theol. Mor., ed. ix., n. 844, Lehmkuhl says : " From which decree of the Holy Office follows that the reasons alleged are not sufficiently sound to make the permissibility of medical abortion probable. Therefore, I say, conformably to the judgment.of the Holy Office, that such an operation can not be performed with a safe conscience." And later again, in the Kath. Seelsorger: " This ex- planation given in the former edition of my work I had to drop after the Holy Office's decree of July 24, 1895. True, this decision, albeit, approved by the Holy Father, is not invested with the character of infallibility, as the Pope did not there make use of his supreme in-

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fallible authority, yet the Catholic theologian must accept it as norm."

As to Lehmkuhl's reference to the priest's prudence (put forth by Prof. Treub in proof of his contention), the esteemed gentleman will, upon carefully rereading the passage, easily see that what is left to the clergyman's prudence is not a judgment over the sinful or sinless character of the operation, but only the advisability or un- advisability of warning the doctor against the operation according as the priest judges him well or ill-disposed to heed the warning. In the latter case, wisdom would bid the priest suffer the lesser evil a fault committed unwittingly to happen, rather than occasion formal (wilful) sin by a fruitless warning.

As to the soundness of Lehmkuhl's philosophy, it has no more been impaired by the Holy Office's decision than has the scientific reputation of so many great men by the fact that at one time they held erroneous views about certain questions. Thus, c. g., the saying, "Homer, too, is sometimes caught napping," has been verified in the case of nearly all renowned obstetricians, when they refused to admit Semmelweis' well-grounded opinion about contact-infection being the cause of childbed fever. Still, those who were renowned then have remained so, notwithstanding their mistake.

Withal our thesis that sound philosophy recognizes the law of nature as an immutable standard of good and evil,, and that, con- sequently, the precept " Thou shalt not kill " is not to be tampered with, abides unshaken, were it only for this reason, that in our case

"3

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the question is precisely whether or not abortion would be fatal, in other words, whether or not the unchangeable law " Thou shalt not kill " is applicable.

In conclusion, let me address once more to my esteemed opponent the query, Is our view narrowness or wholesome consistency? And I put this query to him now as to the implacable foe of unscrupulous abortion.

He knows, perhaps, better than I do, that, once the respect for the fetus' right to live has been shaken, men's demand for its life will prove as insatiable as the bloodthirst of a pack of hungry wolves.

Once expediency secures sway in this domain, the door is but just opened to the abortion-trade. Let one physician solemnly de- clare that nothing but the greater worth of the life of a housewife or mother may decide in the matter, and many others will at once come forth with other gauges in their hands, and the scales will rise against the fetus' interests also for vile reasons, the preserva- tion of an honor already forfeited, of love of ease, of heartless con- sideration of health, selfishness, etc. And you, men of honor, you have robbed yourselves both of the right and the strength to fight with the freedom of an inviolate conviction such as are devoid of conscience, they will reduce you to silence by the assertion that their reasons for questioning the fetus' right to live are just as valid as yours. You will be weak, especially with unfortunate daughters of honored families, who will conjure you to save them at any cost, as the dishonor to themselves and their families would

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be a far greater misfortune than the loss of one single life, which, it is claimed, is almost worthless from a social point of view.

Moreover, you complain that our penal law, as now in force, is almost powerless to hinder criminal abortions, powerless because the judge in investigating the criminal character of the deed must exact the generally impossible proof that the fetus was still alive at the time of the abortion. But, no matter how the penal code may be amended, in your onslaught on criminal practices you will find your mightiest ally always in the unremitting teaching of those eternal principles of morality, of right, which are the indispensable conditions of all true civilization, and of all social order. Only he who, in the face of all teaching of history, dares to disown the awful force of these principles, can join Prof. Treub in speaking here of " naivete."

We Christians hope to profit by the lessons of history, and, by believing in the unimpaired strength of those principles, we look forward to a still better future of society, now developing in so many respects, also in regard to the fight against criminal abortion. And though Dr. van Oppenraay's last words are aimed chiefly at physicians inasmuch as through increased respect for uterine life not a few of them will spare more young lives than has hitherto been the case the hope that is expressed in those last words will surely have a responsive echo with everybody else.

In conclusion, I beg to take leave from my readers in the words of Prof. De Boisliniere : " I respect the honest convictions of those

"5

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opposed to the opinions presented by this paper. But it is hoped that thoughtful physicians will soon reconsider their views, and adopt a more just and humane method of dealing- with the rights of a living unborn child."

EDITOR'S NOTE

No. I.

Nearly all the foremost American medical writers and practitioners of our day hold that abortion is never justifiable; but that in those cases where a few physicians claim there are grounds for its per- missibility, the fatal results should be forestalled either by establishing prema- ture labor, say from seven and a half to eight months, or by allowing the child to reach full term and then performing cesarian section.

" In circumstances where neither of these measures can be adopted, as we never have license to kill the fetus, we must simply trust in Divine Providence." (Statement of a distinguished American physician.}

No. II.

It is interesting to hear of conscientious physicians as well as of experienced parish-priests, and to read in volumes like Dr. Cook's Satan in Society, how often certain practitioners' prophecies have proved altogether false; and how frequently, through God's kindly providence, unwelcome chil- dren brought back to mothers both good health and financial comfort boons of which they had been deprived for years and how that youngest son or daughter [whose conception had been almost cursed, and attempts upon whose fetal life had been at least intended], became the aged parents' only support. On the other hand, where in compliance with the promptings of the flesh, unlawful means are used in the hope of securing freedom from trouble and embarrass- ment, both health and domestic happiness often are forever ruined.

May we not justly apply to such cases also Our Saviour's solemn warning: "He that loveth life (health) shall lose it"?

TT6

APPENDIX: EJECTION OF THE LIVE FETUS, INTRA-UTERINE BAPTISM, AND CLEAR OVA.^[2]

In the interests of scientific truth upon a serious theological question, we think it useful to study here two very interesting instances of medical abortion directly produced, which force us to reconsider this problem hitherto decided by a categorical non-possumus.

It is necessary, for the complete development of the theory, to give, first of all, some clear notions upon the question from the medical point of view.

We must first understand the mechanism of natural, spon- taneous abortion, a purely pathological accident due to various causes, for which neither the patient, nor any of the persons summoned to attend her, incurs the slightest moral responsibility, whether from the religious or the civil point of view. Indeed, in too great a num- ber of cases and in consequence of pathological causes, of no interest to us here, pregnancy terminates in the spontaneous expulsion (often in spite of the best of treatment) of the embryo, dead or alive, before the period of its extra-uterine viability, which practically is in the neighborhood of seven and a half months of gestation. Two cases, then, are met with in the first : the germ dies early, and may then be .

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retained an indefinite time in the gestatory organ, from some days to several months, and is at last expelled in a withered form, to which physicians give the names maceration or momification according to the case. Here, of course, baptism is wholly out of the question, since no sign in advance enables the physician to anticipate the more or less proximate probability of the death of the germ. The simple cessation of the positive signs of pregnancy gives warning that the evil is done.

In the second case, much more frequent, the embryo (or the fetus, according to the age) is alive at the beginning of the accident, which commences with uterine contractions more or less painful, the first disastrous effect of which is to detach the ovum, thus destroying its vascular nutritive connections with the uterus, which begins to bleed profusely. This violent hemorrhage is often for women the only sign of abortion in the first weeks of their pregnancy ; indeed, many have aborted who think that they have had simply a profuse flow ; the ovum, in truth, is -so small in the beginning that it is easily carried off with the blood and other matter. Numberless are the embryos that thus die without baptism, dying in uterd during the hemorrhage from the detachment of the ovum, or during their expulsion.

Now this usually varies with the period of pregnancy ; in the be- ginning, the ovum is often detached whole and expelled in this state without rupture (exactly like a hen's egg). We know that in this case, since the detachment could have been complete only at the very moment of the expulsion, and since, also, at this very instant the

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embryo may be still alive because of some circulation remaining, it is wise to throw this ovum into a basin of water immediately and to open it with scissors, pronouncing the sacramental words of baptism. Later, when the ovum has grown cold, every attempt of this kind is utterly useless, and the physician may at his pleasure take it away whole in his bottle of alcohol.

Toward the end of the third month of pregnancy, and as a sequel to it, abortion almost always occurs in two successive stages ; that is to say, the membranes of the ovum split during the hemorrhage caused by the detachment, and the fetus is expelled first, often alive, as one easily infers from its movements, or, at least, from the beatings of its heart ; in this case, immediate baptism is imperatively required, and it would be a grave error not to apply at once conditional baptism, even when signs of decomposition or of drying up would indicate that the ceremony be useless, as the fetus may still be alive, although to the unskilled eye no signs of life are evident.

Now, in some very definite cases, pregnant women are stricken down with certain mortal diseases, either caused by the pregnancy itself, and ceasing with it, or simply aggravated by it, and at the mo- ment when women in such condition give themselves over to the care of the physician, their days are so surely numbered that they will in- evitably die before the fetus is viable and before any attempt can be made to bring it up by modern perfected methods (artificial feeding, incubation, etc.). In these cases, which are very real, and, also, very well defined, all books of obstetrics admit that, since this fetus is

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doomed to a death that is sure, inevitable, and profitless, since the mother must accompany it to the grave, the life of this fetus must be treated, without any reservation, as a negligible quantity, and that, death for death, it is better to sacrifice it once for all and save the pre- cious life of a mother of a family, who may (and there are numberless examples of them) in consequence enjoy many more pregnancies, which, thanks to proper care applied at the right time, will result in producing sound, healthy children. Examples of this abound.

It is easy to see why this method is at once applied when the religious aspect of the question is not suggested by the family or by the physicians. We say " physicians " designedly, for it is customary never to have this operation, so serious to decide from the moral point of view, performed by a single physician, but always in com- mon, after one or several consultations, so as to make it impossible to accuse them of having performed it criminally and in secret.

The therapeutic results of this practice are very often excellent, and, since the accidents necessitating it most occur in a first preg- nancy, they permit us especially to save the life of a woman who will raise a family, where otherwise, as a consequence of an in- transigent abstention, there would henceforth be only a miserable widower.

It remains to be considered whether this practice is permissible and useful from the theological point of view. We shall examine it at once.

But before concluding these preliminary lemarks, it is indispensable to describe here the classical manner of proceeding, in order to show why it deserves the ecclesiastical prohibitions that condemn it and the severe excommunications that threaten its authors ; and then to restudy this question because of the inauguration of a new process of operating, which gives all the desirable guarantees from .the point of view of baptism, and especially of the existence of clear ova, that is to say, containing no fetus.

The classical process of artificial abortion (therapeutic as well as criminal, the latter done in secret, the former in full light) consists in causing by some mechanical means the production of the expul- sion of the ovum by the means which nature itself employs in the cases of spontaneous miscarriage; that is to say, the operator tries to induce uterine contractions accompanied by the detachment of the ovum because of the hemorrhage, and finally the expulsion of the ovum en bloc (not split), or at two successive stages (fetus first, afterbirth next), which last effect is almost always obtained in the case of artificial abortion. This form is more dangerous, and, more- over, exposes the woman to the risk of retaining the placentary debris which may cause her serious puerperal accidents.

This explanation might make us expect the frequent expulsion of living fetus, which it would be possible to baptize. Unfortunately, it is not so, and if the spontaneous miscarriage is too often so slow in coming about that the fetus is expelled dead in a great number of cases, this termination is almost the rule in the artificial delivery as it is ordinarily practised.

We think it useful now to give here, before every theoretical con- sideration, the statement, first of all, of the two instances that serve as the basis of this article.

Naturally we suppress in these observations (this is the name applied by physicians to the study of a given case) all details as to the preliminary diseases which necessitated surgical intervention, as these have no interest for us.

The first patient who was presented to the care of our brother physician had, in the same diseased conditions (uncontrollable vomit- ing complicated by a serious constitutional disorder) previously suf- fered a spontaneous miscarriage, from which she had entirely re- covered.

Although she was in danger from the first day, the physician (summoned by one of his confreres who generally attended the patient) at first did not dare to induce abortion, and during a long month, even after consultations with some other physicians, tried every possible and conceivable treatment, but in vain ; the only result was a continual aggravation of the woman's condition. She had by this time reached the third month of pregnancy, was as thin as a skeleton, and certainly could not live more than a month in all, four months, although about seven months and a half are required before it is possible to bring up the fetus.

Tormented by the family and the first physician, our friend, still hesitating, explains to a venerable Jesuit father the reasons which make him propose to apply to this case a new method, which permits the baptism of the infant. This therapeutic process, formerly im- possible, but without danger since the discovery of the antiseptic treatment, has for its object to open quickly the orifice of the matrix by the natural ways and to allow the injection of an abundant stream of baptismal water by means of a suitable instrument ; the remaining operations of extraction, which may be hurtful to the life of the germ, are carried out only afterward. It is admitted, in effect, that baptism in utero by injection is not only allowed, but obligatory when the physician is certain that, despite all his efforts, the child will die during the delivery.

As these reasons were considered valid by his counsellor, the physician was enabled, thanks to the method employed (special metallic instruments), to open gently the matrix (in one minute and a half) sufficiently to make the baptismal injection, also done gently; then he quickly completed the thorough extraction of everything contained in the uterus.

Now, here, perhaps, lies the crux of the question from the point of view of theology; the case was that of a clear ovum, that is to say, one formed simply of accessories and containing no trace of life or of a fetus. Indeed, this is no myth, but is met with often enough (this is the fifth case of it observed by this physician in six years; and how many clear ova are lost without being noticed!) ; in these cases the embryo dies spontaneously during the first weeks of pregnariry before the appearance of the bones, which are insoluble material; it happens that the dead fetus then gradually dissolves (like sugar) in the water of the ovum, which is muddy instead of being transparent, as it usually is; and the strangest part of this anomaly is that the annexes, membranes, and placenta, continue to develop during a period more or less long. Here, then, we have the case of an unhappy woman who was doomed to a certain and very painful death on account of a non-existent child ; now she not only lives, but has the happiness of bringing up a healthy family.

The second case is, from this point of view, wholly different. There was the same cause, a mother dying from uncontrollable vomit- ings brought on by pregnancy ; the same operation effected the ex- traction, after intra-uterine baptism, of two small fetus three months old, so much alive at birth that they stirred for more than a quarter of an hour and were able to be baptized sub conditione by one of the parish priests.

Although unlike, these two cases are most instructive. The first shows well what a mistake is committed in allowing the death of a woman with a clear ovum ; the second shows the facility for baptizing the fetus alive which this method offers ; whereas, in abandoning the mother to her sad fate or in employing the superannuated meth- ods, certain death without baptism will befall the child.

One word more before concluding: We have to-day no means of knowing before its expulsion whether the ovum contained in the uterus is a clear or a living ovum.

If we now ask theologians why artificial abortion is illicit, they give us the following twofold reason : that it is a homicide of the body as well as the soul. Now we have just seen in the two cases previously cited that, i, the salvation of the soul is always assured in the case where the embryo is existent and alive, thanks to the wholly new rapidity of extraction and to baptism either in utcro, or post partum.

That, 2, there are cases where the embryo does not exist alive in the ovum, and where, nevertheless, everything proceeds as if it were animated, that is to say, where the mother is condemned to death by the remains of an embryo which has formerly existed but which may be already dead several weeks, and which theology refuses to allow the physician to remove.

1. note
2. Dr. X. in Annales de Philosophic Chretienne, October, 1903