questions answered
by wm. b. smith

"A Response"

Question: How would you respond to Frs. Fuller and Keenan on your prior Q/A in HPR (December 2001), pp. 69-71?

Answer: My purpose in quoting Fr. Charles Curran’s review (TS 62 [2001] 403-5) of the Keenan-Fuller-Cahill-Kelly book was that I thought the Curran comment was correct, i.e., that Keenan et al. want “to have it both ways” —to maintain Catholic moral tradition, and, that the Catholic tradition has to change its own sexual teaching.

Perhaps, I do not read the Curran comment correctly, but I do thank the authors, Frs. Fuller and Keenan, for their response to me is clearer than my prior estimate of it. Here, they say they do not look for a change in Catholic moral teaching and posit that what they call “traditional principles” already allow and justify what they advocate.

In this, I take them at their printed word stated clearly, even twice, in their response: “Our position is that traditional principles can allow the use of condoms to prevent death”; and again, “Our position is that . . . the traditional moral principles (such as lesser evil, material cooperation, gradualism, etc.) justify the use of condoms to prevent life-threatening HIV transmission without compromising Catholic sexual ethics.”

It is precisely that assertion that I thoroughly deny. Now, of course, HIV transmission is a delicate and tragic problem but as the Holy See has pointed out in many forums condomistic intercourse is neither the therapeutic cure nor the moral solution to this grave problem.

Since all Catholic moralists have to be attentive to first principles, indeed “traditional principles,” it is crucial here that we do just that. In attending to the “principles of morality” (the traditional fontes moralitatis [ST, I-II, q. 18, aa. 2-4]), we should first examine the “moral object” (finis operis). What kind of an act in its moral estimation is condomistic intercourse? By its very nature, the kind or type of act is morally, condomistic intercourse is an intrinsically disordered act of human sexuality.

Even prior to clarifying the personal intention or hoped for result of the intending subject (finis operantis), the first moral determinant in the assessment of the morality of an act is to consider clearly and correctly the moral object of that act. This is simply not the method and procedure of traditional textbooks, it is the centerpiece of the moral masterpiece of Pope John Paul II, Veratatis Splendor (8/6/93, nn. 71-83; esp. nn. 74; 76-78.

Of course, the personal intention (finis operantis) of the acting subject is important— things done for the best of reasons or the worst of reasons can vary widely in moral significance. But, the same moral act (condomistic intercourse) for the best of reasons (possible risk reduction), or, for the worst of reasons (possible consequences of rape) is, by moral definition, always what it is, i.e., condomistic intercourse.

Please excuse the double negative but the “moral object” (finis operis) of the act cannot not be intended. If done for a good reason or a bad reason, the moral act of condomistic intercourse does not cease to be the kind of act it is, unless, of course, one chooses to do something else (i.e., another, or different moral act).

Pope John Paul details this point carefully in his encyclical: “The reason why a good intention is not itself sufficient, but a correct choice of actions is also needed, is that the human act depends on its object, whether that object is capable or not being ordered to God, to the One who ‘alone is good,’ and thus bring about the perfection of the person” (VS, n. 78). Again, “reason attests that there are objects of the human act which are by their nature “incapable of being ordered” to God, because they radically contradict the good of the person made in his image. These are the acts which, in the Church’s moral tradition, have been termed “intrinsically evil” (intrinsece malum) on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances” (VS, n. 80).

Indeed, the same moral encyclical specifically repudiates the justification of the intrinsically evil acts by appeal to the so-called “lesser evil” theory (the explicit claim made in the Fuller-Keenan response): “Though it is true sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater moral evil or in order to promote a greater good, it is never lawful, even for the gravest reasons, to do evil that good may come of it (cf. Rom.. 3:8)—in other words, to intend directly something which of its very nature contradicts the moral order, in which therefore must be judged unworthy of man, even though the intention is to protect or promote the welfare of the individual, of a family or of society in general” (Humanae Vitae, [1968] n. 14 quoted in VS, n. 80).

If the Fuller-Keenan appeal is to “traditional principles,” let us attend both to tradition and to principle. When comparing greater or lesser evils—the comparison must be an equal one, i.e., of the same species. The risk of disease is a physical not a moral evil whereas condomistic intercourse is a moral evil.

Next, when invoking the so-called “lesser evil” what some seem to forget is that the lesser evil is lesser only by comparison with some greater evil. When the lesser and greater evil are of the same kind (moral) the agent inevitably makes moral evil the direct object of his will. This should not be confused nor lumped with “double effect” since the double effect analysis requires that moral evil not be the direct object of the will, i.e., not directly intended.

In a prior Q/A column (HPR, December 1997), I took some pains to distinguish and separate what traditional moralists do teach about counseling vs. advising the “lesser of two evils.” The subtle but careful distinctions of traditional moralists differ greatly from contemporary and proportionalist usage of the “lesser evil” theory. To “advise” or “suggest” evil is to “induce” evil and there is always scandal in that. Whereas, to “dissuade” another from part of a total evil already decided when the wrongdoer cannot be deterred from the complete wrong can be a good act. Counseling a lesser evil employs an evil act for a good end; whereas advising against part of a proposed evil can be a good act for a good end (cf. L. Bender, Dictionary of Moral Theology [1962] p. 706).

In any case, no explanation of traditional principles holds that the so-called “lesser evil” will justify evil “to prevent death” or “to prevent life-threatening HIV transmission.” If that were so, then the personal reason or intention of the moral agent would somehow convert (change) the moral species of an intrinsically evil act (condomistic intercourse). Such an alleged conversion would contradict the teaching of Veritatis Splendor in a way that is neither traditional nor principled.

Although the Fuller-Keenan response does not use the term “proportionalism,” the methodology and logic of their response is proportionalist. The use of condoms is justified by what they presume is a proportionate reason: i.e., “to prevent death” or “to prevent life-threatening HIV transmission.” This is the methodology specifically rejected by VS n. 79.

Another attempt to justify condomistic intercourse is their appeal to M. Faggioni’s invocation of the traditional principle of “double effect.” Faggioni, a physician and a moralist, argues that condom use might be justified as long as the “exclusive and primary” intent is to defend health and not to prevent pregnancy. This, they claim, is a classic application of the “double effect” in which “one’s good action has an unintended bad effect” (emphasis added).

However, this as stated clearly confuses one’s good intention with one’s action. This first condition of the “double effect” analysis requires that the primary action (the cause that has two effects) must itself be morally good or indifferent. Since the primary act here is condomistic intercourse, it is not morally good nor indifferent; indeed, it is an intrinsically disordered act to which the “double effect” analysis cannot apply at all.

Further, mention is made of the principal of “gradualism.” Just how traditional a principle that is is open to review. As taught and explained by John Paul II in Familiaris Consortio (1981) n. 34, there surely is a “law of gradualness”—a step-by-step growth or advance in virtue. That is how we all grow in virtue—gradually. But, condomistic intercourse is not virtue, indeed it is the opposite, a vice.

On the other hand in the same Familiaris Consortio, the Pope specifically repudiates an alleged “gradualness of law”—”as if there were different degrees or forms of precept in God’s law for different individuals or situations” (FC, n. 34). If that is what the respondents mean by “gradualism” that is not a principle at all but rather a novel form of Situation Ethics.

Finally, the respondent’s appeal to Humanae Vitae n. 15 about “therapeutic interventions” strikes me as odd since one of the respondents is a physician. Surely no one in medical science or Catholic morals argues that condoms are “therapeutic”! Condoms cure no disease and certainly don’t cure HIV/AIDS. The intention may well be what some call “damage control” or so-called “safer sex” with the hope of risk reduction. Even that is partly problematic and not entirely risk free, but it is in no sense truly therapeutic.

Frs. Fuller and Keenan argue “we are not dissenters,” rather they claim to apply centuries-old principles to a critical new question. As above, no moral principle, old or new, will convert (change) an intrinsically disordered act into a morally good one. No analysis—lesser evil; double effect; material cooperation; gradualism—can justify formal evil. In my judgment the traditional principles they mention are not correctly understood nor correctly applied by them; indeed, I think they are mistaken if not proportionalist by name then proportionalist by logic.

As for dissenting, when authors propose as justifiable (as they clearly do re condoms) what the Church teaches is not justifiable, surely that is not assenting to Church teaching. I leave to our readers to decide who is dissenting from what’s here.

Response to Msgr. Smith
We wish to respond to Msgr. William B. Smith’s criticisms of us in these pages (“Questions Answered, HPR, December 2001, pp. 69-71). Msgr. Smith asserts that contrary to what he takes to be our position: Church teaching on the use of condoms to prevent HIV transmission has not changed. In addition, he quotes Charles Curran’s review of our book (Catholic Ethicists on HIV/AIDS Prevention, Continuum 2001) in Theological Studies (Volume 62, Number 2 [June, 2001], pp. 403-405 in contending that we favor a change in church sexual ethics in order to allow the use of condoms to prevent HIV transmission.

Fr. Curran states that we “argue (correctly, in my view) that the tradition has to change its own sexual teaching. The last seven chapters definitely promote this change with the first two dealing with progress and change in Catholic moral teaching in general.” While it may be true that several authors in our book take the position that progress—or in some cases, “change”—in the teaching is necessary, our position is that traditional principles can allow the use of condoms to prevent death. We point out that many church leaders around the world are turning to traditional principles to address HIV preventive measures: “Bishops are able to take these steps because the tradition provides them with a way, as we have attempted to show, both to protect existing teachings and to simultaneously engage new problems creatively. We do not need to construct an entire new moral system, even at such a critical time as this one. Rather, the Catholic tradition is a supple and balanced legacy that we need to recognize, appreciate and utilize” (Catholic Ethicists, p. 29).

As pointed out by Msgr. Smith, the Holy See’s delegation to the United Nations General Assembly Special Session on AIDS (June 2001) emphasized that, “with regard to the use of condoms as a means of preventing HIV infection, (the Holy See) has in no way changed its moral position.” However, we note in the same statement an appreciation of what role condoms might have: “Responsible behavior cannot just be listed alongside condoms, but has to be prior.” That is, an encouragement toward responsible moral conduct must precede any discourse about condoms.

We also note that as early as 1996, when asked in an interview with Vatican Radio whether condom distribution might qualify morally as an example of the lesser of two evils, Pere Georges Cottier, O.P., Secretary General of the International Theological Commission and Theologian to the Papal Household, responded that “This is the question that moralists are asking themselves, and it is legitimate that they ask it.” In addition, Cardinal Lustiger of Paris, Cardinal Simonis of the Netherlands, Archbishop (now Cardinal) Christoph Schönborn of Vienna, and other bishops, episcopal conferences and their communities, have invoked traditional principles to recommend first responsible sexual conduct, but secondly, condom use to prevent transmission of the deadly virus.

More recently, in a long-anticipated statement, the Southern African Bishops’ Conference noted that in the case in which one spouse is HIV-infected, “The Church accepts that everyone has the right to defend one’s life against mortal danger. This would include using the appropriate means and course of action.” In a press conference further explaining the document, Cardinal Wilfred Napier of Durban indicated that this could include condoms. There was no objection by the Vatican to this judgment.

In his encyclical Evangelium Vitae, John Paul II notes, “Every individual, precisely by reason of the mystery of the Word of God who wad made flesh (cf. John 1:14), is entrusted to the maternal care of the Church. Therefore every threat to human dignity and life must necessarily be felt in the Church’s very heart . . .” (#3). He goes on to appeal to each and every person, in the name of God, “to respect, protect, love and serve life, every human life!” (#5).

Our position is that the Church’s fundamental interest in the protection of human life allows it to employ traditional moral principles (such as lesser evil, material cooperation, gradualism, etc.) to justify the use of condoms to prevent life-threatening HIV transmission without compromising Catholic sexual ethics. Indeed, Humanae Vitae itself did not rule out all therapeutic interventions that might render an individual infertile, as long as this were not one’s primary intention: “. . . the Church does not consider at all illicit the use of those therapeutic means necessary to cure bodily diseases, even if a foreseeable impediment to procreation should result therefrom—provided such impediment is not directly intended for any motive whatsoever” (#15). In that light, while discussing the case of a married couple when one spouse has AIDS, Father Maurizio Faggioni, who is a physician, a professor or moral theology at Rome’s Alphonsianum university and a consultant to the Congregation for the Doctrine of the Faith, said condom use might be justified as long as the “exclusive and primary” intent was to defend the healthy partner from infection and not to prevent pregnancy. “This is a classic application” of the Catholic moral principle of “double effect,” he said, in which one’s good action has an unintended bad effect (Catholic News Service, September 22, 2000).

We appreciate Msgr. Smith’s interest in our work. We hope by this friendly response to demonstrate that we are not dissenters. Rather, we apply centuries-old principles to a critical new question, one that UNAIDS has described as “the most devastating disease humankind has ever faced.”

—Jon D. Fuller, S.J., MD,

Associate professor of medicine
Boston University School of Medicine.

—James F. Keenan, S.J., STD

Professor of moral theology
Weston Jesuit School of Theology, Cambridge, MA.
Please address questions to Msgr. Wm. B. Smith, St. Joseph’s Seminary, Dunwoodie, Yonkers, N.Y. 10704.