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Hardt & O’Rourke err in minimizing the scope of the CDF Response

December 16, 2007

Update, 19 March 2008: This blog is now available in the National Catholic Bioethics Quarterly (Spring 2008) 14-15.

Bio-ethicist Dr. John Hardt and canonist Rev. Kevin O’Rourke are trying to use canon law against a Congregation for the Doctrine of the Faith Responsum that upholds the basic right of patients in a “persistent vegetative state” to nutrition and hydration. I think their arguments are flawed. Here I summarize the events leading up to the CDF Response and then assess Hardt and O’Rourke’s attempt to minimize its impact.

1. 20 March 2004. Pope John Paul II tells an international medical-moral congress that “. . . the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory. . . .” The qualifications included in the pope’s remarks and his citations to various Church documents show that his statement is basically an application of well-established Catholic moral principles to more specific types of medical situations.

2. 11 July 2005. The US bishops send two follow-up questions to the Congregation for the Doctrine of the Faith. The bishops ask: (1) Is the administration of food and water (whether by natural or artificial means) to a patient in a “vegetative state” morally obligatory except when they cannot be assimilated by the patient’s body or cannot be administered to the patient without causing significant physical discomfort? and (2) When nutrition and hydration are being supplied by artificial means to a patient in a “permanent vegetative state”, may they be discontinued when competent physicians judge with moral certainty that the patient will never recover consciousness?

3. 16 September 2007. To the surprise of almost no one, CDF, with appropriate qualifications and explanations, publishes its answers to the bishops’ questions, namely, Yes to the first question, meaning basically that nutrition and hydration may not be withheld from patients who can still make use of same, and No to the second, meaning that even a very poor prognosis for recovery of consciousness does not justify withholding nourishment and water from a patient. Response with additional CDF commentary here.

4. November-December 2007. Claiming to be putting this CDF Response “in perspective”, Hardt & O’Rourke assert that it “limits the free exercise of rights [and thus] will only apply to a restricted number of cases, specifically to patients with a firm diagnosis of PVS” and add that the Response only applies in the United States. They further assert that had CDF wanted to make its response more widely applicable, it would have used “another form of communication, for example, an Apostolic Instruction.” Hardt & O’Rourke claim their conclusions are based on Pope Boniface VIII’s Regulae Iuris (Rules of Law), which they say are applicable in “interpreting and applying the documents of the Holy See”, and on Canons 18 and 52 of the 1983 Code of Canon Law. I think these claims are wrong in several respects.

Preliminary criticisms. Hardt & O’Rouke state that the Liber Sextus of Boniface VIII, wherein most of the Rules of Law are found, was published in 1300. Actually it was promulgated in 1298. An error of two years might be minor, but imagine one’s discomfort if a lecturer on American political theory claimed that the Declaration of Independence was signed in 1778. Moreover, Hardt & O’Rouke’s suggestion that CDF could use a document known as an “apostolic instruction” is perplexing. Amid the myriad of document styles employed (sometimes inconsistently) by the Holy See, I have never encountered one called an “apostolic instruction”, nor is it a genre listed in Francis Morrisey, Papal and Curial Pronouncements, 2d ed (1995) or J. Huels, “A theory of juridical documents based on canons 29-34”, Studia Canonica 32/2 (1998) 337-370. Or again, Hardt & O’Rouke’s claim that “many of the [Rules of Law] are repeated in one way or another in the present Code of Canon Law”, seems excessively broad. See E. Roelker, “An introduction to the Rules of Law”, The Jurist 10 (1950) 271-303, 417-436, an article replete with narrations of the pitfalls awaiting those who invoke the Regulae Iuris without adequately understanding them. In short, almost every assertion by Hardt & O’Rouke on the Regulae Iuris is contestable or wrong.

But a much more fundamental objection lies against Hardt & O’Rouke’s claim that canon law dictates a narrow reading of the CDF Response.

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

Even at that, Hardt & O’Rouke’s critique seems poorly done. For example, their claim that the Response is applicable only in the US is easy to refute. One need simply observe that CDF published its Response in French, German, Italian, Polish, Portuguese, Spanish, and Latin to show how implausible is the assertion that it was intended only for America. Likewise their claim that the CDF Response protects only to patients in a “persistent vegetative state”, and not necessarily those suffering from such conditions Alzheimer’s, is untenable. Logic dictates that persons similarly situated should be treated similarly and, obviously, both Alzheimer’s patients and persons in a “persistent vegetative state” need food and water to survive. I cannot imagine the grounds upon which Hardt & O’Rouke think that CDF might discriminate between these two groups.

The moral principles set out in the CDF Response are meant to be applied regardless of the fact pattern that lead to an individual’s plight and regardless of where his or her suffering is taking place. I urge persons striving to understand and apply Catholic medico-moral principles in difficult nutrition and hydration situations to consult directly the statements on this matter offered by the organs of the Holy See, and not to be put off that inquiry because of the canonical objections that Hardt & O’Rouke have tried to allege against this important statement from the CDF.

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More analysis from LifeSite, 21 December 2007.

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