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  • A Revised Analysis of the “Phoenix Abortion Case” and a Critique of New Natural Law Intentionality
  • Thomas Berg

The present article constitutes a retraction of a paper I presented at the 2011 University Faculty for Life Conference—Life & Learning XXI, hosted by the Notre Dame Center for Ethics and Culture. It presupposes that the relevant facts of the so-called “Phoenix abortion case” (upon which my paper was based) are already broadly known.1 At that conference, I presented a moral analysis of a [End Page 365] hypothetical case of a life-threatening pregnancy (used for the sake of argument and based upon the Phoenix case) that concluded to a positive moral assessment of a lethal removal of a fetus from the womb, arguing that such an act could be morally distinguishable from an act of abortion. I crafted that analysis based on the account of moral intentionality emerging from what is today commonly referred to as “new natural law theory” (NNL).2

Accordingly, the present essay proceeds as follows. First, I offer (I) an overview of the NNL account of intentionality and the prominent role played therein by the concept of the “proposal.” Then follows (II) a brief summary of my original 2011 argument supporting lethal fetal removal by dilation and curettage (D&C) in the case of a life-threatening pregnancy. I then (III) critique NNL intentionality exposing the pitfalls entailed in its employment of the concept of the “proposal.” I next explore (IV) how Aquinas’s account of the moral object obviates those pitfalls and, finally, conclude by offering (V) a revised moral judgment on cases of life-threatening pregnancy as typified by the “Phoenix abortion case.” An appendix contains the essence of my original moral analysis of that case.3

Finally, an additional personal note is in order from the outset. For over two decades I adopted many, if not most, of the elements of NNL into my own understanding and teaching of natural law, including its account of intentionality. I count some of NNL’s leading proponents as friends with whom I have collaborated intellectually for many years, including Peter Ryan, S.J., Robert George, Christian [End Page 366] Brugger, Patrick Lee, and Christopher Tollefsen as well as Germain Grisez. And although I have had fewer interactions with John Finnis, not only have I admired his work and learned exceptionally from him, but it was his earlier work on natural law theory that set me on my own intellectual journey into moral philosophy. I write with profound admiration, gratitude and affection, even if I must now express disagreement with NNL’s account of intentionality.

I

NNL proposes an understanding of moral intentionality, and specifically of the nature of moral objects of choice, whose fulcrum and neuralgic point is the concept of the “proposal.”4 A 1991 article by John Finnis is foundational for understanding this notion. Finnis explains:

Acts are morally significant, and are morally assessed in terms of their type, their intrinsic character, just insofar as they are willed, are expressions of the agent’s free self-determination in choice. More precisely: for moral assessment and judgment, the act is what it is just as it is per se, that is, just as it is intended, under the description it has in the proposal which the agent adopts by choice—not under some self-deceiving description offered by conscience to conscience to rationalize evil, but under the description it has in the practical reasoning which [End Page 367] makes the option (the proposal) seem to the chooser intelligent, eligible, “the thing for me to do.”5

Of similar importance are explanations of “proposal” such as the following from Germain Grisez: “By choice one adopts a proposal to do something. … Adopting a proposal to do something is a choice, just as a motion which is adopted is a decision of the group. The doing carries out the choice, much as the executive carries out a legislative body’s enactments. The action of an individual is defined by the proposal adopted by choice, just as the action of a group is defined by the motion adopted by a vote.”6

Christopher Tollefsen also offers a...

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