oxford handbook of bioethics
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and sincere, the requirement that the unintended bad effect not cause the intended good effect adds nothing to the classical requirement that one must foresee but not intend the bad effect. Thus, I suspect that the purpose of the causation requirement in the classical formulation of the RDE has been to render plausible and coherent reports about what is foreseen but not intended, so that one would not deceive oneself or others in reporting on one’s beliefs and intentions.
However, one may question whether the causal requirement is sufficient to quell doubts about the rationality and sincerity of reports about what someone claims to foresee but not to intend. I believe that exclusive reliance upon this ‘test’ has led to significant errors in the application of the RDE. There are quite a number of other ways in which one can, in reporting on what one believes and what one intends, be insincere or irrational. The purpose of Requirement 7 of my ‘reinvented’ RDE is to expand the set of tests for the coherence and plausibility of reports about what is foreseen but not intended. The correct application of this requirement of the Reformulated RDE must treat the object of an intention as a proposition regarding an event. Events, as I have discussed, are best understood as particulars. As particulars, events will have logical implications and alternative true definite descriptions, and will have the potential to cause other events.
Double effect cases are typically quite complex. Often, when an agent forms a prior intention to bring about some event, there are many different implications, alternative true definite descriptions, and cause and effect relationships connected to that event. Accordingly, one must consider, at the very least, the following three types of scenario, each specifying a different set of relationships between intention and causation: linear causal chains, causal forks, and alternative causal routes:
Scenario I: Linear Causal Chains
(p causes r) & (r causes q)
p 
r 
q
e.g. I intend to drink alcohol (p) in order to relax (r), but I do not intend that this experience should make me an alcoholic (q).
Scenario II: Causal Forks
(p causes q) & (p causes r)
q
p
r
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e.g. I intend to prescribe penicillin (p), in order to cure strep throat (r), but I do not intend to cause an anaphylactic reaction (q).
Scenario III: Alternative Causal Routes
(p causes q)& (p causes r) & (q causes r)
q
p
r
e.g. I intend to perform a bone marrow transplant (p) in order to treat leukemia (r), but not intending to cause high-grade graft v. host disease (q), even though high grade graft v. host disease also has a profound anti-leukemic effect (r).15
Having described these causal scenarios, I can now set forth the list of conditions I propose for plausibly and coherently maintaining that one foresees but does not intend a particular upshot of one’s intentional act. I will set these forth without argument, since it seems to me that once one understands what is meant by intention and event identity, these conditions are self-evidently true.
CONDIT IONS FOR RAT IONALLY
DIST INGUISHING BET WEEN INTENDED
AND FORESEEN EVENTS
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If an Agent (S) believes that the causal situation is such that it can be illustrated by any of the Scenarios (I – III), it is plausible and coherent for S to maintain that he or she foresees two results (q and r) from a chosen means of acting (p), but only intends r, given the following conditions:
(C1) p and q are not alternative true definite descriptions of the same event; (C2) q and r are not alternative true definite descriptions of the same event; (C3) q is not wholly spatiotemporally contained within p;
(C4) q is not wholly spatiotemporally contained within r; (C5) p does not logically entail q;
15 Currently, clinicians are actually aiming at (intending) mild graft v. host disease (GVHD) because of its anti-leukemic effect, but no one aims at high grade GVHD.
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(C6) r does not logically entail q;
(C7) q is not S’s further intention;
(C8) q is not an empirically necessary causal condition for r; (C9) S does not intend r by way of q.
If conditions C1 through C9 are met, it would be coherent and plausible to claim to intend r, but not q, by means of p, in any of the three scenarios, as the examples amply demonstrate.
This is not to say that any such claim would be a true and sincere report of the agent’s intentions and plans. Such a claim could be rebutted. But that rebuttal would require further inquiry and investigation of the facts and reported beliefs and intentions of the agent.
Further, this analysis does not consider whether the agent actually has the requisite knowledge (or the duty to obtain such knowledge) in order to have true and correct beliefs about these events and their casual relations and logical implications. Some ignorance is culpable, and some excuses. For example, it matters whether one thinks that Oedipus had a responsibility to know that Jocasta was his mother.
In addition, it must be noted emphatically that having a plausible and coherent report of what one foresees but does not intend is not sufficient to justify the act from a moral point of view. It is necessary that the agent also satisfy the other requirements of the Reformulated RDE.
Finally, while these conditions are proposed as necessary, I am making no claim that they exhaust all the conditions for rendering a coherent and plausible account of a complex prior intention in which it is claimed that at least one effect of an act is foreseen but not intended. This analysis only presents a first defense of a tightened set of conditions for the coherence and plausibility of distinguishing between the foreseen and the intended.
This analysis requires some further explication. First, one should note that each of these conditions corresponds to a matching condition under Requirement 7 of the Reformulated Rule of Double Effect, as it was laid out above. This more formal rendering of these conditions makes use of the technical vocabulary in philosophy of mind that I have presented.
Second, this set of conditions can be viewed as a significant amplification of the third requirement of the classical RDE. I believe that the major purpose of this classical ‘causal’ requirement (that the purportedly unintended bad effect cannot be the cause of the intended good effect) was to provide a check on the sincerity of the agent — to provide at least one condition for a report on beliefs and intentions that was coherent and plausible. However, this was simply insufficient. There are other ways to be incoherent and implausible in one’s reports on what one foresees but does not intend. Thus, the purpose of these conditions is to ‘tighten the rules’ by setting up further tests for the coherence and plausibility of such reports.
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It will doubtless prove helpful to the reader if I describe these conditions in words and give examples. In words, p is the Agent’s (S’s) intended means — the act itself. q is the purportedly foreseen but unintended causal result of p, and r is the intended causal result of p. Condition 1 states that the purportedly unintended result (q) cannot be an alternative true definite description of the intended means (p). Condition 2 states that the purportedly unintended result (q) cannot be an alternative true definite description of the intended result (r). Condition 3 states that the purportedly unintended result (q) cannot be an event that is completely subsumed within a wider event that constitutes the intended means (p). Condition 4 states that the purportedly unintended result (q) cannot be wholly spatiotemporally contained within a wider event that constitutes the intended result (r). Condition 5 states that the purportedly unintended result (q) cannot be logically implied by the intended means (p). Condition 6 states that the purportedly unintended result (q) cannot be logically implied by the intended outcome (r). Condition 7 states that the purportedly unintended result (q) cannot be, in fact, the agent’s actual further intention. Condition 8 states that the purportedly unintended result (q) cannot be an empirically necessary causal condition for the intended result (r). And Condition 9 states that it cannot be the case that the agent actually intends the intended result (r) by way of the purportedly unintended result (q).
Intention and Foresight: Electroconvulsive Therapy
As an example, consider a physician who is contemplating the use of electroconvulsive therapy (ECT) for a patient suffering from a severe manic state, in the setting of bipolar affective disorder, refractory to medical treatment.
According to C1, it would not be coherent and plausible for the physician to claim to use ECT as his means (p) of treating mania (r), and also claim that he did not intend to subject the patient to electro-shock psychotherapy (q), since these are two alternative definite descriptions of the same procedure.
According to C2, it would not be coherent and plausible for the physician to claim to use ECT as his means of treating mania (p), intending as a result of ECT to produce a seizure (r), but not intending to produce an epileptic fit (q), since ‘seizure’ and ‘eplileptic fit’ pick out the same event.
According to C3, it would not be coherent and plausible for the physician to claim that if, in the course of ECT, he were to draw the patient’s blood (p) as a means of monitoring the patient’s drug levels, he only intended thereby to measure lithium levels (r), but did not intend to remove any red blood cells (q), because the removal of red blood cells (q) is an event wholly spatiotemporally contained within the event he intends as his means — namely, the drawing of the patient’s blood (p).
According to C4, it would not be coherent and plausible for the physician to claim to use electrical current as his means (p) of achieving his intended aim of
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producing a seizure sufficient to cause motor movement of a non-paralyzed limb (r), while not intending to cause synchronous electrical discharges in the patient’s brain (q), since the event of synchronous electrical discharges in the brain (q) is an event wholly contained within the wider event that he intends as his aim — namely, a seizure (p).
According to C5, it would not be coherent and plausible for the physician to claim to use a ten-treatment course of ECT as his means (p) of treating mania, but claim that he did not intend to give a multi-treatment course (q), since a ten-treatment course (p) logically implies a multi-treatment course (q).
According to C6, it would not be coherent and plausible for the physician to claim to be using ECT as his means (p) of treating mania, intending the complete remission of the manic episode (r), but not intending to end the patient’s decreased sleep requirement (q), because a decreased sleep requirement (q) is a defining characteristic of mania, and the complete remission of mania (r) logically entails ending the decreased sleep requirement.
According to C7, it would not be coherent and plausible for the physician to claim to use ECT as his means (p), intending only to produce seizures (r), but not intending to cause memory loss (q), if it were the case that (for some nefarious motive) his actual further intention were to produce permanent memory loss in the patient (q) by means of ECT.
According to C8, it would not be coherent and plausible for the physician to claim to use ECT as a means (p) of bringing the patient’s mania into remission (r), but not to cause any ongoing electrochemical changes in the brain of the patient (q), when the production of ongoing electrochemical changes in the brain of the patient (q) is an empirically necessary causal condition for the remission of the patient’s mania (r).
According to C9, it would not be coherent and plausible for the physician to claim to use ECT as a means (p) of bringing about a remission of mania (r) but not to intend to cause seizures (q), when the physician’s plan was to produce ten seizures of approximately one minute’s duration each over the course of two weeks (q) as a way of bringing about the relief of the patient’s mania (r).
However, it would be coherent and plausible for the physician to claim to intend to perform ECT (p) as a means of relieving mania (r), while foreseeing but not intending permanent memory loss (q), under Scenario II (Causal Forks). It would also be plausible and coherent to make this claim under Scenario III (Alternative Causal Routes).16 The Alternative Causal Routes Scenario is especially interesting to consider in discussing ECT because it was once thought (although the view is now largely discredited) that the relief of psychiatric symptoms through ECT was at least in part caused by memory loss. Even were this to be true, it would still not be
16 Since the relief of mania (r) does not cause memory loss (q), Casual Scenario I (Causal Chains) would not seem to apply here.
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implausible or incoherent to claim to intend to relieve the mania without causing memory loss (unless memory loss were known to be an empirically necessary causal condition for the relief of psychiatric symptoms by ECT).
The RDE and the Concept of a Side-Effect
The distinction between the intended and the foreseen is of critical importance to any account of the practice of medicine. In fact, it is the structural basis of the concept of a side-effect. Side-effects (such as memory loss) are not merely unwanted. They are unintended, even if foreseen.
To see why this is so, consider the fact that, occasionally, side-effects are foreseen, unintended, and yet desirable. For example, consider the case of a depressed and anxious patient who smokes, has difficulty sleeping, and has a chronic seizure disorder. Suppose the patient’s anxiety and depression have not responded to fluoxetine (Prozac). The clinician might then face a choice between bupropion and nortriptyline as the next drug to try. She quickly realizes that bupropion has a side-effect (unintended and very undesirable) of lowering the seizure threshold, and so chooses nortriptyline. In this case she intends to treat the anxiety and depression and to avoid seizures. The clinician might note that it would have been nice if she would have been able to use bupropion since it would also have helped the patient to quit smoking. Yet she is also aware that notriptyline is a second-line drug for smoking cessation (Hughes et al. 2003). In this case smoking cessation is foreseen as a potential beneficial and desirable side-effect, but it is not intended, since if it were the intention of the treatment, bupropion would have been the first choice. If, two weeks later, the patient returns and has quit smoking in addition to having improved anxiety and depression, the clinician and the patient would both have achieved a desirable, but unintended, side-effect. It would be coherent and plausible for a physician to say, ‘I did not choose to prescribe bupropion with the intention in so acting of causing the patient to quit smoking, even though I was able to foresee that this unintended effect was possible, and I am glad that it has happened’.
APPLICAT I ON TO CASES
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The foregoing discussion of the RDE, as I have reformulated it, is significant for the debate about the place of the RDE in the philosophy of medicine and in medical ethics. The additional conditions I have proposed for judging the plausibility and coherence of a claim that a particular upshot of a proposed act is foreseen but not intended results in a reclassification of controversial cases that should affect this debate in important ways. Cases that have been used routinely by opponents
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of the RDE to show that the distinction between the foreseen and the intended makes no sense could no longer be used to discredit the RDE because these are not examples of its correct application. However, if the RDE were no longer a legitimate justification for the acts described in these cases, proponents of the RDE would either be required to consider these cases immoral or be forced to find some other means of showing that these acts are justifiable. While space limitations will not permit a full discussion of the implications of this reformulation of the RDE for many contested cases, an examination of its application to the tubal ectopic pregnancy case and the morphine case will readily illustrate the clinical and ethical implications of the Reformulated RDE.
The Tubal Ectopic Pregnancy Case
Those who are morally opposed to abortion, but would defend the permissibility of surgery for tubal ectopic pregnancy as an application of the RDE, must assume that the intention of the operator is not to abort the fetus but to remove the diseased Fallopian tube. They suggest that one can hold that direct abortion is morally wrong in all circumstances yet claim that in operating under such conditions, foreseeing but not intending the death of the fetus, the abortion is indirect and therefore morally permissible (Griese 1987: 268 – 71). Is this a coherent claim according to the above analysis?
Initially it would not seem that the case could be made that the removal of the diseased tube and the abortion of the fetus are two distinct events. Many would suggest that since the removal of the fetus and the removal of the tube require the same motor movements and occupy the same space and occur at exactly the same time, these two descriptions pick out the same event and are therefore nothing more than alternative definite descriptions of that event. If so, it would be incoherent, according to my analysis, to claim that one foresaw but did not intend the abortion of the fetus.
However, the proponent of the applicability of the RDE to this case could respond that the fetus is contained within the Fallopian tube and is therefore, in fact, spatially distinct from the tube. Such a person might suggest that this justifies the intention – foresight distinction in this case. But one must question whether this claim is plausible. Suppose the proponent were to argue that this case involved a Causal Forks Scenario (Scenario II). The event of the operation (p) causes one good effect (r, the intended removal of the diseased tube), and also causes one bad effect (q, the unintended removal of the fetus). However, it would seem that this claim would be implausible because Condition 2 of Requirement 7 would still be violated. It would still seem that ‘q’ and ‘r’ pick out the same event. The diseased tube is diseased because it contains a fetus. The fact that it contains a fetus is what is wrong with it. Granted, the fetus and the tube are spatially distinct things. But
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the only good event one could suggest that one hoped to achieve in such a case would be the removal of a diseased tube. In the case of tubal ectopic pregnancy, ‘the removal of the fetus’ and ‘the removal of the diseased tube’ seem to pick out the same event. So, even if one were to claim to foresee but not intend the removal of the fetus while intending the removal of the tube, it does not seem plausible to suggest that one intends the removal of a diseased tube but not the removal of the fetus. In other words, this is not a Causal Forks scenario.
Further, even if one were to grant the (implausible) suggestion that ‘the removal of the diseased tube’ and ‘the removal of the fetus’ pick out different events, one would still be left to contend with the question of whether this procedure violates Condition 4. It seems that the event of removing the fetus is wholly spatiotemporally contained within the event of removing the diseased tube. No part of the event of removing the fetus would be spatiotemporally outside the event of removing the diseased tube unless one were to perform a salpingotomy (i.e. an incision in the tube) and were simply to remove the fetus from the tube. But then it would clearly be a directly intended abortion and the RDE could not apply. So, even if one were to grant that this construal of the act would survive scrutiny according to Condition 2, it would not survive scrutiny according to Condition 4.
In fact, with methotrexate treatment, one may now remove the disorder from the tube without damaging the tube (Lipscomb et al. 1999). This may be safer for the mother since it is a medical, not a surgical, technique. Therefore, those who hold that the RDE justifies the surgery for tubal ectopic pregnancy are now in the awkward position of either (1) recommending the possibly more dangerous surgical procedure to the mother, or (2) claiming that the aim of intervention with methotrexate is to remove the diseased trophoblastic tissue that connects the fetus to the wall of the Fallopian tube, not to remove the fetus (Clark 2000). It should be clear that the latter construal would not stand up to scrutiny according to the conditions I have delineated for distinguishing the foreseen from the intended any more than for the surgical case. Many traditional defenders of the application of the RDE to the tubal ectopic pregnancy case have concluded that it is implausible and incoherent to claim that one intends only to remove the trophoblastic tissue, not to cause an abortion. Yet they fail to see that it is equally implausible and incoherent to say that one is merely removing a diseased tube, not the fetus inside it. This has led some to recommend the more invasive, expensive, and dangerous surgical approach, which is an awkward position to defend. It therefore seems better to give up on the idea that it is the RDE that justifies treatment in cases of tubal ectopic pregnancy, no matter what treatment modality one uses.
An alternative move for the proponent of the application of the RDE might be to suggest that the tubal ectopic pregnancy case falls under the broad rubric of a type III scenario, not a type II scenario. It might be argued that what is intended (p) is better described more narrowly as the removal of the tube, rather than broadly as the performing of an operation for tubal ectopic pregnancy. The good one intends
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by this means is the health of the mother (r). The bad one foresees but does not intend is the removal of the fetus (q). One might also acknowledge fully that the event of the removal of the fetus (q) is an alternative causal route to the event of the health of the mother (r), but not the route one intends. But is this a coherent and plausible claim?
The answer would again be no because it violates Condition 8 of Requirement 7 of the Reformulated RDE. The event of the removal of the fetus is a necessary causal condition for the event of the health of the mother. With current surgical techniques, the fetus cannot be left inside the mother to develop normally.17 And given current surgical techniques, if one did leave the fetus floating freely inside the abdominal cavity, or even partially attached to the abdominal wall, it would still constitute a grave threat to the life of the mother and the likely result would be two deaths instead of one. So, under a Scenario III interpretation, a plan to keep the fetus inside the mother would be inconsistent with one’s stated good intentions — to save the life of the mother. And this would seem quite irrational. Therefore, an attempt to argue that one foresees but does not intend the death of the fetus in operations for ectopic pregnancies is implausible and incoherent.
A proponent might at this point concede that the removal of the fetus is within the scope of the intention, and offer one final move. The proponent might try to redescribe the act as the removal of the tube and the fetus, with the specific intention in acting of saving the life of the mother, while foreseeing but not intending the death of the fetus. However, this leads to a even more serious conundrum, for if this argument were acceptable for the ectopic pregnancy case, it would be acceptable for many, many other cases. Every act of abortion could thereby be justified by the same sort of act redescription: intending only to remove the fetus, not intending to kill it. One must bear in mind that the proponent of the use of the RDE to justify surgery for tubal ectopic pregnancies was initially led to use this argument because of opposition to abortion. It would be devastating to concede that the argument justifying the application of the RDE to the tubal ectopic pregnancy case could also justify abortion on demand.
Operations for tubal ectopic pregnancies would therefore appear to be cases of killing the fetus.18 If such operations are justifiable, as almost everyone would agree that they are, and one is otherwise morally opposed to abortion, such operations must be justified some another way than by invoking the RDE. Space limitations (in an already very long chapter) do not allow a full discussion of the alternative.19
17This is true at the present level of technology. However, if progress ever allowed physicians to do so safely, then one would presumably be morally impelled to reimplant the conceptus elsewhere (such as in the uterus) and there would be no point to saying that one did not intend the death of the fetus because it would be an avoidable event, and would violate Requirement 4 of the Reformulated RDE.
18For a more complete definition of killing, see Sulmasy (1998).
19For a more extensive discussion, see Sulmasy (1995).
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But briefly stated, rather than its traditional formulation, the moral rule prohibiting killing, as I see it, ought best to be formulated as follows.
Prohibited Killing
Acting on individual authority, one may never make the death of a human being the condition of fulfillment of one’s intention in acting, except in forced choice situations in which one cannot act intentionally without making the death of a human being the condition of fulfillment of one’s intention in acting. Classically, these are cases of self-defense or rescue, where self-defense and rescue are narrowly defined to include only direct, serious threats of death (and no lesser harms). In such cases, the threatened person (or the rescuer of the threatened person) is permitted to use lethal force against the attacker provided all other means have been exhausted, the threat is truly imminent, and it is truly direct (i.e. the attacker is the agent of the threat, not some other party such as a hired assassin or a subordinate ordered to kill). In these cases, one is not culpable for acting directly against human life, since one cannot act without taking human life. One is not acting against the value of life in such forced choice situations, because no choice is available except one that involves taking life. One either kills or is killed. In these cases, one may employ other considerations (such as number of lives involved, role responsibilities, or the like) in choosing one life or the other.
In removing a tubal ectopic pregnancy, one is killing, but since one is doing so to rescue the mother from a serious imminent threat of death, caused by the fetus, despite its innocence, with no intervening agents, this is an allowable exception. When either one or the other must die (or, more specifically in such cases, either one dies or both die), one is allowed to choose, by action or omission, who will survive and who will die. Thus, vigorous defenders of the value of human life can justify surgery or methotrexate in cases such as tubal ectopic pregnancy without diminishing their allegiance to a principle of equal respect for the value of each human life, prenatal or postnatal. But they also ought not invoke the RDE in such an incoherent way that the significance of this important moral rule is jeopardized.
The Morphine Case
In contrast to the way in which my Reformulated RDE excludes the tubal ectopic pregnancy cases from its ambit, the Reformulated RDE continues to justify its application in most traditional cases. To illustrate this, I will ‘walk through’ its application to the morphine case.
In the morphine case, proponents of the RDE suggest that in giving powerful opioid analgesics such as morphine to dying patients, one intends only pain relief,