On Janet Smith and Fr. Rhonheimer - Use of Codoms

Dianne N. Irving
copyright December 16, 2010
Reproduced with Permission

Dr. Smith is to be thanked for this very thoughtful explanatory article in response to Fr. Rhonheimer's interview. One can sense, though, a little bit of frustration with trying to put in plain English the rather complex principles of natural law philosophy and theology, and perhaps her references to this being done more carefully in relevant academic journals and conferences is a point. Still, I welcome the effort to try to share some of that precision with the average reader. Focusing on just one technical term for readers, I hope it is permissible for a Thomistic philosopher to make a foray into this debate.

Having taught the History of Philosophy, including philosophical natural law theory, full time in seminaries for 12 years myself, it is a simple historical fact that traditional moral theology has been controverted and deconstructed for many decades now, especially in the seminaries. As I read the interesting piece by Fr. Rhonheimer, I could not help but sense behind his explanations the confusing "moral theory" of "proportionalism" espoused many years ago by Fr. Richard McCormick (of "pre-embryo" fame), Charles Curran et al, and taught for so long in Catholic seminaries and Catholic universities. Note that "proportionalism" was finally formally rejected in the 1993 encyclical Veritatis splendor.

While traditional moral theology is grounded in philosophical natural law and consists of applying THREE moral conditions to human actions, "proportionalism" drops one of those moral conditions and applies only TWO. The moral condition that was eliminated was, as Dr. Smith points to, "the object of the will". Thus "proportionalism" uses only the intentions and the circumstances to determine the morality of a human action. It does not acknowledge any human actions that are by their very nature, per se, good or evil. This is precisely how I read Fr. Rhonheimer's interview. While barely giving reference to "the object of the will", the great majority of his analysis focused only on the intentions and the circumstances, and indeed therein rests an inherent contradiction in his own arguments.

Most people can understand the relevance of intentions and circumstances, but most also have a difficult time with the meaning of "the object of the will". It might be easier to understand if one referred to it as "the nature of the action", what KIND of action that is involved. In traditional natural law theory, although many human actions are neutral and their morality determined simply by the intentions and circumstances, many such human actions are BY THEIR VERY NATURE GOOD OR EVIL, as explained in the 1973 encyclical On Procured Abortion.

For example, praising God is per se (by its very nature) a morally good action and would remain good regardless of the intentions and circumstances; and contraception is per se (by its very nature) a morally evil action. Thus no matter what the circumstances and intentions (e.g., to prevent diseases) involved, to perform contraceptive acts is per se evil. Because of the last 40 years of conditioning by "proportionalism", I fear that it will take a long time before its damaging effects can be eliminated. If it can be helpful, I wrote a long article on the correct application of natural law to abortion, in which the three traditional conditions are explained in more detail - and which would refute Fr. Rohnheimer's position on the killing of a child in the womb: Linacre Quarterly (Feb. 2000), at: http://www.lifeissues.net/writers/irv/irv_08natlaw.html.


By Janet E. Smith - OSV Newsweekly, 12/19/2010

A response to Father Rhonheimer on condoms

After papal remarks, U.S. moral theologian takes exception with ethicist's position on use of prophylactics

I have great respect for Father Martin Rhonheimer and believe that his interview with the Our Sunday Visitor includes many important clarifications, especially on why the Holy Father is not, contrary to widespread reports, using the "principle of the lesser evil" in his remarks on condoms. As Rhonheimer noted, the Holy Father is not employing the principle of the lesser evil to support the use of condoms, both because he is not supporting the use of condoms and because the principle of the lesser evil does not lend itself to justifying the use of condoms; one cannot do moral evil (even a lesser evil) to avoid evil. Again, the Holy Father was simply commenting on the possibility that the decision to use a condom for the purpose of attempting to reduce the risk of the transmission of the HIV might be a sign of moral growth. Rhonheimer is very clear that the Holy Father has not in the least changed the Church's teaching on contraception and that he is not advocating either the use or the distribution of condoms.

There is, however, one claim that Rhonheimer makes that I think has no warrant. Rhonheimer states:

"Pope Benedict, after what I assume careful consideration, has made a public statement that has changed the discourse on these issues, both inside and outside the Church. For the first time it has been said by the pope himself, though not in a formal teaching act of the Church's Magisterium, that the Church does not unconditionally 'prohibit' prophylactic use of condoms."

Pope Benedict certainly did not "say" that the Church "does not unconditionally eprohibit' prophylactic use of condoms," that is, the use of condoms to avoid transmission of disease. Neither those words or anything like them appear in the interview. Moreover, nothing Pope Benedict said in his interview suggests that such would be his position. Rather, he said the use of condoms was neither "a real or moral solution." Again, he was speaking only to the question of what the intention of the agent might indicate about the possibility of moral maturation; he was saying nothing about the morality of the use of condoms by anyone for any purpose. All of us must be very careful not to infer what we think the Holy Father might say about issues he did not address. Unfortunately those who would like to distribute condoms might use Rhonheimer's claim to advance an agenda that does not seem to be one the Holy Father endorses.

Rhonheimer also has taken the occasion of the Holy Father's remarks on condoms to "float" some of his own views on some more difficult subordinate questions concerning contraception. I would like to respond to those views because I fear that, if left unchallenged, they might cause confusion. Specifically, I will be responding to 1) Rhonheimer's comment on the morality of use of contraception by fornicators and 2) his claim that the use of condoms by spouses is not always contraceptive.

It would be an understatement to say that Catholic theologians have not come to a consensus on these questions and that to some extent the discussion has just begun. For instance, William May takes exception to Rhonheimer's claim that a man who is stimulating his genitals to obtain semen for analysis of infertility is not masturbating and to his claim that virtue ethics permits killing an unborn child whose presence threatens the life of the mother and who could not survive to viability.

I do not question Rhonheimer's fidelity to the magisterium but one can hardly deny that his theory of moral action would result in the reversal of the common understanding by other magisterial theologians (those faithful to the magisterium of the application of standard moral principles). In my view, the discussion of these issues should take place in professional journals and at professional conferences since resolution of these issues has serious implications for private behavior and for public policy. Proceeding with due caution has its advantages. But since some highly debatable views have been published in popular journals such as Our Sunday Visitor, they need to be engaged in similar venues.

Fornicators and contraception

Rhonheimer asserts that the Church's teaching on contraception has been rendered only in the context of conjugal acts. That claim is highly debatable. Correspondence that I have with other magisterial theologians indicates that not many of them agree with Rhonheimer. They think that to call contraception "intrinsically evil" means that all contracepted acts, those within and outside of marriage, are immoral. Moreover, many theologians and philosophers think that it is a matter of natural law that contraception is immoral outside of marriage as well as within since it violates the purpose of the sexual act. Until very recently seminarians were taught that contracepting fornicators were guilty of two sins.

Other theologians agree with Rhonheimer and argue that the act of sexual intercourse outside of marriage does not share in the defining features of the sexual act within marriage and thus is subject to a different moral analysis. Among those is John Kippley whose "Sex and the Marriage Covenant" received both an imprimatur and nihil obstat. He argues that fornicators cannot violate the covenantal meaning the sexual act is meant to express because they have not made a marriage covenant. As one friend observed, it is like killing an imaginary person. The question of the proper interpretation of magisterial documents that address the morality of contraception has not been settled. Again, I think theologians and philosophers should take up this question in professional journals.

This is what Rhonheimer says about fornicators and contraception:

"However, I wish to add something to your example of promiscuous people: Notice again that Church doctrine on contraception is a teaching about marriage and marital love. Sexual promiscuity and fornication are of course deplorable and their grave evil is not removed by preventing the risk of pregnancy. The case is thus different from preventing one's partner being infected by a deadly disease. On the other hand, I consider that a man who at least cares that his occasional female sexual partner not become pregnant acts more responsibly - or less irresponsibly - than a man who does not care about possibly destroying a girl's entire life; I am thinking of the man who prefers to maximize his pleasure and thus insists on having sex without using condoms. To apply the Church's teaching on contraception, which is a teaching about marital love, to such cases, in my view leads to counterintuitive conclusions."

The suggestion that fornicators who contracept are acting "less irresponsibly" than had they not contracepted lends support to those who are pressing for distribution of condoms not only to homosexuals and those who are pressing for making contraception widely available to fornicators, especially teenage fornicators. That is something abstinence educators have been fighting for decades. Public health officials for decades have been calling the Church irresponsible because it does not support distribution of contraception to teenagers. I fear Rhonheimer's speculations, fairly or unfairly, will provide another impetus for those who want condoms and contraceptives distributed freely and widely. That is, I believe, even if his position is the correct one, it may not be at all prudent to present it in the public realm. I will explain why below.

I do not know whether Rhonheimer thinks that fornicators commit a sin in contracepting. Yet, it would not be unreasonable to think his statement "To apply the Church's teaching on contraception, which is a teaching about marital love, to such cases, in my view leads to counterintuitive conclusions" to mean that contraception might be a good moral choice for fornicators because it helps avoid some seriously bad consequences. In the above passage he is referring precisely to "caring that a sexual partner not become pregnant" so he is not isolating his position to the use of a condom to prevent disease. Even if Rhonheimer is not suggesting that fornicators are not adding a further sin when contracepting, he is very likely to be understood in that fashion. The suggestion, whether or not is rightly attributed to Rhonheimer, needs to be examined.


Rhonheimer doesn't offer any philosophical or theological arguments for his position that the Church's condemnation of contraception may not apply to fornicators; he appeals only to intuition. As he surely would agree, appeal to intuition does not always yield correct moral judgments. As he stated clearly in his article, it is not morally right to kill one innocent person to save the lives of many other innocent people, though that position violates the intuitions of many. No one denies that there are seriously bad consequences to the nonuse of contraception by fornicators, such as the transmission of sexually transmitted diseases, unwed pregnancy, and abortion. Yet, as Rhonheimer would readily agree, if contraception is intrinsically evil outside of marriage as well as within marriage, in spite of the bad consequences it would not be moral to use it. So intuitions and bad consequences notwithstanding, a case must be made that fornicators are not sinning when they use contraceptives; we can't rely solely on intuition. A good debate in the professional journals would trace whatever arguments have been offered in the past about fornication and contraception and bring to bear the best theological and philosophical analysis of those arguments and any new ones that are being offered. Intuitions only set the stage for deliberation; they do not in themselves serve to settle complex moral issues. I am neither making a case for or against the morality of the use of contraception by fornicators here; I am showing why it is problematic to make that case in the public sphere.

Case by Case Reasoning

Those who argue that it is sometimes better for fornicators to contracept should provide some guidance on how to decide when it is better. Many factors must be taken into account to determine the morality of actions that are not intrinsically evil. For instance, it is not intrinsically evil to drive over the speed limit, but one needs to take great care in deciding when to do so and when not. It is even more difficult to determine the morality of actions that may serve in some way to facilitate actions that are intrinsically evil, such as giving handouts to alcoholic beggars. Even if it is determined that it is not intrinsically evil for fornicators to contracept, that does not settle the question whether or not they should contracept and whether or not they should be given easy access to contraceptives. This can only be done on a case by case basis.

Even if contraception is not intrinsically evil for fornicators, I believe that it would be wrong for some fornicators to contracept. Certainly for those who are engaged or planning on marrying, a pregnancy would not necessarily have seriously bad consequences. A pregnancy is the natural and good result of their love for each other. I am assuming that they mean their acts of sexual intercourse to express love for each other, a willingness to make a life time commitment to the other and an intention to have children with each other. They have not made the vows that completely commit themselves to the full meaning of the conjugal act but their love for each other perhaps shares enough in the meaning of the conjugal act that they should honor that meaning in their sexual acts. Using a contraceptive would rob their action of the elements of complete self-giving that are there in spite of their not being married. These individuals are planning on marrying and should a pregnancy occur they likely will proceed to marriage. Their intention to honor the conjugal meaning of the sexual act may have saved them from some seriously bad consequences. Had they used a contraceptive they may have begun a contraceptive lifestyle from which it would be hard to recover. They may have settled into a pattern of sinfulness. Getting pregnant possibly could possibly help extract them from a sinful lifestyle. Having sex outside of marriage remains gravely sinful and certainly they must confess that but their refusal to contracept may in fact have served them well.

In fact, some of the bad consequences of not contracepting could actually be beneficial even for those who are engaging in sex only for pleasure. To contract a sexually transmitted illness or to experience an out of wedlock pregnancy has sometimes been the "wake-up" call that many fornicators have needed to change their ways. No one would wish that upon them, but the bad consequences of bad actions have served to deter many from continuing those bad actions. Had they avoided the bad consequences, conversion may not have come so quickly or at all. Sometimes parents let their children spend a night or two in jail even though they could have stood bail, because experiencing the consequences of one's actions can be a deterrent to future bad behavior.

If contracepting does not add a second sin to fornication, those for whom contraceptives might be a good choice would include those who have multiple sexual partners. Suppose one of those fornicators for whom using a condom would be "less irresponsible" was your teenage son, a fellow whose sexual exploits had led to several abortions. The question then arises of who should try to convince your fornicating son to use a condom? The only person who "should" make the "recommendation" would be someone who would at the same time try to talk the person out of the action. And who would that be? The parish priest could hardly be expected to do so; his job should be to drive home the immorality of all the young man has been doing. Perhaps the parents could do so if they thought they could do so without conveying some degree of approval of the action. But that wouldn't be easy to do especially with teenagers, or anyone intent upon evil action. This is one reason why public policies of distributing condoms generally make things worse instead of better - there will be no one-on-one discussions on why this activity is seriously sinful and harmful. Public officials won't talk about sin.

There are more reasons why it is not wise to distribute contraceptives to fornicators.

Public Policy

If contracepting is not a second sin in addition to fornicating and if using contraception makes some fornicators "less irresponsible," how do we argue against making contraceptives easily accessible to fornicators, especially teenagers? Fornicators and those whose parents still have some governance over them might think it moral to use and provide condoms to fornicators. There will be boxes of condoms under Christmas trees from parents who think they are helping their children. More public health officials will think they are doing good by distributing condoms to fornicators, especially teenagers.

I think it is impossible to engage in distribution of contraceptives without appearing to give approval or at least tolerance of the actions for which they are being used and result in more of that action taking place. Moreover, I think distribution of condoms is counterproductive in the long run: because of the mixed message about the morality of fornication, it will lead to more fornication, more sexually transmitted illnesses, more unwed pregnancies, more abortions, more heartache and more broken lives. I think the evidence of the last 40 years abundantly proves that claim. But few in the public realm have acknowledged that evidence; they still think that more and better contraception will reduce the number of unwed pregnancies and abortions. Those of us who have been fighting against that strategy will have a much harder battle if Catholic theologians argue publicly that fornicators are not adding a second sin to their behavior.

Here let me explain the "principle" that what it might be moral to "recommend" in some individual cases would not be moral to "recommend" as a matter of public policy. In my earlier piece on Pope Benedict's comments in the "Light of the World," I gave the example of bank robbers using guns without bullets. Doing so would result in reducing the evil of their act. The Church, however, does not and never will "teach" that bank robbers "should" use guns without bullets nor can the Church support public distribution of guns without bullets to bank robbers.

Let me propose an additional example - a situation more of us have likely faced. Suppose you had a party in which one of the attendees consumed enough alcohol to impair his judgment but he insisted on driving home. When giving directions to him on how to get home, you (while also perhaps calling the police to try to waylay him) might give him directions for a route that would threaten fewer lives. No one would think that you would be supporting a public campaign to give impaired drivers instructions for safer routes to return home. In fact although it is true that those who would drink and drive should wear their seatbelts, drive slowly and on uncongested routes, this advice is not given as a part of campaigns against drunk driving and even rarely on a case to case basis. Certainly anti-drunk driving campaigns on college campuses never give this sound advice. What is permissible good advice on a case by case basis regarding action collateral with immoral behavior is only occasionally good to give even on a case by case basis and even more rarely translates directly into public policy.

Those who want to make the argument that contraceptive use by some fornicators is not always intrinsically evil, need to be very careful to spell out what such a position suggests would be the moral response of parents to teenagers and of public health officials to a wildly fornicating public.

HIV-infected Spouses and Condoms

In his interview in OSV Newsweekly, Father Rhonheimer updates us on his position on the morality of HIV-infected spouses using a condom to prevent the transmission of the HIV. Rhonheimer would advise an HIV-infected husband not to engage in marital relations because a condom only reduces and does not prevent the transmission of the HIV. Nonetheless, he does not believe that spouses using condoms in that instance are contracepting; he understands their intent in using a condom is not to avoid conception but to avoid transmitting the HIV. Critics of his argument (myself included) argue that whether or not the use of a condom is a contraceptive act in this instance, the act is not unitive. A unitive or completed act of sexual intercourse requires deposit of semen in the vagina. Simply speaking, a husband using a condom is uniting with the condom rather than with his wife. Rhonheimer tells us when he initially proposed his argument, he failed to take the nonunitive possibility into account. Although not convinced by his critics, he has ceased pressing that point until there is "clarification by Church authorities."

Nonetheless, Rhonheimer continues to press the point that use of a condom by an HIV-infected husband to avoid transmission of the HIV is not a contraceptive act. Rhonheimer explicitly acknowledges that the Holy Father "did not address the question of prophylactic use of condoms in marriage." And adds: "I don't believe that his remarks offer a concrete answer to that question." I don't think the Holy Father's remarks bear upon that question in the least. Rhonheimer, on the other hand, seems to think what the Holy Father said may lend some support to his position. In his interview he states:

"What seems to me to be clear after the Holy Father's statement on condoms is that the question of prophylactic condom use and the moral question of contraception, as a doctrine about marital love, are to be distinguished. To use a condom for prophylactic reasons is not contraception; if it intrinsically deprives marital acts of their procreative meaning, this is not because it embodies a contraceptive choice."

Again, that the use of a condom is not at all contraceptive for homosexuals, is, in my view, incontrovertible. It has been my position for a very long time that because there is no intrinsic procreative nature of the homosexual act, the use of condom by a homosexual is not a contraceptive act. I would be surprised if the Holy Father thought differently. Yet, we must note that the Holy Father has not weighed in on that point. All the Holy Father has said is that the use of a condom by those engaging in illicit sex may be a sign of moral growth. He has not said that the use of a condom by homosexuals or anyone else is not a contraceptive act. He neither addresses that point in his remarks, nor is it germane to his point. His point holds for both those who use condoms contraceptively and noncontraceptively if doing so to avoid transmitting a lethal disease. In all cases, it may be a sign of an incipient moral sense but says nothing about whether what they are doing is contraceptive in nature or not.

It is curious that Rhonheimer continues to press his point that the use of condoms can be noncontraceptive for spouses. After all, as mentioned earlier, (1) he thinks an HIV-infected husband ought not to engage in the conjugal act and (2) he acknowledges the act may be nonunitive and thus immoral for that reason. And (3) in my view, at least, this claim is highly likely to sow confusion among the faithful and the public. What good is to be achieved at this time by arguing in a very public context that not all use of a condom by spouses is contraceptive?

Let me contest the claim the spouses can use a condom and not be contracepting. I believe it to be true and I believe that it is consistent with traditional Thomistic analysis of the moral act to say that the intention of the agent is not the sole or chief determinant of the object of an act (I acknowledge that there are many ambiguities with the word "intention" and also "object" but I hope I can make my point without a lengthy disquisition on the technical issues.) Some "objects" have a per se nature and thus when an agent chooses that act, he chooses all that is included in the nature of that act.

For instance, when someone throws a brick through a window to rescue someone trapped in a burning house, he is morally responsible for having broken the window. He intends both to rescue someone and to break the window. He breaks the window as a means of rescuing. Tossing a brick through a window has the per se consequence of breaking the window. It is not possible to throw a brick through a window without intending to break it. The one who throws a brick through a window has chosen to it. Since windows have only a utilitarian value, breaking the window is a moral intention; his choice and his intention are morally good. He did the right thing.

An HIV-infected husband using a condom is performing an act that has the per se consequence of preventing conception. He is attempting to prevent semen from entering the vagina: That is by its very nature a conception-preventing action. The means the husband chooses to prevent transmission of the HIV is essentially a means that directly involves an act contraceptive by its nature. One cannot choose a bad means to a good end. The husband has a good end: that of wanting to reduce risk of transmission of a lethal disease, but he is using a means that necessarily has a contraceptive effect. He must intend and therefore must choose that consequence, a consequence that violates the very purpose of the sexual act. Although the husband may not want to violate the procreative purpose of the act he must in fact desire and intend that semen not enter the vagina and that is per se contraceptive. Thus it is immoral to participate in such an action.

Rhonheimer has a theory of the moral object that, to my mind, gives too much defining power to the intention. As mentioned, elsewhere Rhonheimer uses the same method of moral reasoning to justify killing a nonviable fetus when a pregnancy threatens both the life of the mother and the fetus. Rhonheimer knows he is challenging what has been the consensus among other magisterial theologians; his views have certainly not won the day nor have many theologians supported his views.

The discussion of what constitutes the object of the act, whether or not condoms increase or decrease the evil of an intrinsically evil act, and many related questions are fascinating to me. To some extent these discussions may be endless: There are certainly issues that the Church likely will never pronounce upon since some of them involve questions of how to perform intrinsically evil acts less harmfully, which is not something the Church addresses on a magisterial level. Theologians do need to address those questions because the answers have implications for how priests deal with matters in the confessional and also because the answers have implications for public policy. But I think we moral theologians should hammer them out among ourselves before exposing the public to the complexities of the issues.

On both the issue of noncontraceptive use of condoms by spouses and killing fetuses in some situations, Rhonheimer submitted his thoughts to the Congregation for the Doctrine of the Faith (CDF) and they did not prevent him from publishing them. He is, of course, to be commended for his docility to authority. The permission to publish, of course, does not signal approval of his positions; it only signals that the CDF is permitting scholarly discussion of them. That such discussion is becoming very public through such vehicles as an OSV interview on the Internet is unfortunate, in my view. It draws attention to a debate that is still in the incipient stages. It would be wrong, I think, to conclude that these matters are in a state of "in dubium", a state of doubt that permits a certain liberty of action.

Did Pope Benedict really intend to launch a public discussion on whether fornicators or HIV-infected spouses can morally use condoms? I don't think so. I think he intended to start a public discussion on how to help individuals and our culture recover from the banalization of sexuality. I think he intended to show that if we (and not just male prostitutes) reflected even momentarily on the fixation on condoms we might experience some moral growth. The public, the media, and those fighting AIDS might come to see that condoms are being proposed because there is danger of transmitting a lethal disease. A LETHAL disease. And then, like the male prostitute, people might reason, why are we facilitating an act that risks transmitting a lethal disease? Why is sex so important as to make it worth risking transmitting a lethal disease?

More deadly than AIDS in the long run is a failure to acknowledge Jesus as Savior and Lord. Christians believe the most important thing in this world is to believe in Jesus and to live morally upright lives. In respect to sexuality this means using the gift of sexuality as designed by God: to express a lifetime commitment to a person of the opposite sex and the openness to having children with that person. So let's evangelize our little hearts out and promote chastity every chance we get and let the moral theologians in their professional journals and conferences attempt to get clarity on some very vexed issues.

Janet E. Smith holds the Father Michael J. McGivney Chair of Life Ethics at Sacred Heart Major Seminary in Detroit, Mich., and is the author of the popular "Contraception: Why Not?"

Read the interview with Father Martin Rhonheimert "Ethicist: Pope intended condom use/AIDS reflection", at: http://www.osv.com/tabid/7621/itemid/7267/Ethicist-Pope-intended-condom-useAIDS-reflection.aspx