In this guest post, Eryn Reyes Leong analyzes “Risking Women’s Lives, Denying Women’s Experiences: CDF Statements on Sterilization in Catholic Hospitals” by Eric Marcelo O. Genilo, SJ. It is difficult to predict the impact of another Trump presidency on the practice of medicine in the US context, but both Leong and Genilo remind us of our moral duty to care for women. These timely essays contribute to important theological discernment as Catholic health care institutions navigate complex moral questions now and in the days to come.
“Are women human?” This grave question, posed by legal feminist scholar Catherine A. MacKinnon, reverberated in my heart and mind as I read the words of Eric Marcelo O. Genilo, SJ. In Chapter 14 of Reproduction and the Common Good: Global Perspectives from the Catholic Tradition, Genilo makes a compelling case as to how the CDF, in addressing sterilization, engages in “a fragmented, disembodied, and inadequate view of women.[1] He specifically probes three CDF documents, written in 1975, 1993, and 2018, which, he argues, “have created an unjust situation for women at risk of a future dangerous pregnancy.”[2] Together, these documents span almost fifty years, affecting women so intimately in their bodies but treating women incidentally as integral human persons.[3]
Lamentably, the CDF’s marginal treatment of women is indicative of the Catholic Church’s historical treatment of women and of women’s marginal status around the world. Although women’s equality is recognized legally and theologically, whether enshrined in law or affirmed in Christianity’s doctrine of imago Dei, gender inequality and sexual violence persist and women’s agency and autonomy remain under siege. According to MacKinnon, women are violated because we are women,[4] and “[b]eing a woman is not yet a name for a way of being human.”[5] While MacKinnon situates her argument in a global context, investigating the international laws and systems which sanction conflict-related sexual violence against women, Genilo, I believe, magnifies her claim through his theological interrogation of the three CDF documents.
It is the unique intersection of law and theology which will operate as the hermeneutical key in my commentary on Chapter 14. Genilo offers a criticality that is both significant and timely. Today in the United States, we are witnessing the precipitous unraveling of women’s access to healthcare following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (597 U.S. 215 (2022)). This unraveling has turned some pregnant women into “untouchables,”[6] placing them in medical and legal limbo as they try to seek treatment for dangerous pregnancies and miscarriages. Women are dying, and Genilo’s retrieval of John Ford and Gerald Kelly’s work presents one life-saving path through the medical, legal, and theological morass that currently ensnares women’s bodies. Inspired by Genilo’s work on sterilization, I will conclude my remarks with the Church’s duty of care to women, drawing upon the legal framework of negligence, so as to both punctuate Genilo’s thoughtful work and answer MacKinnon’s question in the affirmative. Yes, women are human, and women deserve to live.
The 1975, 1993, and 2018 CDF Documents on Sterilization
In 1975, the CDF issued Responses to Questions Concerning Sterilization in Catholic Hospitals, examining direct and indirect sterilization as forms of medical treatment. The CDF, in keeping with the 1968 encyclical Humanae Vitae, upheld the general prohibition against direct sterilization. Although an exception was made for those procedures “that are directly intended to cure an existing pathology but have unintended contraceptive or sterilizing side effects,” Genilo astutely notes how the document was fixated on reproductive organs and the physical aspects of sterilization, to the detriment of women who are vulnerable to sexual violence and life-threatening pregnancies.[7]
This fixation on reproductive organs, without regard to women as human beings, reoccurs in the 1993 document entitled Responses to Questions Proposed Concerning “Uterine Isolation” and Related Matters. The CDF explicated the difference between a damaged uterus, which “poses an immediate threat to the life of a mother after delivery,” and a weakened uterus, which can pose a foreseeable serious threat to the life of a mother, should she become pregnant in the future. In ruling that direct sterilization was permissible for the former but not the latter, the CDF once again engages in superficial treatment of women’s lived experience. Such treatment, Genilo rightly points out, places women in a moral conundrum of choosing violence or death: “Does she refuse sex with her spouse and risk straining her marriage or provoking domestic violence? Does she wait until she gets pregnant, knowing she will likely lose her child and endanger her life before she can have the medical intervention the CDF allows?”[8]
Finally, the 2018 CDF document, Response to a Question on the Liceity of a Hysterectomy in Certain Cases, clarifies the 1993 document but remains detached from women and their bodies. While the 2018 document states that the removal of a damaged uterus, which “medical experts have judged with certainty . . . can no longer bring a pregnancy to term,” would not constitute a direct sterilization, there is, as Genilo observes, a myopic focus on childbearing.[9] As in the previous 1975 and 1993 documents, women are considered in terms of their reproductive capacities rather than in “their totality as integral persons deserving the best medical care available for themselves and their families.”[10]
Ford and Kelly’s Probable Opinion and the Catholic Church’s Duty of Care to Women
In response to the three CDF documents, Genilo retrieves the insights of moral theologians John Ford and Gerald Kelly. In Contemporary Moral Theology: Marriage Questions, Ford and Kelly offer a probable opinion on the issue of a weakened uterus, “argu[ing] that the removal of a severely weakened uterus in danger of failure in a future pregnancy is an indirect sterilization that can be licitly performed.”[11] The difference between a 1% mortality rate versus a 2% mortality rate “for mothers, who after a cesarean operation, do not have their weakened uterus removed,” was particularly crucial to Ford.[12] He asks the pointed question: “Is it in accord with common sense to tell a woman who has had many cesareans: ‘You have worn out this uterus in the service of motherhood. Nevertheless, you must keep it; and if you wish to protect yourself against the danger inherent in using it, you must abstain from marital intercourse?’”[13] While some moralists have argued that the removal of a weakened uterus requires a present danger to the woman, Ford’s question recognizes a foreseeable danger, one that could also imperil the woman’s life with the increased risk of dying.[14] Both Ford and Kelly situate this danger in women’s lived experience, identifying “the tension between the demands of [women’s] married life and the potential dangers of [their] medical condition.”[15]
In reading Genilo’s exposition of Ford and Kelly’s probable opinion, I was reminded of the legal concept of negligence which, I believe, can yield important theological insights concerning the current precarious situation of pregnant women in the United States. In tort law, negligence is composed of the following four elements: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the defendant’s breach is the actual and proximate cause of the plaintiff’s injury; and (4) the plaintiff has suffered actual harm and is entitled to damages. This framework, though legal in nature, can help us understand more deeply the Church’s duty of care to women. For the purposes of this commentary, I will primarily focus on the first two elements.
The elements of duty of care and breach of duty, I would argue, form the crux of Genilo’s argument in Chapter 14. Duty of care involves the defendant’s legal duty to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of harm. In retrieving Ford and Kelly’s probable opinion, Genilo elucidates the duty of care that the Church owes to women, particularly those who are at risk of a life-threatening pregnancy or miscarriage. Although their opinion is focused on sterilization, it provides an opening to reflect on how the Church’s duty should be “person-centric,” “consistent with medical standards of care, Christian charity, and common sense than the impersonal moral calculation of the three CDF responses.”[16] This “person-centric” duty treats women as unique, integral human beings rather than as a generalized monolith that is only valued or recognized for its reproductive capacity. It respects women’s bodily autonomy and integrity and recognizes how women’s lived reality is profoundly implicated in their medical treatment and personal choices. Duty of care is also defined by reasonableness, that is, the reasonable care which persons of ordinary prudence would use in order to avoid injury to themselves or to others. Such care, I believe, compels the Church to act as a reasonably prudent person would when caring for pregnant women who are facing dangerous pregnancies, so as to not cause further harm to them.
The requirement of reasonableness is vital and sheds new light on the aforementioned rhetorical questions of Genilo and Ford, which brings us to the second element of negligence. Breach of duty involves the defendant’s failure to conform their conduct to the required standard of care owed to the plaintiff. Breach of the Church’s duty, I would argue, can be seen in the CDF’s “fragmented, disembodied, and inadequate view of women” in the 1975, 1993, and 2018 documents. Instead of safeguarding the health of women, the Church asks women to abstain from sex, lest they find themselves pregnant and at risk of life-threatening complications due to a weakened uterus. Such a request, as Genilo and Ford so keenly observe, is untenable given women’s acute vulnerability to sexual violence, even at the hands of their partners, and dangerous pregnancies. It disregards not only women’s lived experience but also the foreseeable risk of death associated with a weakened uterus and a future pregnancy. Women are placed in harm’s way and asked to assume the risks of having or not having sex. This onus on women, I contend, is unreasonable and constitutes a breach of the Church’s duty to women.
To return back to Catherine A. MacKinnon’s grave question, “Are women human?,” the theological examination of Genilo and the legal framework of negligence direct us to respond in the affirmative. While the answer to her question may seem obvious and innocuous, the global condition of women belie the truth of women’s humanity. For example, in the United States today, some pregnant women are unable to access life-saving medical care due to the aftermath of Dobbs. They have become “untouchables” who are only encountered as human persons when they are, appallingly, at death’s door. This is deeply unjust to women as human persons. Consequently, MacKinnon’s question asks us to scrutinize how we treat women and implicates the Church’s duty of care to women. Genilo has begun the conversation through his inquiry on sterilization and while he mainly focuses on women’s lived experience, women’s bodily agency and autonomy must also be considered when articulating the Church’s duty of care. Women are human persons, and women deserve to live.
Eryn Reyes Leong is an attorney, pursuing a Master of Theology at Loyola Marymount University. As a military spouse and mother scholar, she has lived across the United States with her family and is now discovering at LMU how her legal studies and faith are being brought into fullness through the intersection of law and theology.
[1] Eric Marcelo O. Genilo, SJ, “Risking Women’s Lives, Denying Women’s Experiences: CDF Statements on Sterilization in Catholic Hospitals,” in Reproduction and the Common Good: Global Perspectives from the Catholic Tradition, eds. Simeiqi He and Emily Reimer-Barry (Pickwick Publications, 2024), 348.
[2] Genilo, 355.
[3] Genilo, 341, 348, 351.
[4] Catherine A. MacKinnon, Are Women Human?: And Other International Dialogues (Harvard University Press, 2007), 33.
[5] MacKinnon, 43.
[6] Lizzie Presser and Kavitha Surana, “A Pregnant Teenager Died After Trying to Get Care in Three Visits to Texas Emergency Rooms,” ProPublica, November 1, 2024, https://www.propublica.org/article/nevaeh-crain-death-texas-abortion-ban-emtala. See Kavita Surana, “Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable,” ProPublica, September 16, 2024, https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death.
[7] Genilo, “Risking Women’s Lives, Denying Women’s Experiences,” 338-42.
[8] Genilo, 344-45.
[9] Genilo, 351.
[10] Genilo, 348.
[11] Genilo, 356.
[12] Genilo, 352-53.
[13] John Ford and Gerald Kelly, “Notes on Moral Theology,” Theological Studies 15, no. 1 (1954): 70, quoted in Eric Marcelo O. Genilo, SJ, “Risking Women’s Lives, Denying Women’s Experiences: CDF Statements on Sterilization in Catholic Hospitals,” in Reproduction and the Common Good: Global Perspectives from the Catholic Tradition, eds. Simeiqi He and Emily Reimer-Barry (Pickwick Publications, 2024), 354.
[14] Genilo, “Risking Women’s Lives, Denying Women’s Experiences,” 354.
[15] Genilo, 355.
[16] Genilo, 355.
