Through worldwide media coverage in late 2000, the public learned of the plight of the Maltese conjoined twins. We think of the twins as Jodie and Mary, the pseudonyms given to them by the court to conceal their identities during legal proceedings. Jodie, the stronger twin who survived the controvertible separation surgery, is Gracie Attard. She progressed sufficiently well since the surgery last November that on June 17, 2001, she returned with her parents to their home on the island of Gozo. The more severely disabled child, Mary, who died as a result of the surgery, was named Rosie by her parents. For the purpose of this article I shall refer to Gracie and Rosie by their legal pseudonyms.

In this article I focus on five of the many religious, ethical, and legal issues raised by the case.¹ To some extent my discussion overlaps with John Allen's Second Opinion article,² which, in particular, helpfully canvassed opinion on the implications of the doctrine of double effect for the case.

REFUSING TREATMENT ON RELIGIOUS GROUNDS
English law requires parental consent to surgery on a minor. The case of Jodie and Mary came before the courts in part because their parents refused surgery to separate them. Since Adrian Bianchi, the pediatric surgeon at St. Mary's Hospital, in Manchester, and his clinical colleagues believed that they ought to carry out surgery to save the life of Jodie, they were not disposed to accept the parents' refusal of consent. There was, therefore, a conflict only the courts could resolve.³

The media have almost universally represented the grounds for parental refusal as "religious." During the legal proceedings, the British Broadcasting Corporation ran a web site entitled "Religion versus Medicine," as though the case represented yet another rerun of the heroic mythological struggle between irrational religious belief and scientific enlightenment.

Attention to what the parents said does not support this crude stereotyping. Both Mr. Justice Johnson, the judge at the first hearing of the case before the Family Division of the High Court, and Lord Justice Ward of the Court of Appeal quoted the following from the written evidence of the parents:

What is notable about this statement is the reason the parents give for thinking that separation surgery, which will cause the death of one of their children, is "not God's will." Such surgery would be contrary to the right to life enjoyed by both children. Central to the right to life—and the core of the doctrine of the sanctity or inviolability of human life—is the right of the innocent not to be intentionally killed. Now this right and its absolute, or exceptionless, character are defensible without recourse to the data of revelation; they belong, in other words, to the content of the natural law, which an atheist might recognize as intellectually compelling. What an atheist will not think is that the true deliverances of human reason about moral obligation are promulgations of the divine will for the right ordering of human life. But that belief, which provides a motivating reason for not allowing oneself exceptions to the impermissibility of intentionally killing the innocent, is itself rationally defensible without recourse to revelation. In the classical exposition of natural law in Aquinas, true human understanding of moral requirements is a participation in the eternal law, that is, the wisdom of God through which he governs the universe.⁵ But the truth about divine governance is itself, according to Aquinas, rationally discoverable without benefit of revelation.⁶ And if that is so, then the notion that true moral requirements have divine authority is not dependent on revelation.⁷ The substance, then, of the position of the Attard parents, whatever the genesis of their beliefs, arguably belonged and belongs in principle to the sphere of public reason. Failure to recognize this highlights the impoverished understanding of public reason that currently prevails and that is so damaging to the common good.

It would be reasonable to observe that the characterization of the parents' position I have advanced assumes that the proposed surgery involved intentional killing, whereas there is a weighty case for saying it did not. I shall return to that issue later. Suffice it to say that, with the exception of Lord Justice Robert Walker, the other three judges who sat on the case represented what was proposed as intentional killing as that is now understood in English law. So the court proceedings would have reinforced the parents' belief that separation involved the wrongful killing of Mary.

I think it is important to challenge the stereotyping of the parents' reasons as religious. But the specific issue of whether or not they were and the general issue of the scope English law allows to religious reasons in refusing treatment are marginal to the legal reasoning in this kind of case. The judges made it clear that the framework of Family Law, as codified in the Children Act of 1989, requires the courts in cases concerned with the welfare of children to reach an "independent and objective judgment" about what is in the "best interests" of children. What "independent" meant in this context was clarified by Lord Justice Ward when he quoted Lady Lord Justice Butler-Sloss's opinion in the 1997 case Re T. Wardship: Medical Treatment. She wrote that consideration of whether a parent's decision "came within the band of reasonable decisions" is "wholly inappropriate" in determining the welfare of a child. The question of whether the parental refusal of separation surgery was reasonable was therefore not a central issue for the court. Both Mr. Justice Johnson in the High Court and Lord Justice Ward in the Court of Appeal quoted Lord Bingham who, as Master of the Rolls,⁸ concluded:

Because the statutory duty of the court is to reach an "independent judgment" on the best interests of a child or children, there are no threshold criteria in English law determining what failure in reasonableness on the part of parents triggers the exercise of the court's judgment. It is precisely this position of English law that was challenged by the fifth of the "overarching moral considerations" enunciated by the Archbishop of Westminster as governing his Submission to the Court of Appeal:

Only Lord Justice Robert Walker explicitly recognized the incompatibility of the Archbishop's position with English law.

Though it is clear from cases that judges are encouraged to give due weight to the wishes of responsible parents in determining what is in the best interests of a child, no type of parental reason for refusal of treatment will determine the outcome of a case by virtue of being the reasonable reason of a parent. A fortiori, a parent's "religious reasons" for refusal of treatment are never as such determinative.

This brings us to the reasoning that actually determined the outcome of Jodie and Mary's case, and that now is authority in English law for any similar cases.

LEGALLY SEPARATING THE TWINS WHEN DEATH RESULTS
In his leading judgment in the Court of Appeal, Lord Justice Ward reasoned:

• Separation surgery was manifestly in Jodie's best interests, but not in Mary's best interests, because it denied her "inherent right to life."
• Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative."
• Jodie could benefit from separation surgery to enjoy probably a near normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation.

  Passing from Family Law considerations to consideration of the Criminal Law, Lord Justice Ward continued:

• Following the model direction given in the House of Lords in the Woollin case¹¹ about the scope of intention, one should conclude that separation would involve "murderous intent" on the part of the doctors in respect of Mary. The doctrine of double effect had no application to the case. It is worth noting that the only judge to disagree with this view was Lord Justice Robert Walker.
• Both doctors and parents had a legal duty to save Jodie's life. Failure to discharge this duty would or may—the judgment is unclear—open them to a charge of manslaughter.
• In face of a conflict of duties, the operation was justified as that course of action which was "the lesser evil." In so far as there was something approaching a consensus among the Appeal Court judges about the justification for the killing of Mary it was that it was necessary to save the life of Jodie.¹²
• Finally, Lord Justice Ward, but only Lord Justice Ward, reasoned that the bringing about of Mary's death was not contrary to the "sanctity of life" principle because it was a case of "quasi self-defence."

As John Allen's earlier article noted, Lord Justice Ward was careful to circumscribe the authority the case would have by specifying

While it does not seem reasonable to think that the case must be truly unique, at the same time one must recognize that the precedent it sets would not cover all cases of conjoined twins for whom separation will result in the death of one child. Nevertheless, the case represents the clearest evidence we have of how English law would approach judgment on such cases.

THE ARCHBISHOP'S REASONING
To understand the import of the Archbishop of Westminster's Submission to the Court of Appeal we must bear in mind the three concerns that motivated it. The first was to oppose the character of the reasoning of the judge in the first hearing of the case, in the High Court. The second was to provide a reasoned defense of the parents' refusal of consent to separation surgery. The third was to urge that the case be decided in accordance with certain basic principles. Briefly stated, these are (1) the inviolability of human life requires that one should never aim to cause an innocent person's death by act or omission; (2) intentional nonbeneficial invasion of bodily integrity is impermissible; (3) there is no duty to preserve life when what is required to do so involves grave injustice; (4) therapeutic measures that impose excessive burdens are not obligatory; and (5) parental authority should be overridden by the courts "only when there is clear evidence that [the parents] are acting contrary to what is strictly owing to their children." The Archbishop's statement of principles has not, for the most part, been misunderstood, so it will not be my main concern in this section. There has been some confusion, however, about other parts of his Submission, which I shall try to clarify by relating them to what I have identified as his first two concerns.

In the High Court hearing, Mr. Justice Johnson reasoned that separation surgery would not merely be in the interests of Jodie but would also be in the interests of Mary precisely in putting an end to her life. He deemed it desirable to put an end to her life because he saw her continued existence as having not just no value, but a negative value. Since the 1993 Bland case, English case law—against the prior tradition of the common law—has held intentional termination of a life by a course of conduct classifiable as "omission" to be lawful, while continuing to hold intentional killing by a positive act to be unlawful. In Bland, the omission was of tubefeeding for a persistently unconscious patient. Three of the five Law Lords who heard that case freely admitted that their reliance on the distinction between acts and omissions, when what was aimed at was the death of a patient, reduced the law of homicide to an incoherent state. It has remained incoherent, and an attempt last year in Parliament to restore it to a coherent condition failed. In the meantime, subsequent judgments in the courts have taken Bland as authority for approving intentional killing by planned omission. Mr. Justice Johnson held that it would be lawful for the doctors intentionally to end Mary's life because cutting off the blood supply she received in virtue of the functioning of Jodie's heart could be regarded as an omission—analogous to the cessation of tubefeeding—rather than a positive act.

Against this background, it should be clear why the Archbishop's Submission had, at least in part, to discuss the proposed separation surgery as a case of intentional killing. It was precisely as intentional killing by omission that the surgery had been held to be lawful by the High Court. Sections 14–18 of the Submission are directed against the judge's justification of the lawfulness of the surgery, and they may be deemed to have influenced Lord Justice Ward's rejection of that justification in the Court of Appeal.¹⁴ He asserted that the doctrine of the sanctity of human life, to which he held the law to be committed, required one to acknowledge the "ineliminable value and dignity" of Mary's life. Furthermore, he held, as did the other two Appeal Court judges, that the clamping of the aorta shared by the twins could not be classified as the omission of anything analogous to treatment but must be regarded as a positive act that would cause Mary's death.

The Archbishop's second concern was to defend in the public forum, and specifically for the benefit of the court, the reasonableness of the parents' refusal of consent. At no point was the Archbishop involved in a direct pastoral relationship with the parents, and so he was not engaged in helping them decide. As the leader of the Catholic Church in England and Wales, the Archbishop considered that he should explain the reasonableness of what Jodie and Mary's parents decided in view of the opposition this Catholic couple from abroad now faced—not merely from the doctors but also from the High Court. It is important to note that, in arguing the reasonableness of their decision, the Archbishop did not commit himself to saying that what the doctors proposed was certainly a case of intentional killing. He explicitly adverted to the differences of viewpoint in the Catholic community about whether what was proposed would count as intentional killing. Section 18 of his Submission begins: "There are those—including no doubt many Catholics—who would argue that one might embark on such an operation without having Mary's death as part of one's aim, and that her death would be a foreseen but unintended consequence of a morally justifiable operation aimed at saving Jodie." The Archbishop did not contest that view but, as we shall see, advanced a distinct reason for finding the operation morally objectionable. The Archbishop's position is not to be identified, then, with that of the late Cardinal Winning, who is reported in John Allen's article as having emphatically stated that the operation involved the intentional killing of Mary.

The Archbishop's Submission does not discuss the relevance of the doctrine of double effect to the case, for two main reasons. First, because to do so would not have served the purposes he had in mind. Second, because he was aware that Lord Steyn's direction in the Woollin case about the scope of intention had collapsed the distinction between an intended and a foreseen outcome of chosen behavior, a distinction necessary to make the doctrine of double effect intelligible. So even if discussion of the doctrine had seemed germane to the Archbishop's purposes, it would have been unlikely to make headway in court.¹⁵

While remaining uncommitted on whether the proposed surgery involved the intentional killing of Mary, the Archbishop maintained that it was an intentional invasion of Mary's body that was foreseeably lethal, and in no way beneficial to her. One cannot aim to cut into conjoined bodies for the purpose of separating them without aiming to cut into both. Though one's aim in doing so may not be to harm or kill Mary, the cutting one has in mind to do as a chosen means of saving Jodie is of no possible benefit to Mary but inherently harmful to her. That was one reason why the Archbishop considered the parents' refusal of consent was reasonable.

His other reason for so thinking relied on the Catholic moralist's classical distinction between ordinary and extraordinary means of prolonging life. Many who considered the evidence produced in court of what Jodie would have to undergo for her life to be saved and rendered as normal as possible formed the impression that her medical treatment would be very burdensome. It also seemed clear that the burdens of care that would fall on her parents would be considerable. If one combined these considerations with the known fact that the Manchester team of doctors who were to be responsible for the surgery had no track record of success in separating conjoined twins, it seemed reasonable to conclude that the burdens consequent on treatment were not clearly warranted by the prospects of success. The proposed treatment was therefore "extraordinary," meaning—on these grounds alone, and prescinding from other considerations—not obligatory. That was the second reason advanced by the Archbishop in section 13 of his Submission for considering the parents' refusal of consent to be reasonable.

These reasons were advanced against the background assumption that parental refusal should be overridden only if it were clearly unreasonable, in the sense that it was contrary to what was strictly owing to the children, as stated in sections 3[e] and 21[6]. But as we have seen, precisely this background assumption, which follows from the Catholic understanding of the natural authority of parents, was rejected by the courts as incompatible with English Family Law. Arguably, one of the basic obstacles to just treatment of the parents was the framework of English law.

RELEVANCE OF DOUBLE EFFECT
Even if it was beside the Archbishop's purpose to discuss the doctrine of double effect, there is ample reason to think that it is highly relevant to a moral evaluation of what the doctors did.

The doctrine of double effect enunciates a way of discriminating between morally permissible and impermissible actions that have two effects, one good, one bad. It requires that what one chooses to do, in the first instance, should be a good or morally neutral action, that the good effect sought should not be brought about precisely through the bad effect, that the bad effect should be an unintended side effect, and that the good one is aiming to achieve should be sufficient to justify not refraining from the proposed course of action in order to avoid bringing about the bad effect.¹⁶ When the good one seeks is insufficient, one is to be held blameworthy for failing to refrain from doing something foreseen to cause evil.

Debate about the doctrine of double effect has for some time been extensive both in the literature of secular moral philosophy and bioethics and in the literature of Catholic bioethics. It is hardly possible to appreciate what is generally at issue in Catholic debate, and specifically in Catholic disagreements about the Jodie and Mary case, without some extended explanation of why differences arise among Catholic writers who seek to apply the doctrine within the framework of Catholic moral teaching.¹⁷ Such writers will, among other things, accept the existence of moral absolutes, i.e., that there are kinds of acts one should in all circumstances refrain from choosing to do. They will also accept that types of acts are to be identified by reference to intentions, i.e., by reference to both precisely what a person aims to achieve as the end or goal of his course of action and the means chosen to achieve that goal. So a course of action does not have a single intentional description. For example: Jill's going on holiday will involve her, say, in booking an airline reservation, booking a hotel reservation, taking the flight, and checking into her hotel. It may also involve her in stealing money to buy the airline ticket. If so, it will not do to describe what she did as "securing her flight to her holiday destination." Each intentional description of a course of action may be morally significant, and a chosen means can vitiate a whole plan of action, however worthwhile one's goal.

But it would be no part of Jill's holiday plan that the flight she took to her destination also made her sick, and that the hotel room she reserved induced sensations of claustrophobia, even if she knew herself to be prone to such experiences. These were concomitant effects of her choices, and it would be unreasonable to say that she got what she chose.

Some of the unintended consequences of what we choose to do may be more or less foreseeable. To take a standard example: a doctor may give his patient an opioid analgesic in a dose intended to control pain which, however, he foresees may cause death through its effect on respiration.¹⁸ Causing death in this kind of case would be no part of the doctor's plan for controlling pain. Contrast this with the action of a doctor who plans to put an end to a patient's pain by putting an end to the patient's life.

Someone might say about the contrast stated here: "What's the difference? In each case we end up with a dead patient." This is an expression of a general puzzlement found among many secularist critics about why one should attach significance to the difference between bringing about a bad state of affairs when it is done intentionally and when, on the other hand, it is done with foresight but not as part of one's chosen end or means. In each kind of case a bad state of affairs results.

Two relatively brief comments will have to suffice in response to this puzzlement. The first is that someone who intends to bring about a state of affairs is also committed to making something hold true about himself. The doctor who aims to kill pain by killing his patient is not merely committed to depriving his patient of life, but is also committed to making himself a killer. By contrast, the doctor who happens to kill his patient by the administration of analgesia, which is intended to control pain, has no such commitment. The commitments that embody our intentions shape our characters. And if the commitment is to doing evil, the disposition of character that takes shape is vicious. In this connection, it is interesting to find that people who have carried out abortions in large numbers will often vividly recall their first abortion, when perhaps they agonized over the decision, but, having given a decisive orientation to their dispositions, subsequent abortions become more or less routine, unmemorable affairs. In general, then, what is intended has a significance for what we make of ourselves—which is what we are most of all accountable for—while what is foreseen but unintended does not in general have that significance.¹⁹

The second comment to make about the distinction between intended and merely foreseen consequences of what we do concerns the relationship between moral absolutes and respect for human dignity and human rights. Someone who thinks it is all right to kill other people for reasons other than justice fails to recognize the dignity of every human being; that person implicitly assumes that at least those regarded as eligible for killing are disposable and lack the dignity that stands in the way of our so treating them. An absolute prohibition on intentionally killing the innocent is therefore a necessary condition of respect for the equality in basic dignity of human beings, and for the inviolability of innocent human life. There could not be a wider absolute prohibition to cover the foreseen causation of death, since it would be irrational to seek to prohibit what often cannot be avoided. Consider the pilot whose plane is failing over a city and who steers it away from a crowded stadium but knows that his choice will nonetheless cause the death of other, though fewer, innocent human beings.²⁰ In this case, deaths cannot be avoided, though the death of particular people can be avoided. So foreseen causations of death cannot fall under a general prohibition. What one can require, however—as the doctrine of double effect does require—is that, when one could refrain from an action that will foreseeably cause a bad effect, one should do so unless one is warranted in acting to secure some sufficiently important good.

The foregoing is intended to help bring out the inherent reasonableness of the doctrine of double effect as understood within the traditional framework of Catholic moral thinking. That thinking is not, however, settled about precisely how to draw the line between the intended, on the one hand, and the foreseen, on the other. The debate is complex, and it would be absurd to pretend to try to settle it here. I shall confine myself to sketching one important division of viewpoint over the scope of intention, and go on to state what I take to be a consequent division of opinion about the moral evaluation of the separation surgery carried out on Jodie and Mary.

On the one hand, there are those who identify what people intend solely by reference to the reasons for the choices they make, i.e. by reference to their objective, identified in terms that make its desirability intelligible—why it seems "good"—and by reference to their chosen means, identified in terms which bring out precisely what in the means is conducive to the achievement of the objective—why they were choiceworthy means.

A now famous, if not infamous, example in the literature will clarify the issue here. A baby can get his head immovably lodged in the birth canal at delivery. If he is not moved both mother and baby will die. One way out of this situation, historically, was to aim to save the life of the mother by crushing the skull of the baby, thereby causing his death. One group of contemporary Catholic moralists argue that "the baby's death is a side-effect of changing the dimensions of its skull"; all that is strictly intended is the alteration of the dimensions of the child's skull because it is precisely and only that which is required for the removal of the child from the birth canal in order to save the life of the mother. Hence the death of the child is not "intended," as that term is used in the doctrine of double effect.

Other Catholic moralists would argue that intentions cannot be formed in abstraction from the intrinsic causal tendencies of the actions we choose to perform. Precisely because they are intrinsic causal tendencies we are committed to bring about what necessarily or generally eventuates from what we do. Thus the choice to crush a baby's skull—and this is especially clear if one removes the contents of the skull before doing so—is a choice to kill the baby. It is not rational, these moralists would argue, to analyze the character of intentions in abstraction from the nature of the objects on which we propose to act. The "perspective of the acting subject" is not reasonably one that treats the world as if it were a domain of logical possibilities—in which, for example, crushed babies' skulls were only contingently connected with death. The moral significance of the distinction between the intended and the merely foreseen derives in part from the fact that what we intend we are committed to bringing about. So we can hardly exclude from the scope of intention what, by the very nature of the action we perform, we are committed to bringing about.

What would this major difference of opinion about the scope of intention—about what is strictly intended—mean for moral analysis of the separation surgery on Jodie and Mary? I think the first group of Catholic moralists would say that the surgeons need have intended neither to kill nor to mutilate Mary, because neither her death nor damage to her body were as such the means required in order to save Jodie; the death and the damage were unintended side effects. Given that the fourth condition of the doctrine of double effect is also satisfied—saving Jodie's life is a "proportionate good"²¹—it would be reasonable to regard the separation surgery as in principle morally permissible.

There might be differences among the second group of Catholic moralists about whether separation surgery involved the intentional killing of Mary. It was the clamping of the conjoined aortas that led directly to the death of Mary. One might argue that it is not in the nature of clamping conjoined aortas to cause death; death was a consequence of the contingent circumstances that Mary had a largely nonfunctional heart and nonfunctioning lungs. By contrast it is in the nature of evacuating the contents and crushing the skull of an unborn child to cause death. However, it hardly seems possible, within the analytic framework of the second group of moralists, to regard the separation surgery as not involving the intention to mutilate Mary. To mutilate, one does not have to have the aim of doing damage to a body. One mutilates someone just by producing a change in that person's body that permanently disrupts their bodily functioning. The separation surgery was an intended cutting into Mary just as much as it was a cutting into Jodie, but whereas in Jodie's case it was therapeutic—aimed at securing bodily integrity for her—in Mary's case it could only permanently disrupt her bodily functioning. Everyone has the right not to be subjected to intentional, nonbeneficial mutilation. And an absolute negative right of that kind properly overrides the positive duty to save life if the two are in conflict.

The Archbishop's Submission certainly took the view that separation surgery would involve intentional mutilation of Mary. But it would be a mistake to think that his support for the parental refusal of treatment rested solely on that view. The Archbishop had more than one ground for holding the parents' refusal of consent to surgery as reasonable. And he was also committed to the view that, given it was reasonable, their refusal of consent should not have been overridden by the courts.

RELIGION AND PUBLIC POLICY IN ENGLAND
Do religious arguments influence legislation and public policy in England?

We must look to well-documented evidence for a wholly satisfactory answer, and, as far as I know, the research necessary to provide that answer has not been carried out. But the question also raises a conceptual issue, which we encountered earlier, about what counts as a "religious argument." I take it to be an argument having at least one premise relying for its credibility on religious authority. As I argued earlier, the grounds of the parents' refusal to consent to the surgery were not religious in this sense; they were accessible in principle to anyone without benefit of religious authority. But, the fact that the parents were known to be Catholic, and the fact that they believed, as someone without benefit of religious authority might, that the absolute negative prohibition of intentionally killing the innocent was a promulgation of God's will, led to the characterization of their stance as "religious." This is symptomatic, it seems to me, of the way not only religious belief but also natural law reasoning is marginalized in public discourse about legislation and public policy in the United Kingdom. What passes for public reason is largely utilitarian in character. This is very evident, for example, in the Warnock Report (1984), which lay behind The Human Fertilisation and Embryology Act (1990), which approved various reproductive technologies and embryo experimentation; and in the arguments underpinning the recent approval in Parliament of embryonic stem cell research and so-called therapeutic cloning. Public policymaking in England is dominated by secularist elites whose public discourse about moral issues is utilitarian in character. It was entirely in keeping with the temper of our times that it was utilitarian considerations that also determined the outcome of the case of the conjoined twins.

NOTES
1. I am grateful to the editors of Second Opinion for their comments on an earlier version of this article, as well as to John Keown and my colleague Helen Watt for their comments.