To work for the proper implementation of canon law is to play an extraordinarily

constructive role in continuing the redemptive mission of Christ. Pope John Paul II

Certain laws restricting rights are interpreted narrowly and strictly

Although several canons bear upon this topic, the following seem to be the most important. I begin with Canon 213 which declares that "It is the right of the Christian faithful to receive assistance from sacred Pastors out of the spiritual goods of the Church, especially from the word of God and the sacraments."[4] The grammatical use of the dative of the possessor construct (Ius est christifidelibus) emphasizes the high priority to be given to the exercise of this right. More specifically, Canon 912 states that "Any baptized person who is not prohibited by law can and must be admitted to Holy Communion.[5] The canon is strongly preceptive (debet admitti), though qualified (qui iure non prohibetur).

Next, under Canon 18, the imposition of a penalty or the denial of the free exercise of a right is subject to strict, that is, narrow interpretation. This terse canon represents one of the oldest and finest aspects of canonical tradition. It places the burden of justifying any penalty or restriction of rights squarely on ecclesiastical authority. Finally, as additional protection against improper ecclesiastical coercion, Canon 221 § 1 states that "The Christian faithful are able, in accord with the norm of law, legitimately to defend and vindicate in a competent ecclesiastical forum the rights which they enjoy in the Church." Canon law, like every respectable legal system, seeks to offer an impartial forum with opportunities for rehearing.

Taken together, these canons offer a formidable complex that upholds the faithful's right to the sacraments in general and to the Eucharist in particular. They set very narrow bounds within which ecclesiastical authority can restrict the exercise of these rights. The stage is now set to examine the bishop's action in light of this demanding muster. Specifically we will ask two questions: first, who is generally excluded by law from receiving the Eucharist according to Canon 912; and second, did the bishop follow the correct procedure for such exclusion in this case.

There are, I suggest, only four canons in the 1983 Code by which a bishop could authorize the denial of the reception of Holy Communion. I consider it imperative that the bishop, if he is to withstand objections of having violated the politician's fundamental rights to the Eucharist and to fair procedure, be able to base his denial of the Eucharist on at least one of these canons. Two of the canons are from the Code's penal legislation, one is a penal procedural provision, and the fourth is a sacramental disciplinary norm. Let us begin this evaluation with the penal canons.

The politician was not excommunicated

A) Canon 1331 on the censure of excommunication prohibits participation in any of the sacraments or sacramentals as well as the exercise of ecclesiastical governance. In the present case, though, the bishop's prohibition extends only to receiving the Eucharist. In addition, his letter informed the politician that she could return to Holy Communion basically upon going to sacramental confession. This is certainly not the typical method for the remission of excommunication under Book VI, Part I, Title VI-The Cessation of Penalties, which usually directs a juridical resolution of a penal situation. In any case the bishop himself eliminated Canon 1331 as a defense for his action for, as noted above, he explicitly stated that the politician was not excommunicated.[6]

B) Nor does the politician labor under the censure of an interdict according to Canon 1332. While an interdict does not affect matters of Church governance, the prohibition entailed again extends to all of the sacraments and sacramentals. As was the case with excommunication, the application of an interdict demands certain indispensable penal procedural formalities which the bishop made no claim to have followed. Moreover, because modern Church law no longer uses distinctions such as major and minor excommunications or (penal) anathema, the bishop cannot be relying on some sort of "quasi-interdict" to justify his action. I conclude, then, that the bishop's action cannot be defended by reference to the two canons found within the penal law of the Code.

C) The third canon that speaks of denial of the Eucharist is Canon 1722, located among the provisions governing the formal criminal process. By this canon, the bishop can indeed prohibit public participation in the Eucharist in order, among other things, to prevent scandal. But at least three factors force the conclusion that this canon, too, would not support the bishop's action. First, Canon 1722 operates only in service to the formal penal process and there is no indication that any penal process was invoked in this case. (Whether this lack of penal process was itself illegal remains, of course, to be answered.) Second, and more decisively, Canon 1722 explicitly demands the citation of the accused (as well as the promoter of justice) prior to its implementation. It appears that no formal contact with the politician, let alone any formal citation, took place prior to delivery of the bishop's letter. Third, Canon 1722 authorizes the denial only of public participation in the Eucharist,[7] whereas the bishop's prohibition apparently extends to both public and private reception. Once again, one must conclude that the bishop's action could not be defended by appeal to the provisions of canonical penal procedure.

D) This leaves, then, only one canon capable of defending the bishop against accusations of illegality in his denial of the Eucharist to the pro-abortion politician. This remaining canon is drawn from neither the penal nor the procedural books of the 1983 Code, but rather from the Church's sacramental discipline. I refer to Canon 915 which states in pertinent part that "those who persist in manifest grave sin are not to be admitted to Holy Communion."

No basis for importing penal judicial procedures

Now the terminology of Canon 915 immediately accounts for at least two important aspects of the bishop's action: first, it explains why the bishop denied only the Eucharist to the politician for, unlike the canons on excommunication, interdict, or penal process, Canon 915 authorizes only Eucharistic denial and would not support the application of any other burdens; second, because Canon 915 operates only in the face of sin, it explains why the bishop informed the politician that regular sacramental confession, and not the juridical process for remission of penalties, would secure her readmission to the Eucharist.[8]

Reflection on the placement of this canon within the Code, moreover, resolves a crucial allegation against the bishop's action, namely, that he violated ecclesiastical penal procedure. Canon 915, located within the Code's regulation of the sacraments, is neither a penal nor a procedural canon. As such, I can see no canonical basis for interjecting a formal judicial or administrative penal procedure into the operation of Canon 915. Clearly, though, this is the most crucial part of the debate over the legality of the bishop's action and, because the 1983 Code differs notably from the 1917 Code in this respect, it deserves a few more words.

Under Canon 2215 of the 1917 Code, "the deprivation of any benefit" was considered a penalty in the broad sense. Thus (and despite the fact that canonical jurisprudence did not always adopt this position) a reasonable argument could have been made under the 1917 Code that a bishop's denial of the Eucharist under these circumstances was a kind of penal action and must therefore have been preceded by some kind of penal formalities.

But, with unmistakable deliberation,[9] the Coetus on Sanctions dropped Canon 2215 during the post-Conciliar canonical revision process and the 1983 Code now contains no such norm.[10] For purposes of this discussion, then, I suggest that the 1983 Code contains only penalties (such as those explicitly authorized in Book Six) or restrictions on the exercise of rights, such as that found in Canon 915. Thus, the assertion that the "prohibition of holy communion is akin to a canonical penalty,"[11] while it had some merit under the 1917 Code, is infirm under the 1983 Code. Still less can it be used to "piggy-back" penal procedural obligations into an area of the Code where none textually exist. Although the verbal construction of Canon 915 (ne admittantur) is not the most forceful canonical expression of a prohibition,[12] the ancient tradition behind this canon, a tradition which firmly links Eucharistic participation to freedom from grave sin,[13] is more than sufficient to confirm a positive prohibition against administering the Eucharist in a potentially sacrilegious manner.

Assessing "public and notorious" conduct

Consequently, I conclude that Canon 915 contains precisely the type of "prohibition by law" demanded prior to Eucharistic exclusion under Canon 912. This special prohibition of Canon 915, reflective of the unique and surpassing esteem in which the Church holds the Eucharist,[14] is established independently of the 1983 Code's penal law and operates without reference to the otherwise certainly binding demands of penal procedure.

Having demonstrated that a formal penal process is not required in order to deny Eucharistic participation under Canon 915, there still remains a crucial question as to whether the bishop's action in this case complied with the expressed norms of this canon. We recall that this scrutiny, even though it does not involve the imposition of a penalty, nevertheless entails the denial of the exercise of a fundamental right, and must therefore be conducted strictly. Now while Canon 915 leaves the precise methodology to the discretion of the bishop,[15] it does demand that several distinct tests be satisfied in order to support Eucharistic exclusion. Specifically, three things must be ascertained about the politician's allegedly sinful action[16] in order to defend the bishop's response: namely, manifestation of behavior, obstinacy in that behavior, and gravity of the offense.

1. No one reasonably denies that, by any measure, the politician's continuous and vigorous support for pro-abortion legislation was widely known and even culminated, I understand, in a series of television commercials precisely to that effect. Moreover, the politician herself positively affirmed her support for these policies specifically within the context of responding to her exclusion from the Eucharist. Now the canonical understanding of manifest in this context seems closely to parallel the 1917 Code concept of "public and notorious" which encompassed those who, although not convicted in an ecclesiastical tribunal, nevertheless admitted their actions.[17] Thus, by either criterion (notoriety or self-admission), we may conclude that the politician's action was manifest.

2. Next, we have (again) this politician's own unfortunate but frank words reiterating that she has not changed and does not intend to reform her support for proabortion legislation. Each passing month seems to confirm the presence of this obstinacy.[18]

3. We have now only to ask if the politician's actions can be considered grave. I suggest two inquiries here, first on the gravity of the subject matter, and the second on the gravity of the politician's involvement.

3A) The gravity of the subject is easily established. We have but to recall the Second Vatican Council's vigorous condemnation of the "unspeakable crime." Furthermore, as noted above, abortion itself remains one of the very few latae sententiae (automatic) excommunications in modern canon law. In ecclesiastical jurisprudence, there is simply no doubt that abortion is a grave crime.

3B) There remains only to consider the politician's own involvement in abortion. As to this, whatever might be said of passive compliance with pro-abortion legislation on the part of the populace, not even this limited reply is available to a politician who, quite beyond voting for such laws, actively and publicly sponsors and promotes them.[19] In brief, this politician's deep, public, and continuous involvement in governmental policies which aid and abet the unspeakable crime of abortion can only be considered as grave. Thus I argue that the bishop was correct in concluding that all three requirements for the denial of Eucharistic participation under Canon 915, namely gravity, obstinacy, and manifestation, were satisfied in this case.

Bishop's response was proper

There is one final aspect of this matter which needs to be addressed, and that concerns the right of the faithful under Canon 221 to defend their canonical rights in an ecclesiastical tribunal. This provision, though not the concept, is new in modern canon law, and interpretations or jurisprudence on it are few. But, as James Coriden has observed, "the canon could not be clearer.”[20] I would argue that it should be generously applied.

In this case, the politician starts with the right to receive the Eucharist. The bishop has precluded the exercise of that right. Should the politician now wish to bring the matter before an ecclesiastical judicial or administrative forum, I can only assume that her petition for hearing would be granted. At that point both she and the bishop would be permitted to present ample evidence on their respective positions.

But in the meantime, the Eucharistic exclusion now in force against the pro-abortion politician in virtue of Canon 915 and Canon 212 § 1, having been properly administered, stands until 1) the politician accepts its terms,[21] 2) the bishop withdraws his letter of prohibition, or, 3) the bishop's hierarchical superior decides against him upon recourse or appeal by the politician.

From an ecclesial point of view, one of the most disturbing aspects of modern abortionism is the significant participation it receives from well-known and influential Catholics. But under the foregoing canonical analysis, the bishop in this case has done more than eliminate a serious case of sacrilege and scandal from his Church. He has plainly demonstrated the practical applicability of canon law in response to one of society's gravest afflictions. His action does not in any way prevent the prudent application of other more encompassing penal sanctions against the proponents of abortion. Instead it offers, in full accord with the demands of canonical equity, a restrained but immediate and effective response to this crisis, while awaiting the inevitably slower turn of the wheels of penal procedural justice. +++

Footnotes

[1] The Second Vatican Council, in its only burst of anger, called abortion and infanticide "abominable crimes." See Gaudium et spes, No. 51.

[2] See primarily P. Riley, "Bishops in battle formation," 30 Days (English ed.) 22-24 (December 1989), and, G. Duncan, "The bishop and the politician," 30 Days (English ed.) 24-25 (December 1989). Concentrating on the issues rather than on personalities, I omit here the names of the principles.

[3] The following remarks apply only to the case of a bishop denying the Eucharist to a pro-abortion politician. I thus distinguish this case from (without commenting on) two similar recent incidents involving a pastor and a declaration of excommunication respectively. I also stress that evaluations of prudence, practicality, or general appropriateness of such actions, while important, are better left to those with first-hand knowledge of the situation.

[4] Assuming easy access to the Code's official Latin provisions, I only offer English translations for convenience.

[5] I do not consider the canons which authorize a "just penalty" as implicitly authorizing denial of the Eucharist. It is unlikely that the Legislator intended so many actions to carry the momentous possibility of Eucharistic exclusion, especially when the 1983 Code went to such lengths to reduce sharply the number of offenses entailing exclusion from the Eucharist as part of an excommunication or interdict.

[6] This clarification was helpful, though, for two reasons. First, a number of observers conjectured that the politician had fallen under the latae sententiae excommunication of Canon 1398 which prohibits abortion. Suffice it to say, though, that it is not likely that Canon 1398, standing alone, could reach a politician in light of the structure of American government. Moreover, if the bishop attempted to describe his letter as merely declaratory of a latae sententiae penalty, his action would open to several very serious penal procedural objections.

Second, there was a certain amount of talk in various reports about "medicinal penalties." This term, which encompasses censures such as excommunication, also implies certain procedural demands, most notably, the requirement of Canon 1347 § I that a warning be given prior to imposition of the censure. These were admittedly not observed by the bishop in this case. It was important, therefore, for the bishop to stress that the politician had not incurred the censure of excommunication.

[7] That only public reception is forbidden in this context, see Vermeersch-Creusen, Epitome luris Canonici, III: 142 (1946), and Augustine, A Commentary on the New Code of Canon Law, VII: 384 (1921).

[8] We can also observe that the canonical tradition behind Canon 915 (that is, 1917 CIC 855) precluded both public and private reception of the Eucharist. See Abbo & Hannan, Sacred Canons, II: 854, and Augustine, Commentary, IV: 229. Thus the bishop's implicit denial of private reception of the Eucharist is also supported under Canon 915.

[9] See, for example, 16 Communicationes 38 (1984).

[10] Nor do I think one can infer such a definition from Canon 1311 § 2 of the 1983 Code which states in part that "the law can establish other expiatory penalties which deprive the Christian faithful of some spiritual or temporal good." Consider: 1917 CIC 2215 linked "ecclesiastical penalty" and "deprivation of a good" by the copulative verb "est", expressing a very strong identity between the two concepts. But in 1983 CIC 1311 § 2, the clause "which deprive . . ." (quae ... privent) is dependent upon the clause containing "other penalties." This suggests that "penalty" is related to "deprivation of benefit" as species is to genus. In other words, every penalty is a deprivation of a benefit, but not every deprivation of a benefit is a penalty. And if the deprivation of the benefit of the Eucharist under Canon 915 is not a penalty, one cannot demand the specific penal or procedural obligations of Book Six or Book Seven from a bishop who acts under Book Four.

[11] This phrase was used by the noted liturgical lawyer John Huels in his reflections on this same case entitled "The faithful have a right to the sacraments" published in the National Catholic Reporter, Dec. 15, 1989, p. 23. Although for the reasons outlined herein I disagree with Huels' conclusions on the interpretation of this particular case, his article clearly evidenced the cautious restraint with which canonists interpret the Church's coercive power.

[12] Interestingly, this identical construction in Canon 221 § 3 (ne poenis ... plectantur) is considered strong enough to protect the faithful from ecclesiastical penalties without canonical process.

[13] See generally, J. Huels, "The Most Holy Eucharist," in Coriden, et al., The Code of Canon Law: A Text and Commentary, (1985) [hereafter CLSA Comm] at 653.

[14] See cc. 897-898.

[15] Determinations of the actual methodology to be used under Canon 915 in a particular case, because they fall substantially into the realm of prudence, are beyond the scope of this article. I would only note that Joseph Farraher offers just such an outline in two of his Questions Answered carried in these pages. See "When, if ever, should I refuse Communion to the unworthy?," HPR 82: 70-72 (1982), and "Should Communion be refused in a case like this?," HPR 90: 74-75 (1989). His approach basically advises a private confrontation of the individual involved. It is also clear, by the way, that Farraher would not demand a formal penal process prior to precluding the unworthy from the Eucharist.

[16] It goes without saying that evidence and proofs are functions of the external forum, and that inquiries on sinful behavior are understood to refer only to objectively sinful actions.

[17] See for example, Augustine, Commentary, IV: 230, and Abbo & Hannan, The Sacred Canons, II: 854. Huels, at CLSA Comm., 653, reminds that "any prudent doubt about either the gravity or the public nature of the sin should be resolved in favor of the person . . ." My analysis indicates, though, that no prudent doubt exists in this case.

[18] Huels noted in his Reporter article, "Since the church's teaching on abortion is well-known, it is not difficult to see how someone could assume Catholic, pro-choice politicians are obstinate."

[19] One recalls here the Congregation for the Doctrine of the Faith and its 1974 Declaration on procured abortion, No. 22. This document (several times in fact) soundly rejected the idea that a Christian could "take part in a promotional campaign in favor of (a pro-abortion] law, or vote for it."

[20] J. Coriden, "A challenge: making rights real," The Jurist 45: 1-23, at 21 (1985).

[21] This acceptance could also occur, I suggest, under the circumstances envisioned by Canon 916 which authorizes a person guilty of grave sin nevertheless to receive the Eucharist without prior sacramental confession if 1) there is grave reason, 2) there is no opportunity for sacramental confession, 3) the obligation of making a perfect act of contrition is recalled, and 4) there is a firm resolve to go to sacramental confession at the earliest opportunity. These canonical requirements, consistent with sound sacramental theology, also substantially satisfy the bishop's directive to the politician.