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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 |
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13 may 2019 |
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Research links
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Canon 1398
One who procures an abortion, upon the effect being achieved, incurs automatic excommunication. |
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Overview
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Whether mothers who procure abortion are automatically excommunicated
The claim that Catholic women who obtain an abortion are automatically excommunicated for it, while plausible on its face, is canonically flawed and pastorally harmful. Unfortunately this claim seems recently to have struck a chord with a number of Catholics and so warrants reply.
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Summary
Note: In regard to abortion, canon law and moral theology use the terms "mother" and "woman" interchangeably. Likewise, the terms "sanction" and "penalty" are equivalent.
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This discussion considers primarily one question asked with three distinct emphases: Are mothers who obtain an abortion, (1) if they are liable to canonical sanction at all, (2) automatically (3) excommunicated for it under Canon 1398?
After setting out several important preliminary matters—including, that the answer to a canonical question is seldom found in a single canon—I will show that: (1) various canonical provisions (chiefly Canon 1323) exempt certain persons, including some women obtaining an abortion, from suffering any penalty for an offense; (2) several canonical provisions (chiefly Canon 1324 § 3) exempt women from automatically incurring any penalty for abortion; and, (3) several other provisions (chiefly Canon 1324 § 1) protect women from having excommunication later imposed or declared against them for abortion.
Basically I hold that, irrespective of the moral responsibility a woman might have acted with in obtaining an abortion (which moral responsibility would best be addressed in Confession), she is not, as a canonical matter, excommunicated for abortion, automatically or otherwise. That said, I also hold that most of the canonical defenses against ecclesiastical sanctions that are available to women in abortion cases do not shield abortionists and their accomplices from excommunication (possibly automatically) nor do they necessarily even protect women from later having penalties other than excommunication imposed on or declared against them in the admittedly unheard-of event that a mother were ever canonically prosecuted for abortion.
In short I hold that the primary ecclesiastical response to women in abortion cases is, as it should be, pastoral (especially sacramental) while that to abortionists and their accomplices should be, though rarely is, juridic (specifically penal).
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Argument
Information on sources cited, here.
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1. Introduction
1.1. Genesis of topic
This discussion is occasioned by:
• a television interview given by Dolan in the wake of New York’s ghoulish abortion law wherein he said, among other things, that the Church does not excommunicate women for abortion anymore (Jan 28);
• Miller's harsh response to Dolan wherein she accused him of making "egregious" errors on the canon law of abortion and leaving "pastoral and doctrinal wreckage in his wake" (Crisis, Feb 5);
• my defense of Dolan’s central, canonically correct, point (Canon Law Blog, Feb 7);
• Miller’s 'doubling-down' reply to my defense of Dolan's position (Catholic World Report, Mar 8); and,
• my interim reply to Miller suggesting the self-destructive tendencies of her position (Canon Law Blog, Mar 15).
1.2. Audience for these remarks
At least four groups might be interested in this discussion:
• persons wanting to know whether Dolan was correct in saying that the Church does not excommunicate women for abortion or whether Miller was correct in claiming that Dolan had "totally misrepresented the teachings and practice of the Church" in this area;
• persons wishing to understand better how canon law operates as a system in addressing canonical matters, how those untrained in canon law are prone to making serious errors while commenting on that system, and how even canonically credentialed individuals can sometimes make mistakes on canonical points;
• persons wishing to see how some poorly-drafted canons hamper the Church's ability to enforce her own discipline and contribute to the confusion that marks this and related issues today; and,
• persons wanting a sense of the juridic complications occasioned by Rome's decision to retain some "latae sententiae", or automatic, penalties in modern canon law.
1.3. Correcting errors always takes longer than making them
These remarks are necessarily lengthy.
Being aware of the numerous canonical factors that go into determining whether a Catholic is liable to canonical sanction, I cannot simply quote a few canons and leave others to sort out the implications of my words. I have first to bring most readers to the point that they can appreciate what is canonically at stake in Miller’s claim and then equip them to understand why I think that claim is wrong canonically and harmful pastorally. This task is aggravated by the complexities of having to explain, among other things, how automatic penalties work in the Church—and do not work—to an audience that has no parallel experience of automatic sanctions in civil law. In any event I approach this matter as one striving to explain canon law and its sound interpretation to readers but not as one trying to prove Miller wrong or win adherents to my views. I cannot convince readers that I am correct and that Miller is wrong, I can only give them the tools necessary to reach that conclusion for themselves. I understand that such distinctions might not always seem honored in what follows. I ascribe that to the nature of legal writing.
1.4. Points in common
Miller and I agree that deliberate abortion is a serious violation of natural law, a grave sin for Christians (CCC 2270-2271), and a canonical crime for Catholics punishable by excommunication (1983 CIC 1398 and 1990 CCEO 1450 § 2). We agree that staggering numbers of Catholic women around the world have obtained abortions over the last several decades (whether clinically performed, medically prescribed and self-procured, or self-procured in other ways, including with abortifacient contraceptives) and that, while these women might have some natural and even ecclesial sense that what they have done is morally wrong, virtually none of them know anything about ecclesiastical criminal law.
1.5. Overview of differences
Miller—primarily by making, I suggest, one of the mistakes most common among non-canonists arguing canon law, namely, thinking that the answer to a canonical question is found in a single canon—seems to think that showing mothers to be “included” among those "who procure a completed abortion" (c. 1398) canonically suffices to show that these women (amounting to, we need to be clear, millions of Catholic women worldwide, with hundreds more being added each day!) are, subject to some exceptions that Miller concedes, automatically excommunicated for it.
Thus Miller spends considerable time castigating Dolan for allegedly denying that mothers are “included” in Canon 1398, even though Dolan said nothing about that (or any other) canon and certainly never expressed a view on, as we shall see, a canonical technicality of which neither he nor, I suspect, Miller at the time of her first essay, was even aware. What Dolan did say in response to whether the Church excommunicates women who obtain an abortion, was simply "We don't do that anymore", and, in making that factual observation, notwithstanding some wince-worthy comments he made around it, I think Dolan was correct—albeit for reasons that neither he nor Miller would appreciate at the time of his remarks, but which we will examine here.
But beyond exaggerating the significance of the phrasing of Canon 1398 for her complaints against Dolan, Miller, especially in her reply to me, also ventures interpretations of other provisions, notably Canons 1323 and 1324, which interpretations, however, run counter, I suggest, to how those two crucial canons are properly understood and applied in regard to abortion. These matters, dealing with questions much more complex than whether mothers are "included" in Canon 1398, and certainly with issues more important for determining whether women who procure abortion are excommunicated (as Miller asserts and Dolan denies), will be dealt with at some length below.
2. Preliminary matters
To understand what follows several preliminary points must be made.
2.1. Sound canonistics requires consideration of the whole Code and entire canonical tradition
In considering the three main canonical questions outlined above, keep in mind that canonists discussing canon law, to say nothing of those advising bishops on actual cases, must form their positions based on the entirety of the Code and on the totality of the canonical tradition. They may not cite only those canons that support their personal preferences or invoke only those provisions that carry a crowd-pleasing impact. Canonists and bishops are bound by the whole of canon law and canonical tradition even if their critics do not feel so constrained. Canon law and canonical tradition do not, of course, always operate the way that faithful Catholics such as Miller (or I) might like them to operate. This, too, raises legitimate concerns but they are concerns quite different from the immediate ones before us today, namely, whether women obtaining abortion are automatically excommunicated for it. Channeling Fr. Mowbray from Brideshead Revisited, I should like to tell pro-life advocates and Catholics such as Miller what they want to hear but my duty is to tell them what canon law directs.
2.2. Penal canon law is administratively frustrating but nevertheless binds officials according to its terms
In discussing penal canon law in particular, the nigh-on universally acknowledged deficiencies of Book VI of the 1983 Code (Sanctions in the Church)—a book substantially drafted in the heady days of 1970s ecclesial optimism and against currents strongly opposed to maintaining any penal law in the Church (Peters, Incrementa 1135-1197)—mean that current penal canon law often results in public actions (or inactions) by bishops, when they are confronted with offensive behaviors, that disappoint persons looking for firmer exercises of authority against wrong-doing. But, for all the feckless or heterodox bishops who are happy to hide behind the penal law deficiencies of the 1983 Code as an excuse for not acting, there are also resolute and faithful bishops whose personal inclination to throw the proverbial book at canonical offenders is often frustrated by the notably unbalanced terms of current penal canon law. That, or we simply abandon the rule of law in the Church to get after the devil—which some of the William Ropers among us would gladly do.
Now among the many canonical provisions that anyone advising on, applying, or trying to understand penal canon law must appreciate, the following fundamental norms stand out (with my emphasis):
• 1983 CIC 18. Laws that establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.
• 1983 CIC 221 § 3. The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.
• Regula Iuris 15 (1298). Unfavorable matters are to be restricted, but favorable ones should be broadly applied.
• Regula Iuris 49 (1298). In penal matters the more benign interpretation must be followed.
Though all of these provisions, and others besides them, bind ecclesiastical personnel, Miller, like most canonically untrained critics of bishops and their advisors who are upset that the Church does not always act the way they think the Church should act, acknowledges none of them.
2.3. Women are automatically excommunicated for abortion or they are not excommunicated at all
There are only two ways by which a Catholic might be excommunicated for any canonical crime, namely, and preferably, in a formal process, whether judicial or administrative (ferendae sententiae), or automatically upon commission of the deed (latae sententiae, sometimes called ipso facto). 1983 CIC 1314, 1342, 1425.
To my knowledge no woman in the world has ever been formally excommunicated for abortion, so, if any woman is excommunicated for abortion, that woman could only have been excommunicated automatically. Thus, and however one views the prospect of the Church convoking tribunals to formally prosecute mothers for abortion, those reading Miller need to understand that, in order to sustain her claim that women are excommunicated for abortion, Miller needs to do so exclusively in accord with the special rules controlling automatic penalties in the Church.
This brings us to an important, if ancillary, point.
2.4. Eastern Catholics do not face any automatic penalties
Although abortion is an excommunicable offense for all Catholics, only Roman Catholics face automatic excommunication for it. 1990 CCEO 1402. If, therefore, any woman is automatically excommunicated for abortion, she could only have been a Roman Catholic and not an Eastern Catholic belonging to any of the more than twenty Eastern Catholic Churches in union with Rome. Now is not the time to examine the basic fairness of a penal law system that, when faced with two identically situated subjects committing two identical offenses, visits immediate and grave consequences on one of them while wholly exempting the other, but a word needs to be said about Miller's characterizing of my opposition to such disparate treatment as "vehement".
While I don't think any of my canonical writing can be fairly described as "vehement", my position against retaining automatic penalties is hardly an outlier one. In fact, latae sententiae penalties have been in steady retreat for 150 years, as follows:
• Bl. Pius IX first curtailed them from their Decretal law high point in his famous constitution Apostolicae Sedis of 1869 (Leech, Constitution 11).
• The Pio-Benedictine Code of 1917 worked further reductions in automatic penalties (Leech, Constitution 168; D. Augustine, Commentary VIII: 75).
• In 1967 the Synod of Bishops and the pontifical canonical revision commission expressly called for still more reductions in their numbers (Principia quae n. 9; Communicationes VIII: 170-171).
• The 1983 Code, promulgated by Pope St. John Paul II, eliminated most automatic penalties from Western canon law (Exegetical Comm. IV/1: 238 ff.).
• In 1990, John Paul II eliminated all automatic sanctions from Eastern Catholic canon law.
In urging latae sententiae penalties one is urging the targeting of an offending Catholic for severe canonical consequences based solely on which branch of the Church that Catholic happens to belong to. There is not a single, automatically excommunicated, Eastern Catholic woman or man on earth. Not one. It cannot be too-often stated: Miller’s consternation with Dolan’s comment on automatic excommunication for abortion vanishes if Roman canon law, like Eastern, threatened excommunication for procuring abortion, just not automatically.
2.5. Abortionists and accomplices face excommunication even if women do not
While I hold (and will argue below) that no mother is excommunicated for abortion (automatically or otherwise), and while I regret the retention of any automatic penalties in Western law, there is no doubt but that Catholic abortionists and their accomplices face excommunication for their heinous act (per 1983 CIC 1398 and 1329; 1990 CCEO 1450 and 1417), even automatically if they are Roman. Almost none of the canonical defenses that women obtaining abortions could raise against their automatic excommunication could be proffered by abortionists and accomplices against theirs. I can only lament that so few examples of bishops taking firm canonical action against Catholic abortionists come to mind.
2.6. Criminalizing an act takes one law, convicting a person requires many
Miller's surpassing concern to show that mothers are "included" in Canon 1398, and thus subject to automatic excommunication if they obtain an abortion, pleads a point no one is contesting, certainly not Dolan, who never alluded to the issue and who seemed (as did Miller in her first essay) unaware of the canonical controversy that, for a long time, lay behind including mothers in ecclesiastical anti-abortion legislation.
While canonical commentators today hold that mothers are still reckoned within Canon 1398, a few (like me, and perhaps Borras, Les Sanctions 196) also recall the Decretal law debates over including mothers in penal legislation on abortion and wonder what implications those older debates might have for modern canonistics, but even so, none of us denies that mothers are "included" in Canon 1398. In Miller's mind, as suggested above, the inclusion of mothers in Canon 1398 suffices for one to conclude that (subject to a few exceptions) women who obtain an abortion are automatically excommunicated for it. I disagree that simply "including" mothers in Canon 1398 basically guarantees their excommunication for abortion but, at this stage at least, I disagree for reasons having nothing to do with abortion or even with canon law.
In the Church’s legal system, as in any legal system, while an evil act can be criminalized by a single law, it takes many laws to actually convict a defendant, laws dealing with, for example, the precise definition of the act, capacity and intention of the actor, jurisdiction of the court, access to counsel, rules of evidence and standards of proof, statutes of limitation, and so on. The State’s, or the Church’s, failure to satisfy these kinds of legal requirements usually results in an offender, even one who has certainly committed the proscribed deed, being found ‘not guilty’. Think of it this way: whenever the public is irritated that an obvious criminal ‘beat the rap on a technicality’, it has just been reminded that many laws must be complied with before a wrong-doer can actually be convicted of a crime under one law.
So in the present matter, Miller, in proving (if that's not too strong a word for repeatedly asserting what no one denies) that mothers are "included" in Canon 1398, only succeeds in proving that mothers (along with abortionists and their accomplices, the traditional objects of ecclesiastical ire, here) are among those embraced by a law that renders persons procuring an abortion liable to a severe canonical penalty, specifically, excommunication. But Miller has not proven that mothers obtaining an abortion (in contrast to, say, abortionists performing one) actually suffer excommunication for abortion, let alone that they incur excommunication automatically. There are, as we shall see below, many other provisions of canon law that must be satisfied before anyone, including women obtaining an abortion, could be punished in that way for that act, so many provisions that, as I will argue below, no mother is automatically excommunicated for abortion and that therefore Dolan’s claim that ‘the Church doesn’t excommunicate women for abortion anymore’ is correct.
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With these preliminary matters in mind we can now turn to our main question, namely, whether a mother who obtains an abortion is automatically excommunicated for it. To answer this question we shall consider three basic ways that a woman who has obtained an abortion might avoid the automatic excommunication threatened in Canon 1398 against those who procure abortion or how she could avoid having that penalty later imposed or declared against her.
A woman might be:
• exempt from any penalties for any crime; or,
• exempt from automatically-incurred penalties for the crime of abortion; or,
• protected from formally-administered excommunication for the crime of abortion.
We shall now address each of these questions in turn.
3. Exemption from any penalties (c. 1323)
3.1. Certain Catholics, including some women who obtain an abortion, are exempt from any sanctions
3.2. Excommunication visited automatically on an offender is said to have been "incurred"
When Western canon law threatens the immediate visitation of excommunication on an offender (see c. 1314, then cc. 1364, 1367, 1370, 1378, 1382, 1388, and of course c. 1398), it always and only uses the verb "incur", as in "one who procures a completed abortion incurs a latae sententiae excommunication". Note that the Eastern Code, containing no automatic excommunications, does not use the word "incur" to threaten a penalty.
Roman canonists striving for precision, therefore, use the verb "to incur" to describe one's immediately suffering, upon the completion of the deed (sometimes termed, ipso facto), an automatic excommunication, and they properly use that verb only in that sense. Conversely, they use the phrase "to not incur" to indicate that an automatic sanction, though threatened by a penal canon, has, for some reason(s), not visited itself upon one committing the criminalized act. Among the most common reasons for one's not incurring a threatened automatic penalty is that an offender falls within one or more of the exempting provisions of Canon 1323 (or c. 1324 § 3, as we shall see). Let's take an obvious example.
Say a 12-year-old girl, raped by her uncle, obtains, with her mother's connivance, an abortion. Amid the mountain of tragedies involved here, who in his right mind thinks that this girl, whatever moral fault she might have acted with, is, before she so much as pulls her feet from the abortion table stirrups, excommunicated from the Catholic Church? No one, I would hope, and, if a canonical reason as to why such a girl is not excommunicated for having "procured an abortion", is needed, Canon 1323 n. 1 suffices: "The following are not subject to a penalty when they have violated a law or precept: 1° a person who not yet completed the sixteenth year of age".
That is, this reason suffices for everyone except Miller's well-known canonist who writes (my emphasis): "Canon 1323 ... do[es] not affect the application of the automatic penalty in the case of a woman who procures an abortion until such time that her case enters the external forum or she brings it as a sin to her confessor. At that point, and only at that point, when there is an engagement with the Church, can any decision be made in her particular situation. ... Only if her situation is actually brought [to the Church] for consideration can anyone evaluate whether [c.] 1323 appl[ies]. Until that happens, we rely on the presumption of contumacy because an external violation occurred ..."
This is nonsense.
Can anyone seriously imagine a canon lawyer, helping this pre-teen girl off the abortion table, saying to her "I am so sorry you were raped, I am so sorry you have been traumatized in this bloody procedure, and I am so sorry you are excommunicated from the Catholic Church and will remain so unless and until you bring your case before a Church official for consideration"? Good grief.
The correct, the obviously correct, canonical response to this girl's plight, as it is to anyone else falling within one or more of the exempting provisions of Canon 1323, is that, 'regardless of what degree of moral fault you might have acted with, and which can be addressed as needed in the confessional, you have not juridically incurred the automatic excommunication (or indeed any other penalty) threatened against those who obtain an abortion—because you are only 12, if we need a reason'. There is absolutely no need to bring this case before a Church official to know this.
Lest my conclusion be ascribed to personal sensibilities, however, consider the following comments regarding the immediate exempting effect of Canon 1323 published by "approved authors" (my emphasis):
• GB&I Comm (1995) 756: "[Canon 1323] identifies seven other categories of people who are not liable to a penalty even if they violate a law or precept. ... Lack of sufficient age is an obvious reason to exempt someone from a penalty ... anyone below [age 16] cannot incur a penalty as such."
• CLSA New Comm (2000) 1542: "[Canon 1323] lists different factors prompting the legislator to exempt one breaking the law from a penalty. ... Those under sixteen years of age are entirely exempt from penal imputability."
• Salamanca Comm (1983) 634: "Before completing age [16], they are fully exempt from punishment".
There is no point in multiplying authorities contradicting the dismissive position that Miller's canonist take against the plain meaning of Canon 1323. I know of no canon lawyer anywhere, pace Miller's, who holds any Catholic under age 16 excommunicated for anything. This holds even despite the fact that, as noted in the Exegetical Comm IV/1 (2004) 278, an underage offender might well have acted with some degree of moral depravity. Moreover, no commentator (besides Miller's) speaks of Canon 1323 as merely providing a mechanism for the Church (in a later formal process or in Confession) to later lift (technically, "remit") an automatic penalty that Miller's canonist apparently thinks is incurred by a pre-teen girl obtaining an abortion, provided the traumatized girl eventually brings her case before the Church. One need not remit what was never incurred. The Church simply does not sanction at all, let alone excommunicate, and let alone excommunicate automatically, underage offenders or any one else falling within the terms of Canon 1323.
3.3. Miller's allusion to Canon 1323 might, ironically, exaggerate its exempting force
Because Miller has seemingly, and her canonist has certainly, rejected the immediate exempting force of Canon 1323 even in an obvious case (lack of age), it will not be surprising that Miller misconstrues the application of Canon 1323 in some other, more complicated, respects, albeit ironically. Miller suggests, for example, that ignorance of canon law (per 1983 CIC 1323 n. 2, presumably, regarding ignorance of Canon 1398 on abortion) exempts some women, indeed, maybe even "the majority of Catholic women" (says Miller!), from automatic excommunication.
Much as I might like to point out how Miller, in so writing, has just conceded that Dolan would be correct in the "majority" of cases (and ask why she was so harsh on Dolan if he was right in the "majority", nay what must be the great majority, of cases), I cannot do so because Miller might have, I am compelled to suggest, exaggerated the exempting force of Canon 1323 n. 2. Specifically, Miller disregards the hurdle that Canon 15 § 2 (rejecting certain presumptions of ignorance) poses to her generous reading of Canon 1323 n. 2. Mind, I take no position here on whether Canon 15 does undercut the exemption from any sanctions that Miller (but not her well-known canonist, who, recall, rejects any automatic effectiveness to Canon 1323!) seems to see in Canon 1323 n. 2 (there are arguments pro and con), but I point out the canonical complexity introduced by Canon 15 into Canon 1323 as evidence that, once again, one usually cannot rely on the terms of a single canon to resolve a complex matter of canon law.
There are, to be sure, some fact patterns imaginable under Canon 1323 that, although they do exempt one from incurring any sanction whatsoever for an offense, are not evidentially as immediately recognizable as is, say, one's extreme youth. One can, however, reach moral certitude about many such matters simply by discussing them with informed and prudent individuals, especially when one recalls the narrow reading of penal laws that is demanded by the Code and canonical tradition. That some Roman (but not, recall, Eastern) Catholics, must also worry about their canonical status consequent to taking an action that seems automatically sanctioned, is pastorally regrettable, and I frankly wish that Canon 1323 were better drafted in this respect, but we are obliged by the terms of Canon 1323 as they were promulgated. May I observe, once again, that the difficulties of applying some parts of Canon 1323 (difficulties neatly avoided by Miller's canonist who simply declares Canon 1323 irrelevant in the incurrence of automatic penalties) would be remedied by simply eliminating latae sententiae penalties from Roman canon law. Criminals deserve sanctions; sinners need, well, something else.
In sum, despite what Miller and/or her canonist claim, I say that Canon 1323 exempts certain Catholics—perhaps very, very many women (depending on how broadly one may read Canon 1323 n. 2 on ignorance of law) obtaining an abortion—from incurring any penalty whatsoever.
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4. Exemption from an automatic penalty (c. 1324 § 3)
At this point we turn to seeing how Canon 1324 exempts women who procure an abortion from any automatic sanction for it, and how that same canon prevents excommunication from later being imposed on or declared against them for abortion.
4.1. The immediate exempting effect of Canon 1324 § 3 applies to anyone listed in Canon 1324 § 1
Canon 1324 is cumbersomely drafted, treating in its § 3 a question that would arise before its § 1 would be considered in an actual case. Still, with careful reading, it coheres with itself and, as D'Auria, L'Imputabiltà (1997) notes at 201, it "confirms the extreme benevolence of the current canonical order." The immediate exempting effect of Canon 1324 § 3 in the circumstances listed in Canon 1324 § 1 (to be discussed below) are universally (again, pace Miller's canonist) acknowledged. Note the scholars' use of the technical phrase "not incurred" in what follows:
• CLSA Comm (1985) 904: Section three of Canon 1324 means that "if any of the factors mentioned in paragraph one [of c. 1324] are operative, a latae sententiae penalty is not incurred.”
• Exegetical Comm IV/1 (2004): 288: the circumstances outlined in [Canon 1324] §§ 1 and 3 mean that “in the case of latae sententiae penalties, the penalty established by the norms is not incurred”.
• GB&I Comm (1995) 758: per Canon 1324 § 3, if “any of the circumstances listed in Can. 1324 § 1 is verified, no automatic penalty is incurred: thus, e.g., if a women had an abortion as a result of grave fear, she does not incur the penalty prescribed in Can. 1398.”
• CLSA New Comm (2000) 1544: if “any of the imputability-mitigating factors mentioned in paragraph one [of Canon 1324] are verified, a latae sententiae penalty is not incurred, e.g., the excommunication possibly warranted for procured abortion (§ 3; c. 1398). This is another example of legislative … effort[s] to preclude needless anxiety regarding the incurring of a penalty.”
• Chiappetta, Codice (2011) II: 641: "If because of one of the causes envisioned in § 1 of Canon 1324, or for some other reason, imputability was not full and is effectively diminished, a latae sententiae penalty is not incurred. Consequently a woman who aborts under the influence of grave fear, or because of necessity or grave fear, legally does not incur the latae sententiae excommunication envisioned in can. 1398, even if it concerns a direct abortion which is morally never justified for any reason.”
Again, no canonist (besides Miller's) speaks of Canon 1324 § 3 as merely providing a mechanism for the Church (in a later formal penal process or in Confession) to lift (technically, "remit") an automatic penalty that an offender in the circumstances presented in Canon 1324 § 1 had supposedly incurred, this, for the simple reason, again, that one does not remit a penalty that was never incurred. Indeed, the CLSA New Commentary speaks directly to the Church's desire to "preclude needless anxiety" among the faithful about whether they incurred an automatic penalty in various cases. Such anxiety arises, obviously, quite independently of whether one ever brings one's case before a Church official. Recalling that in the case of abortion, as noted above, a formal process is never used against mothers, anxiety among them could only arise over the possible incurrence of an automatic penalty. Later, this same commentary (at p. 1574), discussing an obscure penal procedural norm (1983 CIC 1363), notes that "Technically there is no executory decree for latae sententiae penalties which take effect upon the commission of the delict, barring mitigating circumstances (c. 1324 § 3)." Again, note that no suggestion is made here that this mitigation applies only if the case comes before an ecclesiastical authority figure.
As we saw above, canonists (pace Miller's) take this view even in the face of offenses that might involve significant moral culpability. To be sure, Canon 1324 does not necessarily protect offenders listed in Canon 1324 § 1 from some later, formally-imposed, penalty (and in that respect it differs from Canon 1323 which exempts some offenders from any penalty whatsoever, although Miller and her canonist admit no distinction) but it does prevent such offenders from incurring any penalty automatically. Thus, if a later, formal process is never convened against an offender (say, women obtaining an abortion), then no canonical penalty is ever suffered by such persons, again, supporting Dolan's position against Miller's claim that it is "shot through with multiple errors".
Some of the provisions of Canon 1324 § 1 that, per Canon 1323 § 3, exempt one from automatic sanctions are easy to recognize, others less so. This is demonstrated, I suggest, by an episode that Miller herself relates thinking, one supposes, that it demonstrates her (in itself, praise-worthy) commitment to abiding by the provisions of canon law.
4.2. Miller is twice mistaken in regard to her prime example of automatic excommunication
Miller describes (in perhaps imprudent detail) two young women, both age 17 in 1984, who obtained abortions despite her efforts to dissuade them and narrates her subsequent efforts to locate a priest who had the special “faculties” (supposedly) required to absolve the girls from the automatic excommunication they had (supposedly) incurred, which efforts, one surmises, Miller would not have undertaken unless she had concluded that the two teenagers had been automatically excommunicated for their deed and unless she further believed that said excommunications could only be lifted by priests with special "faculties" from the bishop. Let's see.
Taking Miller's narration in reverse order, it was not uncommon in the early years of the 1983 Code for local Church leaders to have missed the fact that, although absolution from the sin/crime of abortion had been “reserved to the Ordinary” under the 1917 Code (see above), it was not reserved under the 1983 Code and so mistakenly carry on as if special faculties were still required in these cases. See CLSA Advis. Op. 1993: 82-83. Miller's search for a priest with special faculties for absolution, therefore, was simply not necessary. One does not blame her for relying on the incorrect information she received from a priest, of course, but it was incorrect.
The more serious error Miller makes in this story illustrates the complexity that automatic sanctions introduce into canonical and pastoral practice and brings us closer to the substance of this matter. Recall, once again, that exemption from automatic sanctions does not guarantee protection from later formal sanctions but, given the absence of any formal sanctions imposed or declared against mothers for obtaining an abortion, immunity from automatic sanctions effectively supports Dolan's point that 'the Church does not excommunicate women for abortion'.
So we ask, could a 17 year old girl be automatically excommunicated for abortion? Not according to any canon lawyer I have located so far (except Miller's). Besides the five authorities cited above (4.1.), consider the following comment expressly made on the minimum age required to be at risk for automatic excommunication (my emphasis):
• CLSA Advis. Op. 1993-82: “The need to absolve from the censure [for abortion] may be rare. ... Any of the following conditions prevent a person from incurring the penalty of automatic excommunication attached to the sin of abortion … age less than eighteen years.”
Thus, Miller's scrambling to find a priest with special faculties to absolve from abortion was based on bad advice from an under-informed cleric but her assumption that these two 17-year-old girls were excommunicated at all was simply wrong. Two key mistakes, it seems, in the personal example that Miller offers for her conviction that Cdl. Dolan made "egregious errors" regarding the canon law of abortion.
There are, as we saw above, some factual aspects of certain exempting provisions in Canon 1324 §§ 1 and 3 that might not be immediately evident to uninformed observers of actual cases, and Miller's own, doubly-mistaken evaluation of what should have been a clear case of exemption suggests that amateurs are especially prone to making mistakes in this area. As was seen in regard to Canon 1323, however, informed observers can usually help Catholics concerned for their canonical status in the wake of offenses to assess their status correctly. But what is important to understand, both in easy cases and in hard, is that the exempting operation of Canon 1324 §§ 1 and 3 is itself automatic, that is, the protection from automatic sanctions is immediate.
4.3. The list of provisions protecting Catholics from automatic penalties is quite extensive
The list of conditions automatically preventing automatic penalties from being incurred as presented in Canon 1324, gleaned from reading its first and third sections, is quite generous and includes, besides being under age 18: imperfect use of reason, mental disturbances based on drug or alcohol abuse, mistaken perceptions about threats to oneself, ignorance of a canonical penalty (not just of a penal law, as was true of Canon 1323, but of a penalty attached to the law), and at least one more striking triad of factors that will be given extended attention below. But even at this point it should be clear that this list of exemptions must further greatly reduce the number of women who, notwithstanding having obtained an abortion, could be automatically excommunicated for it, this, even beyond the reductions already worked by Canon 1323, and further supporting Dolan's point.
4.4. Pregnant women enjoy a sweeping list of exemptions to automatic penalties for abortion
Canon 1324 § 1 n. 5, per Canon 1324 § 3, exempts from all automatic penalties an offender “who was coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience” even if—and note this—even if “the delict is intrinsically evil or tends to the harm of souls”. The applicability of this provision, a provision that must be read in accord with, among other provisions, Canons 18 and 221 and Regulae Iuris 15 and 49, is, I suggest, sweeping in regard to pregnant women. Let me set aside for now my professional concerns about the Legislator’s having phrased this canon this way in this area and address what the law nevertheless holds in regard to these three factors.
4.4.1 Fear
Notwithstanding the joy that many women experience because of their pregnancies, many, many women around the world also experience grave fears (both physiological and psychological) concerning pregnancy, labor & delivery, and so on, and they see abortion as a way to escape those fears. Abortion chosen out of fear exempts a woman from automatic penalties. Furthermore, per the express terms of the canon, fear, in order to exempt a woman from an automatic sanction, need only be experienced by the woman in question and need not be a fear such as to cause concern among most others. CLSA New Comm (2000) 1543. As for the mothers who, Deo gratias, 'forget their anguish for joy that a child is born into the world’ (John XVI: 21), and so, like Miller, might be disinclined to recall the fearful aspects of their own pregnancies, I invite them to consider whether they experience any vicarious fears upon learning that their daughters are pregnant. I know I will. And I’m just a dad.
Here I pause to make clear that even the 1917 Code took a very generous attitude toward accepting the mitigating effect of fear in the application of automatic penalties, even when it came to punishing women who procured abortion.
For example, notwithstanding the narrower scope accorded by the 1917 Code to “fear” as a defense against canonical sanctions (compare 1983 CIC 1323-1324 to, say, 1917 CIC 2205, 2229), Pio-Benedictine commentators routinely held that “fear” excused mothers obtaining an abortion from the automatic excommunication expressly threatened against them by 1917 CIC 2350. See, e.g., Cloran, Previews, case 17 (exempting from excommunication a young woman who ‘feared’ being thrown out of her father’s house if she were found pregnant), and case 40 (exempting from excommunication an unmarried woman who ‘feared’ for her reputation if she were found pregnant); similarly Ayrinhac, Penal 241; D. Augustine, Commentary VIII: 402; and Jone, Commentarium III: 531. Note, these are commentaries on the 1917 Code written in the 1920s-1950s by highly-regarded canonists and so could have hardly been tainted by modern slack attitudes toward sanctions. Given, finally, the limitations that fear has long worked on the operation of automatic penalties in the Church, and the expanded scope accorded fear in the operation of penal law today, it should surprise no one to see a woman's fear offered as a prime example of a penal exempting factor today specifically in regard to abortion. GB&I Comm (1995) 758.
4.4.2. Necessity
I find it difficult to imagine how a woman could find abortion necessary (except perhaps mistakenly, but if so, relevantly, per Canon 1324 § 1 n. 8!) and so invoke "necessity" as a defense to automatic sanctions. Perhaps others could make a 'necessity defense' here. I pass over it at present.
4.4.3. Grave inconvenience
A woman who finds her pregnancy “gravely inconvenient”, is also, by canon law, exempt from an automatic sanction. We need to appreciate this point, though it is one that Miller, in an usual ad hominem argument, especially castigates me for highlighting. Uncomfortable as I am telling a mother of three that her pregnancies, whatever rejoicing accompanied them, were also gravely inconvenient for her, that is exactly what I must say: pregnancy is, I suggest, as far as canon law is concerned, gravely inconvenient and has been so since the Fall (Genesis III: 16).
To be sure, like Chesterton’s common man who was discombobulated by having suddenly to explain ‘what is so good about civilization’, and who could only stutteringly point to, well, this mailbox here and that policeman there, so I can’t explain what is “inconvenient” about pregnancy and can only mutter something about specially-trained medical personnel for pregnant women and “crisis” pregnancy centers and laws about pregnancy leave. The mere fact that countless loving mothers tolerate the inconveniences, even the grave inconveniences, of pregnancy for greater goods does not make those inconveniences any less “inconvenient” in the eyes of the law.
4.4.4. Scholion on "inconvenience" as an exemption from grave moral obligations
As we are talking about canon law here we must use words, such as “inconvenience”, the way canonists and moral theologians use words such as “inconvenience”. At the risk of outraging the sensibilities of some Catholics by suggesting parallels, consider that the obligation to attend Sunday Mass, which reliable authors hold as binding under pain of grave sin, is nevertheless excused by “any moderately grave inconvenience”. Davis, Moral & Pastoral II: 59, 64 and Prümmer, Moral, 196, say that the Mass obligation “binds under penalty of grave sin” but cite the great Ligouri to the effect that “some notable inconvenience” excuses compliance with the law. Jone, Moral, 134, actually speaks of pregnant women in the first or last months of their pregnancy and of unmarried pregnant women who were worried for their reputations as being excused from the law of attending Mass. See also CLSA New Comm 1445. Again I note, for several reasons not here relevant, I do not think "inconvenience" should have been included as a canonical defense to (positive) criminal act, but one cannot disregard the term just because it was (in my view) injudiciously included in this sort of penal canon.
4.4.5. Other considerations on the term "inconvenience" in law
Moreover, while I am not fond of making etymological arguments for canonical positions, I can’t resist observing that the penal law’s use of the word “grave” with regard to fear and inconvenience, when it is applied to pregnancy, is strikingly pleonastic. The English word “grave”, meaning weighty, burdensome, or serious, comes from the Latin word “gravis, grave” which means weighty, burdensome, or pregnant. Pregnancy literally weighs a women down, imposes serious burdens on her, and confronts her with various inconveniences and often nagging fears. Obstetricians, in fact, refer to pregnancy as “gravida”! Describing pregnancy as gravely inconvenient, then, is virtually a tautology. Far from reflecting what Miller portrays as my “dark anthropology of women”, this insight reinforces the admiration that this father of six has for mothers.
The canonical notion of “inconvenience” varies to some extent depending on the kind of wrong being committed, of course—this being a key reason why I do not think “inconvenience” should have been listed as a mitigating factor for sanctions consequent to certain kinds of crimes, and why I would eliminate it from here if I could—but the foregoing should serve to alert Miller and her readers that “inconvenience” is a much broader concept canonically than her maternal dispositions seem willing to admit, especially since in penal canon law, the interpretation of factors most beneficial to the offender, not to the accuser, must, by Regula Iuris 49, etc., be followed.
4.5.1. Scholion on a hard case: sex-selective abortion
Miller wonders whether I think "grave inconvenience" is a characteristic of pregnancy itself and so exempts pregnant women from automatic excommunication for abortion even if a woman obtained her abortion for purposes of sex-selection. It's a fair question, though one more complex than I suspect Miller recognizes. Let's consider just three points involved in the issue.
4.5.2. Are "sex-selection abortions" usually about sex-selection?
Around the world, sex-selection abortion is often, indeed probably usually, the result of government or at least cultural coercion (think of China's mandatory one-child policy or crushing poverty in the Third World). These millions of abortion were, strictly speaking, sex-selection abortions, but they are hardly free acts. I trust no one wants to insist on the excommunication of a Chinese underground Catholic woman who aborted a child in the face of Communist state mandates.
4.5.3. May 'undeserving' persons assert legal rights?
But let's look at what should be an easier case, say, some rich American single woman who thinks it would be fun to have a baby, but wants a little girl and so aborts her male pre-born baby. All reasonable Catholics would agree this is a vicious act, but its canonical assessment raises a legal question: should the right to invoke a legal defense depend on the motive of the one invoking it?
Miller is asking, whether she quite realizes it, a complex legal question that turns on the fact that, in exercising legal rights, including the claiming of legal defenses to liability, one might (and usually does) have multiple reasons for having done the wrong act, some reasons ‘honorable’ and within the law, some ‘dishonorable’ but also within the law. Miller is asking, in fact, whether people with bad motives should be allowed to exercise legal rights. It is a question hardly limited to abortion cases or to canon law. May I suggest an analogy?
A woman calculating her taxes learns that by some obscure provision of the tax code she is exempt from paying any taxes. She claims the exemption because she wants to save money. No one questions her right to do so.
But now consider the same woman, owing the same in taxes and eligible for the same exemption, who has no interest in saving money, but who hates the federal government, wishes it to crash in flames so as to unleash anarchy in society, and thinks that, in claiming this exemption, she has found a way to withhold her support from the government and thus weaken it. May she claim the tax exemption?
Any lawyer would say, Of course she may claim the exemption, as her reasons for claiming it are legally irrelevant, only her eligibility for claiming the exemption matters in law. Sure, a priest might counsel this woman to repent of her sin of desiring social anarchy but her lawyer would defend her if she were ever prosecuted for 'claiming a tax exemption for unpatriotic reasons'. Similarly, I suggest, if a woman is canonically exempt from automatic excommunication for some reason, she may, in my view, claim the exemption regardless of her actual motives. She might have gravely sinned in her underlying action, but sin (as opposed to crime) does not deprive one of legal rights. Or may only innocent people claim, for example, protection from prosecution under the statute of limitations?
Of course, Miller denies that pregnancy is an inconvenience in the first place, and so objects to my underscoring Canon 1324 § 1 n. 5 as a canonical defense, but, if I am correct that at least some aspects and times of pregnancy are regarded by canon law as gravely inconvenient (and recalling that I think "grave inconvenience" was too inaccurately included in the law here), then, yes, I think the case can be made that a pregnant woman with bad motives for acting can still claim legal protection from sanctions if her circumstances otherwise fall within the law. (Notice, again, this argument does not avail abortionists.)
4.5.4. The invocation of exemptions to automatic penalties falls largely to offenders
To all of this Miller might finally respond, third, What kind of a criminal law system allows offenders to decide whether they qualify for legal certain defenses? I answer, canon law does, and must, in regard to latae sententiae sanctions:
• "Let us recall briefly for now that, in the case of latae sententiae penalties, assessment of the attenuating circumstances rests with the author of the offense himself." Borras, Les Sanctions (1990) 32, who goes on to note that potential aggravating circumstances in penal cases can only be assessed by a judge (in a formal process)—but of course, formal canonical trials of mothers for abortion are not instituted.
• "As is obvious from the rest of the phrasing of Canon 1324 § 3 the application of a latae sententiae penalty requires no intervention by a judge. It falls therefore mainly to individual faithful who, if they have committed a crime for which a latae sententiae penalty is envisaged, must conscientiously assess the existence of some mitigating circumstance." D'Auria, L'imputabilità (1997) 201.
Again one might see why I am opposed to the retention of automatic penalties in Roman canon law at all. The contortions in legal process and theory necessary to keep latae sententiae sanctions from running amok (even if that means relying on wrong-doers to determine whether some legal defenses apply to themselves) are incessant. But we cannot pretend the law does not say what it says. Indeed, such concerns for the operation of automatic penalties underlay in part, I think, the old Decretal law disputes about whether canonical legislation against “procurers” of abortion should apply to mothers at all.
4.5.5. There is an enforceable canonical response to Miller's scenario, it's just not excommunication
Not to anticipate our discussion in No. 5, below, here is a final thought exercise in this area: Try imagining a panel of three clerical judges (as would be required, subject to some exceptions not here relevant, for excommunication cases per Canon 1425) telling a woman who is being canonically prosecuted for abortion that pregnancy is not a serious inconvenience for a woman and so she may not claim that as a canonical defense.
Now, try imagining them doing that with a straight face. Seriously.
But, while I cannot imagine Church officials telling women that pregnancy is not an inconvenience without provoking thereby disastrous pastoral consequences in the real world, I can imagine a panel of canonists telling a woman that, while pregnancy is indeed what canon law recognizes as a grave inconvenience, and notwithstanding that said inconvenience suffices to exempt her from automatic excommunication, the inconvenience of pregnancy does not suffice to protect her from other significant canonical penalties (notably, as we shall see, interdict), the which penalty could be imposed formally. As unlikely is the canonical prosecution of any woman for abortion, I could imagine a canonical tribunal reaching just that sort of decision in the case proposed by Miller.
4.6. The list of exempting factors in Canon 1324 § 1 is longer still
Even now we are still not finished outlining the wide exempting scope of Canon 1324 § 1 n. 5 because, after all that has been said to this point about its broad exempting language in regard to automatic sanctions, we must add that even a women who is in error, nay even in culpable error (!), about whether any factor listed in Canon 1323 nn. 4 & 5 was present (which norms include factors we have been discussing as part of Canon 1324 n. 5—does one get a sense of how clumsily cobbled together these canons are from some two dozen Pio-Benedictine predecessors?), that woman also, the law indicates, enjoys the same exemption from automatic sanctions set out in Canon 1324 § 3 and referring to Canon 1324 § 1.
In short, the list of exemptions from automatic sanctions found in Canon 1324, on top of those already found in Canon 1323, is astounding. And every one of those exemptions, provisions that must be construed in favor of the wrong-doer at every reasonable turn, supports Dolan's comment that 'the Church does not excommunicate mothers for abortion' against Miller's rejection of Dolan's view as "completely false" and "nearly shocking".
- - - - - -
It is time to move to the third and final aspect of our question and ask whether Catholic women who obtain an abortion are (automatically or otherwise) excommunicated? This discussion will not take as long to outline as did the above because it does not involve the neuralgic issue of automatic penalties, instead, we look only at penalties themselves, albeit excommunication.
5. Protection from excommunication as a sanction
The list of exemptions from automatic penalties found in Canon 1324 § 3 (and Canon 1323) does not, by itself, suffice to show that at least some women could not later be sanctioned, perhaps even excommunicated, in a ferendae sententiae process. But, setting aside the extreme unlikelihood that a formal Church process would ever be convoked against a woman for obtaining an abortion, we now consider whether a Church process could actually visit upon a mother the excommunication threatened against procurers of abortion in Canon 1398. I think not, albeit with one possible, if vanishingly rare, exception.
5.1. Canon 1324 § 1 demands that many offenders, though liable to sanction, receive only a tempered penalty
We return to Canon 1324, this time, however, to its first section, stating that anyone who falls within its terms “is not exempt from a penalty, but the penalty established by law or precept must be tempered or a penance employed in its place”. Though no canonist (except Miller's) seems to doubt the plain effect of these words, Miller never acknowledges this provision even though it is crucial to determining whether women obtaining abortion are (subject to some exemptions she admits, and some others she does not) excommunicated. The text of the law directs that any penalty imposed on an offender who fits under any of the provisions of Canon 1324 § 1 “must be tempered” (or even replaced with a still-lighter, non-penal 'penance', but let’s focus on the sanction option). The question is now, can excommunication, the penalty threatened for abortion, "be tempered" yet still imposed? I think not.
5.2. Excommunication can no longer "be tempered", though it might be substituted for
Recalling that there are three kinds of censures in canon law (excommunication, interdict, and suspension, per Canon 1312 § 1 n. 2), the effects of excommunication, as set out in Canon 1331 § 1 and for that matter of interdict as set out in Canon 1332 are unitary, meaning that anyone under an excommunication or interdict (whether incurred automatically or inflicted after a formal process) labors under all of the consequences presented in those canons for those under the automatic or formally-imposed penalty. In contrast, a glance at Canon 1333 on the penalty of suspension suffices to show that suspension is a variable (indeed, a highly variable) censure, one that by its plain terms can be diminished or augmented in accord with circumstances. Thus while an offender could be more or less suspended, an offender can only be excommunicated or not excommunicated, or interdicted or not interdicted. There are no sort-of excommunications, no partial excommunications, no semi-excommunications in Western law. Thus, the only way to "temper" excommunication under the 1983 Code is to not impose it. This startling fact requires some historical perspective.
Under the 1917 Code, and for many centuries before that, Western canon law knew not one but two kinds of excommunication, namely excommunication tolerandus (tolerated) and excommunication vitandus (banned). See 1917 CIC 2258 § 1. Excommunication was always bad, of course, but being a banned excommunicate was worse than being a tolerated excommunicate and thus various provisions of the Pio-Benedictine Code worked to limit the number of excommunicates who were banned. What is important for our purposes is to recognize that Roman canon law used to know two kinds of excommunication and that it was therefore possible, under the former law, to temper an excommunication while still imposing an excommunication by the expedient of making an excommunication a tolerandus, not a vitandus, kind of penalty.
By the early twentieth century, however, the distinctions between tolerated and banned excommunications had become problematic as the possibilities of the Church's ability to enforce the consequences of a banned excommunication had basically evaporated in modern society. By the 1970s the practical distinctions between banned and tolerated excommunicates were moot and the 1983 Code simply eliminated the distinction but retained excommunication as a unitary penalty (basically as what would have been a tolerated excommunicate under the 1917 Code). As a result, today, if one is not excommunicated (regardless of what other kind of canonical trouble one might be in) one is not excommunicated. Period.
But, here's the point: the consequences of eliminating the old distinction between the two kinds of excommunication (and various kinds of interdict) went, I suggest, under-appreciated by drafters of Canon 1324 (canonists, of course, long trained to think in terms of there being two types of excommunication) when they set about compiling their list of exemptions and defenses and restrictions on bishops and judges in penal cases. As a result, when they drafted the requirement that some penalties (including excommunication) be "tempered" under certain conditions (including those listed in Canon 1324 § 1), they apparently failed to appreciate that the only way excommunication could be "tempered" was to not impose it at all and instead to substitute another, even if serious, penalty in its place.
Thus, assuming that Canons 18, 221 § 3, and 1324, and Regulae Iuris 15 and 49, mean what they plainly say, then, I suggest, any woman obtaining an abortion, thus ending a condition that has canonically qualified as a grave inconvenience (however pleased many mothers are to be pregnant), but who acts nevertheless with some demonstrable degree of culpability (say, after having been individually counseled against abortion by a knowledgeable and sympathetic figure), though exempt from any automatically incurred sanction for the deed (under Canon 1324 § 3), could still be ferendae sententiae penalized for it, but, any such penalty as might be imposed in a formal process (which has never been, and likely never will be) convoked against a mother, must be "tempered" (per Canon 1324 § 1) from what is threatened in the law (excommunication, per Canon 1398), and thus, only a penalty less than excommunication could be imposed (interdict fits the bill very well, per Canon 1332). To restate this key point: a mother is not, and cannot be, excommunicated for abortion, meaning that, whatever other penalty could be imposed on a woman (again, not necessarily on an abortionist!) in the wake of abortion, she is not excommunicated for it—Dolan's claim.
6. Some other points
6.1. A fact-pattern that might support the excommunication of a woman for abortion
In 1988 the Code Commission (see c. 16), responding to some technical arguments about the definition of abortion (arguments not relevant to our discussion) established that "abortion" as proscribed in Canon 1398 is "the killing of a human being in any manner at any point prior to birth". See [PCLT] (Castillo Lara), resp. ad dub. re Can. 1398 (23 mai 1988), AAS 80 (1988) 1818-1819, Latin on-line here. Now—setting aside some new canonical problems introduced by this authentic interpretation—suppose a woman, having donated some of her eggs for an in vitro fertilization process, which eggs are now fertilized and so are human beings in the zygote stage, decides that she does not want them and orders their destruction. It seems to me that, strictly speaking, this woman's action, per the interpretation of 1988, meets the definition of "abortion", but, even though she is the "mother" of these tiny human beings, she is not pregnant with them and so, it seems, she cannot (or cannot as obviously) invoke the various affirmative canonical defenses against automatic excommunication that I and other canonists think pregnant women can invoke. I suggest that, even if the conditions listed in Canon 1324 § 1 would suffice, per Canon 1324 § 3, to exempt such a woman from automatic excommunication, it seems possible that a later formal penal process might be able to find, not simply sufficient culpability to sanction the woman (with interdict?), but possibly enough to excommunicate her, enjoying, as she does, fewer, perhaps none, of the usual canonical defenses against excommunication associated with pregnancy.
I grant that this would be, for the reasons outlined here and some others, a rare scenario (indeed, a classic "hard case"), but I mention it, first, to model one's following the Code wherever it leads (if only to find out where it needs reform), and second, to underscore how difficult it is to levy sanctions, let alone excommunication, let alone automatic excommunication, in a matter such as abortion.
7. Conclusions
Of the nine excommunications in Roman canon law, only the excommunication threatened for abortion responds to an action that, though gravely evil, is not by its very nature destructive of ecclesiastical order. Moreover, of the many grave moral offenses committable (especially by lay persons) such as enslavement, drug-trafficking, pornographic projects, child abuse and abandonment, participation in 'same-sex marriage', serial-marriage, and so on, only abortion is punished with an ecclesiastical censure—the gravest censure at that, one incurred, supposedly, automatically, and, if that is true, then, by millions and millions of Roman Catholic women.
At some point, serious questions must be asked about whether abortion should, as a juridic matter, be singled out from among a cacophony of moral offenses for criminal treatment and, beyond that, whether that treatment should threatened against Roman Catholics only, as an automatic, 'one-size-fit-all' sanction despite it being an action that is often resorted to out of desperation and in the face of a wide variety of powerful external pressures. But now is not the time to address those deeper questions; here we consider only whether the automatic excommunication threatened against those who procure an abortion can, as matter of canon law reach women undergoing abortion.
I have argued above that many women obtaining abortions, while broadly included in the terms of Canon 1398, are exempted from any sanction whatsoever for reasons listed in Canon 1323; that masses of other women obtaining abortions, indeed probably nearly all of them, are exempted from any automatic sanctions for reasons listed in Canon 1324 § 3; and that all or virtually all women would be protected from excommunication for abortion for the reasons listed in 1324 § 1—assuming mothers were ever convened before an ecclesiastical body for a formal penal process, something which, to my knowledge, has never happened in modern times.
Against my view stands Miller and a canonist she contacted, who deny most or all of the outright penal exemptions found in Canon 1323, largely ignore the exemption from all automatic sanctions found in Canon 1324 § 3, and who completely ignore the protection women enjoy from excommunication that I have pointed out would apply to them in abortion cases under Canon 1324 § 1.
At this point, I am content to let readers chose between two alternatives: either, as Dolan remarked, none or almost none of the millions of women world-wide obtaining abortions by various means (one last time: as opposed to the abortionists themselves, whom I think should be canonically prosecuted) have been excommunicated for it, or, as Miller seems to hold, masses of women undergoing abortions in a wide variety of ways and under a wide variety of circumstances, have been, and thus are, automatically excommunicated for it—implying grave juridic and pastoral complications for them and massive impotence in Church law.
I think it far more likely that the former scenario obtains than does the latter.
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References & citations
All canonical commentary translations mine. |
• The "Regulae Iuris" are found in most editions of the Corpus Iuris Canonici, e.g., Friedberg 927-928, 1122-1124.
• Information on 1917 Code pan-textual commentaries (D. Augustine, Commentary) available here; information on Pio-Benedictine topical commentaries (Ayrinhac, Penal; Cloran, Previews), available here.
• Henry Davis (English Jesuit, 1866-1952), Moral and Pastoral Theology [1935], (Sheed and Ward, 4° ed., 1943) in 4 vols. ▪ On the usefulness of Davis for modern canonical analysis, see E. Peters, "Applications of the Essential Norms in cases of doubt", Roman Replies and CLSA Advisory Opinions (2009), at 133-138.
• Dominicus Prümmer (German Dominican, 1866-1931), Handbook of Moral Theology [1921], (Mercier, 5° ed., 1956) 493 pp., Shelton trans.
• Heribert Jone (German Capuchin, 1885-1967), Moral Theology [1929], (Newman, 8° ed., 1948) 634 pp., Adelman trans.
• Pontificia Commissio Codici Iuris Canonici Recognoscendo, “Principia quae Codicis iuris canonici recognitionem dirigant” Communicationes 1 (1969) 77-85, Eng. trans., Canon Law Society of America, Code of Canon Law, Latin-English Edition, New English Translation, (Canon Law Society of America, 1999) xxxvi-xxxvii.
• Information on 1983 Code pan-textual commentaries (CLSA Comm, GB&I Comm, CLSA New Comm, Chiapetta Codice, Exegetical Comm, Salamanca Comm) available here; information on Johanno-Pauline topical commentaries (Borras, Les Sanctions), available here.
• Velasio de Paolis (Italian prelate, 1935-2017), De Sanctionibus in Ecclesia Adnotationes in Codicem, Liber VI, (Gregoriana, 1986) 133 pp. ▪ Review: E. Peters, Jurist 55 (1995) 952-954.
• John Amos, “Canon 1398: Absolution form the censure of abortion”, Roman Replies & CLSA Advisory Opinions (1993) 82-83.
• Edward Peters (American layman, 1957-), Incrementa in Progressu 1983 Codicis Iuris Canonici: a Legislative History of the 1983 Code of Canon Law, Series Gratianus (Wilson & Lafleur, 2005, ISBN: 2-89127-663-9) xci + 1549 pp. ▪ Reviews: J. Huels, Studia Canonica 40 (2006) 261-262; Thomas Green, The Jurist 67 (2007) 265-267. More info here.
• Edward Peters, “Canon 1398: Excommunication for procured abortion”, Roman Replies & CLSA Advisory Opinions (2010) 178-182.
• Edward Peters, “Canon 1324: Exemption from a penalty”, Roman Replies & CLSA Advisory Opinions (2010) 169-174.
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