The Dispatch: More from CWR...

It’s not fair, but does he deserve it?

Some observations on Cardinal Dolan, Governor Cuomo, Dr. Monica Miller, abortion, and canon law.

Cardinal Timothy M. Dolan of New York is seen with Bishop Nicholas DiMarzio of Brooklyn, New York, and Gov. Andrew Cuomo in New York City March 17, 2016, during the St. Patrick's Day Parade. (CNS photo/Ed Wilkinson, The Tablet)

A savvy observer of things Catholic recently contacted me regarding the scorn being directed at Timothy Cdl. Dolan (and other bishops, but mostly Dolan) for not excommunicating New York’s pro-abortion governor Andrew Cuomo, for not publicly denying him holy Communion, and for not taking any other action besides, it seems, expressing sadness at the politico’s evil conduct. “It’s not fair”, my friend remarked, with bishops as a whole in mind, “because canon law really does tie their hands here, but people think they deserve it anyway because, for decades, bishops have fouled up basically everything else they do have some control over and look where we are now.” My friend was not endorsing this thinking but he was describing it accurately. Quite.

Even setting aside—as if that’s possible—the clergy sexual abuse catastrophe against which all episcopal conduct is assessed these days, the near universal failure of US bishops (along with their European, even Roman, counterparts, but who even notices that anymore?) to enforce so relevant and ready a norm as Canon 915 against pro-abortion Catholic politicos (recalling that early cover for that failure was given by none other than Uncle Ted, who tried to hide then-Cdl. Ratzinger’s crucial letter on this matter—so much for setting aside the sexual misconduct disaster), and the broader episcopal failure to enforce basic Catholic discipline in many other areas, has left faithful Catholics so scandalized, wearied, and angry that when, like the unchecked evil it is, the abortion cult takes over one of America’s two great political parties and infects major federal and state office-holders, a single episode of that evil, the Cuomo case, can erupt like a festering boil and a Dolan comes to represent heterodox prelates everywhere.

I get the anger. I have winced my way through several Dolan interviews wherein secular reporters were better at enunciating Church teaching on controversial matters than he was, and I have cringed as he made some good points only to lose them in irrelevant asides. What Dolan (and he’s not alone here, but he is prone to it by personality and prominent in it by position) doesn’t seem to understand is that, while parish hall bonhomie works with believers and gentle words work with penitents, neither approach works in major media settings where Successors of the Apostles need to speak clearly and forcefully on the contentions of the day, this, in ways that leave no doubt that Jesus is coming to judge the living and the dead. Soon. But almost no bishop talks that way today. So, yes, I get the anger aimed at Dolan. But that’s not what I want to discuss now.

Here my concern is with the attacks being launched on Dolan and some other bishops concerning matters over which they either have no control (as my friend suggests) or regarding which they are being wrongly accused of botching when—if one heeds what they say rather than how they say it—the bishops actually have it right. Specifically, I want to address an attack against Dolan by a theologian of obvious orthodoxy and of proven pro-life witness, Dr. Monica Miller, in her essay at Crisis, “Cardinal Dolan gets canon law wrong on abortion”.

Now, had Miller gone after Dolan for all sorts of prudential missteps and fumbles,I probably would have agreed with her; had she questioned Dolan’s theology I would have at least deferred to her expertise. But instead, Miller (who claims no qualifications in canon or civil law) pummeled Dolan with (what she thinks is) a canon law cudgel and Crisis editor John Vella (who claims no credentials in either canon law or theology) published it.

To sum up the long story I offer below, I find Miller’s main canonical point almost completely wrong, her criticisms of Dolan in this regard terribly exaggerated, and her perturbation of the consciences of post-abortive women, both those who have addressed their sin in confession and those who haven’t, pastorally reckless.

To be clear, I do not think it wrong to criticize, strongly but responsibly, Dolan or other bishops (1983 CIC 212), nor do I hold canon law to be the exclusive domain of canonists. But to the extent that anyone wishes to criticize bishops in light of canon law, to that same extent one needs to have a very good grasp of what canon law actually directs.

The central claim in Miller’s essay is that women who undergo abortion are automatically excommunicated under Canon 1398. She regards Dolan’s comment rejecting such excommunications, his “We don’t do that anymore” line, as an error almost “shocking” and in any case “completely false”. Against Dolan, who, says Miller, “should truly know better and has a duty to present the teachings of the Church”, she claims that “there is hardly a canonist who does not know that [Canon] 1398 applies to … the woman who actually has the abortion.” Miller, who in this essay and frankly uncharacteristically, seems to take lightly a theologian’s duty ‘to truly know better and to present the teachings of the Church’, makes her canonical accusation against Dolan about a half-dozen different ways.

Appreciate the relentlessness of Miller’s attack: Besides the above, Miller accuses Dolan of making “egregious errors”; of offering responses “shot through with multiple errors”; of having “woefully mangled” Church teaching and practice; of leaving “doctrinal and pastoral wreckage in his wake”; and on and on.

Of course, as suggested above, if one is angry at Dolan (for good reasons or for bad) and if one knows little and cares less about canon law, Miller’s words might not offend, a la, even if she is being unfair to Dolan, so what?, he deserves it. To such persons I have nothing to say; their issues are not canonical. But with more thoughtful persons—and regardless of how one feels about Dolan’s performance in other respects—I think words are important and that canon law matters, thus, I think we need to examine Miller’s claims about what canon law means in light of what canon law actually says before we accuse Dolan or anyone else of “totally misrepresent[ing] the teachings and practice of the Church”.

Before setting about that task, a caveat: this is a long blog, but it’s still just a blog. Even so, unlike the legion of amateurs who can look up a canon or two and pronounce confidently on the meaning of canon law, as a real canonist I have to support my claims with text and argument. In controversies, I have to lead readers first to the point of being able to recognize the possibility of canonical errors in someone like Miller’s essay, and then, get them see that she indeed made those errors. That takes times and that takes words, often, plenty of both. Even so, there is more to these matters than I can address here and there are reasonable questions that can be raised about the law and/or my explanation of it. Anticipating those concerns, besides my offering the age-old advice to “consult the approved authors“, I will point to two professional opinions that I wrote on some of these matters for the 2010 CLSA Advisory Opinions, namely, “Exemption from a penalty” (169-174) and “Excommunication for abortion” (178-182). I don’t think either of these pieces is available on-line. Consider it an excuse to go to a library. Now, onward.

1. Dolan’s phrasing “We don’t do that anymore” implies that at some point in her history the Church excommunicated mothers who aborted their babies. Dolan is correct.

The Pio-Benedictine Code, in its Canon 2350 § 1, stated “Procurers of abortion, the mother not excepted, incur, upon the effect being secured, automatic excommunication reserved to the Ordinary, and if they are clerics, they are also deposed”, my emphasis. The inclusion of the unusual phrase “matre non excepta” suggests a backstory.

For hundreds of years, despite her exceptionless scoring of abortion as a grave sin and her readiness to treat abortion as a canonical crime, the Church hesitated over whether to include mothers in the penal law. Good arguments for and against criminalizing mothers in abortion cases were debated but, by the early 20th century, the consensus under “Decretal Law” seemed to be that, while mothers aborting their children sinned gravely, they should probably not to be treated as criminals on par with abortionists and their henchmen. In 1917, however, the pope sided with those arguing for criminalizing mothers in abortion cases and Canon 2350 was promulgated as above. For the next sixty-plus years, bishops, priests, and canonists explained and applied the abortion canon in light of its plain terms. To be sure, various canonical and moral defenses against “imputability” were invoked while treating individual cases, but, at least at the formal, textual level of the Code, the Church indeed excommunicated mothers undergoing abortion. Dolan was right.

Enter the Johanno-Pauline Code of 1983. Canon 1398 thereof reads as follows: “A person who procures a completed abortion incurs an automatic excommunication.” Period.

While numerous changes in the abortion canon are obvious to anyone who bothers to compare it with the 1917 Code, what, for our purposes, cries out for acknowledgment is that the earlier express inclusion of mothers undergoing abortions as criminals has disappeared from the revised law. If only in this formal, textual respect, then, Dolan’s claim that “We don’t do that anymore” is correct or, at the very least, it is quite reasonably asserted, and Miller’s condemnation of Dolan’s phrasing as being an “egregious error” and “completely false” totters.

But there’s more.

2. The removal of the phrase “matre non excepta” from the revised Code not only recalls Decretal Law concerns about whether the Church wants to include mothers in this criminal canon, it unquestionably restores to these women all of the ‘affirmative defenses’ made available to any member of the faithful accused of crime, these defenses being set out in, among other places, Canons 1323 and 1324.

Before diving into this area, recall: canon lawyers do not write canon law, they comment on what’s in it. I have stated many times my view that the affirmative defenses which survived into the 1983 Code are excessive and that they hamper the ability of even good bishops to enforce canonical discipline to the degree that I, for one, think it should be enforced. But the law is still the law and canon law gives clear and consistent directives as to how it must be read and understood by those who apply it in practice or invoke it in arguments. Among those directives, going back many centuries, is one that requires construing penal law and facts in favor of the accused whenever that can reasonably be done (see, e.g., Boniface VIII,Regula Iuris 49 [1298]). Back to it.

Now, while Miller confuses laws and precepts in this area, she correctly calls attention to Canon 1323, a canon that provides a dozen or so affirmative defenses amounting to exemptions from penalties under the 1983 Code. Basically, if a person accused of a canonical crime can show himself covered by even one of the factors described in Canon 1323, that person cannot be punished by canon law (although there might still be grave sin involved that needs sacramental resolution). But, in briefly acknowledging the exempting effect of Canon 1323, Miller makes an odd comment, one easy to miss amid the Dolan-bashing.

Miller writes, “Cardinal Dolan needed to uphold Canon 1398 and explain why it exists, even if it is true that the penalty likely does not apply to the majority of Catholic women since they have never been informed of the canonical precept [sic].” Wait a minute.

Is Miller rhetorically minimizing the plain text of Canon 1323 n. 2 on her way to criticizing Dolan for not talking about whatever Miller thinks important, or, is Miller conceding that “the majority of Catholic women”, per just this one provision, are indeed exempt from excommunication for their abortions? For the sake of her canonical coherence, I hope Miller recognizes that some, or most, or who knows, maybe nearly all, Catholic women might be exempt from excommunication for their abortion under just this one provision but, even if it is only her “majority of Catholic women” who could be exempted from excommunication, why does she blast Dolan for addressing, in a conversational manner, the majority of cases by remarking in a general way, “We don’t do that any more”? How would Dolan’s apparently accurate general comment offend the truth so ‘egregiously’ and ‘completely’ that Miller must repeatedly condemn it?

3. Turning from this major exemption from excommunication that even Miller seems to admit might apply to post-abortive women, let’s look, too briefly, at the exemption perhaps most important (for our purposes, i.e., assessing the canonical liability of mothers to automatic excommunication for undergoing abortion) that made it into the revised Code. It’s in Canon 1324, which Miller does not mention.

Canon 1324 § 3 dryly states: “In the circumstances mentioned in § 1, the accused is not bound by a latae senteniae penalty.” Let that unpretentious text sink in. By it, if any factor in Canon 1324 § 1 can be shown to apply to a woman undergoing an abortion, the automatic penalty threatened for abortion by Canon 1398 cannot apply to her, per Canon 1324 § 3. Not might not. Not should not. Cannot.

Now, among the many other factors listed in Canon 1324 § 1 that could apply to anyone accused of canonical crime, including to women seeking abortions (e.g., young age, substance abuse, even ignorance of canon law!), those listed in number 5 thereof address someone who was ‘coerced by grave fear, even if only relatively grave, or who acted out of necessity or to avoid grave inconvenience [even if] the delict is intrinsically evil’. Any member of the faithful threatened by a latae sententiae penalty (including excommunication) who acted under one or more of these conditions, irrespective ofmoral guilt, is protected by Canon 1324 § 3 against that penalty. That droves of women presenting for abortion could reasonably claim one or more of these factors is, I think, obvious. Or are 3,000 American crisis pregnancy centers serving non-existent needs?

This single canonical exemption provision, even standing alone, repels, I suggest, Miller’s main attack on Dolan for allegedly “totally misrepresent[ing] the teachings and practice of the Church”. It is Miller, I suggest, who has misrepresented, by not even mentioning, a crucial aspect of the practice of the Church in precisely this area.

Given, finally, that so-called ferendae sententiae penalties(sanctions following formal canonical trials or administrative hearings) against women for abortion are unheard of, the real question, it seems to me, is not whether most, or some, or even a few women are, under modern canon law, excommunicated for abortion, but rather, whether any women are excommunicated for abortion. For the above reasons (supplemented by some other arguments in more technical areas of the law and addressed in my published opinions, but which amateurs could not even guess at—although they could understand them if they asked), I hold that no woman, irrespective of the sinfulness of her action, is automatically excommunicated for abortion, and therefore, that Dolan was right when he said: We don’t do that any more.

4. Some other thoughts.

New matters.

The only way Miller can even propose her attack on Dolan for denying the automatic excommunication of mothers aborting babies is because she and he are Roman Catholics. If this discussion were being conducted in the context of Eastern Catholic canon law, under the Eastern Code promulgated by John Paul II in 1990, Miller’s attack on Dolan would have been a non-starter. Why? Because Eastern Catholics never procure abortions or, if they do, Eastern prelates don’t care? Balderdash. It’s because Eastern Catholic canon law has, Deo gratias, done away with automatic sanctions of any sort (CCEO 1402 § 1). Abortion is a crime under Eastern law punishable by excommunication (CCEO 1450 § 2) but the West’s maddening muddle of automatic sanctions does not exist in Eastern law and so there is no question about whether Eastern Catholic women might be automatically excommunicated for abortion. Eliminating latae sententiae penalties is a precedent the Roman Church should follow.Immediately—unless one is comfortable with the idea that identical actions are treated dramatically differently depending on which Catholic Church one happens to belongs to.

There are a couple thousand canon lawyers in America and Lord knows how many others around the world. I am sure that one can find some canon lawyer, somewhere, who holds mothers excommunicated for their abortion. But, to succeed in defending Dolan against Miller’s attack, I do not need to prove that no canon lawyer anywhere holds mothers liable for automatic excommunication. I simply need to show that Miller’s canonical attack on Dolan is wildly disproportionate to the canonical arguments she musters for it. I think I have done that.

I do not understand the need some feel to find a way to excommunicate women undergoing abortion. What purpose is served by compounding the moral catastrophe of an abortion with the canonical complications of an automatic excommunication, it’s ‘medicinal character’ (real or supposed) notwithstanding? If canon law called for such treatment, as it did for a time, I would teach it as written and suggest legitimate ways of mitigating its juridic effects in actual cases (as Pio-Benedictine canonists and pastors did in their day) while working for its reform, but that’s not something we need to worry about because modern canon law does not, in my view contrary to Miller’s, excommunicate mothers undergoing abortions. Sacramental confession, to any priest, is the primary route to post-abortion spiritual reconciliation. While I have long held this view, any lingering doubts about it are solved by Pope Francis’ letterMisericordia (2016) 12, which, while not immune to some canonical issues, makes clear that the sacrament resolves the sin and any theoretically possible ecclesiastical penalties.

Old matters.

Few, probably none, of the affirmative defenses set out in Canons 1323-1324 as applying to women undergoing abortions would apply to abortionists. Canon 1398 enables the Church to prosecute abortionists. If bishops are aware of Catholic abortionists in their territories I urge them to consult with canonists toward initiating prosecution.

I have argued many times that Canon 1398 on abortion, and Canon 1329 on accomplices, does not reach pro-abortion politicos. Indeed, I find no support for the former thesis, and virtually none for the second, among the approved authors. A couple of times a plausible argument that pro-abortion politicos are liable to excommunication for heresy is floated by authors with some credentials. I have twice argued that I do not find that theory sustainable in the cases presented.

Canon 1369 figures among a few other canons available for use against many prominent Catholic public figures in response to their abortion mongering, but canon lawyers cannot force bishops to purse those cases.

Canon 915 is the single most immediately available norm by which bishops may limit the scandal of pro-abortion politicos. Cuomo, last l heard, refrains from holy Communion.

Finally, may I remind folks, even those with impressive credentials in other ecclesiastical disciplines, that, while canon law is placed in the Church to serve the needs of all (1983 CIC 1752), canonical argumentation is no place for amateurs.

(This post originally appeared on the “In the Light of the Law” blog and is reprinted here by kind permission of Dr. Peters.)


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About Edward N. Peters 119 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.

53 Comments

  1. This seems contradictory and uses a straw man- the focus is on calls for excommunication, so because that is not immediately available to Dolan, then the criticisms of him are unfair. At the same time there is an admission that other canonical remedies could be pursued, which Dolan is not doing and has stated he has no intention of doing. So, criticism of him is arguably fully deserved for in the end he is refusing to take any action whatsoever, while he is deliberately making the issue into excommunication or nothing, when he knows better, so as to have an excuse. Why do we keep making excuses for our spineless bishops and their inaction?

    • Our bishops and our pope are very selective as to what is right and wrong.
      It becomes a theological gymnastic exercise to decide even the simple issues. Why is that?
      The bishops and pope are uncomfortable and embarrassed by most of Catholic theology.
      So they hope their fog-like, jesuit-speak pronouncements are received as deep thought.
      They fail famously with that. Just as they have failed as shepherds.

    • I totally agree. The fact that mothers “who procure completed abortions” are no longer specified in the Johanno-Pauline Code of 1983 certainly does not imply that the mothers “who procure completed abortions” did not in fact “procure completed abortions.”

      (I trust that is worded in a sufficiently abstruse manner to be considered in a discussion on canon law.)

      Now, in the interest of full disclosure, I definitely count myself among those who are “angry at Dolan (for good reasons or for bad)” and to whom “Miller’s words do not offend, a la, even if she is being unfair to Dolan, so what?”

      In fact, I am of the opinion that if Dolan and the rest of the American Catholic episcopate that has soft pedaled the Church and the nation into this unholy Holocaust cannot be condemned under canon law, then it says more about the shortcomings of canon law than it does about the supposed uprightness of the soft pedaling bishops.

      And, while I don’t wish to attack or insult Dr. Peters, I don’t mind casting an aspersion or two at the state of canon law. If these voluminous tomes do not address the critical situations the Church finds itself in — both with nominal Catholics who make a mockery of the Church’s most fundamental and important teachings on life, and with the bishops’ repeated botchings of the decades-long abuse scandals that have devastated the faithful — frankly, what good are they?

      The precise form that makes a wedding ceremony valid would seem to matter slightly less than the sacredness and protection of the lives of the offspring brought forth by the couple united in the aforementioned wedding.

      But of course I’m speaking as a layman. Indeed, for all I know, according to canon law, things in the Church right now may be just hunky dory.

  2. I do not wish to insult such a distinguished Canon Lawyer as Dr. Peters. I am just an ordinary guy, but frankly Dr. Miller has my vote and sentiment. The whole thing might have been settled quite easily if Cardinal Dolan had said publicly that Cuomo has taken himself out of the Church, much as Luther and all the other heretics, schismatics, Protestants, or whatever, and should not receive Holy Communion. If you are a Catholic, you are opposed to causing the death of any innocent person (it is #V, for the Canonist’s quick reference). If are not so opposed, and are complicit in causing the death of an innocent person, you are a murderer. Furthermore, if you are truly opposed to the Vth Commandment, you really have no place in a Christian religion. Please spare us anymore.

    • Yes Peters bungles his hairsplitting. Monica Miller & her Crisis editor got this matter right. To leave Andrew Cuomo unexcommunicated is bad for Catholics; bad for non-Catholics; and most decidedly bad for Andrew Cuomo.

    • Though Dr.Peters’ criticized me very harshly in his article– in fairness to him, he is not opposed to bishops sanctioning pro-abortion politicians as some of the comm box criticisms accuse Peters of taking that position. I understand that Peters would support bishops imposing, in even a public way, Canon 915. The article here has to do with his taking me to task for my instance that Canon 1398 includes the woman when it states “A person who procures a competed abortion” is automatically excommunicated. Again, I certainly stand on solid ground in my claim that this is so. My assertion, contrary to Peters’, is hardly unconventional or exotic, rather it is more-in-line with standard interpretations. I believe Dolan erred in his dismissal of this canonical sanction during his Jan 29 Fox and Friends interview.

      • Excellent analysis, Monica. The problem with Dr. Peters as I have pointed out elsewhere is a kind of proud hubris he exhibits from time-to-time wherein he believes that he is the ultimate, virtually infallible interpreter of canon law, and if you are trained in canon law but disagree with his interpretations, then he considers you to be basically inept in comparison with him, and if you are not so trained, you are a mere amateur (his word of no respect) and should either accept what he says or don’t bother to venture a different point of view or interpretation because it can’t possibly be correct if it does not agree with his highness of canon law interpretation.

        Keep up the fine work, Monica, and while Peters’ views on canon law should be respected and objectively considered, his attempts to wrongly bully you and others to ‘put you in your place’ as a mere amateur the way he has rudely attempted to do to you not once but a few times in his article and follow-up comments lack basic decency in addition to the fact that he may actually be wrong even though he is too proud to ever see it.

  3. Canonist Edward Peters is a scholar for whom I have the most profound respect and whose insights I have longed relied upon and indeed did rely upon in my first Crisis Magazine article regarding Dolan’s refusal to publicly sanction Cuomo according to Canon 915 and I used Peters’ own argument on what canons can or cannot be applied regarding excommunication of pro-abortion Catholic politicians. A Comm Box is hardly the forum in which I can truly begin to fully defend myself against Peters’ harsh criticism of my critique of Dolan’s dismissal of the excommunication of women under canon 1398. I would encourage readers here to read my work. https://www.crisismagazine.com/2019/cardinal-dolan-gets-canon-law-wrong-on-abortion

    If I argue that Dolan got this wrong I stand on solid ground for doing so. The fact is, Peters’, as great a canonist that he is, is virtually alone in his opinion that 1398 does not, at least in principle, include Catholic women who procure an abortion. I discussed this canon with other canonists, read many critiques of canon 1398, and indeed, as a trained theologian, one need not be an expert canonist to more than reasonably conclude that 1398 applies to women. Moreover, I can hardly be called wrong, when indeed it has been the practice of the bishops in numerous, maybe even the majority of dioceses, based on the 1983 code, that women who procured an abortion needed to confess this sin to priests who were delegated by the bishop to hear such confessions and thus lift the canonical penalty.

    Peters may agree with Dolan, but few canonists agree with him, and my assessment of Dolan’s treatment of the canon is not so off-base as Peters’ strong criticism of my arguments would make it appear. In this short space all I can do is refer readers to JP II’s Evangelium Vitae, Art 62 where the saint himself states: “The revised canonical legislation continues this tradition when it decrees that ‘a person who actually procures an abortion incurs automatic (latae sententiae) excommunication.’ The excommunication affects all those who commit this crime with knowledge of the penalty attached, …” Peters argues that in light of Canons 1323 and 1324 women are virtually automatically exempt from the “crime”– and thus the penalty of automatic excommunication. However, this doesn’t mean that Canon 1398 doesn’t in principle include woman, only that they may not be sanctioned as having committed a crime recognized by canon law. If the exemptions do not apply, then canon 1398 applies to the woman, the abortionist and all those who directly helped cause the murder of the unborn child.

    • I, too, recognize Dr. Peters as one among many experts on canon law, but I have also noticed over the years his tendency to frequently employ the fallacy of credentialism to bash and insult those who disagree with his interpretations of canon law if they are not trained in canon law. In essence, he acts like those other experts of law who long ago rhetorically and disrespectfully asked the following question: “Is this not the carpenter’s son?”

      In addition, if a person not trained in canon law cites interpretations of the law by other canon lawyers, Peters tends to dismiss the other canon lawyers as basically being inept in comparison to him if they do not agree with him.

      So as Dr. Peters suggests, if the understanding of canon law and arguing same is only to be reserved to canonists, or in Dr. Peters’ arrogant and disrespectful phrase directed to Dr. Miller but applicable to all others not trained in canon law, “canonical argumentation is no place for amateurs,” then how can regular laypeople who are mere amateurs even hope to understand what Dr. Peters sets forth as canon law arguments, and why should they accept his interpretations compared to others, or even read what he writes? While I am at it, if Dr. Peters is going to continue to play the credentialism card regarding his important but still very limited field of canon law, then he should never, ever make one statement on or argue about any theological matter in and of itself to anyone or in any format, even if he quotes others trained in theology. He should remind himself that theological argumentation is no place for mere amateurs like him.

      Such is the logical conclusion of the fallacy of credentialism that Dr. Peters uses as a hammer, but credentialism can lead to nothing but another Tower of Babel where people ultimately cannot communicate with each other unless they are trained in similar disciplines.

      News Flash to Dr. Peters: This may shock you, but you are Not the final word in canon Law interpretation, and even others not so trained in canon law may actually interpret the law from time-to-time more accurately than you interpret it.

    • Dolan needs to be excommunicated for his St. Pat’s parade, his remarks about proud of the sports player coming out as gay etc. These are evils against God in the bible, and all Christians who believe in the bible. They are very much against the teaching of the true Catholic church.

  4. Seems to me that all this discussion of canon law is a delve into the weeds, to obscure, to excuse.. the simple fact that this governor advocates for and celebrates the direct killing of not only unborn children but about to be born and or born children.
    John The Baptist lost his head for a lot less than this. Was John in violation of canon law? Pathetic.

    • I’m confused by your comment. John the Baptist was beheaded because he rebuked Herod Antipas for divorcing his wife and marrying Herodias, his brother’s wife. Why would John’s behavior have anything to do with canon law?

    • Comments so far are one hundred per cent angry with Dolan. He is not fit for the job no matter which way you look at it. He MUST GO. Step aside and cease wrecking our Church with your stupidity. No better word to describe this dangerous prelate.
      Does Canon Law allow ‘beheading?’ St. John Vianney says: ” There is such a thing as rightious anger; it stems from zeal in upholding the interests of GOD. Cdl Dolan is little more than ” a hail fellow well met “. pretender.

  5. With all due respect to Prof. Peters Scholarship, which is deservedly laudable, This seems like the legalism of the Pharisees. Cuomo has, for all intents and purposes, placed himself outside of the Church, has and is engaging in grave sin, and is danger of eternal fire. So I guess “He’s a real Card !” Dolan is off the proverbial hook… At least on paper

  6. I am not a theologian nor a cannonist however I am a Catholic laywoman who “came into The Church” because She/the Catholic Church speaks to the truth and gives guidance on the road of life ..bringing me to God Himself in and through His son, Eternally! When I read this article it reminded me of the meditation in today’s Magnificat (January 8th) written by Blessed Guerric of Igny in 1157.
    “The Righteousness of John the Baptist- John the Baptist is not a reed trembling in the wind but a palm stronger than every storm, which no tempestuous wind can shake, or rather a cypress planted eternally on Mount Sion, too high to fear the raging of winds. He is not affected by the storms of our atmosphere because he rises above all the desires of the world. He has fixed his root in heaven, where not a breath if any gale blows, from where free from fear he can laugh at the threats and the battling of the winds and all the world’s adversities….” My desire is simply that Cardinal Dolan would walk in the footsteps of John the Baptist when confronted by our current day “Herod”.

  7. To answer the question posed in the headline, yes, he absolutely, indubitably and extravagantly — frenetically, aesthetically and incandescently; juridically, politically and hysterically — deserves it.

    With bells on.

  8. DAVID: Cdl. Dolan is liable to plenty of criticism and I said nothing less; indeed, I made some. But my point was that Miller’s canonical criticism of Dolan was essentially groundless. Groundless criticism, canonical or otherwise, distracts from effective.

    DN: Think that if it makes you happy.

    BMC: Miller has my “sentiment” and, if she ever runs for office, my vote. But we have to stay focused here. My essay is not about what Dolan should do about various things, but rather, about what he did do (say) on canon law and whether Miller is right is castigating him as wrong. Dolan was correct, Miller was wrong.

    EDWARD SHORT: Neither Miller’s essay or mine treats whether Cuomo should be excommunicated, but rather, whether mothers having abortions are excommunicated. Read essays carefully before opining on them.

    MONICA MILLER: You make intelligent mistakes, but they are still mistakes. As we live near to each other the kind of extended discussion of canonistics you need and seem to want would be more efficiently pursued viva voce.

    JD: I agree.

    DAVID WS: Actually, I agree. The chorus of cries for excommunications (a quintessentially canonical topic, tho raised mostly by amateurs) are a distraction from our pursing more important forms of witness to both innocent human life and the truths of Christ. That said, if people venture canonical opinions I find wrong, I am going to respond them.

    • It does not make me happy. Nor does seeing you write this way. What another termed credentialism seems increasingly spot on, as does the charge that you savage and dismiss anyone who doesn’t agree with certain interpretations. It is a departure from the good work you are known for.

  9. This is mere cowardness.. all the talk amounts to that among these bishops. They\ve left the flock join gays and sexy women who could care less about their Church and bite them in the end. The snake song! Card. Dolan is using double talk as are certain canon lawyers. Excommunication can do some good, alot o good,,,this matter is crucial. ,, never been so crucial.. and the Bishops ‘ credibility all over is nil. You blew it again Bishops! Get some true friends, think of the flock, especially the victims. As with the abuse crisis, victims get very little attention and this will go down horribly in Church history.

  10. It is a vary bad thing for a Catholic woman to procure an abortion. Does any Catholic dispute that? It is a worse thing for a Catholic doctor to perform an abortion. It is almost inexcusable for a Catholic to use the power of the state to make abortions legal, and/or a matter of “choice.” Is it not also a very bad thing for a Catholic shepherd to fail to lead his flock to spiritual safety? Edward Peters is clearly a capable canonist, but his duty is not pastoral; his opinion is just that, as is true of all lawyers–an opinion. Cardinal Dolan’s duty is pastoral, and so far he, and many of our bishops, has failed in that duty.

  11. Didn’t Archbishop Joseph Rummel of New Orleans excommunicate several segregationists in 1962 for resisting his efforts to integrate schools?

    Not in any way trying to second guess Dr. Peters (whom I hold in great esteem) and I realize it was a different Code of Canon Law (and different circumstances), but it had me wondering whether the same or similar principles are not applicable here.

  12. I think that if Cardinal Dolan were to publicly rebuke, with righteous anger, Gov. Cuomo’s celebration of this barbaric legislation, those calling for his excommunication might be more likely to accept Dr. Peters’ opinion on the question. Dr. Peters, however, should re-examine his conclusion that women who procure a completed abortion avoid the canonical penalty of excommunication. I think that Dr. Peters, and others who have commented on the issue, have a very sentimental view of women. I think there is evidence that some women who have their babies killed are themselves victims, but there is ample evidence that many others are completely competent to choose an abortion and do so with the full exercise of their own free, unencumbered, unforced will. Canon 1398 would certainly apply in such circumstances.

  13. What a “nose in the air”, arrogant article this is. “Leave these matters to us experts”, Dr. Peters tells us smugly, “its too complicated for all you uneducated plebs.” What a way to treat fellow Catholics. And all the while, little children go on having their skulls crushed while the kindly, good-humored, excuse-making archbishop has another church employee defend his jolly passivity. All’s well and good for those living off the contributions of the ignorant pious in the pews who ought to keep their mouths shut.

  14. (Oh please, Dr. Peters! You have ‘critical’ words for Cardinal Dolan…why so harsh on the good Cardinal???)

    When the New York law becomes the status quo and, later in the year, Dolan once again joins Cuomo in public appearances and the cocktail rounds, will Peters join them knowing he has their back in the letter of the law???

    St. Thomas More could have used Peters’ technical skills in Canon Law in having More swallow the King’s Oath of Succession Act, whole.

    But More would have none of it.

  15. I think the many frustrations with Church governance are in the background of this tough combox. We are not well run…whether it’s canons inadequate to the task; seminary vetters letting in an army of homosexual clergy; founders of religious groups being cads ( first Macial Degollardo now another such founder this week in Europe). We’re a mess and our structure depends too much on Popes who we easily excuse as bad at administration but boy they wrote documents and books well.
    We need an overhaul by a top consultancy company. Until then these fights among the powerless will happen. Our structure is non flexible because we conflate eternal truth with mistakes remaining eternal also. The canons appear to be inadequate to the task at hand.
    I thought I remember a recent Pope changing canons regarding liturgy. Well….why are the abortion related canons not being reviewed and changed…instead of debated to no real world result. Parmenides and Heraclitus….no change and all change. We need the middle.

  16. Set aside the legalease, the Cardinal missed the opportunity to “let the world know” the Catholic Church follows the teachings of Jesus Christ and won’t change to suit others.

  17. So when I want a hamburger from McDonalds and I get in my vehicle, drive to McDonalds, order a hamburger and pay for it, I’m not procuring the hamburger but it’s actually the cook who procured it?

    procure (prō-kyo͝orˈ, prə-)►

    v.
    To get by special effort; obtain or acquire: managed to procure a pass.
    v.
    To bring about; effect: procure a solution to a knotty problem.

    One of the signs of diabolical disorientation is attempting to turn simple ideas into archaic concepts accessible only to those with special education or insight.

    • This example, homely as it may be, is in fact extremely apt in illustrating the absurdity of Peters’ conclusion, notwithstanding the blizzard of its academic apparatus to make it appear conclusive and authoritative and of course the author’s arrogant condescension in his insult that “canonical argumentation is no place for amateurs”. Mr. Peters is not a “great canonist”, merely a work-a-day professor of church law at an obscure diocesan seminary with around 100 seminarians whose position on this issue is in an apparent minority-of-one among canonists, not least because it offends common sense as well as the theology on which canon law is based.

  18. I am thankful that Dr. Miller and Dr. Peters–both formidable Catholics–are devoting themselves and their talents to Christ’s Church.
    The main thing I think we can all agree upon is that the Church should not stand by and do nothing when ostensibly active Catholics in the public eye speak and/or act gravely against her teaching and thereby undermine it. When such a person presents himself to receive the Eucharist, despite canon 916, it causes scandal (e.g., can lead others to sin). Those in authority ought to find and utilize whatever legal means possible to prevent this.
    All of us who love the Lord and revere Him in the Eucharist must guard against the devil’s usual tactic against us: divide in order to conquer. Let us find charitable ways to unite and change the situation.
    Prayer for starters, for both Cuomo and Dolan.

  19. [Dr. Peters/Dr. Miller- both respected Catholics] Note below-Latin word fetus, translates offspring

    Yes, Cardinal Dolan may be guilty of enabling Gov. Cuomo.

    Dolan dines with, marches with, and until very recently – used to mostly coddle Cuomo’s evil acts.

    Dolan’s Fox & Friends about-face criticism of Cuomo is still on F&F’s archives and watchable. But, the segment on excommunicating mothers who abort their offspring has been taken down. Hmm.

    If only Dr. Peters had spoken up sooner, Dolan’s full interview might still be available on Fox archives. (Who ordered that edit? Hmmmm indeed.)

    Dr. Peter’s could have also pointed to the “Golden Rule of statutory interpretation”. When a clear sentence [CL 1398] “A person who procures a completed abortion incurs a latae sententiae excommunication.” – can be judged to lead to absurdity, or confusion.

    Then Dolan would be free to dine, march and now dance with the Cuomo. (And Dolan probably will.)

    Ed’s right! But more offspring will die.

  20. I am shocked and disgusted that someone who made a comment had the audacity to seem to mention Cuomo in the same breath with “Luther and all the other heretics, schismatics, Protestants or whatever” that have stopped communing with Rome (and should not commune with Rome, in the commenter’s opinion). There are plenty of folks outside the RCC who love our Lord Jesus Christ and would never dream of taking an innocent life, whether that of a preborn or newborn infant or otherwise. And every Catholic I know blushes with shame over the sordid events of the Inquisition which drove so many people and even nations away from the RCC. Sorry to disappoint you, but their descendants haven’t forgotten, nor would they find such condescending labeling anything other than arrogant, hostile, judgemental and insulting.

    • “every Catholic I know blushes with shame over the sordid events of the Inquisition which drove so many people and even nations away from the RCC.”

      Every Catholic who fits that description should read some actual history instead of listening to ridiculous myths. You, too might try it. Here, try watching this: https://www.youtube.com/watch?v=CY-pS6iLFuc

      • Agreed!! furthermore, I know of not one Catholic who knows the history of the Inquisition that blushes with shame. Once I read up on the history, I was proud of the actions of my Church and her members. I am wondering if RHH can tell me which nations were driven away from the Church because of the Inquisition?

    • Let me know if you find any contemporary Lutherans who are blushing over the behavior of the paranoid, schizophrenic, alcoholic, rabid anti-Semitic German monk who refused to control his own libido and all the damage he caused.

  21. There will be too many comments, many quite off the topic, some quite ridiculous, for me to respond usefully, but I smiled at the idea that I have a sentimental view of women. Now, I was raised by a woman, grew up with two more, married one, raised three, and have worked with many. I’d be rather suprised if any of them found me sentimental in their regard.

    • Dr Peters, thank you for this article (and your many others which have always been enlightening). It’s a pity that everyone and their mother in the comments want to disregard your opinion so thoroughly, simply because it will not give them the vengeance they desire.

    • Ceterum, poenae latae sententiae delendae sunt.

      Doc Ed (sorry, but you remind me of Doc Martin, which I intend as a compliment), in one of your blog posts back in November or so, you concluded with the Cato-like remark I’ve cited above. I notice that in your most recent blog post you expand on your canonical motto–but only somewhat, and without sufficient argument to raise the motto much above the level of serial assertion.

      I would like to see a sustained argument against the canonical category of latae sententiae. I’ve always understood the “penalty” as being self-imposed.

  22. It seems all (especially episcopate) refuse to acknowledge Christ’s warning in Matthew 18:6+7 regarding the special condemnation of those who lead His ‘little ones astray’ or to ‘stumble’ who believe in Him. His strident warning applies to all who cause such heresy; clergy and laity.
    THIS is the failing of our Church leaders: hiding behind the ‘letter of the law’ while avoiding the ‘Spirit of the law’.
    What did he say about calling wrongdoing to the offender first person to person; If he refuses his metanoia, do it with witnesses in public. Not wring your hands and say ‘there is nothing you can do’!

  23. So if a medical student learns how to perform an abortion out of FEAR that s/he will face tremendous ridicule for his/her religious convictions from other medical students if they refuse to learn how, and then as a doctor goes on to perform abortions out of FEAR that they would be ridiculed and their livelihood hampered if word ever got out that they refused to perform an abortion, would they be automatically excommunicated for procuring an abortion?

    If yes, why them but not the mother? They both were complicit and had FEAR.

  24. The abandonment of traditional sexual morality began with the nearly ubiquitous acceptance of artificial contraception, which is often abortifacient instead of contraceptive. And that includes “the pill.” The Church just couldn’t muster up the courage to forcefully address this violation of human nature itself from the pulpit, even though it was lethal to countless newly conceived human beings.

    The unnatural rejection of the procreative aspect of human sexuality transformed its fruit — the natural, to be expected baby — into a mistake to be erased. The bishops pretended gross negligence in exhorting the flock regarding the gravity of the situation was “prudence.” As a result two-billion babies have been “legally” murdered worldwide in the last half century. That is more human beings than the entire human population of planet Earth at the beginning of the 20th century.

    And now the bishops, unsurprisingly, can’t bring themselves to publicly impose any canonical penalties on a “Catholic” politician who celebrates the removal of all restrictions on the murder of full-term babies.

    Regardless of how canon law judges the criminal negligence of today’s bishops, history will judge them very harshly. The lethal bigotry which currently victimizes the child in the womb will eventually be dispelled.

    Future generations of Catholics will learn of the murder of these babies by the billions, and of the utter failure of our bishops, and be angered and sickened.

  25. Catholic Canon 750 is clear as to what is necessary for a Catholic to remain in communion with Christ and His One, Holy, Catholic, and Apostolic Church. One cannot remain in communion with Christ and His Church if one denies The Universal Truth that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author of Love, of Life, and of Marriage. “It is not possible to have Sacramental Communion without Ecclesial Communion”, dude to The Unity of The Holy Ghost, thus to permit those who deny that which a Catholic must believe with Divine and Catholic Faith to present themselves to receive The Holy Eucharist, is to deny The Unity Of The Holy Ghost, and thus The Divinity Of The Most Holy And Undivided Blessed Trinity.

  26. Do these leaders of the Catholic Church really need canon law — or “codes of conduct” or any other bureaucratically approved specification — to realii that killing babies (and, for that matter cavorting with altar boys and seminarians) is utterly intolerable, then perhaps they are not suited to be leaders of the Catholic Church.

    Maybe they should be selling insurance or conducting self-improvement seminars instead.

    Just sayin’.

  27. Dolan had full control over the content of his messages in local parish bulletins in the Diocese of New York, wherein he admonished the faithful, during the Obamacare “debate,” that “the Church has advocated for nationalized healthcare for a hundred years.”

    This is demonstrably false, as was the apparent promise the then-president made to Dolan to exempt Catholic charitable organizations from the eponymous disaster in exchange for his support.

    The man is a politician. Is that what the sheep need in a shepherd?

  28. Dr. Peters provides a “duck-and-cover lame excuse” for Cardinal Dolan. Regardless of the niceties of Canon Law, he is a patent moral coward who brings out the boyish giggle and elbow in the ribs no matter what kind of barbarity comes from the secular world. I have disrespected him in so many situations which require courage that he has run out of “free pass” and “oops” cards. Decency and right have no need of sophistry or long animal cracker excuses. He is a moral weakling. Period.

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  1. It’s not fair, but does he deserve it? -

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