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Abortion, Cardinal Dolan, and excommunication: A response to Dr. Peters

Peters defended Cardinal Dolan when Dolan said on national television that the Church doesn’t excommunicate women for abortions. But there are problems with his application of canon law in this case.

New York Cardinal Timothy M. Dolan in a September 20, 2018 photo. (CNS photo/Jeenah Moon, Reuters)

In the 1980s I taught religion at an all-girls Catholic high school in Chicago. In the four years I was there, sadly two of my students, aged 17, had abortions despite my efforts to talk them out of killing their unborn children. Nonetheless, they were willing to go to Confession. I wanted them to see a priest who would not just give them the needed absolution, but also some spiritual direction for their lives. Without naming names, I told him about my students and asked if he would hear their confessions. It was then I learned that in the Archdiocese of Chicago only certain priests were delegated faculties in such cases, since there was a canonical penalty of excommunication connected to the sin of abortion. Even with a master’s degree in theology and eight years’ involvement in the pro-life movement, this was news to me! I contacted the archdiocesan Respect Life Office and asked for referrals, which were provided to me, of priests to whom Cardinal Joseph Bernardin had provided such faculties. The year was 1984.

My students were sent to those priests due to Canon 1398, which states: “A person who procures a completed abortion incurs a latae sententiae excommunication.” On January 29, in the wake of New York Governor Andrew Cuomo signing the Reproductive Health Act—which, with a broad definition of health, permits abortion thorough the ninth month of pregnancy—New York’s Cardinal Timothy Dolan appeared on the TV program Fox and Friends. When asked if the Church excommunicates women who obtain abortions, Cardinal Dolan responded: “We don’t do that anymore.” I began this article with the above story to illustrate only one reason why I knew Dolan was wrong to say this, and on national television. Well-known canonist Edward Peters, for whom I have the most profound respect, criticized me for criticizing Dolan in my article “Dolan Gets Canon Law Wrong on Abortion.” Peters even characterized my criticism of Dolan’s dismissal of the canonical penalty as “groundless.”

Indeed, Cardinal Dolan acted as if Canon 1398 didn’t exist. Peters defends the cardinal by noting that the 1917 Code, Canon 2350, mentions women specifically: “Procurers of abortion, the mother not excepted, incur, upon the effect being secured, automatic excommunication reserved to the Ordinary.” However, since the specific mention of the female sex is omitted from the 1983 Code, according to Peters, this means that Dolan’s statement “‘We don’t do that anymore’ is correct or, at the very least, is quite ‘reasonably asserted.’” Peters holds that my “condemnation of Dolan’s phrasing as being an ‘egregious error’ and ‘completely false’ totters.”

On the contrary, despite the omission of “matre non excepta,” the standard interpretation of the 1983 Code’s Canon 1398 does include women, as well as those who aid in the procurement of the abortion and the person who performs the abortion. John P. Beal, a leading canonist and co-editor of the New Commentary on the Code of Canon Law, explains in The New Catholic Encyclopedia: “The current Codes omit the 1917 Code’s explicit reference to the mother as one who incurs the censure for abortion. The explicit mention of the mother in the 1917 Code was intended to resolve a controversy among pre-Code authors. Since the 1917 Code definitively resolved this dispute, mention of the mother in the revised Code was seen as superfluous.” In other words, the revised 1983 Code did not deem it necessary to single out women, and woman are included in the term “a person who,” as regards the procurement of an abortion.

Canon Law—Letter and Spirit, a commentary prepared by the Canon Law Society of Great Britain and Ireland, when answering the question: “Who are subject to the penalty prescribed in [Canon 1398]?” indicates clearly “the pregnant mother” as well as others who directly aid her in obtaining the abortion.

Well-known canonist Msgr. Cormac Burke writes in his book Covenanted Happiness: Love and Commitment in Marriage: “It is understandable that the Church should wish to emphasize the gravity of this ‘abominable crime’ by decreeing an ipso facto excommunication not only for the woman who seeks an abortion, but for all who effectively procure it (Code of Canon Law; canon 1398).”

These citations make it quite clear that simply because the new code doesn’t specify “mother not excepted,” as did the previous code, this offers no defense of Dolan’s apparent ignorance that women are certainly included in the canonical penalty of Canon 1398. Thus my criticism of Dolan was merited, contrary to Professor Peters’ claim that it was “almost completely wrong” and “pastorally reckless.”   

Peters defends Dolan’s remarks based on the exemptions to the canonical penalty of 1398 that are found in Canons 1323 and 1324, saying that Dolan is guilty simply of not knowing how to explain the exemptions by which women may not be automatically excommunicated. However, Dolan seemed not to know about the canonical mitigating exemptions at all. He gave the distinct impression that the penalty for women was a thing of the past because the Church is now more enlightened and operates according to the “Gospel values” of mercy and forgiveness. Dolan told viewers of Fox and Friends: “You would say that it used to be pretty clean that an abortion would cause the excommunication not only of the one who did it, [but] people who encourage it, and the one who had it. The Church in the last 50 years—beginning with, uh, Pope John Paul II and especially intensified under Pope Francis—has said, ‘I don’t know if that’s Gospel values, here, because mercy trumps everything.’ And even though we would be uncompromising, uh, in our teaching about the horror of abortion, we would also be uncompromising in our teaching about God’s mercy.”

But Dolan’s claim is difficult to square with what Saint John Paul II wrote in his encyclical Evangelium Vitae (art. 62): “The 1917 Code of Canon Law punished abortion with excommunication. 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, and this includes those accomplices without whose help the crime would not have been committed.” When he states that the penalty affects “all those who commit this crime,” it would appear that women are included.

In my original article I also pointed out that Dolan cannot appeal to Pope Francis for support on this. During the 2016 Jubilee Year of Mercy, Francis granted a provision that allows all priests to absolve the sin of abortion and lift the automatic excommunication incurred by abortion. Archbishop Rino Fisichella, president of the Pontifical Council for Promoting New Evangelization, at a November 21, 2016 press conference, explained that the lifting of excommunication is available not only to women who have procured an abortion, but also to doctors who performed the abortion and to anyone else who was directly involved. This is further evidence that the canonical penalty of excommunication applies to women, and it is perfectly reasonable to expect a cardinal archbishop to at least acknowledge this as the current position of the Church.

In my article about Dolan I deliberately pointed out the existence of exemptions in order to show that the automatic excommunication indeed may not apply in all cases. Peters criticizes me for understating the case, as he hammers home the point that 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.” He believes I did not give sufficient weight to the exemptions.

Peters has not hidden his vehement opposition to latae sententiae penalties such as we find in Canon 1398, or his desire that they be removed from the Code. We should pay close attention to Peters’ view of the exemptions listed in Canons 1323 and 1324. Due to exemptions found in 1324, a woman “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” is not subject to the latae sententiae penalty. Peters believes that the exemptions have universal application, and he states in his CWR article: “I hold that no woman, irrespective of the sinfulness of her action, is automatically excommunicated for abortion.”

Peters invited readers to consult his 2010 CLSA Advisory Opinions. One was entitled “Excommunication for Abortion.” In this article he specifies one exemption he believes applies to all pregnancies, and thus exempts every woman who obtains an abortion from the latae sententiae penalty. In light of Canon 1324, he wrote: “[H]uman experience since the expulsion from the garden (Gen 3:16) confirms that all pregnancies become at some point ‘grave inconveniences,’ and this all the more so where medical, financial, social, emotional and similar issues are of concern” (emphasis in original). Peters argues that no matter what other exemptions may apply, it is the “grave inconvenience” of pregnancy to the woman “beyond any question” that renders Canon 1398 null and void should she abort her baby.

We need to probe the implications of Peters’ claim. He is stating that Canon 1398 never applies to any woman since the very condition of pregnancy itself carries with it “grave inconvenience” to the woman. He even references Genesis 3:16, the verse which proclaimed the post-lapsarian punishment for Eve: “In pain shall you bring forth children.” By reference to that verse Peters implies that the pain of giving birth constitutes “grave inconvenience,” and thus a woman who procures an abortion cannot be automatically excommunicated.

At this point we are not simply dealing with the technicalities of canon law; we are thrust into anthropology as it concerns concrete feminine nature and the meaning of giving birth. I submit that this is a rather dark anthropology of women—that “grave inconvenience” so essentially characterizes motherhood that it exempts women from the possibility of ever being subject to automatic excommunication should they murder their unborn offspring.

I don’t believe this is how women essentially view their lot as life-givers. Rather the burdens of giving life merely constitute the normal, usual, expected dimensions of parenthood, meaning they do not constitute anything extraordinary to the woman that would characterize “grave inconvenience.” In his quest to demonstrate the folly of automatic excommunications, perhaps Peters did not intend to assert that motherhood is inherently marked by “grave inconvenience”—going to the essence of what it means for women to give life. Yet the manner in which he universally applies the exemption of 1324 tends in that direction, since there are no exceptions, no case-by-case evaluation. “Grave inconvenience” is applied by Peters as a universal condition of what it means to be female in relation to her life-giving powers. But I hardly think that the compliers of the Code had in mind such a dismal anthropology.

Suppose a perfectly healthy woman with little to no serious financial difficulties decided in concert with her husband to abort a child simply on the basis of sex-selection. They desperately want a boy and upon discovering the unborn child is a girl, have the baby aborted. In no sense does “grave inconvenience” enter into this situation that would exempt this couple from the penalty of 1398 unless “grave inconvenience” is a defining factor of pregnancy itself. According to Peters’ bold stance not even this woman is subject to automatic excommunication—though perhaps the husband may be since he isn’t burdened with the “grave inconvenience” of pregnancy as is his wife and thus doesn’t fall under the exemption.

Well-known canonist Philip Gray of the Saint Joseph Foundation, interviewed for this article, explains:

Canons 1323 and 1324 do 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. Notice 1324 § 3 uses formal terminology: “the accused,” meaning that we are dealing with a case that has actually been brought before an ecclesial authority. Only if her situation is actually brought for consideration can anyone evaluate whether 1323 and 1324 apply. Until that happens, we rely on the presumption of contumacy because an external violation occurred and the automatic penalty provides an imperfect but just penalty.

Gray continues:

In my opinion, those who want to claim a woman who procures an abortion is not liable to excommunication because the norm of Canons 1323 and 1324 provide sufficient mitigating factors are using inductive reasoning illegitimately. Each situation is different. At a very human and divine level, the proposition that Canons 1323 and 1324 mitigate the excommunication imposed by Canon 1398, in such a way that Canon 1398 is rendered useless, is an example of legal positivism that removes the spirit and purpose of the law.

Professor Peters is a brilliant thinker. And our current debate aired in the pages of this online journal notwithstanding, I will continue to rely on his expertise. However, I do not think his academic campaign to rid the Code of Canon Law of latae sententiae penalties provides Cardinal Dolan with sufficient cover for the errors he articulated regarding current canonical practice. Peters speaks authoritatively regarding all the follies and pit-falls that are associated with the Roman Law of latae sententiae penalties, but that is a different discussion from the mistakes Dolan made on Fox and Friends.

If I may offer my layman’s opinion on why Canon 1398 should not be cut from the Code, it is this. As I articulated in my article about Dolan: “The canon is important not only because the killing of an unborn child is gravely sinful and the occasion of a horrific injustice, but such canons that focus on a specific crime are needed at a time when the cultural context normalizes certain crimes and facilitates their practice. The Church by such a canon signals that contrary to the culture, the Church draws attention to a particular sinful action as a warning, guide, and corrective against a milieu where laws that lead to the killing of others are celebrated.”

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About Monica Migliorino Miller 8 Articles
Monica Migliorino Miller is Director of Citizens for a Pro-life Society, teacher of theology at Sacred Heart Major Seminary, and the author of several books, including The Authority of Women in the Catholic Church (Emmaus Road) and Abandoned: The Untold Story of the Abortion Wars (St. Benedict Press).


  1. Thank you. that is a superbly and unambiguously stated analysis. The double talk of Cdl. Dolan and others was beginning to to confuse many people.

  2. Hi Harry, et al., who think (understandably) that Miller’s essay is “an excellent rebuttal” to my position. Allow me to suggest that Miller’s essay is no such thing, and to say that I shall respond to it. Regards, Dr. Peters

    • Why, especially of late, are you so driven to the letter of the law but not the spirit? Are you so scrupulous that the law has been followed and therefore no situation exists that a Cardinal Dolan is to be respected and adhered to but not challenged because…technically, no canon law was breached?

      You’ll be mildly perturbed by Cardinal Dolan and say the equivalent of ‘tut, tut’ but never outraged by the monstrosity the Cardinal hardly appears in words and actions, to fight?

      • This statement is as ridiculous as the assertion that a woman who willfully and with aforethought murders her defenseless child in the womb by giving it over to an abortionist for dismemberment and death, ought not to be accountable to her God for the gift of life which has been placed in her hands. If this were the case, then no one would ever be held accountable for the sins they commit. Mitigating circumstances are a flimsy excuse and can seemingly be created whole cloth for any breach of God’s creation. If, in fact, a mother who has been given so much in the person of her child can without onus destroy her child, how can we blame those who murder where the preconditions of love and divine providence are not present. If the mother is innocent then how much more so the disinterested, the power hungry, and the political murderers of history. The argument is nonsense and an untruth. Truth is the first loving duty of all who take it upon themselves to counsel others. And it is a grave sin to obscure the gravity of abortion through false charity. Each of us will be held accountable for our actions and each must be encouraged to seek peace and reconciliation with God before we must come to Him face-to-face. To encourage anything else is not an act of love.

    • However you argue the issue of Canon law is one thing, but you’ll never be able to affirm truthfully that Dolan is very much influenced by the Catholic religion.

    • And why, pray tell, are you so intent on going easy on women who choose to kill their unborn children? Why are you so willing to excuse Dolan, whose leadership on this and other issues has been so lacking? There are A LOT of things that cause “grave inconvenience” but for which murder is not the justifiable response. Why should the ultimate betrayal — a mother of her own child — be in any way excusable?

    • You should have the courage to admit that you are wrong. You have been bested here by Dr. Miller and by other canon lawyers.
      I greatly respect your work but you are absolutely wrong in this case because you have misread and misused Canon Law.

    • Dear DR. Peters. The “pro-life” movement treats women who have procured abortion as victims, never perps.

      What other category of humans are exempt from any punishment for contracting with another for the death of a defenseless innocent human?

      Is it your idea that women are not moral agents?

    • Dear Dr. Peters, You may be able to nibble at corners of Dr. Miller’s article, but if you would explain how a sex-selective abortion or an interruption of schooling can be explained away by killing your offspring — that would be something. Sincerely, David Theisen

    • Dr. Peters, I am no canon lawyer, but I cannot think that a mother aborting her own baby is anything but gravely evil. An automatic excommunication seems a just penalty and a legitimate call to repentance. Just my view from the trenches.

    • I have read your response of March 15 2019 and I am not convinced that you have rebutted Miller’s arguments. Your first proposal is that when massive numbers incur automatic excommunication the Church abrogates such penal law as it is a hindrance to their reconciliation (divorced/remarried). Clearly, to abrogate such a penalty is to recognize that the penalty applied to these individuals prior to the abrogation. So your example provides clear evidence that such a penalty can apply to massive numbers of people.
      Your core argument in your response comes down to equating the fate of the abortion excommunications to that of Baltimore. Your argument is essentially that the number of transgressions would be so large that the Church would HAVE to abrogate the penalty. Your contention that the Church may abrogate these in the future does not presently nullify the penalty.

    • Please do, and while you’re in that process it would be appreciated if you could clear up why(unless Ms. Miller has spoken in error about your position) you are defending abortion? May Jesus bless you with the desires of His divine heart so you may know, love, and serve Him in holiness for all your days! In Christ, Andrew

  3. “The excommunication affects all those who commit this crime with knowledge of the penalty attached, ”

    This seems key to me. How many people procuring abortions are aware of this penalty?

    • I often wonder how the laity is made aware of church teaching if they are absent from the sacraments? The world seems to be up side down on religion and politics. Should we excommunicate a high profile politician like Governor Cuomo or direct our efforts to the ignorant masses who could be excommunicated?

      Almost seem like an impossible task. Canon 1398 says “person who procures a completed abortion incurs a latae sententiae (automatic) excommunication.” There seems to be NO exceptions for the mother. What does the church say?

    • It seems Cardinal Dolan’s appearance on Fox would an be an ideal opportunity to inform the uninformed about the canon law/code that spells out automatic excommunication for all those involved in securing an abortion. Instead the opportunity was lost. Sad and disappointing. Isn’t it the job of the cardinal to inform us?

  4. Again, thank you, Dr. Miller for your charity and clarity. When the opposition hurls insults, they are letting you know that they are not confident in their argument.
    It goes without saying that the intellect and will must be in accord when an action is taken. If either of those is impaired, Canon 1398 does not apply. However, the crime is still a crime and should be brought to the confessor for evaluation.
    Card. Dolan could have easily explained this but chose not to. He knows better.

  5. Let’s see what Cardinal Dolan does this year re. St. Patrick’s Day Parade in NYC. He has confused so many by his inclusion of the Gay Pride people in the parade. No double talk can excuse this. Let’s pray…

  6. Thanks Monica Migliorino Miller for clarification on canon 1398. After reading Dr Peters’ rationale for omitting the woman who has her child aborted I was confounded, thinking perhaps the argument was that she would be the passive party in the action. It just didn’t make juridical/moral sense. Her required decision makes her the primary active participant. Otherwise I agree with Peters on most issues regarding the current crisis.

  7. What Dolan is saying to the author and others of her value system is what the Episcopalians said for 25 years in their run up to their lavender priests take over. “Get over it. We are moving beyond that…and finding a way forward.”

  8. Yes, Dr. Miller, this is a very fine article. Thank you. I am not a canon lawyer or anything close. I write from Milwaukee where Cardinal Dolan was for a time. He came on the scandal of Archbishop Weakland. He left in place Weakland’s people and policies. It was often said by many people that it was easy to know when Dolan was lying…..his lips were moving.

  9. Dr. Peters is correct and it ought to be remembered that even a laete sententiae penalty cant occur unless you know the penalty is attached to an abortion. Just like mortal sin you have to know it’s grave matter. I would submit most of those who get an abortion can’t even tell you what excommunication means.

  10. The absurdity of this public academic debate between two learned individuals, occuring as it is during a human Holocaust aproaching it’s 40th year, defies human reason and all that is holy. It’s as if you live in the age of Babylon bearing bricks destined for the tower unable to communicate with one another. Powers and principalities are at play beyond your influence. Therefore, make peace, love one another, and live as Christian witnesses in charity and humility.

    • So…it’s absurd that Dr. Miller and Dr. Peters have a civilized disagreement, but it’s fine that you chastise both of them for doing so? Huh. Curious.

  11. Edward Peters’ rationale that all women suffer “grave inconvenience even if relative” does not logically follow as a universal consequence. Pregnancy equals grave inconvenience is a supposition. Nevertheless in practice he is apparently correct. Bishop Edward B. Scharfenberger of Albany, New York: “‘The priests of the Roman Catholic Diocese of Albany and throughout the United States have had the faculties to lift the sanction of excommunication for the sin of abortion for more than 30 years. Any woman who has had an abortion, any person who has been involved in an abortion in any way, can always seek God’s forgiveness through the sacrament of reconciliation, if they are truly sorry for their actions” (CNA). “Catholic commentators and canon lawyers have raised a number of questions including whether societal pressures and other extenuating circumstances surrounding an abortion would have kept it from rising to the level of an excommunication for the woman in most cases anyway” (CNA). The best opinion is that “in most cases” pregnancy is a “grave inconvenience”. That if true would render universal Laetae Sententiae excommunication inapplicable. And Dr Peters does add that abortion remains intrinsically evil and as such subject to serious sin.

    • Your quotes would tend to support Miller, not Peters. Miller’s position leaves open the possibility that many, even most, woman could find an affirmative defense under 1323/4.

      But Peters position is absolutist, and that all women have an affirmative defense, such that it is impossible that they would incur excommunication.

      The extended of faculties to lift the excommunications (whether by the ordinary or by the pope) would tend to indicate that many bishops did not consider it an impossibility, unless Peters wishes to argue that those actions were taken with the abortionists as their primary object.

      (FWIW, by a sufficiently broad reading of “grave inconvenience” one could have an argument that an abortionist who refused to commit abortions, and so faced losing their source of income, would qualify for the same defense. A conclusion that would mean, in fact, no one at all is even possibly affected by this excommunication. In reality, I think that’s a silly reading, but I think Peters’ position (in this instance) is silly too. It seems much more likely that 1323/1324 (which are not strictly about this issue, but about all crimes) were meant to be evaluated within the context of a particular case.

      • Thomas the adage a grand jury can indict a ham sandwich is analogous here to a team of NYC lawyers [or a team of skilled canon lawyers] can convict a ham sandwich. Any law civil or canon is as viable as the willingness to prosecute. In this instance a woman in many instances, not all suffering hardship. I’m not concerned with hammering women with excommunication or a jail sentence. My concern are the politicians many Catholic who promote abortion and the Hierarchy who remain silent and refuse to confer a public sanction. In the instance of Gov Cuomo a sanction issued by Cardinal Dolan or Bishop Scharfenberger assures laity we take serious sin seriously and is likely more of a deterrent .

        • Fr,

          Regarding, Gov. Cuomo, contra Peters, I think he not only should, but also can be excommunicated for his actions.

          My comment here wasn’t about that though, it was that the quotations you selected, which I argue actually tend to support Miller’s contention of at least the possibility of excommunication for women in the current (something I agree is at least possible, without making any determination as to how often it actually happens), rather than to support Peters’ position that it is strictly impossible (which I think is a confused reading).

          Over many years, these rank in the very few times I’ve had cause to criticize his work, but I think his reading and application of the law regarding both these two specific issues manages to be all of legally, logically, historically, and most importantly, theologically, unsound.

          • Thanks Thomas for explaining your response. This quote of the first two sentences of my initial comment explains my position regarding excommunication, “Edward Peters’ rationale that all women suffer ‘grave inconvenience even if relative’ does not logically follow as a universal consequence. Pregnancy equals grave inconvenience is a supposition. Nevertheless in practice he is apparently correct”. If we have a canon that excommunicates then add conditions such as “grave inconvenience [or fear] even if only relative” the author of the canon is making a determination of sufficient responsibility to warrant excommunication virtually impossible. The issue I point out is, in practice how can we determine which women have incurred excommunication? If a woman enters the confessional and confessed her abortion adding she had concern would that suffice to remove sentence of excommunication and substantially mitigate responsibility according to how the codes are written? My position is no regarding serious sin and questionable regarding excommunication although that seems to disagree with what the code says. And to be clear I disagree with Dr Peters’ rationale that “Since the expulsion from the garden all women suffer grave inconvenience”. As a universal proposition it is clearly incorrect. And of course careful reading of canons 1323-4 do not in fact support that [Peters’ supposition] as a universal conclusion.

  12. In my view, the “average Catholic” will never read this disagreement between two well-meaning Catholics and, to the extent that this “average Catholic” becomes aware of Cd. Dolan’s position regarding Gov. Cuomo’s action, he/she either will be confused by it or will view it as completely in line with Catholic teaching — depending on the person’s familiarity with/adherence to Catholic teaching on the matter. To an extent the disagreement is a bit like arguing over the number of angels that can dance on the head of a pin. If there is a technicality in Canon Law that supports Cd. Dolan’s lack of action, it immediately should be eliminated; for if one who, as self-styled Catholic Gov. Cuomo reportedly did, reveled in the passage of the hideous New York abortion law will not be ex-communicated, who will be?

    • Michael the laetae sententiae [excommunication] penalty lists exception exclusively for the woman who aborts. Insofar as those who engage in performing the abortion they are under penalty of excommunication as explicitly stated by canon law. This is where I believe Dr Peters is well off track. He apparently is correct regards the woman who may suffer “grave inconvenience”. Clearly the physicians,nurses,technicians who perform the abortion are under penalty. That in my estimation would include Gov Andrew Cuomo as directly complicit in a bill to kill infants pre natal and post natal. Cardinal Dolan is completely derelict in upholding Catholic doctrine regarding the protection of human life.

      • Addendum: Dr E Peters argues against E Condon’s position presented in First Things that Gov Cuomo be cited for heresy, adding he believes Condon correctly omits “cooperation” in 1329 as canonically insufficient. Peters’ counter argument against heresy may have merit. However, Canon 1329 n. 2 states, “Accomplices incur an automatic penalty (latae sententiae) if it would not have been committed without their efforts; otherwise they can be punished by inflicted penalty (ferendae sententiae)”. Unrestricted late term abortion inclusive of postpartum killing of a living infant, “would not be committed without their [Gov Cuomo’s] efforts”. If there were any doubt as to automatic penalty Cardinal Dolan can punish the Gov with an inflicted penalty of excommunication.

  13. While I am sure the author is correct from a legal standpoint, it has little bearing on Cdl. Dolan’s duties as a leading prelate to forcefully condemn what the governor and legislature did and pronounce the appropriate anathema. Sounds old fashioned but entirely justified. There should be no doubt among the faithful the seriousness of this matter.

  14. How were two girls aged 17 excommunicated latae sententiae for the canonical crime of abortion? A person can be subject to ecclesiastical penalties from age 16 onwards (c. 1323, no.1). However, one cannot incur any latae sententiae censures when between the ages of 16-18, and penalties “must be tempered or a penance employed in its place” (c. 1324, no.4). Canon 97.1 sets the age of majority at 18 years, so two 17-year-old girls would be considered minors, and could not have incurred a latae sententiae excommunication. In addition, people incur canonical penalties for crimes, not sins; all crimes are sins, but not all sins are crimes. Abortion is both a sin and a crime. (And since the concept of reserved sins no longer exists in the Latin Church, it is inapplicable to the case of these two girls.) While I agree with Dr. Miller’s argument that mothers are still liable to excommunication under c. 1398, these errors should be corrected for better presentation.

    • You say, “people incur canonical penalties for crimes, not sins.” Am I missing something? Or isn’t it the reverse, such that sins (such as heresy), though not criminal, are punished canonically?

  15. Late to the party. Better late than never?

    Canon law is human. Thus, excommunication is an organizational penalty of the earthly Church. This discussion oddly juxtaposes God and legalism.

    The excommunication penalty is reasonable as an organizational penalty. But:
    1. Those in authority are obligated to spread knowledge of this in a manner that ignorance is not a credible defense. It is today. It can be overcome: it only needs effort, as is expended to inform the world at large of the hierarchy’s deep concern about the effects of plastic six-pack carriers on wildlife.
    2. If excommunication is the penalty, the remedy for reversal must be reasonable. Not to say easy or quick and certainly not “rubber-stamp,” but deliberate, clearly defined, and not fraught with bureaucracy, obstruction, and pop-up “road blocks.” Seeking organizational forgiveness (i.e., lifting excommunication) is a form of penance; an obtuse, confusing process is a kind of brutality. Vengeance belongs to the Lord, not the Catholic Church. We should not treat an abortion procurer (the first time, anyway) with less charity than all manner of cause-celebre hardened criminals.

    A general comment about abortion: the woman is both sinner and victim. She violates the Fifth Commandment, but also harms something that is, at that moment, a part of her. If the woman can be reasonably inferred to be under severe mental strain (fear of wrath from parents, or the baby’s father; impacts on earthly existence), she should be afforded the moral benefit provided to most suicides (indeed, the fears are similar): “when the balance of mind was disturbed. “

  16. Peters’ criticism is unworthy of his reputation as a brilliant lawyer. He interprets the canons to means that, because the revision of the canon on excommunication for those who procure abortion no longer includes the woman who obtain an abortion, she is not excommunicated. In other words, the only “procurers” are those individuals other than the woman herself — whether that be her husband, her doctor, her friend who sets up the appointment with the abortionist. All these are excommunicated but not the woman who actually completes the act of aborting. What utter nonsense.

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