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.
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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