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Canon Law for Today

By Rev. Frank Morrisey


Rev. Frank MorriseyThere are special provisions in canon law relating to abortion

Among the various offences committed today, abortion certainly stands out among the most horrific. Since, in many countries, including Canada, there are not provisions in the criminal law in relation to this act, we should not be surprised to see that canon law compensates by instituting serious penalties for those who are directly involved in it.

Canon 1398 simply states: “A person who actually procures an abortion incurs a latae sententiae (i.e., automatic) excommunication.” However, the canon was completed in 1988 by a formal response approved by Pope John Paul II on May 23 of that year. The new elements are presented in the form of a question: “Whether abortion, mentioned in canon 1398, is to be understood only as the ejection of an immature fetus, or also of the killing of the same fetus in whatever way or at whatever time from the moment of conception it may be procured? Answer: Negative to the first part; affirmative to the second.”

In other words, in canon law, the term “abortion” now applies in any case in which the intended termination of the life of the fetus takes place, whether or not implantation has already occurred. This official interpretation can be considered to be an “extensive” interpretation, that is, one that extends somewhat the original terms of the canon.

Canon 1329.2 notes that even if accomplices are not specifically mentioned in a canon, they incur the same penalty if, without their assistance, the crime would not have been committed. In other words, the physician who performs the abortion is also subject to the same penalty.

Some people would like to extend unduly the role of accomplices. But it would be important to keep in mind the provisions of canon 18: “Laws which prescribe a penalty, or restrict the free exercise of rights, or contain an exception to the law, are to be interpreted strictly.” This does not mean interpreted rigidly, but rather, that all the conditions foreseen in the law must be fulfilled.

For all censures, as with excommunication, this implies: grave matter, full knowledge, and full consent. Although there is no doubt about the gravity of the matter, the question of full knowledge or of full consent has to be investigated in each case. There can certainly be occasions when the woman who is to undergo an abortion is not completely free to make her decision; she can be subject to very serious outside pressures.

Therefore, it is essential, when dealing with such cases, that we not jump to conclusions, simply because a given act has taken place. Otherwise, we risk extending the legislation unduly, something which was not the legislator’s intention. Furthermore, there is the serious risk of having persons considered to be subject to a canonical penalty, when, in fact, they are not subject to it because of conditions and circumstances intervening in the meantime.

I recognize that this is, for some, a most emotional issue. But we don’t serve the truth if we don’t consider all the facts and circumstances before jumping to a conclusion.

The lifting of the excommunication is reserved to the diocesan bishop. In Canada, the bishops have given to all confessors with appropriate diocesan faculties, the right in confession to absolve the penitent from the excommunication. If it is determined that, indeed, all the conditions did exist, and the person did incur the excommunication, then the confessor is to impose an appropriate penance.

At the same time, though, it is essential that all confessors realize that, in these instances, they are dealing with persons who have undergone a most traumatic experience in their life, and that the negative consequences will remain with them for a lengthy period of time. Therefore, it is important not to crush persons who find themselves in this unfortunate situation but, rather, to show the mercy and forgiveness of God and to encourage them for the future.

In addition to the excommunication, there are other consequences in law. For instance, according to canon 1041.4, one who has actually procured an abortion, and anyone who has positively co-operated in it, is not eligible to be accepted as a candidate for orders (diaconate, priesthood). Only the Holy See can dispense from this impediment, and such a dispensation is most difficult to obtain.

A similar provision applies to a cleric who, after ordination, would be involved in an abortion: he is not allowed to exercise the orders received until a proper dispensation has been received from the Holy See.

A religious, male or female, who was involved in procuring an abortion is, according to the provisions of canon 695, to be dismissed from the community. No warnings are required in this case, since it is presumed that the person in question was well aware of the consequences of this act.

As can be seen, these are most serious consequences. The church does not apply them lightly, but, in view of the teachings found in The Gospel of Life (St. John Paul II, March 25, 1995), and given the seriousness of the matter, there is little choice. The recognition of the sanctity of human life and its protection are primary facets of the church’s message today. There is no compromise on the teachings themselves; it is their application in a specific case which calls for careful consideration.

Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 42nd article in a series.