Excommunication, Abortion and the Pope

By Fr. John Zuhlsdorf, Fr. Z’s Blog:

The distinguished canonist (and commentator here) Ed Peters has a useful post at his fine blog In The Light Of The Law about the distinction of the sin of abortion and the crime of abortion and the sanction/censure that can be incurred when committing the act.

He doesn’t have a combox, so you might post here.  Do visit his blog for this and other good posts.

Pope Francis on reconciliation for abortion
by Dr. Edward Peters
I am sorry to have written a long post on this matter. I did not have time to write a short one.

Excommunication and the Catholic Church

Abortion has long sat in the middle of a three-street ecclesial intersection, namely, those of Sin, Crime, and Sanction. The meeting of any two of these factors would make for a perilous perch but the confluence of all three is fraught with opportunities for confusion. At the risk of serious over-simplification, let me sketch the basic situation and then address Pope Francis’ comments thereon.  [Pope Francis has extended faculties regarding abortion to all priests for the Year of Mercy  HERE]

1. Abortion has always been recognized as a sin and a grave sin at that. Like other grave sins the path to reconciliation is basically by sacramental Confession.

2. Like some (but not all) sins, abortion has long been treated as a crime under canon law. [Get that? Sin and crime.] As is true of other crimes, however, a host of legal factors must be considered in determining whether one who has become involved in the sin of abortion is also guilty of the crime of abortion. Not all persons sinning in this regard are guilty of the crime. [All squares are rectangles, but not all rectangles are squares.]

3. The canonical sanction levied against those canonically guilty of the crime of abortion has long been excommunication (a surprisingly complex institute), and latae sententiae (or, automatic) excommunication at that (ironically, a complex procedure for incurring and living under certain censures). I have long held that the automatic character of certain sanctions in the Church does more juridic and pastoral harm than good these days, but I won’t debate that matter here. [He doesn’t like that “automatic” censure result.]

This already-complex intersection of sin, crime, and sanction has, I am sorry to say (sorry, because I think the canon law on abortion is too complex to meet some urgent pastoral needs facing us), been further complicated by at least two factors: [NB] first, an easy-to-overlook procedural change in the abortion crime norm itself, namely from 1917 CIC 2350 to 1983 CIC 1398, whereby the former express limitation that only “ordinaries” could lift the excommunication for the crime of abortion was dropped, introducing confusion as to whether and if so how the sin of abortion (which was too casually identified with the crime) could also be absolved by priests; [two step process?  In the older, traditional form of absolution there is such a two step process.] and second, due to another easy-to-overlook change in the abortion canon (matre non excepta), a powerful argument exists (to which I subscribe*) that excommunication for the crime of abortion cannot be automatically incurred by pregnant women (as opposed to abortionists themselves) if the penal law of the Church is applied according to its express terms. Thus, upon noting that there are zero examples of women being formally excommunicated for their abortion, this second factor, if correct (and I think it is) means that no women (again, as distinguished from blood-soaked abortionists) have been excommunicated for abortion at least since the 1983 Code went into effect. [The jury is out on that.]

Now, given the inherent complexity of the law itself in this area, the disputes about that law among qualified experts, and the pervasive ignorance of canon law among rank-and-file faithful brought about by 50 years of ecclesiastical antinomianism, no wonder people are confused about what Pope Francis’ recent statement means. I’m confused, if perhaps less so than some others.

Francis writes: “For this reason too, I have decided, notwithstanding anything to the contrary, to concede to all priests for the Jubilee Year the discretion to absolve of the sin of abortion those who have procured it and who, with contrite heart, seek forgiveness for it.” Canon law is not mentioned and we must parse such implications as best we can.  [I suspect that a juridical document will be issued which spells out what Francis intends.]

A) I think the pope’s statement reflects a mistaken assumption, common among those who were trained under the 1917 Code, that priests with normal faculties for Confession still cannot absolve from the sin (let alone from the crime) of abortion. I and others, however, hold that all priests with faculties can absolve from this sin. [The sin.] The pope’s comments resolve this debate admirably (at least for the period of the Jubilee Year) as I happen to think it should be resolved.

B) The pope’s statement seems to assume that the sin of abortion and the crime of abortion are concomitant realities. I, however, and I’ll wager nearly all other experts, hold sin to be distinguishable from crime, and that this crime is rarely, if ever, committed by women (again, as opposed to abortionists). Now, nothing in the pope’s comments addresses the crime of abortion though maybe he intended to address the crime as well as the sin (I cannot imagine that Francis meant to leave women in peril of excommunication for their abortions—though I stress again that I do not think women are excommunicated for undergoing abortion). But, plainly, the pope’s text itself does not address the crime of abortion or its canonical consequences and so I see no change in canonical discipline in this regard. If, by the way, the pope’s text does address the crime of abortion, then it seems to allow abortionists to have their excommunications—sanctions much more likely to have been incurred under current canon law—addressed as well. Maybe Francis intends that outcome though he speaks exclusively of women suffering in this regard and not of abortion profiteers. Perhaps Rome will clarify this point.

Et poenae latae sententiae delendae sunt. [See above!]

* See my “Canon 1324: exemption from a penalty” and “Canon 1398: Excommunication for procured abortion” in 2010 CLSA Advisory Opinions 169-174 and 178-182 respectively

Thanks for this, Dr. Peters!

For further clarity, folks should have recourse to Dr. Ed Peters’ book, Excommunication and the Catholic Church.  (Support Father and Dr. Peter’s by buying this book.)

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1 comment to Excommunication, Abortion and the Pope

  • lisag

    Can you imagine in the three days of darkness when each of us sees how God sees us, how women and men who have participated in abortion will see themselves. I think that Pope Frances is forewarning them that God is a God of mercy and that they should not despair, but go or return to the Catholic Church where forgiveness and mercy waits.God so loves all of us wants all of his children to be with him in heaven, but they must follow his way,truth and life.

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