Some reactions to Fr. Orsy’s comments on the Phoenix abortion case
Fr. Ladislas Örsy, sj, one of the most respected — I would even say revered — figures in canon law today, has published a letter in The Tablet containing his informal reactions to the Phoenix abortion case. I offer a few reactions of my own to Örsy’s comments in italics, in service, I hope, to advancing this important discussion.
The articles . . . convey the complexity of the case of Sr. Margaret Mary McBride whom the Bishop of Phoenix, Arizona, declared automatically, latae sententiae, excommunicated for allegedly cooperating in a crime of abortion.
EP: I am still not sure that is how Bp. Olmsted intended his statements to be taken but, absent a direct clarification of the point, I must say, once again, that this sort of inevitable and distracting confusion is one more reason why latae sententiae penalties must be eliminated from modern canon law. In any case, I have already questioned whether the public statements of Bp. Olmsted would satisfy the requirements for formal declaration of a latae sententiae penalty. But then, perhaps, they were never intended to do so.
1. The Code of Canon Law, following centuries of tradition, draws a sharp distinction between an act that is morally wrong, and a legal penalty that may, or may not be, attached to it. Thus, the correctness of the penalty must be judged by its own laws found in the Code.
EP: Quite true, and a good point to recall: It is possible for one to be morally guilty of a sin, and not be canonically guilty of the identical crime.
2. The term “excommunication” can be misleading. Briefly, in modern canon law it means that a person is prohibited from receiving the sacraments and from holding an office in the church (cf. canon 1331). In no way does such a penalty “excommunicate the person from the Catholic church”.
EP: Again, true, certainly to the extent that modern excommunication does not expel one from the Church.
3. According to canon 1321.1 “No one is punished unless the external violation of a law or precept committed by the person is gravely imputable by reason of malice or [grave] fault, ex dolo vel ex culpa. Excommunication is an extreme penalty; it condemns a member of the community to spiritual starvation. The church, therefore, does not want to inflict it unless there is a deliberate act of defiance. Nothing that we know about the attitude of Sr. Margaret speaks of defiance.
EP: The word “defiance” is not canonically defined, so it is difficult to know exactly what is meant in this context, but we should be careful lest an equivocal word like “defiance” come to imply that one cannot be guilty of grave sins or liable for grave crimes provided they are commited not out of “defiance”, but instead, out of, say, some misconceived compassion. Abortion and euthanasia are two common examples of grave offenses that are often performed out of compassion. But, offenses they still remain, and consequences they still provoke.
4. Canon 1398 states: “A person who procures an abortion that becomes effective, effectu secuto, incurs automatic, latae sententiae, excommunication.” The key word is “procures,” procurat. Common sense (or any dictionary) tells us that to give an opinion is not the same as to procure.
EP: To the degree this criticism applies to statements made about certain third parties to this abortion (statements that seem not to have been made by Bp. Olmsted), then it is surely correct. But as I understand it, Sr. M’s role was not simply one of expressing an opinion, but rather, of granting necessary consent. That is a different matter.
However, there is more to it. Ecclesiastical criminal laws are of “strict interpretation”: their meaning is found in their true but narrowest sense. Now, the narrowest sense of “procuring” does not include “giving an opinion,” certainly not when an answer must be given under pressure and the question makes even the experts tremble. Moreover, “to procure” means to do something actively in order to bring about the intended effect. Not a shred of evidence has ever been made public that would prove (or even hint) that Sr. Margaret “procured” an abortion. From what we know, her entire life was dedicated to the saving and mending of human lives. A good competent judge would take such lifelong attitude into account.
EP: I don’t know of any informed commentator who is accusing Sr. M of having “procured” (as canonists use the term) an abortion. Clearly, she would be innocent of that charge. But the question remains as to whether her role was one of necessary cooperator in an abortion per c. 1329 § 2. If she were a necessary cooperator to abortion she would be liable to sanction. Finally, a lifelong attitude of good is no guarantee against committing a grave evil, though hopefully, it would facilitate one’s repentance. (Note that c. 1344, n. 3 does not work to mitigate censures.)
5. The Code of Canon Law contains nothing specifically and precisely (a “must” in criminal matters) about an automatic excommunication inflicted on “cooperators” in abortion (which does not exclude that their act could have been wrong and that they may suffer other punishment).
EP: Well, but Canon 1329 § 2 is expressly designed to reach “accomplices who are not named in a law”, so I am not understanding Örsy’s point here. Either Sr. M deliberately lent essential assistance to those committing an abortion, or she didn’t.
It follows that no cooperator is automatically excommunicated unless the cooperation itself amounts to procuring the abortion.
EP: This, I suggest, is a misreading of the law. Canon 1329 § 2 does not require for liability that one’s cooperation amount to co-delinquent behavior, but rather, that one’s intentional cooperation make possible the commission of an offense by another.
6. The church’s criminal law is based on an ancient and inviolable rule: whenever objective doubt exists, however small, as to whether or not a person has incurred an automatic excommunication, the person must not be held excommunicated. The rule is not canonical hair splitting; it is for the defense of the accused. This rule binds every bishop and each of his flock.
EP: Notwithstanding my regret at the presence of latae sententiae penalties, I do not agree that all “objective doubt, however small” must be eliminated for liability to attach, else, such sanctions would be impossible. The law only requires “moral certitude”, not absolute certitude, in reaching most conclusions (see, e.g., Canon 1608).
7. The conclusion is compelling: to say the least, it is highly doubtful that Sr. Margaret acted out of malice aforethought, or that she actively procured an abortion. Hence, she could not have been–and she was not–automatically excommunicated. The declaration of the excommunication by the local bishop, therefore, is null and void. In her case, canon 1324.3 is applicable, “the accused is not bound by the automatic, latae sententiae, penalty” and, of course, no one is bound to respect it.
EP: Having challenged several of these premises, I am not persuaded by the conclusion as asserted. But I do agree that Canon 1324 § 3 effectively vacates most latae sententiae penalties, though, only insofar as they are automatic: one might still fall under a ferendae sententiae declaration of an automatic penalty. Moreover, I again call attention to Canon 1326 § 1, n. 2 by which Sr. M’s liability for her deed might be increased in virtue of her office. Finally, as noted at the outset of this discussion, Sr. M’s moral culpability for her role in the direct killing might apply even if she avoids canonical liability for her actions.
8. At this time no information is available whether or not the case is on appeal. Be that as it may, we may throw more light on the situation by recalling what a competent appeal judge should inquire about. He should ask whether or not the bishop fulfilled his duty detailed in canon 1341: “The Ordinary is to start a judicial or administrative process to impose and declare penalties only after he has ascertained that neither fraternal correction, nor reproof, nor other means of pastoral solicitude [are effective in the situation]”.
EP: True — assuming the bishop launched any penal process at all, which is not clear to me.
Also, the judge should ask whether or not the Ordinary observed canon 1342.1 mandating that a judicial process–never to be omitted without a just cause–had been completed before any formal declaration. The bypassing of such injunctions by the Ordinary may not invalidate the declaration, but it would alert a conscientious judge to scrutinize the whole process for more substantial violations of justice. (At the present we do not know how the Bishop of Phoenix handled such obligations.)
EP: This seems sound to me. I and many others have long supported judicial penal processes over administrative wherever possible (c. 1314).
Final words: Our canonical procedures may have deficiencies (they do) but there are times, when properly applied, they reveal the humanity of the church and church’s intent to protect the innocent.
EP: Again, sound, though one might question the prominent use of the word “innocent” in regard to Sr. M given the admissions she apparently has made. Diminished liability (which I think Sr. M could plead), whether moral or canonical, is not tantamount to “innocence”. In any case, I agree that some church laws, like c. 1398 against abortion, are especially designed to protect the innocent. Sadly, the disregard of that canon in this case cost an innocent baby his or her life.