The German bishops’ policy on emergency contraception passes canonical muster

Lost in the wake of the papal resignation tumult is an important story out of Germany, namely, the approval by German bishops of a rape protocol for Catholic hospitals that includes, under certain conditions, the administration of a “morning-after” drug to rape victims. Dr. Christian Brugger provides an excellent moral analysis of the policy. I look at some canonical questions only.

There is no doubt but that abortion perpetrated against an unborn human being at any stage of the mother’s pregnancy is an excommunicable act. 1983 CIC 1398, and PCLT, auth. interp. of 23 May 1988. Scroll to related blog post of 29 June 2006.

That being clearly understood, however, because excommunication for abortion is a penalty levied for the crime of abortion (and not for the sin of abortion per se), the elements of the crime of abortion must be proven for the penalty to be applied. 1983 CIC 18, 221, 1526, etc.

Discussing Canon 1041, 4º, I have argued that a man’s providing post-coital assistance to a female sexual partner toward her taking a “morning-after” pill does not amount to cooperation in abortion sufficient for him to incur an irregularity for holy Order (see my “Canon 1041: Irregularity for abortion”, 2011 CSLA Advisory Opinions 109-111), this, for three reasons:

• First, it is not clear that the woman taking the drug is, in fact, pregnant at that time (although this argument might not apply under the protocol as announced for Catholic hospitals in Germany);

• Second, it is not clear whether the drug in question acts as an abortifacient or as an anti-ovulant (as Brugger notes, that is a scientific question with moral, and I would add, canonical implications); and,

• Third, and most importantly for canonical analysis, even if the drug worked abortifaciently, given the very high percentage of pregnancies that end spontaneously (cit. om.), it could not be demonstrated forensically that the drug in question caused the abortion in question.

Thus I conclude that the administration of a “morning-after” pill, even if such a pill works abortifaciently (let alone if the mechanism of the drug remains unclear), is not punishable under Canon 1398 for abortion. The use of such a pill might well be immoral, nay, even gravely immoral. But at present, the use of a “morning-after” pill is not a crime under canon law. In prohibiting its use if conception has likely occurred, the German bishops’ have adopted, I suggest, the safer policy and built, as it were, a fence around the law of Canon 1398.