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It’s not fair, but does he deserve it?

February 7, 2019

A savvy observer of things Catholic recently contacted me regarding the scorn being directed at Timothy Cdl. Dolan (and other bishops, but mostly Dolan) for not excommunicating New York’s pro-abortion governor Andrew Cuomo, for not publicly denying him holy Communion, and for not taking any other action besides, it seems, expressing sadness at the politico’s evil conduct. “It’s not fair”, my friend remarked, with bishops as a whole in mind, “because canon law really does tie their hands here, but people think they deserve it anyway because, for decades, bishops have fouled up basically everything else they do have some control over and look where we are now.” My friend was not endorsing this thinking but he was describing it accurately. Quite.

Even setting aside—as if that’s possible—the clergy sexual abuse catastrophe against which all episcopal conduct is assessed these days, the near universal failure of US bishops (along with their European, even Roman, counterparts, but who even notices that anymore?) to enforce so relevant and ready a norm as Canon 915 against pro-abortion Catholic politicos (recalling that early cover for that failure was given by none other than Uncle Ted, who tried to hide then Cdl. Ratzinger’s crucial letter on this matter—so much for setting aside the sexual misconduct disaster), and the broader episcopal failure to enforce basic Catholic discipline in many other areas, has left faithful Catholics so scandalized, wearied, and angry that when, like the unchecked evil it is, the abortion cult takes over one of America’s two great political parties and infects major federal and state office-holders, a single episode of that evil, the Cuomo case, can erupt like a festering boil and a Dolan comes to represent heterodox prelates everywhere.

I get the anger. I have winced my way through several Dolan interviews wherein secular reporters were better at enunciating Church teaching on controversial matters than he was and I have cringed as he made some good points only to lose them in irrelevant asides. What Dolan (and he’s not alone here, but he is prone to it by personality and prominent in it by position) doesn’t seem to understand is that, while parish hall bonhomie works with believers and gentle words work with penitents, neither approach works in major media settings where Successors of the Apostles need to speak clearly and forcefully on the contentions of the day, this, in ways that leave no doubt that Jesus is coming to judge the living and the dead. Soon. But almost no bishop talks that way today. So, yes, I get the anger aimed at Dolan. But that’s not what I want to discuss now.

Here my concern is with the attacks being launched on Dolan and some other bishops concerning matters over which they either have no control (as my friend suggests) or regarding which they are being wrongly accused of botching when—if one heeds what they say rather than how they say it—the bishops actually have it right. Specifically, I want to address an attack against Dolan by a theologian of obvious orthodoxy and of proven pro-life witness, Dr. Monica Miller, in her essay at Crisis,Cardinal Dolan gets canon law wrong on abortion“.

Now, had Miller gone after Dolan for all sorts of prudential missteps and fumbles I probably would have agreed with her; had she questioned Dolan’s theology I would have at least deferred to her expertise. But instead Miller (who claims no qualifications in canon or civil law) pummeled Dolan with (what she thinks is) a canon law cudgel and Crisis editor John Vella (who claims no credentials in either canon law or theology) published it.

To sum up the long story I offer below, I find Miller’s main canonical point almost completely wrong, her criticisms of Dolan in this regard terribly exaggerated, and her perturbation of the consciences of post-abortive women, both those who have addressed their sin in confession and those who haven’t, pastorally reckless.

To be clear, I do not think it wrong to criticize, strongly but responsibly, Dolan or other bishops (1983 CIC 212), nor do I hold canon law to be the exclusive domain of canonists. But to the extent that anyone wishes to criticize bishops in light of canon law, to that same extent one needs to have a very good grasp of what canon law actually directs.

The central claim in Miller’s essay is that women who undergo abortion are automatically excommunicated under Canon 1398. She regards Dolan’s comment rejecting such excommunications, his “We don’t do that anymore” line, as an error almost “shocking” and in any case “completely false”. Against Dolan, who, says Miller, “should truly know better and has a duty to present the teachings of the Church”, she claims that “there is hardly a canonist who does not know that [Canon] 1398 applies to … the woman who actually has the abortion.” Miller, who in this essay and frankly uncharacteristically, seems to take lightly a theologian’s duty ‘to truly know better and to present the teachings of the Church’, makes her canonical accusation against Dolan about a half-dozen different ways.

Appreciate the relentlessness of Miller’s attack: Besides the above, Miller accuses Dolan of making “egregious errors”; of offering responses “shot through with multiple errors”; of having “woefully mangled” Church teaching and practice; of leaving “doctrinal and pastoral wreckage in his wake”; and on and on.

Of course, as suggested above, if one is angry at Dolan (for good reasons or for bad) and if one knows little and cares less about canon law, Miller’s words might not offend, a la, even if she is being unfair to Dolan, so what?, he deserves it. To such persons I have nothing to say; their issues are not canonical. But with more thoughtful persons—and regardless of how one feels about Dolan’s performance in other respects—I think words are important and that canon law matters, thus, I think we need to examine Miller’s claims about what canon law means in light of what canon law actually says before we accuse Dolan or anyone else of “totally misrepresent[ing] the teachings and practice of the Church”.

Before setting about that task, a caveat: this is a long blog, but it’s still just a blog. Even so, unlike the legion of amateurs who can look up a canon or two and pronounce confidently on the meaning of canon law, as a real canonist I have to support my claims with text and argument. In controversies, I have to lead readers first to the point of being able to recognize the possibility of canonical errors in someone like Miller’s essay, and then, get them see that she indeed made those errors. That takes times and that takes words, often, plenty of both. Even so, there is more to these matters than I can address here and there are reasonable questions that can be raised about the law and/or my explanation of it. Anticipating those concerns, besides my offering the age-old advice to “consult the approved authors“, I will point to two professional opinions that I wrote on some of these matters for the 2010 CLSA Advisory Opinions, namely, “Exemption from a penalty” (169-174) and “Excommunication for abortion” (178-182). I don’t think either of these pieces is available on-line. Consider it an excuse to go to a library. Now, onward.

1. Dolan’s phrasing “We don’t do that anymore” implies that at some point in her history the Church excommunicated mothers who aborted their babies. Dolan is correct.

The Pio-Benedictine Code, in its Canon 2350 § 1, stated “Procurers of abortion, the mother not excepted, incur, upon the effect being secured, automatic excommunication reserved to the Ordinary, and if they are clerics, they are also deposed”, my emphasis. The inclusion of the unusual phrase “matre non excepta” suggests a backstory.

For hundreds of years, despite her exceptionless scoring of abortion as a grave sin and her readiness to treat abortion as a canonical crime, the Church hesitated over whether to include mothers in the penal law. Good arguments for and against criminalizing mothers in abortion cases were debated but, by the early 20th century, the consensus under “Decretal Law” seemed to be that, while mothers aborting their children sinned gravely, they should probably not to be treated as criminals on par with abortionists and their henchmen. In 1917, however, the pope sided with those arguing for criminalizing mothers in abortion cases and Canon 2350 was promulgated as above. For the next sixty-plus years, bishops, priests, and canonists explained and applied the abortion canon in light of its plain terms. To be sure, various canonical and moral defenses against “imputability” were invoked while treating individual cases, but, at least at the formal, textual level of the Code, the Church indeed excommunicated mothers undergoing abortion. Dolan was right.

Enter the Johanno-Pauline Code of 1983. Canon 1398 thereof reads as follows: “A person who procures a completed abortion incurs an automatic excommunication.” Period.

While numerous changes in the abortion canon are obvious to anyone who bothers to compare it with the 1917 Code, what, for our purposes, cries out for acknowledgment is that the earlier express inclusion of mothers undergoing abortions as criminals has disappeared from the revised law. If only in this formal, textual respect, then, Dolan’s claim that “We don’t do that anymore” is correct or, at the very least, it is quite reasonably asserted, and Miller’s condemnation of Dolan’s phrasing as being an “egregious error” and “completely false” totters.

But there’s more.

2. The removal of the phrase “matre non excepta” from the revised Code not only recalls Decretal Law concerns about whether the Church wants to include mothers in this criminal canon, it unquestionably restores to these women all of the ‘affirmative defenses’ made available to any member of the faithful accused of crime, these defenses being set out in, among other places, Canons 1323 and 1324.

Before diving into this area, recall: canon lawyers do not write canon law, they comment on what’s in it. I have stated many times my view that the affirmative defenses which survived into the 1983 Code are excessive and that they hamper the ability of even good bishops to enforce canonical discipline to the degree that I, for one, think it should be enforced. But the law is still the law and canon law gives clear and consistent directives as to how it must be read and understood by those who apply it in practice or invoke it in arguments. Among those directives, going back many centuries, is one that requires construing penal law and facts in favor of the accused whenever that can reasonably be done (see, e.g., Boniface VIII, Regula Iuris 49 [1298]). Back to it.

Now, while Miller confuses laws and precepts in this area, she correctly calls attention to Canon 1323, a canon that provides a dozen or so affirmative defenses amounting to exemptions from penalties under the 1983 Code. Basically, if a person accused of a canonical crime can show himself covered by even one of the factors described in Canon 1323, that person cannot be punished by canon law (although there might still be grave sin involved that needs sacramental resolution). But, in briefly acknowledging the exempting effect of Canon 1323, Miller makes an odd comment, one easy to miss amid the Dolan-bashing.

Miller writes, “Cardinal Dolan needed to uphold Canon 1398 and explain why it exists, even if it is true that the penalty likely does not apply to the majority of Catholic women since they have never been informed of the canonical precept [sic].” Wait a minute.

Is Miller rhetorically minimizing the plain text of Canon 1323 n. 2 on her way to criticizing Dolan for not talking about whatever Miller thinks important, or, is Miller conceding that “the majority of Catholic women”, per just this one provision, are indeed exempt from excommunication for their abortions? For the sake of her canonical coherence, I hope Miller recognizes that some, or most, or who knows, maybe nearly all, Catholic women might be exempt from excommunication for their abortion under just this one provision but, even if it is only her “majority of Catholic women” who could be exempted from excommunication, why does she blast Dolan for addressing, in a conversational manner, the majority of cases by remarking in a general way, “We don’t do that any more”? How would Dolan’s apparently accurate general comment offend the truth so ‘egregiously’ and ‘completely’ that Miller must repeatedly condemn it?

3. Turning from this major exemption from excommunication that even Miller seems to admit might apply to post-abortive women, let’s look, too briefly, at the exemption perhaps most important (for our purposes, i.e., assessing the canonical liability of mothers to automatic excommunication for undergoing abortion) that made it into the revised Code. It’s in Canon 1324, which Miller does not mention.

Canon 1324 § 3 dryly states: “In the circumstances mentioned in § 1, the accused is not bound by a latae senteniae penalty.” Let that unpretentious text sink in. By it, 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.

Now, among the many other factors listed in Canon 1324 § 1 that could apply to anyone accused of canonical crime, including to women seeking abortions (e.g., young age, substance abuse, even ignorance of canon law!), those listed in number 5 thereof address someone who was ‘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’. Any member of the faithful threatened by a latae sententiae penalty (including excommunication) who acted under one or more of these conditions, irrespective of moral guilt, is protected by Canon 1324 § 3 against that penalty. That droves of women presenting for abortion could reasonably claim one or more of these factors is, I think, obvious. Or are 3,000 American crisis pregnancy centers serving non-existent needs?

This single canonical exemption provision, even standing alone, repels, I suggest, Miller’s main attack on Dolan for allegedly “totally misrepresent[ing] the teachings and practice of the Church”. It is Miller, I suggest, who has misrepresented, by not even mentioning, a crucial aspect of the practice of the Church in precisely this area.

Given, finally, that so-called ferendae sententiae penalties (sanctions following formal canonical trials or administrative hearings) against women for abortion are unheard of, the real question, it seems to me, is not whether most, or some, or even a few women are, under modern canon law, excommunicated for abortion, but rather, whether any women are excommunicated for abortion. For the above reasons (supplemented by some other arguments in more technical areas of the law and addressed in my published opinions, but which amateurs could not even guess at—although they could understand them if they asked), I hold that no woman, irrespective of the sinfulness of her action, is automatically excommunicated for abortion, and therefore, that Dolan was right when he said: We don’t do that any more.

4. Some other thoughts.

New matters.

The only way Miller can even propose her attack on Dolan for denying the automatic excommunication of mothers aborting babies is because she and he are Roman Catholics. If this discussion were being conducted in the context of Eastern Catholic canon law, under the Eastern Code promulgated by John Paul II in 1990, Miller’s attack on Dolan would have been a non-starter. Why? Because Eastern Catholics never procure abortions or, if they do, Eastern prelates don’t care? Balderdash. It’s because Eastern Catholic canon law has, Deo gratias, done away with automatic sanctions of any sort (CCEO 1402 § 1). Abortion is a crime under Eastern law punishable by excommunication (CCEO 1450 § 2) but the West’s maddening muddle of automatic sanctions does not exist in Eastern law and so there is no question about whether Eastern Catholic women might be automatically excommunicated for abortion. Eliminating latae sententiae penalties is a precedent the Roman Church should follow. Immediately—unless one is comfortable with the idea that identical actions are treated dramatically differently depending on which Catholic Church one happens to belongs to.

There are a couple thousand canon lawyers in America and Lord knows how many others around the world. I am sure that one can find some canon lawyer, somewhere, who holds mothers excommunicated for their abortion. But, to succeed in defending Dolan against Miller’s attack, I do not need to prove that no canon lawyer anywhere holds mothers liable for automatic excommunication. I simply need to show that Miller’s canonical attack on Dolan is wildly disproportionate to the canonical arguments she musters for it. I think I have done that.

I do not understand the need some feel to find a way to excommunicate women undergoing abortion. What purpose is served by compounding the moral catastrophe of an abortion with the canonical complications of an automatic excommunication, it’s ‘medicinal character’ (real or supposed) notwithstanding? If canon law called for such treatment, as it did for a time, I would teach it as written and suggest legitimate ways of mitigating its juridic effects in actual cases (as Pio-Benedictine canonists and pastors did in their day) while working for its reform, but that’s not something we need to worry about because modern canon law does not, in my view contrary to Miller’s, excommunicate mothers undergoing abortions. Sacramental confession, to any priest, is the primary route to post-abortion spiritual reconciliation. While I have long held this view, any lingering doubts about it are solved by Pope Francis’ letter Misericordia (2016) 12, which, while not immune to some canonical issues, makes clear that the sacrament resolves the sin and any theoretically possible ecclesiastical penalties.

Old matters.

Few, probably none, of the affirmative defenses set out in Canons 1323-1324 as applying to women undergoing abortions would apply to abortionists. Canon 1398 enables the Church to prosecute abortionists. If bishops are aware of Catholic abortionists in their territories I urge them to consult with canonists toward initiating prosecution.

I have argued many times that Canon 1398 on abortion, and Canon 1329 on accomplices, does not reach pro-abortion politicos. Indeed, I find no support for the former thesis, and virtually none for the second, among the approved authors. A couple of times a plausible argument that pro-abortion politicos are liable to excommunication for heresy is floated by authors with some credentials. I have twice argued that I do not find that theory sustainable in the cases presented.

Canon 1369 figures among a few other canons available for use against many prominent Catholic public figures in response to their abortion mongering, but canon lawyers cannot force bishops to purse those cases.

Canon 915 is the single most immediately available norm by which bishops may limit the scandal of pro-abortion politicos. Cuomo, last l heard, refrains from holy Communion.

Finally, may I remind folks, even those with impressive credentials in other ecclesiastical disciplines, that, while canon law is placed in the Church to serve the needs of all (1983 CIC 1752), canonical argumentation is no place for amateurs.

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