Automatic penalties confuse every topic they touch

Near the end of my defense of Timothy Cdl. Dolan against Dr. Monica Miller’s harsh criticisms of him for allegedly misstating canon law (Dolan holds, correctly in my view, that women undergoing abortions are not automatically excommunicated), I made the point that, if matters were different in just one respect, the whole automatic-excommunication-for-abortion controversy could never have arisen.

I observed that, if, instead of occurring among Roman Catholics, the automatic-excommunication-for-abortion issue were being aired between Catholics belonging to any of the other twenty-plus Catholic Churches in union with Rome, even the possibility of automatic excommunication for abortion vanishes. Given that, however, most Roman Catholics know even less about Eastern canon law than they do about Western, my point, though decisive in its ability to answer the question of whether Catholic women would (or even could) be automatically excommunicated for abortion (the answer being No), sits unrecognized. Shall we do something about that?

Faithful Catholics, Western and Eastern, know that deliberate abortion is a violation of natural law and a grave moral evil (CCC 2271); abortion is, moreover, a crime under the canon law of the Roman Church (1983 CIC 1398) and under the unified code of all Eastern Churches (1990 CCEO 1450 § 2); finally, the canonical penalty for abortion under both Western and Eastern law is excommunication. But here’s where the problem appears.

Under Roman canon law the excommunication for abortion is automatic (latae sententiae), meaning that the excommunication for abortion is incurred as soon as the deed is committed (see 1983 CIC 1314); under Eastern canon law, however, no sanction of any sort, including excommunication for abortion, impacts an offender unless a judicial trial or administrative process imposes it (1990 CCEO 1402). Thus, because there are no automatic penalties in Eastern canon law but there are in Roman, the canonical status of two otherwise-identically situated Catholic women undergoing abortion, i.e., their being susceptible to automatic excommunication or not, depends solely and simply on which of them is a Roman Catholic and which an Eastern. Treating, radically differently, two Catholics performing identical acts under the same circumstances, based only on which Church the Catholics happen belongs to, is jarring. To put it mildly.

I pause to be clear: the problem before us is not whether the Church should have excommunication as a sanction (of course she should, for many reasons), or even whether excommunication is appropriate for abortion (of course it is, for many reasons), but rather, whether any canonical sanction, let alone excommunication, should automatically apply to a Catholic as if, based only on the act’s being done, the Church grasped an individual’s situation with a clarity approaching God’s.

Every legal system I know anything about, save for Roman canon law in a few instances, distinguishes between the performance of a deed and responsibility for that deed by asking two questions: Did the person do the act and is he or she responsible for having done it? The fact that in many, maybe most, cases the answer to both questions is Yes does not render the two questions indistinguishable nor leave the second irrelevant. Yet, that is exactly, at the formal level at least, what Roman law purports to do in regard to a dozen or so offenses, including procured abortion. CLSA Comm (1985) 937.

The juridic problems long associated with automatic penalties and the complex ‘work-arounds’ that Western canon law has developed to accommodate them (instead of simply eliminating them, as did Eastern canon law) are numerous and exceed what I can address here. In brief, though, the chief problems with automatic penalties are that they practically erase the distinction between sin and crime and purport to treat persons as legally guilty without observing legal process. Automatic penalties interfere with the reconciliation of sinners by injecting concerns for juridic rehabilitation into a sacramental process (see, e.g., 1983 CIC 1357), they disturb the consciences of Catholics who wonder whether acts they committed, and need to repent of, might also have been canonical crimes punishable automatically and so requiring distinct remedies, and they allow weak-kneed prelates, with an dismissive waive of the hand and a claim that ‘so-and-so has already excommunicated himself’, to avoid publicly punishing offenders who, for their own good and the good of the faith community, urgently need censure.

Eastern canon law avoids all of these problems. And then some.

The canonical and sacramental complications of Western automatic sanctions for actions that were committed, but often under partially or completely mitigating circumstances, might explain the lopsided inclusion of so many ‘affirmative defenses’ in, e.g., Canons 1323 and 1324 as discussed in my defense of Dolan’s position. These two exemption canons, however, not being needed to curb the potentially unfair operation of automatic sanctions under an Eastern Code that has no automatic penalties to begin with, do not appear in Eastern canon law. Don’t misunderstand: Eastern Catholics facing canonical sanctions for offenses, whether in a judicial trial or administrative process, can still invoke various defenses against conviction and, if found guilty, toward mitigation of a sanction. See, e.g., 1990 CCEO 1409, 1413, and 1415. But the rigid listing of exemptions that marks Western penal law and hampers its enforcement is not needed in Eastern law whose officials are expressly freed (see, e.g., Eastern Canon 1415 and its invocation of “common practice and canonical doctrine”) to draw upon the richness and nuance of the canonical tradition in assessing factors that can augment or mitigate liability for offenses in specific cases.

But there is also a steep pastoral and apologetic price to be paid for the West’s retention of automatic penalties, especially excommunication. Every single time a Catholic becomes involved in some ecclesiastically delictual behavior for which an automatic censure, especially excommunication, is threatened, the conversation immediately turns away from the delictual conduct engaged in by the individual and toward the intricacies of the canonical penal process that the Church uses to assess those behaviors. Every single time. Public attention shifts away from behavior that needs to be corrected toward procedures that need to be explained, and the big mean Church is perceived as a menace to the poor little believer. Might one hope, upon seeing this happen time and time and time again, that someone in Rome will finally say it’s time to reconsider this whole automatic penalty thing? To be sure, as I noted elsewhere, the general trend in Roman canon law over the last 150 years or so has been slowly to reduce the number of automatic penalties in canon law. But unfortunately they are not gone yet and, as a result, a Miller (not a canonist) can still point to the language of Canon 1398 and make a plausible case that women undergoing abortions are automatically excommunicated, leaving a Dolan (also not a canonist) to mumble (correctly) something about “We don’t do that anymore” but not know how to point to a series of exempting provisions in canon law that support his claim. If the West simply eliminated automatic penalties as the East has done, no one could ask a Dolan whether women undergoing abortions were automatically excommunicated, and a Miller could not accuse a Dolan of getting canon law wrong by answering No.

Finally, as I noted before, Pope Francis has essentially mooted without reforming the automatic excommunication mess, at least as it relates to abortion, in his 2016 document, Misericordia, by granting faculties to priests world-wide to absolve from the sin, and apparently the crime, of abortion. I have some canonical concerns about that document, especially in how it seems to work effectively to decriminalize abortionists’ conduct, as opposed to just women’s, but as the document itself is a step in the right direction and because discussing my juridic concerns about it would take us beyond what we need to point out regarding canon law’s disparate treatment of Roman offenders versus Eastern, we’ll leave those matters to another day.

The elimination of automatic penalties from Church law is not in Dolan’s hands, nor in Miller’s, nor in mine. Only Rome can fix this. But, while that matter is sorted, the very fact that all Eastern Catholic Churches have entirely eliminated automatic sanctions from their law, should, I think, give pause to those insisting that a Catholic woman undergoing abortion be labelled as liable to automatic excommunication based solely, as it turns out, on the fact that the woman is a Roman, not an Eastern, Catholic. That’s not equal justice for believers (pace 1983 CIC 208 and 221, and 1990 CCEO 11 and 24) and the retention of automatic sanctions, whatever purpose they might have served in by-gone times, ill-befits, I suggest, the Church as the Speculum Iustitiae she strives to be.