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Some blog updates

A number of pressing projects have occupied my time the last several weeks but I now have updates on a few other items.

First, as promised a couple months ago, I have prepared a response to Dr. Monica Miller’s reiterations that (depending on how narrowly or broadly her own exceptions to the application of Canon 1398 are read) potentially millions of Catholic women around the world are excommunicated for abortion. I find such an opinion wrong to the point of startling but it is sincerely raised and deserves a considered reply—one too long, however, for a typical blog post. My remarks are found here.

Second, my thoughts on the Eastern Open Letter accusing Pope Francis of the delict of heresy appeared in Catholic Herald on-line. They are available here.

Third, I will offer some technical observations on Pope Francis m.p. Vos estis later today, in a separate post. (Update: Those thoughts are now here.)

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Be careful what you ask for: interim thoughts on recent claims that women face automatic excommunication for abortion

Dr. Monica Miller continues to insist that Catholic women are liable to automatic excommunication for abortion. I think this assertion is wrong and, in the detail necessary, I plan to respond to it. Meanwhile, though, I want to consider here a different question, namely, What if Miller is correct and potentially huge numbers of Catholic women around the world are excommunicated for having obtained an abortion?

While a range of reactions to such a prospect, from seeing it as proof of how dark are our days to muttering ‘Good riddance, serves them right’, seems possible, I want to suggest that Miller’s position would, if canonically correct (it’s not, but let’s suppose), provide the basis for its own repudiation. Briefly, what Miller and some others do not appreciate is that, the more Catholics are excommunicated for any offense, the less likely the Church is to continue punishing them that way. This is not mere academic speculation. It has happened before: the fact that great numbers of Catholics were committing an act punishable by automatic excommunication led the Church to admit the failure of a penal law approach to the problem and drop the excommunication for it. As usual, history illumines.

In 1884 the Third Council of Baltimore, in an attempt to stop Catholics from performing the then rare, but still evil, act of obtaining a divorce and attempting a civil marriage, enacted an automatic excommunication against such conduct (Acta, n. 124). Now, who knows, maybe the threat of automatic excommunication did dissuade some Catholics from divorcing and remarrying (Deo gratias). But with each passing decade the numbers of divorced-and-remarried Catholics continued to climb at rates nearly identical to those of the general population and, by the 1970s, literally millions of American Catholics were supposedly excommunicated.

Neither deterred from breaking the law nor spurred to seek forgiveness for having done so, many divorced and remarried Catholics instead boasted of their excommunication (I heard such claims myself), or, less confrontationally, they saw their excommunication as a excuse ‘to pay no more attention to a Church that has already kicked me out’. In time it became obvious that the canonical sanction attached to divorce and remarriage, whatever feasibility it might have enjoyed in its early years, had not only failed in preventing Catholics from divorcing and remarrying on a massive scale, it had actually become, canonically and pastorally, a hindrance to their reconciliation.

In 1977 the US bishops approached the Holy See and asked Pope Paul VI’s permission to abrogate the excommunication for divorce and remarriage. The pope consented, the Baltimore penal law was abrogated, and all of its excommunications were lifted (immediately per many but unquestionably within a couple years). CLD VIII: 1213-1214, and 1983 CIC 1313 § 2.

In dropping the excommunication for divorce and remarriage the Church did not, of course, change her teaching on the permanence of marriage nor did she recognize these second, pseudo-marriages; to this day, civilly divorced and remarried Catholics are prohibited holy Communion under the (non-penal) Canon 915. But, however irregular their situation, divorced and remarried Catholics no longer labor under the canonical and pastoral consequences of being automatically excommunicated for it and so their reconciliation with the Church, and with God, is thereby facilitated.

With the lesson of Baltimore in mind let’s now consider automatic excommunication in general and as threatened for abortion.

Of the seven automatic excommunications left in codified canon law, five of them—desecration of the Eucharist (c.1367), physical attack on the pope (c. 1370), absolution of an accomplice (c. 1378), illicit consecration of a bishop (c. 1382), and violation of seal by a confessor (c. 1388)—affect, legally or practically, only a tiny percentage of the Catholic population. Likewise with the few extra-codical automatic excommunications such as for procedural misconduct in a papal conclave or the attempted ordination of females. See ap. con. Universi dominici (1996) and CDF De delicto (2008).

Thus, only two automatic excommunications, abortion (c. 1398) and apostasy-heresy-schism (c. 1364), arise from acts that could be perpetrated by large numbers of Catholics. Of course, the crimes of apostasy-heresy-schism, though theoretically committable by large numbers of Catholics, would, if such rebellion ever erupted to the point of involving millions of Catholics as is the case with abortion, provoke crises in the Church quite beyond canonical. The Church has not suffered that sort of catastrophe for some centuries.

But the crime of abortion differs markedly from these other excommunication situations especially when one looks at the canonical situation of the women obtaining abortions.

Around the world, Catholic women obtaining abortions each day number in the hundreds, perhaps in the thousands, and they certainly amount to many millions over recent decades. Those assuming, or insisting, that mothers obtaining abortions are automatically excommunicated are not talking, therefore, about punishing the occasional corrupt cleric who absolved his accomplice or some lunatic who lunged at the pope; instead they are talking about the excommunication of staggering numbers of Catholic women.

Moreover, the act of obtaining an abortion, gravely evil to be sure (CCC 2270-2271), is nevertheless not marked with the anti-institutional animus inherent in, say, a bishop consecrating other bishops without Roman authorization, nor is it driven by the conscious ecclesial contrariness associated with formally repudiating one’s Christian identity (apostasy), contradicting divine revelation (heresy), or throwing off ecclesiastical jurisdiction (schism). Abortion, unlike all other excommunications (automatic or otherwise) in the 1983 Code, does not involve an attack on the Church’s sacraments, identity, or governing authority. Notwithstanding that abortion is a grave moral offense on par with murder, euthanasia, sexual-slavery, drug-trafficking, blasphemy, and devil-worship, only abortion is punished with automatic excommunication. That anomaly alone should give pause to any one concerned for the right operation of justice in the Church.

Thus, if Miller is right in asserting that Catholic women obtaining abortions are (subject to a few exceptions she concedes) automatically excommunicated for it, the Church would be faced with a failure of canon law global in scope, massive in numbers, and decades in the making; to a degree that would make the Baltimore excommunications seem like a misstep, the automatic excommunication asserted against women for abortion would manifest a juridic impotence that could only induce widespread contempt of law itself in the ecclesial community and complicate the reconciliation of those Catholic women who do, sooner or later, come to regret regret their abortion. Upon realizing the magnitude of such a canonical debacle, the Church would have no choice but to abrogate, or severely derogate from, Canon 1398.

If Miller is right. But, as I say (and tried to demonstrate here, but shall demonstrate in more detail elsewhere), she is not right.

Although Canon 1398 could be abrogated or at least derogated without doing damage to the Church’s witness to the value of innocent human life, I do not think that the canon needs to be dropped or substantively changed to prevent millions of Catholics from (supposedly) ending up the morass of latae sententiae excommunication. Canon 1398 is soundly written (pace its automatic operation) and it can be effectively applied by persons charged with the implementation of law in the Church.

Canon 1398, properly understood, stands as a witness against the carnage unleashed on pre-born human beings in the wake of modern States’ reprehensible abandonment of them. It provides a precedent for Roman canon law to imitate Eastern by making murder itself (notably euthanasia) an excommunicable offense (1990 CCEO 1450), albeit ferendae sententiae.

Canon 1398, properly understood, enables the canonical prosecution of abortionists and their accomplices toward excommunication. Right. Now.

Canon 1398, properly understood, enables the canonical prosecution of women procuring abortion toward sanctions other than excommunication (notably, interdict) in the highly unusual case that such prosecution could be warranted because of other factors.

Finally, Canon 1398, properly understood, does not threaten automatic excommunication against women caught up in abortion, and therefore these women are free of the canonically and pastorally complicating implications of being automatically excommunicated. A point, I grant, disputed by Miller.

The deeper malice of sexual misconduct by clergy and religious

Recent remarks by Pope Francis regarding the ‘lightness’ of “sins below the belt” are receiving various responses, but his comments, not wrong as far as they went, nevertheless prompt, I think, especially against the background of the clergy and religious sexual misconduct crisis, some observations as to how sins ‘below the belt’, even if they are generally reckoned among the lighter of the still-serious sins, become markedly more grievous when committed by clergy and religious. Appreciating how the status of a sinner can worsen the evil of a sin is important, I think, for addressing the Church’s sexual misconduct crisis to the degree it urgently needs.

At least two factors augment the moral malice of sexual misconduct by clergy and religious, namely, sacrilege and homosexual character. I will outline these two factors here, but would alert readers to other important information regarding the incorporation of moral theology materials into canon law that I offered in Roman Replies and CLSA Advisory Opinions 2009: 133-138.

Sacrilege itself, though gravely evil (CCC 2120), is not a crime under either the Johanno-Pauline Code of Canon Law or the Code of Canons of the Eastern Churches. Sacrilege is a qualifying element of desecration of the Eucharist (1983 CIC 1367, 1990 CCEO 1442) and it undergirds criminalizing, for example, the profanation of sacred objects (1983 CIC 1376, 1990 CCEO 1441) and some physical attacks on clergy (1983 CIC 1370, 1990 CCEO 1445), but in other respects sacrilege per se is not directly actionable under current canon law.

The Pio-Benedictine Code of Canon Law, in contrast, not only recognized sacrilege as a qualifying element in several canonical crimes (Jone, Commentarium III: 509; Ayrinhac/Lydon, Penal Legislation 181) but, per 1917 CIC 2325*, it made sacrilege itself a crime punishable “according to the gravity of the fault”. However seldom that norm seems to have been applied in its day, the failure to carry Canon 2325 into the 1983 Code leaves bishops bereft of a direct remedy against the offense of sacrilege itself (and, by the way, of a canonical response to superstitious practices, another ill that spreads rapidly among the faithful in evil times such as these).

The manual moralists writing before Vatican II identified three kinds of sacrilege, namely, “personal” (involving persons set aside for God, such as clergy), “local” (involving sacred places such as churches), or “real” (involving blessed objects such as chalices). Jone-Adelman, Moral Theology 108-111; Davis, Moral and Pastoral Theology II: 33-36; Prümmer, Handbook 204-206. All three forms of sacrilege identified by the moralists were criminalized by Canon 2325 of the 1917 Code. Dom Augustine, Commentary VIII: 314-315; Beste, Introductio 1051. Here, that form of personal sacrilege committed by sexually-active clergy or religious, described by some commentators as ‘carnal sacrilege’, interests us.

Setting aside whether specific instances of clergy sexual misconduct might have also been crimes under civil law (e.g., rape) or were punishable as a distinct offenses under canon law (e.g., offenses against minors), a sense of the deep depravity involved in every act of ‘carnal sacrilege’ is seen in Bernard Häring’s 1963 treatment of “Sacrilegious impurity” wherein he wrote: “All sins of impurity between persons who have pledged themselves to unmarried chastity for the kingdom of heaven either by a vow of chastity or by entering the state of celibacy are sins of sacrilege. The same is true if only one of the persons is consecrated by vow or the special state of chastity. … Indeed all sins of impurity committed by those especially consecrated to God (whether alone or with others) are sacrilege.” Häring, Law of Christ III: 301. Häring, in common with other moralists, recognized all sins by the baptized as ‘sacrilege’ in a broad sense, of course, but he singled out those in Holy Orders or religious life for special attention in virtue of their “sacral” consecration. Häring, Law of Christ II: 210-211; Naz, ed., Traité IV: 717. In brief, the higher the state of life to which one is admitted the more serious are offenses against the dignity and duties of that state. Indeed, Davis, Moral and Pastoral Theology I: 60 uses the sexual sin of one under a vow of chastity as an example of how the status of sinner can increase the malice of a sin. Thus to think of clergy sexual misconduct as just another form of ‘sins below the belt’ would be to disserve the truth that sexual sins, when committed by clergy and religious, are more vicious than when committed by others.

A second factor aggravates the malice of ‘sins below the belt’ when committed by clergy (and often religious); it arises from the fact that the overwhelming majority of clergy sexual misconduct (against minors or otherwise) is homosexual in nature.

Turning again to the manual moralists, they identified various forms of sin (see Davis, Moral and Pastoral Theology I: 34-63; Roberti, ed., Dictionary of Moral Theology, s.v. Sin, species of, at 1135-1136), including sexual sin, and found in them gradations of evil, ranging from light to grievously wrong.

Looking only at the sexual act (and setting aside several factors not here relevant), moralists identified three main types of sexual intercourse that were morally illicit, namely, fornication (male-female), sodomy (male-male), and bestiality (human-animal). Davis, Moral and Pastoral Theology, II: 237-238, 246-247; Jone-Adelman, Moral Theology 159-160. All three acts were deemed gravely sinful, but the evil of illicit sexual intercourse present in non-conjugal male-female relations was worse in male-male acts and worse still in human-animal situations. Indeed, homosexual acts (and bestiality) were described as “the worst sin” in the famous instruction from the Holy Office, Crimen sollicitationis (1962) nn. 71-74. To the extent, then, that clergy sexual misconduct is overwhelmingly perpetrated against males (by other males, of course), these acts of ‘carnal sacrilege’, besides whatever harms they inflict upon victims, are again more grievous in themselves than a simple description of such acts as being ‘sins below the belt’ might suggest.

I have many times lamented the generally weakened (but not eviscerated) state of penal canon law in the Church but have nevertheless pointed to plausible theories of canonical prosecution against sexually offending clergy and religious under the Code as it is. Besides the enforcement of canons already applicable against certain offenders, Canon 1399 is also available for consideration, but a blog is not the place to work out the mechanics of such cases nor to review the canonical defenses that, in justice, those accused of sexual offenses may raise.

Instead, in light of the augmentation of the moral malice of sin that one’s status and dignity as a cleric or religious produces in cases of sexual misconduct, I conclude these thoughts by simply recalling, with emphasis added, Canon 1326 § 1 of the 1983 Code which states “A judge can punish the following more gravely than the law … has established: … 2° a person who has been established in some dignity or who has abused a position of authority or office …”.

* 1917 CIC 2325. Whoever excites superstition or perpetrates a sacrilege is to be punished by the Ordinary according to the gravity of the fault, with due regard for the penalties established by law against such superstitious or sacrilegious acts.

Another welcome return to the earlier age for Confirmation

Bishop James Wall of Gallup NM just announced that Catholic children in his diocese can receive the sacraments of Confirmation and holy Communion in a single Eucharistic liturgy celebrated for them around their attaining age seven or eight. This makes a dozen arch/dioceses that have jettisoned the once-trendy-but-pastorally-flawed practice of delaying Confirmation until well into a young person’s teenage years. I will not rehearse the numerous spiritual and practical problems associated with this delay. My focus is, as usual, canonical.

While Eastern Catholic Churches usually confer Confirmation (Chrismation) at the time of Baptism (1990 CCEO 686 § 1, 694695) and thus generally in infancy, the Roman Church had long delayed Confirmation until about the age of reason (roughly age seven). See 1917 CIC 788, 1983 CIC 891. As there are good reasons for going with infancy or the age of discretion, and noting that both Roman codes allowed for accelerating the time of Confirmation in cases of need, I think this East-West disciplinary difference re timing is one the Church can live with. 

But the 1983 Code’s stipulation of a early-ish and unified age for Confirmation became, after some periods of ‘experimentation’, a fixed hodgepodge of delayed and scattered dates when the USCCB, taking advantage of language in Canon 891 that allowed the conference of bishops to determine “another age” (note: age not ages), once-and-for-all abandoned a common age for Confirmation, whereupon Rome signed off on the to-each-his-own approach whereby every bishop decided for himself what age this sacrament of initiation would be conferred in his arch/diocese. That’s still the law in the United States and it’s effectively the law in several other countries. Gallup, therefore, has simply joined the small but growing list of arch/dioceses that have said, ‘Fine, we get to decide? then we’re going with an earlier age, the age of reason.’ May other local Churches follow them, and soon.

Meanwhile, children and parents in arch/dioceses that still maintain a delaying approach to this sacrament should bear in mind that Rome has, in regard to suitably instructed and disposed candidates for Confirmation, ruled that the rights of (at least) an 11-yo child to the sacraments (e.g. 1983 CIC 843) prevail over policies setting a later date for Confirmation. See Cong. for Divine Worship and Discipline of the Sacraments (Medina Estévez), doc. [de Confirmationis receptionis aetate] (no date), Communicationes 32 (2000) 12-14 (English text).

And, by the way, Catholic children in danger of death should receive Confirmation without delay.

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.

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

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.

Dreher’s double-barrel misfire

If I were not a man who tries to pay more attention to what is said than I do to who said it, and even to how it’s said, I would have noted the … anomaly … of ex-Catholic Rod Dreher, of all people, attacking Timothy Cdl. Dolan for not being Catholic enough, attributing views to Dolan that the prelate never expressed (and italicizing them for effect), relegating the cardinal to the status of cynic or coward, and backing it all up with a vulgarism taken from one of secular politics’ most vulgar characters, and would have simply shrugged and gone on with my day. I might have, as Dreher says, ‘thrown up in my mouth a little’, but I would have gotten over it.

But I kept reading and saw that, later in his column, Dreher invokes the example of Abp. Joseph Rummel’s 1962 excommunication of three New Orleans Catholics in the midst of that prelate’s justly-famous school desegregation project. Dreher asks whether racism is worse than abortion (all together now: Noooooo) and wishes that Dolan “had the backbone of Rummel” to bring about, one surmises, Gov. Andrew Cuomo’s excommunication for supporting abortion. As Dreher is not alone in drawing an unfavorable parallel between Dolan and Rummel, and as the parallel seems to be a plausible one with, moreover, a canon law aspect to it, I thought I would take a look at it notwithstanding its provenance.

Dreher provides only one link for background on the Rummel episode and I am away from several of my own canonical resources just now (an inconvenience for me because I try to back up my views with sources, not just rhetoric), but, looking at what Dreher provides and at some on-line discussions (e.g. here and here), what I see is Rummel indeed excommunicating three Catholics during the New Orleans desegregation struggle, but not for supporting racism (which all three undoubtedly did) but rather, for their interfering with Rummel’s authority to govern Catholic institutions as he saw fit and fomenting animosity against Rummel and his leadership. See National Catholic Almanac (1962) 61. Now if these were the grounds for Rummel’s action against those offenders (and not for their ‘being racists’), the archbishop was on very solid canonical ground for so acting. Let me suggest how, remembering that the Pio-Benedictine Code of 1917 was in force at the time.

Then: 1917 CIC 2331 § 2 authorized a censure (i.e., excommunication, interdict, or suspension) against those who provoked subjects to disobey a bishop’s lawful orders; 1917 CIC 2334 n. 2 explicitly authorized excommunication against those who impeded even indirectly the exercise of ecclesiastical jurisdiction using lay powers; and 1917 CIC 2344 authorized a censure (including excommunication) against those who attacked prelates in the media or who stirred up animosity or odium against their governance decisions. Thus Rummel had at least three ways to impose excommunication in his case, none of which responded to racism. Dreher’s insinuation of a damning parallel between Rummel’s (alleged) canonical move against the evil of racism and Dolan’s (alleged) inaction against the evil of abortion collapses if Rummel himself did not sanction Catholics for their racism but rather for their obstructing his governance of the archdiocese.

Now, to my knowledge, Cuomo has never said “Cdl. Dolan has no right to use his ecclesiastical authority to condemn abortion”, or, “Catholics should not listen to anything Cdl. Dolan says about me.” To be sure, if Cuomo has said something like that (even recalling that, in penal canonistics, facts and law must be narrowly interpreted) I would say, “Hey boys, let’s see if we can go after Cuomo!” But notice, that penal canonical inquiry would not be about whether abortion is worse than racism or even about whether Cuomo endorses abortion (anymore than Rummel punished Catholics for endorsing racism) but rather, whether Cuomo was, for example, ‘inciting animosities or hatred against a bishop on account of ministry‘ or ‘provoking subjects to disobey” Dolan, per 1983 CIC 1373. I might thrown in Canon 1375 (against intimidating one who exercises ecclesiastical power or ministry) even though it’s a stretch—though, one I will allow myself as I am playing with the short hand known as Book VI of the 1983 Code here. Which brings us to the second problem in Dreher’s column.

Speaking of playing short-handed, whereas Rummel had at least three canons enabling him to levy excommunication given the facts presented to him, what would the modern Canon 1373 allow Dolan to impose if Cuomo were brazen enough to challenge Dolan’s office itself and/or his governance of his own institutions such as Rummel’s opponents did against him? Could Dolan excommunicate Cuomo as Rummel excommunicated his opponents?

No. The 1983 Code limits Dolan’s response here to the lesser censure of interdict. Don’t get me wrong, interdict is a significant sanction (especially in regard to laity, per Canon 1332) but it is not excommunication and it has none of the ‘sex appeal’ that a bishop hurling down excommunications against offending princes evokes in the popular imagination. Canon 1375, meanwhile, is even less helpful. It authorizes simply a “just penalty” and some will argue that such language effectively discourages censures (especially excommunication) at least as a first response.

So a second time, Dreher’s damning comparison of Rummel to Dolan falls flat in that, on facts not even presented but not impossible, assuming Dolan could go after Cuomo for interfering in Church governance, Dolan could only respond with interdict not excommunication. Thus I look forward to Dreher’s retraction of both misfires of his damning of Dolan for not acting like Rummel when it seems that Rummel himself would be saying to Dolan, “Tim, you’re not facing the canonical offense I faced, and even if you were, your 1983 Code is a lot less potent than my 1917 Code was.”

Meanwhile, let’s review. In my view:

1. Cuomo is forbidden holy Communion per Canon 915, though it seems he already refrains from approaching and thus a reiteration of this fact, while possible, is not required under law at present;

2. A penal investigation should be authorized inquiring as to whether Cuomo violated Canon 1369 (attacks against good morals); and,

3. Cuomo has probably not committed the specific offense of heresy.

That must suffice for now.