ABORTION (CANON LAW)

The Catholic Church has long considered abortion to be not only a grave moral evil but also a crime punishable by canonical sanctions. Any Latin Catholic who successfully procures an abortion incurs an "automatic" (latae sententiae ) excommunication (Codex iuris canonici c. 1398). A major excommunication can be imposed on an Eastern Catholic who procures an abortion. An Eastern cleric can be subjected to additional penalties, including deposition from the clerical state (Corpus canonum ecclesiarum orientalium c. 1450.2). One who procures or positively cooperates in the procuration of an abortion is irregular or permanently impeded from the reception of orders and the exercise of orders already received (CIC cc. 1041.4, 1044.3; CCEO cc. 762–763).

The traditional canonical understanding of "abortion" was that it consisted in the intentional and culpable expulsion from the uterus of a living, non-viable fetus. Interpreting the text narrowly, most (but not all) canonists held that the canonical penalty for abortion was not incurred by those who killed a viable fetus in utero or allowed such a fetus to die after causing its expulsion from the uterus. In 1988, the Pontifical Council for the Interpretation of Legal Texts authoritatively construed the term "abortion" to mean the intentional and culpable killing of a fetus "in whatever way or whatever time from the moment of conception it may be procured." Thus, penalties for abortion can now be incurred or imposed even for the destruction of a viable fetus.

The current Codes omit the 1917 Code's explicit reference to the mother as one who incurs the censure for abortion. The explicit mention of the mother in the 1917 Code was intended to resolve a controversy among pre-Code authors. Since the 1917 Code definitively resolved this dispute, mention of the mother in the revised Code was seen as superfluous.

The latae sententiae excommunication threatened by the Latin Code for procuration of abortion is often referred to as an "automatic" penalty. It should be noted, however, that only Latin-rite Catholics who have completed their eighteenth year can incur latae sententiae penalties. Any legally recognized factor that eliminates or diminishes culpability for an offense also relieves one of the burden of an "automatic" penalty for that offense (CIC c. 1324.3).

The revised Latin Code subjects to the latae sententiae penalty of excommunication only those cooperators in an abortion whose cooperation was necessary for the commission of the offense. In other words, only those without whose efforts a particular abortion would not have occurred incur the "automatic" penalty of excommunication (CIC c. 1329.2). Penalties can be imposed on other cooperators in accord with the gravity of their complicity in a "common conspiracy" (CIC c. 1329.1; CCEO c. 1417). One need not be a necessary cooperator to become irregular for the reception or exercise of orders. Culpable positive cooperation suffices.

Remission of censures incurred or imposed for abortion is reserved in the Latin Church (CIC c. 1355) to ordinaries in normal circumstances and in the Eastern Churches (CCEO c. 1420.1) to hierarchs. When a penitent of the Latin Church is in danger of death, any priest, even one lacking the faculty to hear confessions, validly absolves from the censure in the act of sacramental confession (CIC c. 976). For the faithful of Eastern Churches, penalties forbidding the reception of the sacraments are suspended when the guilty party is in danger of death (CCEO c. 1435.1) and any priest can then absolve from the sin of abortion that prompted the penalty (CCEO c. 725).

In the Latin Church, as long as the latae sententiae censure for abortion has not been declared, all bishops (CIC c. 1355.2), canons penitentiary, those appointed to fulfill that role in dioceses that do not have cathedral chapters (CIC c. 508), and chaplains in prisons, hospitals, and ocean liners (CIC c. 566.2) may remit the censure in the sacramental forum. In hardship situations, ordinary confessors can temporarily remit the censure, but the penitent reincurs the censure unless he or she makes recourse to one with authority to remit the censure within thirty days (CIC c. 1357). Confessors can be given habitual faculties to absolve unconditionally from this censure in sacramental confession.

Bibliography: t. green, "Sanction in the Church (c. 1311–1399)," in j. coriden et al., eds., The Code of Canon Law: A Text and Commentary (New York 1985) 891–942. m. glendon, Abortion and Divorce in Western Law (Cambridge 1987). r. sagmeister, "Das neue kirchliche Strafrecht und der Schutz des Lebens," in k. ludicke et al., eds., Recht im Dienste des Menschen (Graz 1986) 493–516. l. wrenn, Authentic Interpretation on the 1983 Code (Washington 1993) 48–49.

[j. p. beal]