Friday, September 04, 2015

Abortion, excommunication and mercy: a response to Damon Linker

Damon Linker, once an editor at the conservative magazine First Things, writes this thought-provoking piece in The Week today: How Pope Francis is perpetuating the Catholic Church's radical anti-abortion position.

Here's the main point.
Of all the extra-ecclesiastical sins, crimes, and acts of cruelty and intentional evil that the members of the human race have devised and enacted down through the millennia, only abortion rises to the status of a sin so grave that it leads to instantaneous expulsion from the church — an expulsion that can only be reversed when a local bishop makes a one-off exception or the Bishop of Rome declares a special time-limited period of absolution. 
An outside observer (and maybe a Catholic layperson or two) might see this as yet another example of how a church run exclusively by celibate bachelors just so happens to end up treating women as at once purer and requiring a greater degree of paternalistic oversight than men.
Therefore, he concludes, the truly merciful thing that the Holy Father could do would be to eliminate this singling out of abortion, and treat it, well, simply like any other homicide. (Incidentally, in the Code of Canon Law for Eastern Churches, all homicides incur a penalty of excommunication already -- that is, abortion isn't singled out.)

I first saw the article linked on the timeline of a Facebook friend, who added that Linker tends to engage Catholic doctrine before trying to critique it. That has been my experience as well. However, Linker misses some very important facts concerning the complicated reality of abortion and canon law.

First of all, there seems to be no awareness of the fact that the gesture the Pope seems to be making (and I put it thus, because there is some ambiguity regarding what he has stated that needs clarification. More on that below), is already the canonical practice at least in most of the United States and Canada, and possibly in other parts of the world. The Holy Father is universalizing (albeit, right now, just for the period of the Jubilee), what is the canonical and pastoral reality in many parts of the world, i.e. every priest who has the faculty to hear confessions, also receives the faculty to remit the penalty of latae sententiae excommunication incurred by the procuring of an abortion (or being involved formally in that crime).

There's really a whole complex raft of canonical issues that surround abortion -- the fact that it's a sin, as well as a canonical crime that carries a particular penalty: latae sententiae excommunication. This is often, but incorrectly, translated as "automatic excommunication" by even reputable Catholic sources. Latae sententiae - Latin for "the sentence having been carried out" - is one of the ways in which the penalty of excommunication is applied. (The other main way is what is known as ferendae sententiae, i.e. a declaration by competent authority that someone has incurred the penalty.)

Basically not every woman who commits the grave sin of abortion is actually excommunicated. The law gives many exceptions, for age (under 16), being forced or coerced (hardly uncommon), and being ignorant of the penalty. So if a woman truly does not know that there is the penalty of excommunication applicable, she does not incur the penalty. Of course, she commits an objective evil, and is guilty of grave sin. (However, remember too, that culpability for grave sin can be diminished by factors that diminish the freedom and knowledge of the subject.) Calling it "automatic" therefore, is a real stretch, as was pointed out to me by another priest-friend on social media this week.

Why is this one of the few so-called "reserved sins?" I don't know the history of abortion and the penalty of latae sententiae excommunication. I don't know if the 1983 code softened older penalties in the 1917 code (I'm not a canonist). However, one thing comes to mind. The law is a teacher, and the penalty may be there to underline the particular gravity of this sin, because it destroys life at its source (ab ortu). As always, the Church is very understanding of human frailty and merciful in how these penalties are applied and lifted.

For a good summary of the various canonical questions surrounding this issue, as well as the ambiguities in the papal statement (it was a letter, not a legislative text), I recommend this excellent piece from the Register, by canonist Benedict Nguyen. The eminent blogging canonist Dr. Ed Peters argues that latae sententiae excommunications are no longer useful in today's context. The 1983 revision of the Code of Canon Law reduced their number drastically. He suggests they should be removed entirely (for instance, here). It should also be pointed out that the Eastern Churches do not have a tradition of latae sententiae excommunication. (In the East, abortion remains a sin that requires the Bishop's permission for absolution, as far as I know. How that is handled practically, I do not know.) Peters has also argued that the Roman Church impose the penalty of excommunication (not latae sententiae) for all homicides (i.e. follow the canonical practice of the East) -- the opposite conclusion, somewhat, from what Linker argues. Peters' treatment of the story as it broke on Sept. 1 is also worth reading.

According to a friend who is a canonist, the procedure for a person seeking reconciliation in the case of those places where the priest does not have faculties (i.e. not in most parts of the the United States), would go something like this: If a woman (or anyone complicit in the act) approaches a confessor without the requisite faculties, they are advised to come back at a mutually convenient time (allowing for the preservation of anonymity), while the priest contacts the Bishop to get the necessary faculties, so he can lift the penalty and then impart absolution. (This would also, incidentally, be the procedure if a particular case required recourse the Apostolic Penitentiary.) Everything is handled in the internal forum, i.e. preserving anonymity (if the penitent so wishes), as well as the seal of the confessional.

On Tuesday, when this story broke, social media was abuzz with the various attempts (some truly awful) by the secular media to grapple with this issue, and a lot of us were trying to figure out what exactly was being conceded. My friend and fellow Atlanta priest, Fr. Joshua Allen at the Georgia Tech Catholic Center wrote a beautiful post on Facebook (which, though public, cannot be linked outside FB), the bottom line of which is this: for a woman (or anyone else) wondering if they have been forgiven of this sin in the confessional: yes you have. It is not the penitent's responsibility to understand these complicated details of canon law. God is always merciful, and the smallest bit of contrition is always met with mercy. Quote:
To any of you who have been confused or hurt by the reporting on the Pope's comments, I am truly sorry, as is basically every priest in the world. The last thing anyone would want, from Pope Francis to the newest priest on the block, is for someone to begin questioning whether their previous confessions and reception of God's mercy were real. The most recognizable attribute of our God is MERCY...there are no sins that cannot be forgiven when brought with a humble and contrite heart to one of God's ministers of mercy.
Finally, speaking as a confessor -- this sin comes up not infrequently. And more often than not it is a sin from the past, that has been repeatedly brought to the sacrament. The scars it leaves are truly horrendous, and there is such a need for healing. The various post-abortive ministries (such as Rachel's Vineyard) truly do great work. And it is in that vein, with the heart of a father, that the Holy Father wants to make it easier for women to receive the healing they need. That is eminently appropriate for a Jubilee of Mercy.

Disclaimer: I am a parish priest, not a canon lawyer. 

1 comment:

Ollllddude said...

Another really solid, informative post. Keep up the good work!