The sadness in all of this is that it is so unnecessary. Also, when we focus exclusively on validity, we tend to forget that what is illicit or highly illicit is, in fact, sinful disobedience (on the part of the confessor). If we all did faithfully what the Church provides and proposes, such sorry abuses would not even exist. If novelties continue, seek another priest: sometimes those who play fast and loose with solemn laws are the source of fast and loose advice.

Abortion Penalties

Question: Over time, I notice some in Congress, like Sen. Edward Kennedy and Sen. Barbara Mikulski, have supported abortion and its financing. Have they excommunicated themselves from their Catholic faith? If not, why not? Can a Catholic constituent do anything to join the issue canonically?

Answer: Certainly, Senators Kennedy and Mikulski, with others in Congress, have long since hidden behind the deceit of the anti-life fig leaf: “I am personally opposed, but . . .” By now, all pro-lifers and political observers know that this is not “personal” opposition at all because their actual voting record never opposes but always proposes and expands the financing of abortion and its extension even to the point of “partial birth abortion.”

To me, this is a scandal to the faith and is radically inconsistent with being a “practicing Catholic.” It is not, however, an automatic excommunication.

Scandal, of course, is sinful and in some cases gravely sinful. However, the canonical penalty of excommunication is carefully delineated in Church law and purposely limited in application. In fact, it is a general principle of canon law that penalties of law and the restriction of rights are to be interpreted strictly (cn. 18); that is, narrowly. It is a traditional rule: favorable understandings are amplified (favorabilia amplianda), harmful ones narrowed (odiosa restringenda).

Now, it is true that one of the few automatic excommunications in the new (1983) Code is the abortion canon: “one who actually procures an abortion, where the effect follows, incurs a latae sententiae excommunication” (cn. 1398). Latae sententiae means automatic—you do it, you got it.

By extension, the same penalty of excommunication applies to necessary cooperators in actual abortions—that is, “those without whose help (sine eorum opera) the crime (abortion) would not have been committed (cn. 1329, #2). Many “cooperators” help, assist, promote, encourage, even praise abortion, but the only cooperators penalized by this canon are those “without whose assistance” the abortion would not be done.

The Congress did not legalize abortion, the Supreme Court did that (1/22/73) by evacuating all the States’ criminal laws against abortion. In fact, the Congress rarely votes up-or-down on abortion per se, although there have been recent up-or-down votes to criminalize “partial birth abortion.” More likely, the Congress votes to fund (subsidize) abortions or their expansion (e.g., military base hospitals; District of Columbia; government insurance policies) and large sums to national and international Planned Parenthood.

Now, some argue and have argued that a number of abortions would not have occurred without federal, state or welfare financing. This may well be so. But since it “may be” so and is not patently clear, causal participation in an actual abortion, then it seems to me this is outside the scope of cn. 1329, #2 and does not engage the penalty of excommunication.

We need both caution and perspective here. To say that voting for abortion-funding does not involve automatic excommunication is not to say it’s O.K., nor is it to say Catholic representatives are “off the hook.”

Recall, this penalizing canon is narrowly drawn on purpose and strictly applies only to cases where it clearly applies. Some have the impression that there are automatic excommunications all over the place. That is not true. Curiously, our Latin Western Code of Canon Law has no canonical penalty for first degree murder; whereas the Eastern Code of Canon Law (1990) does (cn. 1450, #1). In a sane society, we should be able to assume that the criminal code would prohibit and punish crimes against human life.

Nevertheless, whatever civil or canon law omits or narrows, we must never forget that abortion is the direct killing of a moral innocent (i.e., morally, it’s murder). By every moral standard, every direct and deliberate act of that kind (murder) is an objective offense against the Natural Law and Divine Positive Law, from which no one on this planet is exempt. By definition, this is grave scandal and incompatible with being a practicing Catholic.

Those who promote, sustain and expand abortion cannot disentangle themselves completely from this grave sin and objective injustice.

The gravity of this crime against life and supporting cooperation in it is significantly highlighted by the explicit teaching of two recent universal documents. The Catechism of the Catholic Church formally proscribes direct abortion (CCC ##2270-1) and “formal cooperation” in same (#2272). It is most unusual for a Catechism—any Catechism—to go into the specifics of canonical penalties, but the Catechism (1992) does.

Also, the masterful encyclical of Pope John Paul II, Evangelium Vitae (3/25/95) on the “Gospel of Life” specifically details the canonical discipline on abortion and cooperation in it (EV, n. 62). Again, it is most unusual for a papal encyclical to delve in canonical details, but Evangelium Vitae does.

Thus, it is not wise to judge maximum moral teaching or its seriousness by the presence or absence of one canonical penalty. The Canon Law of the Church has its own rationale and worthy purposes; it is not a shadow government to monitor or censor everything that is morally wrong in every society.

On the other hand, any elected representative who can talk away or talk around the direct killing of the innocent is a walking, talking inconsistency. It is my personal conviction that this verbal dodge and inconsistency cannot be confined to one subject area. It will show up elsewhere and undermine other important values; after all, if you can’t trust them with life, just what can you trust them with consistently?

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