Canon 1398

Canon 1398 is a rule of canon law of the Catholic Church which declares that "a person who procures a completed abortion incurs a latae sententiae (automatic) excommunication."[1]

Historical roots

The censure against procuring abortion has roots in the attitude of the early Church, shown in the very early Didache. It was punished by a ten-year exclusion from the sacraments.[2][3]

Nature of abortion

The Catholic Church opposes all forms of abortion procedures whose direct purpose is to destroy an embryo, blastocyst, zygote or foetus, since it holds that "human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person - among which is the inviolable right of every innocent being to life."[4]

However, it does recognize as morally legitimate certain acts which indirectly result in the death of the fetus, as when the direct purpose is removal of a cancerous womb. In accordance with the principle of double effect, in the rare cases of indirect abortion, such as when, in an ectopic pregnancy, the fallopian tube is removed, or in cases of ovarian cancer. In these cases the procedure is aimed only at preserving the woman's life, and the death of the foetus, although foreseen, is not willed either as an end or as a means for obtaining the intended effect.

Mgr Elio Sgreccia, of the Pontifical Academy for Life, has declared that the canonical laws on abortion would also apply to anyone who takes an abortion pill.[5]

Cardinal Alfonso López Trujillo, as head of the Pontifical Council for the Family, has argued that canon 1398 should also be interpreted in a sense that applies to embryonic stem cell researchers, given that the deliberate termination of embryonic cell reproduction is included as a form of abortion in official Church documents such as Donum Vitae, Evangelium Vitae and Dignitas Personae.[6]

Nature of excommunication

Main article: Excommunication (Catholic Church)

Excommunication is an ecclesiastical censure[7] imposed primarily not as punishment for the deed done, but for the purpose of breaking contumacy and reintegrating the offender in the community.[8]

An excommunicated person is not cut off from the Church, but is barred from receiving the Eucharist and the other sacraments, and from taking a ministerial part in the liturgy (reading, bringing the offerings, etc.), while still being bound by obligations such as attending Mass.[9]

Nobody is subject to any ecclesiastical censure except for an external violation by that person of a law or precept that is gravely imputable by reason of malice or negligence, but imputability is presumed unless the contrary is clear.[10] Accordingly, no censure applies if the violator is not yet 16 years old, or is unaware (unless because of negligence) of violating a law, or who acted due to physical force or chance occurrence.[11]

While no excommunication can be inflicted in those circumstances, automatic (latae sententiae) excommunication does not apply in certain other cases, of which the Code of Canon Law lists ten, including the cases of those who, although over 16 years of age, are still minors, or who act out of grave fear. A penalty or penance can still be imposed in such cases.[12]

A declaration of repentance, followed by absolution[13] given by a priest empowered to lift the censure, ends an excommunication such as that imposed by canon 1398.

Canon 915, which some claim applies to Catholic legislators who make abortion legal, does not impose excommunication, but instead imposes on the minister of Holy Communion the obligation to refuse the sacrament to those who "obstinately persevere in manifest grave sin".[14]

2009 case in Brazil

Main article: 2009 Brazilian girl abortion case

In 2009, Archbishop José Cardoso Sobrinho of Olinda and Recife stated that the automatic excommunication had been incurred by the mother and the doctors who had an abortion performed on a 9-year-old girl who was four months pregnant with twins resulting from abuse by her stepfather. His action was disavowed by the National Conference of Bishops of Brazil and in a front-page article of L'Osservatore Romano. The episcopal conference declared that the girl's mother certainly had not incurred the automatic excommunication, having acted under pressure to save her daughter's life, seeing that canon 1324, as mentioned above, states that automatic censures do not apply to those who act out of grave fear. They also said that there were no grounds for declaring excommunicated any of the doctors who performed the abortion, because this depended on the degree of awareness of each of them, and only such as were "aware and contumacious" were excommunicated.[15]

While at both national and international level the Catholic Church declared that there were no grounds for considering anyone excommunicated in this case, the United Nations Committee on the Rights of the Child, in its January 2014 assessment of the Holy See's compliance with the U.N. Convention on the Rights of the Child, cited it and "urge[d] the Holy See to review its position on abortion which places obvious risks on the life and health of pregnant girls and to amend Canon 1398 relating to abortion with a view to identifying circumstances under which access to abortion services can be permitted."[16]

References

1. Code of Canon Law, canon 1398 Archived February 3, 2012, at the Wayback Machine
2. Philip Schaff and Henry Wallace (editors), Basil: Letters and Select Works, p. 225 - Letter 188, to Amphilochius
3. Matthew Schwartz, Roman Letters: History from a Personal Point of View (Wayne State University Press 1991 ISBN 0-8143-2023-6), p. 151
4. Catechism of the Catholic Church, 2270 Archived October 8, 2011, at the Wayback Machine
5. Catholic Church issues excommunication warning after Italy approves abortion pill
6. Is Sought for Stem Cell Researchers
7. Code of Canon Law, canon 1312
8. John P. Beal, James A. Coriden, Thomas J. Green (editors), New Commentary on the Code of Canon Law (Paulist Press 2002 ISBN 978-0-8091-4066-4), p. 1534
9. "Even those who have joined another religion, have become atheists or agnostics, or have been excommunicated remain Catholics. Excommunicates lose rights, such as the right to the sacraments, but they are still bound to the obligations of the law; their rights are restored when they are reconciled through the remission of the penalty." New Commentary on the Code of Canon Law, ed. by John P. Beal, James A. Coriden, Thomas J. Green, Paulist Press, 2000, p. 63 (commentary on canon 11).
10. Code of Canon Law, canon 1321 Archived December 24, 2007, at the Wayback Machine
11. Code of Canon Law, canon 1323 Archived December 24, 2007, at the Wayback Machine
12. Code of Canon Law, canon 1324 Archived December 24, 2007, at the Wayback Machine
13. John Hardon, Modern Catholic Dictionary Archived March 23, 2012, at the Wayback Machine
14. Code of Canon Law, canon 915
15. Nunes Leal, Luciana (13 March 2009). "CNBB desautoriza iniciativa de bispo". O Estadão de S.Paulo. Archived from the original on 2014-02-23.
16. Office of the High Commissioner for Human Rights: Concluding observations on the second periodic report of the Holy See, 31 January 2014, retrieved 8 February 2014