Abortion, Cardinal Dolan, and Excommunication: A Response to Dr. Peters

In the 1980s I taught religion at an all-girls Catholic high school in Chicago. In the four years I was there, sadly two of my students, aged 17, had abortions despite my efforts to talk them out of killing their unborn children. Nonetheless, they were willing to go to Confession. I wanted them to see a priest who would not just give them the needed absolution, but also some spiritual direction for their lives. Without naming names, I told him about my students and asked if he would hear their confessions. It was then I learned that in the Archdiocese of Chicago only certain priests were delegated faculties in such cases, since there was a canonical penalty of excommunication connected to the sin of abortion. Even with a master’s degree in theology and eight years’ involvement in the pro-life movement, this was news to me! I contacted the archdiocesan Respect Life Office and asked for referrals, which were provided to me, of priests to whom Cardinal Joseph Bernardin had provided such faculties. The year was 1984.

My students were sent to those priests due to Canon 1398, which states: “A person who procures a completed abortion incurs a latae sententiae excommunication.” On January 29, in the wake of New York Governor Andrew Cuomo signing the Reproductive Health Act—which, with a broad definition of health, permits abortion thorough the ninth month of pregnancy—New York’s Cardinal Timothy Dolan appeared on the TV program Fox and Friends. When asked if the Church excommunicates women who obtain abortions, Cardinal Dolan responded: “We don’t do that anymore.” I began this article with the above story to illustrate only one reason why I knew Dolan was wrong to say this, and on national television. Well-known canonist Edward Peters, for whom I have the most profound respect, criticized me for criticizing Dolan in my article “Dolan Gets Canon Law Wrong on Abortion.” Peters even characterized my criticism of Dolan’s dismissal of the canonical penalty as “groundless.”

Indeed, Cardinal Dolan acted as if Canon 1398 didn’t exist. Peters defends the cardinal by noting that the 1917 Code, Canon 2350, mentions women specifically: “Procurers of abortion, the mother not excepted, incur, upon the effect being secured, automatic excommunication reserved to the Ordinary.” However, since the specific mention of the female sex is omitted from the 1983 Code, according to Peters, this means that Dolan’s statement “‘We don’t do that anymore’ is correct or, at the very least, is quite ‘reasonably asserted.’” Peters holds that my “condemnation of Dolan’s phrasing as being an ‘egregious error’ and ‘completely false’ totters.”

On the contrary, despite the omission of “matre non excepta,” the standard interpretation of the 1983 Code’s Canon 1398 does include women, as well as those who aid in the procurement of the abortion and the person who performs the abortion. John P. Beal, a leading canonist and co-editor of the New Commentary on the Code of Canon Law, explains in The New Catholic Encyclopedia: “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.” In other words, the revised 1983 Code did not deem it necessary to single out women, and woman are included in the term “a person who,” as regards the procurement of an abortion.

Canon Law—Letter and Spirit, a commentary prepared by the Canon Law Society of Great Britain and Ireland, when answering the question: “Who are subject to the penalty prescribed in [Canon 1398]?” indicates clearly “the pregnant mother” as well as others who directly aid her in obtaining the abortion.

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