In a Letter to the Editor of The (London) Tablet, Ladislas Orsy, S.J., professor of canon law at Georgetown University has weighed in on the excommunication of Sister Margaret Mary McBride, and has declared it, based on canon law, "null and void."  The Tablet has graciously provided us with the full text of Fr. Orsy's letter, which appears in this week's issue. And coming soon in America, Kevin O’Rourke, O.P., professor of bioethics at the Neiswanger Institute of Bioethics and Public Policy, Stritch School of Medicine, Loyola University, Chicago, and a consultant for many Catholic health care corporations, weighs in as well. He states in his article "What Happened in Phoenix," available online now, "Even if a direct abortion had been performed, the declaration that an automatic excommunication had been incurred is questionable." The text of Fr. Orsy's letter follows:

Excommunication null and void

The articles by Michael Sean Winters (Sister of Mercy, June 4) and Tina Beattie (In the Balance, June 4) convey the complexity of the case of Sr. Margaret Mary McBride whom the Bishop of Phoenix, Arizona, declared automatically, latae sententiae, excommunicated for allegedly cooperating in a crime of abortion. May I complete their reflections on morality by some clarifications in legality?

1. The Code of Canon Law, following centuries of tradition, draws a sharp distinction between an act that is morally wrong, and a legal penalty that may, or may not be, attached to it. Thus, the correctness of the penalty must be judged by its own laws found in the Code.

2. The term “excommunication” can be misleading.  Briefly, in modern canon law it means that a person is prohibited from receiving the sacraments and from holding an office in the church (cf. canon 1331). In no way does such a penalty “excommunicate the person from the Catholic church,” as Mr. Winters states (emphasis is mine).

3. According to canon 1321 § 1 „No one is punished unless the external violation of a law or precept committed by the person is gravely imputable by reason of malice or [grave] fault, ex dolo vel ex culpa.  Excommunication is an extreme penalty; it condemns a member of the community to spiritual starvation.  The church, therefore, does not want to inflict it unless there is a deliberate act of defiance. Nothing that we know about the attitude of Sr. Margaret speaks of defiance.

4. Canon 1398 states: “A person who procures an abortion that becomes effective, effectu secuto, incurs automatic, latae sententiae, excommunication.” The key word is “procures,” procurat. Common sense (or any dictionary) tells us that to give an opinion is not the same as to procure.  However, there is more to it.  Ecclesiastical criminal laws are of “strict interpretation”: their meaning is found in their true but narrowest sense.  Now, the narrowest sense of "procuring” does not include “giving an opinion,” certainly not when an answer must be given under pressure and the question makes even the experts tremble. Moreover, “to procure” means to do something actively in order to bring about the intended effect.  Not a shred of evidence has ever been made public that would prove (or even hint) that Sr. Margaret “procured” an abortion. From what we know, her entire life was dedicated to the saving and mending of human lives.  A good competent judge would take such lifelong attitude into account.

5. The Code of Canon Law contains nothing specifically and precisely (a “must” in criminal matters) about an automatic excommunication inflicted on “cooperators” in abortion (which does not exclude that their act could have been wrong and that they may suffer other punishment).  It follows that no cooperator is automatically excommunicated unless the cooperation itself amounts to procuring the abortion.

6.  The church’s criminal law is based on an ancient and inviolable rule: whenever objective doubt exists, however small, as to whether or not a person has incurred an automatic excommunication, the person must not be held excommunicated. The rule is not canonical hair splitting; it is for the defense of the accused. This rule binds every bishop and each of his flock.

7.  The conclusion is compelling: to say the least, it is highly doubtful that Sr. Margaret acted out of malice aforethought, or that she actively procured an abortion.  Hence, she could not have been--and she was not--automatically excommunicated. The declaration of the excommunication by the local bishop, therefore, is null and void.  In her case, canon 1324 § 3 is applicable, “the accused is not bound by the automatic, latae sententiae, penalty” and, of course, no one is bound to respect it.

8.  At this time no information is available whether or not the case is on appeal. Be that as it may, we may throw more light on the situation by recalling what a competent appeal judge should inquire about. He should ask whether or not the bishop fulfilled his duty detailed in canon 1341: “The Ordinary is to start a judicial or administrative process to impose and declare penalties only after he has ascertained that neither fraternal correction, nor reproof, nor other means of pastoral solicitude [are effective in the situation]”

Also, the judge should ask whether or not the Ordinary observed canon 1342 § 1 mandating that a judicial process--never to be omitted without a just cause--had been completed before any formal declaration. The bypassing of such injunctions by the Ordinary may not invalidate the declaration, but it would alert a conscientious judge to scrutinize the whole process for more substantial violations of justice. (At the present we do not know how the Bishop of Phoenix handled such obligations.)

Final words: Our canonical procedures may have deficiencies (they do) but there are times, when properly applied, they reveal the humanity of the church and church’s intent to protect the innocent.

(Prof) Ladislas Orsy, SJ
Georgetown University Law Center
Washington, DC

Comments

Michael Bindner | 6/18/2010 - 2:25pm
Catholic legislators have no power, especially at the state level, once the Supreme Court has ruled. Those who claim that they are intending to do so, and seek election on that basis, are guilty of both fraud and false witness against those who tell the simple truth of the situation.

There is only one instance where legislators might do something - the 14th Amendment contains an enforcement clause which gives Congress the power to enforce its terms. Under this power, the Congress could move the line on who is considered a person for purposes of legal protection from its point at birth - or the Court's granting of viability (federal courts have been given a certain amount of delegation to enforce the amendment under the Civil Rights Act of 1875). The issue then comes down to the implications of when you draw the line, since full legal rights means that the penalty for abortion is the same as for other homicides and it must apply to mothers as well as doctors - who must be jailed rather than fined. It would also require due dilligence by civil authorities in investigating the loss of a child, as intrusive as that may be. Such an action would also impact the responsibility of doctors to save every fetus so recognized who is in danger of death - and face malpractice claims if unsuccessful. I don't see how this can occur in the first trimester. Note that if the law begins making acceptions in this case in the case of either investigation or malpractice, then the resulting law would be unenforceable (although pro-life legal scholars are welcome to take a swing at drafting language).

There are those who have the fantasy that the law can reset to January 21, 1973. It cannot and the faster pro-life advocates accept that point, the faster this issue can be settled justly.

Regardless, it is not up to every Catholic politician to draft the required legislation - especially when the movement has drafted none. Until the National Right to Life Committee or the USCCB shows us some legislation to discuss, Catholic politicians are under no obligation to do anything. One cannot be told to avoid the Sacraments for not supporting a non-existent bill - or one that fails on Constitutional grounds. My main quarrel with Democratic Catholic politicians is that they have not made this point.

Note that Catholic (and Republican) Justices Roberts, Alito and Kennedy could have (and were urged to) overturn Roe in deciding Gonzalez v. Carhart. Indeed, I argued at the time that obtaining such a ruling was the entire reason for the enactment of the law in the first place (note that lack of any enforcement or debate on that law since the decision). Have these three been denied the Sacraments or condemned in any way? Hearing no such action, I smell partisanship of the worst kind.
Vince Killoran | 6/17/2010 - 11:17pm
Stephen:  This is not the wording or meaning of CCC 2242.
John Siegmund | 6/18/2010 - 8:04pm
Quite simple:  The legal definaition for procure: 
To cause something to happen; to find and obtain something or someone.
Procure refers to commencing a proceeding; bringing about a result; persuading, inducing, or causing a person to do a particular act; obtaining possession or control over an item.
Sister McBride authorized the surgical abortion to "treat" the mother's condition instead of trying other proven methods to save the mother and the child. She commenced a process that resulted in the abortion therefore she is procuring the abortion. Irregardless she should be excommunicated for disobedience as should any clergy defending this abomination.  Disobedience to Christ's Church is disobedience to Christ himself!
William Kurtz | 6/18/2010 - 5:19pm
To Stephen O'Brien, the New Orleans archbishop excommunicated the Louisiana segregationists for their opposition to integrating CATHOLIC schools- which were under his jurisdiction. The only current parallel would be if Catholic officials supported legislation forcing Catholic hospitals to perform abortions.
By your logic, though, the archbishop should have excommunicated Catholic officials who opposed integrating PUBLIC schools.
Would you also say that any Catholic who votes for a pro-choice candidate should be excommunicated, as some have argued? By that logic, any Catholic who voted for Barry Goldwater (who opposed the Civil Rights Law) should have been excommunicated.
Since when do Catholics consider canon law the answer to everything- as fundamentalists look on the Old Testament, or certain Muslims treat the Qu'ran?
Vince Killoran | 6/18/2010 - 3:00pm
Michael's comments are spot-on.  The only thing I would add is that the increasingly common argument by some that Canon Law is a kind of blueprint for Congressional members who are Catholic is a flawed understanding of what Canon Law is & how it works. 
Michael Bindner | 6/18/2010 - 1:57pm
I think it is a flaw in our moral reasoning to think of the state of one's own soul as a reason to allow a mother of four to die - especially if the unborn child is, in fact, doomed. That seems to be what is going on with this Canon and the associated instruction.

There is a battlefield example that parallels this. You could see it illustrated on the D-Day movie, The Longest Day. Under heavy fire on Omaha beach, one soldier was wavering - at which point his platoon leader pulled out his side arm and said that he must do his part or be killed, right there, by said platoon leader. Regardless of whether the soldier obeyed, the Platoon Leader would have been within his rights, and indeed his moral duty, to take the life of his own man in order to secure the success of the entire operation and the safety of his other team members.

This case is more like that than you think. Indeed, it is less dramatic. Aborting the child (and I agree that carving it up would not have been licit, but induction would be) who was already destined to die is not taking a life that had any chance of success, just as aborting a doomed trisomic pregnancy before miscarriage (and I'm not talking about Downs babies), because it is better for the mother, should be considered moral (even if the Church's ethicists disagree).
Stephen O'Brien | 6/18/2010 - 6:43am
By a felicitous coincidence, Vince Killoran probably typed *CCC* 2442 instead of *CCC* 2242 (whose introductory, and key, sentence I did, in fact, reproduce verbatim between quotation marks).  In any case, the conclusion that must be drawn regarding the obligation of Catholic politicians to combat legalized abortion is the same regardless of which catechism section is cited, for *CCC* 2442 inculcates the duty of Catholic lay people to undertake “[s]ocial action” in keeping with “the message of the Gospel and the teaching of the Church.”  It has already been demonstrated that the need to criminalize abortion is part of the official teaching of the Church (*CCC* 2273).
 
As for the expeditious restoration of legal protection to unborn children, Catholic legislators should move as quickly and as urgently as possible, taking into account both “political prudence” (*CCC* 2109) and John Paul II’s counsel on the permissibility of tolerating flawed interim legislation (*Evangelium vitae* 73).  But the ideal, ultimate goal should be clear: protection of every unborn child without exception through criminalization of all abortions, both surgical and chemical.  Even if we cannot achieve protection for all unborn children until the conversion of the United States to the true Faith, we must safeguard, with the help of our Protestant brothers and sisters, as many of those innocent lives as we can.
 
In my last comment on this thread, there should be an asterisk after the second instance of the word “legislation” to signify the end of a segment italicized in the original.
Vince Killoran | 6/18/2010 - 12:09am
You did not provide the wording of CCC 2442; rather, you gave us your interpretation of it.
 
As for your "as expeditiously as possible" directive: what does this include? Where would you draw limits and why?
Stephen O'Brien | 6/17/2010 - 11:59pm
On the contrary, the first sentence of *CCC* 2242 reads as follows: “The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel.”  One of the clear implications of this sentence is that Catholic legislators must fight any legislation or judicial ruling that conflicts with the fundamental right of an unborn child to life.  That conclusion is made explicit in *CCC* 2273: “The inalienable right to life of every innocent human individual is a *constitutive element of a civil society and its legislation [. . .].”
Stephen O'Brien | 6/17/2010 - 6:58pm
It is wrong to say or imply that the Catholic Church merely condemns abortion as murder.  The Church goes beyond that scientifically accurate statement by adding a second statement, which is also official Catholic teaching: “As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child’s rights” (*CCC* 2273).
 
Judicial decisions or ''laws'' that violate the unborn child’s right to be born have no ethical weight whatsoever, and every Catholic legislator must move heaven and earth to overturn them as expeditiously as possible in accordance with the Church’s explicit directive (*CCC* 2242).
Brendan McGrath | 6/17/2010 - 6:41pm
Michael Bindner - Although (as I implied in my previous post) I don't like what the bishop did in this instance, and although I find it problematic that abortion is singled out for latae sententiae excommunication whereas other equally serious sins seem not to be (e.g., does murder in general incur latae sententiae excommunication?), I have to raise concerns about something you said: "In a choice between letting two die or killing one, it is not moral courage but moral cowardice that does not say it is better to kill the one." 
 
There are of course two ways to approach this issue: moral philosophy (starting with reason, i.e., natural law) and Catholic moral theology (starting with revelation as mediated by Scripture and Tradition and taught by the Church) - others could lay out arguments using both approaches better than I could (and I'm sure they'll be posting soon!), and I don't have time to make such arguments formally.  But I would just point out that you seem to be saying that the ends justify the means - this may be the position you want to take, and many do take it, but it certainly is not the position of the Catholic moral tradition, in which one can never do evil in order to achieve good.
 
Also: there IS a difference between killing a person, vs. not doing something in order to save a person's life.  Certainly it is wrong to let a person die if there is a way of saving their life without doing evil (though if I'm not mistaken, I think there are end-of-life cases where the Church allows that, as distinct from both active euthanasia and passive euthanasia) - but I would argue that it is NOT wrong to let someone die if the only way to save that person would be to kill someone else.  I.e., it is wrong to kill someone in order to save someone else, even if refraining from killing the other person means that both will die.  The choice that must be considered is not a choice between two outcomes (one person dying vs. two); it is a choice between two actions: killing an innocent person vs. not killing an innocent person.  Choosing not to kill an innocent person does not make me responsible for two death due to natural causes.  But if I choose to kill an innocent person, I am responsible for thta death.
 
Consider some more or less analogous cases, where it may be easier to see this.  Let me suggest a hypothetical situation, albeit a strange and unlikely one.  Suppose there is machine that contains a chamber in which two people are trapped.  When a countdown timre reaches zero, the two people will be killed somehow by the machine (spikes, gas, whatever).  However, by some mechanism (who knows how it works), the machine can be stoped and the people released if the machine somehow detects that the chamber contains only one living person rather than two.  Now - given this situation, would you say that it would be morally permissible for one of the people inside the chamber to kill the other in order to save himself/herself?  Or: would it be morally permissible for a third person outside the machine to kill one of the people (suppose there's a hole in the wall for a gun or whatever)?
 
If you say that it would be wrong for anyone to kill anyone else in this situation, then why would it be OK to perform an abortion to save the mother's life?  (Assuming that one grants the fetus/baby is a person, etc.)  
 
Having said all of that, it is of course a horrible, tragic situation, and we should not judge the people involved, even though we judge the actions.  And certainly, there are all sorts of mitigating circumstances that would reduce the guilt to a minimum, if not remove it altogether.  We need compsasion and understanding - not excommunications.  And I know if it were one of my loved ones, and if I had the choice, I probably would not be able to "let both die."  But although it is good to consider the emotions involved in situations like this, sometimes a detached observer is able to see more clearly what's right and wrong.  (E.g., an enraged family member of someone who's been murdered may feel it is alright for them to engage in a revenge killing, but the detached observer can see more clearly.)
Michael Bindner | 6/17/2010 - 6:06pm
As I have written elsewhere, the problem with Catholic politicians is not their views on this issue, but their lack of clarity. No Catholic politician adovcates abortion, nor can they and remain Catholic. What they do is instead refuse to attach criminal penalties to performing abortions - this is not the same thing - and in any case would be illegal.

What my fellow Catholic politicians should do is to challenge the notion that they have any power over this issue (they don't - as it is constitutional, not legal). You cannot deprive me of the sacrmaments for not supporting non-existent or unconstitutional legislation, nor for upending the constitution in areas of equal protection in ways that would destroy the rights of minorities to challenge state legislative majorities. One need not buy the Federalist Society's view of constitutional law in order to remain Catholic - even if doing so has a negative impact on the unborn.
Stephen O'Brien | 6/17/2010 - 5:49pm
Please note a significant qualification that Father Ladislas Orsy includes: “The Code of Canon Law contains nothing specifically and precisely (a ‘must’ in criminal matters) about an automatic excommunication inflicted on ‘cooperators’ in abortion (which does not exclude that their act could have been wrong and that they may suffer other punishment).”  Even if Sister Margaret Mary McBride was not automatically excommunicated, her opinion that an unborn child may be directly killed in the circumstances of the case in question is wrong, and it demands some kind of response on the part of the local bishop.
 
All over the world beyond Phoenix, Arizona, the issue of the relationship between abortion and excommunication arises in a much broader way, for the failure of the post-Vatican II Popes and bishops to excommunicate publicly and by name politicians who support the nonexistent right to abortion is one of the most egregious scandals in Catholic history.  If abortion is murder-as John Paul II assures us (in section 58 of the encyclical *Evangelium vitae*)-then those legislators who defend the mass murder known as legalized abortion merit being deprived of the sacraments to prevent confusion among Catholics and non-Catholics regarding the gravity of all direct attacks on innocent human lives.  True, those politicians are not *automatically* excommunicated under canon 1398, but there are other canons that the hierarchy can and should invoke to issue those “inflicted” excommunications (after other remedies, including fraternal correction, have failed): 1318, 1341-1342, 1369, 1371, and 1399.
 
On April 16, 1962, New Orleans Archbishop Joseph Rummel excommunicated Judge Leander Perez, Sr., Una Gaillot, and Jackson G. Ricau in response to their opposition to the racial desegregation of Catholic schools.  The archbishop took this action to uphold the Church’s teachings on justice, charity, and solidarity.  By the same token, bishops today should excommunicate politicians to uphold the Church’s teaching that abortion is murder and an “abominable crime” (*Gaudium et spes* 51; *CCC* 2271).
SUSAN DOWDEN MRS | 6/17/2010 - 5:15pm
The only thing that this well-publicized case has made clear to me is how little we all really understand about "excommunication" and Brendan asks good questions about this.  I am also reminded of the situation in Nebraska where the bishop issued a "blanket excommunication" of all those associated with certain organizations, which I believe was upheld by the Vatican? What are the rules about that?  Perhaps the Church (or at least America Magazine) could use this as a "teachable moment"...
Kate Smith | 6/17/2010 - 3:35pm
Jim,
 
It could be I am not following what you said to Brendan...
 
But I think Brendan and I noticed the same thing (but I forgot to say something).  For a couple hours, the blog title read,  "Canon Lawyer:  Sister's Communication 'Null and Void""
 
It has since been corrected.
 
Kate
Michael Bindner | 6/17/2010 - 2:21pm
I would be interested in the legal meaning of procure, however I question the openness of the issue in the essay, since the hospital in Phoenix actually provided the abortion - it did not go outside to get it. The fact that the Ethics Board had to approve it gave the Board the authority to deny it, which thankfully they did not since the child would be dead with the death of the mother. While Catholic medical guidance says no abortion in rule 45, in rule 47 they permit saving the mother's life if the child would die anyway if the action were indirect. I actually don't agree with that. In a choice between letting two die or killing one, it is not moral courage but moral cowardice that does not say it is better to kill the one.
Kate Smith | 6/17/2010 - 1:54pm
This is a thoughful and helpful letter and it makes a lot of sense.
 
I just want to add one thing.   "Procure" is not an easy word to define anymore, not in the US, and it is not always common sensical.   I'll just point you to the case law on pornography.   I only happen to know about this because my Dad led the appeals unit of a busy NY prosecutor's office for a long time.  He delighted in arguing what "procure" means and always won in court.
Brendan McGrath | 6/17/2010 - 1:33pm
Oh, by the way - Fr. Martin, I think you might want to modify the title of the blog post; shouldn't it say "Sister's Excommunication null and void"?  Otherwise, it would seem either that her communication (communion) with the Church is null and void, or that she's incapable of speaking clearly. ;)
 
"What we have here is a failure to communicate."  ;)
Brendan McGrath | 6/17/2010 - 1:30pm
Let's hope that the various people who should be reading this are reading it - and that if they disagree with it, they will attempt to counter it point by point, rather than just throwing broad criticisms against the piece as a whole, bemoaning this that or the other thing, etc. 
 
Also, I wanted to copy and paste something that I wrote in the comment box for a post on Commonweal's blog a while back, but never really found an answer for:
 
I’m strongly pro-life, but putting aside the abortion issue itself for a moment — why is there automatic excommunication in the matter of abortion, but not for other sins? Or is there? If/since abortion is murder, is there automatic excommunication for non-abortion murders? If not, why not? Is there automatic excommunication for priests who sexually abuse children and for bishops who cover it up or enable it? If not, why not?
 
Also, could someone explain what the difference is between automatic “latae sententiae” excommunication, vs. committing a mortal sin and needing to go to confession before receiving other sacraments, i.e., before returning to “communion” with the Church?  If one is excommunicated, what does one do to be received back into communion with the Church - don't you just go to confession?  Or is this where that stuff about this or that thing being "reserved" to the bishop or whatever?