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Abortion: Part IX Paul V The Linacre Quarterly Volume 35 | Number 2 Article 12 May 1968 Abortion: Part IX Paul V. Harrington Follow this and additional works at: http://epublications.marquette.edu/lnq Recommended Citation Harrington, Paul V. (1968) "Abortion: Part IX," The Linacre Quarterly: Vol. 35 : No. 2 , Article 12. Available at: http://epublications.marquette.edu/lnq/vol35/iss2/12 Abortion Part IX. Rt. Rev. Msgr. Paul V. Harrington, J.C. L. VII law into a series of Canons or ·· es, 1 either repeating the former aw The Code of Canon Law (1918) unchanged or adapting the prt: ,)US law to new and cha1 :. ng The last systematized collection of circumstances in a manner hat law had been set forth in the Decretals appeared necessary or useful. rus, of Pope Gregory IX in the thirteenth the new law always containe1 the century. In the meantime, much law seeds of the previous law a1 its had been promulgated by Papal correct interpretation very freql Jtly Decrees, Papal Rescripts to individual was facilitated by delving int the Bishops, by decrees of Particular and past. Universal Councils and by Local Synods, by interpretations, rendered The Code of Canon Law co1 1ins by the various Congregations, two statutes or directives :ith comprising the Roman~ Curia· and by reference to abortion. In co nne . ion instructions issued by these same with the fitness of candidates ft the legislative agencies. Much research in reception of Holy Orders, thl law many tomes was necessary in order to states: "men who have cornn ~ t ed discover the actual law on any given voluntary homicide or who tave matter. Thus, Pppe St. Pius X, as part succ_essfully procured the aborti of a of his reform for the Church, ordered human fetus and all their accom :ices the collection or codification of the are irregular by reason of a c. ,ne" law of the Church. This task required (Canon 985, n. 4). In a section t the many years of concentrated effort law devoted to crimes or c licts with completion being realized in agalnst life, liberty, property, ~ o od 1917. The new law was promulgated reputation and Christian rno• lity, by Pope Benedict XV on Pentecost canon 2350, § 1, sets forth very c ~ a rly Sunday, May 27, 1917 and was to and forcefully: "those who become effective for the universal successfully procure an abortiOJ . the Church on Pentecost Sunday, May 19, mother not excepted, autorna 1..' cally 1918. incur an excommunication resen .:: d to the Bishops, and if they are Ct.;! rics, Those who were appointed to the they are in addition to be deposell ." commission for the codification and· renewal of the law studied very carefully the historical background (Monsignor Harringto n is and development of each section of Vice-Officialis for the Archdiocese of the law and then formulated the new Boston.) 1The historical analysis, prior to 1918, was presented in the previous installment. 126 Linacre QuarterlY ~ For our present purposes, we shall realized, since the law insists on .. a not differentiate between the penalty successful attempt and a completed of irregularity or the penalty of abortion. automatic excommunication because they are incurred for the same crime In short, every mortal sin of of abortion. abortion does not necessarily involve the crime of abortion but whenever A crime, in ecclesiastical law, is the delict of abortion is verified, usually defined as an external, mortal sin is always presumed. morally. imputable violation of a law to which a penalty or sanction is A brief commentary on the statutes attached (Canon 2195, §1). As a basis concerning abortion as a crime in the for a crime or delict, there is always a Canon Law might serve a useful serious violation and there is always purpose and provide greater presumed to be a mortal sin, both understanding and more accurate internally or subjectively and knowledge. externally or objectively. Thus, whatever would diminish the gravity A. The Procuring of Abortion of the sinful act, would also remove the element of crime or delict. Since The "procuring" of an abortion has inculpable ignorance, . force, a very specific and restricted meaning - compulsion, intimidation, fear etc. the d1rect and purposeful intent to kill would render the objectively serious the fetus and the use of efficacious act to be less sinful, these means by which this objective can be circumstances could also ~ork towards accomplished. At the very beginning a the removal of the stigma of a crime. -distinction must be made between what is termed a direct abortion and an indirect abortion and this is largely With specific reference to abortion, controlled by the intention. If an it is possible to have neither a mortal individual wants, desires and intends sin nor a crime because of the the killing of the fetus as an end in extenuating circumstances just itself or the killing as a means to a mentioned; it is possible to have a further end, the abortion is called serious sin of abortion without having direct and this is what is entailed in the crime of abortion because e.g., one the sin and crime of abortion. On the of the requirements is missing - the other hand, if the death of the fetus is attempt at abortion did not result in a not sought, desired or intended but successfully completed abortion; it is regretfully results, even though known possible to have. both the mortal sin in advance, from an otherwise licit and the delict of abortion because procedure, the abortion is considered there is adequate knowledge of the to be indirect. This would be the seriousness of the offense and situation when a doctor finds a sufficient deliberation and freedom. pregnant patient with a malignancy of the uterus. No one has the desire or In the second alternative, the intent to kill the fetus. However, if the attempt at abortion is seriously sinful malignant uterus is to be removed, because the voluntary and deliberate which, under the circumstances, is a intent to commit a crime was present perfectly legitimate action and the but the full requirements of the law usual method of treatment, it is for the crime of abortion were not known beforehand that the non-viable 127 fetus will die. In this situation, the it is used with reference to the sj and death is not intended but regretfully the crime since it can have one allowed and permitted. meaning for the doctor, a s ond meaning for the theologian orca· :nist To procure an abortion is to intend and a third meaning for the la aan. directly the death of the fetus and to Also, abortion is to be differer 1ted assault the fetus directly. The attack is from a miscarriage and . a prer ture made directly on the unborn child and delivery. its death results from this · direct assault and not from an attack on It will be recalled that Pope Si: ts V some organ, which then indirectly defined abortion in 1 588 a 'the brings about the death of the fetus. ejection of an immature fetm ana Such a direct intent to cause the de'ath that has remained as the classic the of the unborn can be a serious or official and the accepted defi ion. mortal sin in itself even though, · in Under this definition there art hree carrying out the intent, the abortion concepts to be considered the does not result and, in this latter concept of ejection, the cone •t of eventuality, the sin, but not the crime, what constitutes a true fetus a 1 the of abortion will be present. concept of immaturity. There must be a relationship 1 Concept ofEjection between the intent to effect an abortion and the means chosen to Abortion is a process which c 1sists accomplish this objective. In order to in at least three distinct ph< ·s or verify the crime of abortion, the stages - the detachment or sep ation means must be efficacious, i. e., they of the fetus from its nidating ,te in must be capable in general of bringing the uterus; the passage throu t the about the death of the fetus, although uterine cervix and into the ·.ginal they may not be effective in every case canal and finally, the expulsi< . into or with every woman. the outside world. The efficacious means may be While an abortion is not cor ·dered physical or moral (psychic trauma); to have been accomplished u, ·:il the they may be single or multiple; they dead fetus has been expell .j , an may be simple or complex. What is abortion process is definitely begun important and necessary is that the when means are employed to letach means can accomplish the purpose, or separate the fetus from the ··· terine which is the direct and intended killing wall and the process continu .s until of the unborn child. Since the law the expulsion, which c. y be must be interpreted strictly where a spontaneous or may be assiste Thus, possible crime is involved, it must be an extraction from the womb Gi rectly said that the crime of abortion would would be considered an ejection just as not be verified if the fetal death much as the detachment accomplished resulted accidentally or not as a result per vaginam. Also, whatever will bring of the means that were employed, about separation or detachment of the even though there was an intent to fetus - be it by drug, instrument or bring about an abortion. digital manipulation - is included in the notion of ejection or in the notion B. Definition of Abortion of the abortion process.
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