ISSN 1392-74-50 Þydrûnas KULPYS SOTER 2005.16(44)

Abortion: sin or crime?

Abortion is not only a sin; it is also a crime as Canon Abortas – ne tik nuodëmë, bet ir teisinis – kanoni- Law describes it. The paper deals with the issue of nis nusikaltimas. Taèiau ne kiekvienas aborto atve- abortion from the Canon Law’s perspective. Not every jis tampa nusikaltimu. Ðiame straipsnyje nagrinë- sin of abortion is at the same time a crime in the legal jama, kokiomis teisinëmis aplinkybëmis aborto sense. The paper discusses what the circumstances are nuodëmë virsta ir kanoniniu nusikaltimu, uþ kurá to turn the sin of abortion into the crime of abortion. þmogus baudþiamas ekskomunika. Yra daug iðimèiø The censure of excommunication is imposed on the ir ðvelninanèiø aplinkybiø, maþinanèiø abortà da- individuals who are guilty of the crime of abortion. If ranèiø asmenø atsakomybæ, todël galima teigti, kad, there is no crime, there is no excommunication which nors abortas visada yra didelis moralinis blogis, is attached to the crime of abortion. There are many bet já darantys þmonës ne visada uþsitraukia atsako- mitigating circumstances that lessen the responsibility mybæ uþ ðá nusikaltimà ir uþ jo ávykdymà taikomà of the individuals who take part in the action of abor- ekskomunikà. tion, therefore, many abortion cases are not legal crimes, hence do not impose the censure of excommunication onto the individuals involved.

Introduction teaching. They give expression to it, and they are intended to sustain and support it Is there any connection between moral the- in the life of the community.1 ology and Canon Law? Do those two things At one point in history (4th –16th centu- have something in common or they are in ries), Church law had to bear and fulfill conflict? When we take a deeper look at the additional function. The law of the Church question we arrive to a positive answer. was employed to serve certain civil func- There are tight connections between these tions. Certain matters, such as disputed two subjects. marriages, the protection of the poor, and Canon Law is closely related to moral the punishment of certain crimes were adju- theology; however, it differs from the latter dicated in Church courts.2 It is clear that in that it is not directly concerned with the this function of the Church at that time was acts prescribed or forbidden by the external not appropriate to its purpose, but we can law, but only with the rectitude of human understand it, because at that time there acts in the light of the last end of man. In was a close union between the secular and contrast, Canon Law deals with the external the spiritual authorities. laws relating to the good order of society Now we have a different situation. Law rather than the workings of the individual within the Church community has returned conscience. to its authentic function – witnessing to Actually, moral theology is necessary moral teaching and engendering a Christian for Church law. Legislative enactments within ethos for the lives of believing people.3 the Church community are based on its moral In speaking about interrelations between 18 Þydrûnas KULPYS

Canon Law and moral theology, let us take The text of the canon looks very clear, a particular example – the issue of abortion. but it is wider and more complicated than it This entire paper I will dedicate to discus- appears. When we look at the text, we can sion of the moral aspects of Canon 1398, immediately think that the Church excom- which deals with abortion. My p u r p o s e municates people who have procured a suc- will be to find out when excommunication cessful abortion. In fact, in probably the applies, or when it is only a sin, but not a majority of cases, mitigating circumstances crime. In this paper, there are two major prevent the censure of excommunication from parts – personal responsibility for procur- being incurred. The tragedy of abortion in- ing abortion and responsibility of those who volves distinct and separate questions re- cooperate in this crime. First, I will look at garding the personal responsibility of one the text of the canon. I will discus when who procures a successful abortion. Those there is sin and when sin becomes a crime. questions are: has a sin been committed? I will explain important terms. I will de- And, has a crime been committed? scribe the necessary components that turn Canon Law views abortion as a crime. sin into the crime. There will be a sub- Crime according to Canon Law is an exter- chapter about conditions that do not incur nal violation of a Church law or precept the crime. Then I will discuss the legal that has been formally established by an situation of those who cooperate in the ecclesiastical authority, which has legisla- crime of abortion. tive power.5 Moral theology views abortion as a sin. A sin is a purposeful and deliberate offense 1. Personal responsibility for against the will of God; an utterance, a deed procuring abortion or a willfully–entertained desire contrary to God’s law. Objectively, abortion is a mor- Both moral theology and Canon Law speak tal sin, gravely contrary to the moral law. about two kinds of agents regarding abor- Is every sin of abortion a crime? No, not tion. First of all, there is the person – the every sin of abortion is a crime. Although woman, on whom the abortion is performed. not every sin of abortion is a crime, every Then there are others, who help, encourage crime of abortion does presuppose the abor- and actually use the effective means that tion in question to be a mortal sin.6 Accord- make the abortion possible. Those agents ing to the principals of ecclesiastical penal are called cooperators. In this paper I will law, there can be no crime and no conse- talk about those two kinds of agents sepa- quential liability to penalties unless serious rately. This first part of the paper is dedi- moral guilt is involved.7 Moral guilt is in- cated to looking at the legal and moral sta- curred when one has a bad intention, under- tus of the person on whom an abortion is stands it and freely chooses to act. That is performed. First of all, let us look at the why every crime of abortion is considered a canon and see what it says about the issue grave sin. of abortion. Since we know the distinction which The text of the Canon 1398 states: “A moral theology and Canon Law makes about person who procures a completed abor- abortion, let us clear up some important tion incurs a latae sententiae excommu- terms related to this canon. nication.”4 ABORTION: SIN OR CRIME? 19

1.1 Important terms tain, induce or cause directly and intention- ally by means of physical or moral action. Abortion Consequently, a person who actively par- ticipates in the abortive act procures the The penal law committee did not define abortion.10 abortion in the canon text, because presum- ably the Church’s teaching was well known. Completed abortion Traditionally abortion has been defined as the ejection of a live, immature or non– Censure of excommunication is incurred only viable fetus from the mother’s womb. A if an abortion is successful or completed. related but technically different moral evil Successful means the goal is attained, not was feticide. Feticide is the killing of the simply desired, intended or attempted. Hence, fetus within the womb. Since the penal law while the desire or intention of an abortion must be strictly interpreted, most canonists would be gravely sinful, it does not consti- have judged that abortion, but not techni- tute the crime of abortion. cally feticide, however horrendous, was the It is important to point out that regard- delict which both codes (1917 and 1983) less of how malicious the intention to com- talk about.8 mit the crime might be, if the actual abor- However, most abortions today occur by tion does not occur the censure is not con- procedures involving killing the fetus in the tracted. Persons would be guilty of grave womb, for example, suction, dilation and sin for such desire, but that is not enough curettage, or the use of a prostaglandin drug for a crime to take place.11 Canon Law says often in connection with the RU 486 pill. that there must be an external violation of Therefore, the Pope’s commission gave the penal law for a delict to occur.12 canonical definition of an abortion. The May 23, 1988 authentic Code Commission inter- Latae Sententiae pretation broadened the canonical under- standing of abortion to maximize the pro- After procuring an abortion, penalty comes tection of the fetus. Abortion means not latae sententiae. This Latin term is impor- only the deliberate ejection of an immature tant and widely used in canon law. It means fetus but also any intentional killing of the the penalty is incurred ipso facto, immedi- fetus through whatever means at any time ately and automatically, by the commission after conception. I have to say here, that of the delict. In opposition to latae senten- this interpretation is an extensive interpre- tiae there is ferendae sententiae, which means tation of the code. Therefore, according to a penalty is to be inflicted by the church Canon Law norms, this interpretation and court.13 understanding of abortion is operative only This means that the penalty of excom- after the interpretation (May 23, 1988); it is munication comes to person immediately not retroactive.9 after the action of abortion. It does not matter if somebody knows about it or not, the pen- Procure alty is incurred to the person because the crime is connected to the action, not to the Another important term we see in the canon decision of the court. Therefore there is no is to procure (‘a person who procures need for the penal sentence from Ecclesial abortion’). Procure means to acquire, ob- court – a penalty comes immediately. 20 Þydrûnas KULPYS

Excommunication Deliberate use of means

Excommunication is the one type of eccle- The second element in procuring an abor- siastical penalty. It is a censure or so called tion is deliberate and purposeful use of means. ‘medicinal penalty.’ Censures have a spe- In addition to interiorly willing the abor- cial orientation or purpose –-to break con- tion, the person must in his external actions tumacy, or contempt of church authority, designedly apply the cause of the abortion. and to reintegrate the offender into the com- There would be no crime if the cause were munity. This censure is inflicted only for to be applied accidentally or unknowingly. very serious crimes. Censures emphasize For example, a woman may wish an abor- reforming the offender.14 Actually, excom- tion, but if an accidental fall causes it, it is munication is to be seen as medicinal pen- not deliberate, and hence no crime is com- alty that is intended to foster repentance mitted, despite the serious sin of interiorly and reconciliation. Thus, excommunication willing the abortion. may be applied only until the offender ac- cepts God’s healing grace and repents, at Means must be efficacious which time the excommunication is to be lifted in the Sacrament of Reconciliation. The third condition for crime to arise is that In other words, the Church has established the means employed must be effective in excommunication as a penalty in cases of themselves. This means that the abortion abortion to give witness to the gravity of must actually result from the means used the offence. for this specific purpose. Therefore, if some Can we say that all persons who procure other cause is really responsible for the a successful abortion in this strict legal sense abortion, there is no crime.15 are automatically excommunicated? Now let us look what it takes to be responsible for the crime of abortion which incurs the cen- 1.3 When a crime of abortion does sure of excommunication. not apply

Though abortion is a grave sin, not every 1.2 Requirements for a crime of action of abortion is a crime and therefore abortion to occur does not incur excommunication. Canon Law recognizes mitigating circumstances that The responsibility and penalty of abortion remove or reduce responsibility. Let us look implies 1) intent and 2) deliberate use of 3) at these circumstances. effective means. No crime at all Intention Canon 1323 speaks about the persons who First, abortion must be intended. It must be are never subject to any penalty for procur- willed either as an end in itself, for exam- ing a successful abortion. They are: ple, simply to terminate the pregnancy, or • A person who habitually lacks the use as means to some other end, for example, to of reason. safeguard the health of the mother. Both of • A person who has not yet completed these examples are characterized as direct- the sixteenth year of age. ly intended. ABORTION: SIN OR CRIME? 21

• A person who without any fault was which establish a penalty are subject to unaware of violating a law or precept of the strict interpretation.” This means that the Church (even though aware that abortion is terms used in the canon are to be narrowly a serious or mortal sin). interpreted, understood in a restrictive sense, • A person who acted under compul- and not extended, extrapolated, or applied sion by physical force or in a virtue of a by analogy.17 mere accident, which could neither be fore- We discussed what it takes for a crime seen nor prevented when foreseen. to occur in terms of personal and direct • A person who acted out of grave fear, involvement in the action of an abortion. In even if only relatively grave (grave fear is the next part of the paper we will speak an internal response of a person to the cred- about the responsibility of other persons ible threat of serious evil to be inflicted by who take part or cooperate in the crime of another person).16 abortion.

Crime is not automatic 2. Cooperation in a crime of abortion Canon 1324 talks about persons for whom the penalty should be lessened. These per- It is true that not only one person is respon- sons are not subject to an automatic penalty sible for the crime of abortion. When we (latae sentantiae) for procuring a success- have the case of abortion, we know that in ful abortion, although a penalty might be many instances there are many people be- imposed as a result of a church process hind it, including parents of the aborted (ferendae sententiae). They are: fetus, their families, doctors, nurses, etc. • A person with only imperfect use of who all may be involved in the crime. Of reason course, the contribution every person makes • A person who lacked the use of rea- toward the crime is different. What does son due to drunkenness, or another similar Canon Law say about the responsibility of mental disturbance which was culpable. those who participate in the crime of abor- • A person acting in the serious heat of tion? Do they incur the latae sententiae passion which did not precede and impeded excommunication provided by canon 1398? all deliberation of mind and consent of the To answer this question, in addition to will, as long as the passion itself had not canon 1398 we also have to look at the been voluntarily stirred up or fostered. additional canon, which deals with accom- • A minor who has completed the age plices. Paragraph 2 of canon 1329 is of our of sixteen years but is not yet eighteen years interest: of age. Accomplices who are not named in a law • A person who was forced through great or precept incur a latae sententiae penalty fear, even if only relatively grave. attached to a delict if without their assis- • A person who without any fault was tance the delict would not have been com- unaware that a penalty was attached to the mitted, and the penalty is of such a nature law or precept. that can affect them; otherwise, they can be We also have to know that canon 1398 is punished by ferendae sententiae penalties. in the book of the code of sanctions. This In order to have a better understanding canon is a penal law and, as such must be of these two canons we have to look at the strictly construed. Canon 18 says: “Laws term ‘procure’ again. “Procurers are those who directly, deliberately and purposeful- 22 Þydrûnas KULPYS

ly take part in the abortion, either by phys- those people who intentionally and physi- ical or moral action, e.g., by command, cally participate in the specific action or order or threat.”18 procedure, which precisely effects the abor- We see that this canon applies only to tion, get excommunicated. Persons, who those who directly participate in the abor- prepare or sell drugs, sterilize the instru- tive act; it does not apply to those who do ments, or counsel the abortion do actions not take part in direct participation.19 that do not constitute the procedure, which There are two ways in which a person effects the abortion. Their actions are pre- can directly participate in an act such as an paratory and facilitating acts. Therefore they abortion. do not get excommunicated.23

Co–authors Conclusion The first way to participate is to be co– authors of the delict or co–principals along We have discussed the issue of an abortion with those who actually bring about or per- in the light of Canon Law. Canon Law tells form the abortion. The 1917 Code described us that not every case of an abortion incurs this category of participation in the crime a censure of excommunication. The excom- as including those who contribute to the munication for abortion is incurred only if a criminal act both intentionally and physi- person acts intentionally, freely and know- ingly in terms of not only moral theology cally.20 This formulation in the 1983 code is not explicitly retained in reference to latae but also of knowledge of Canon Law about sententiae censures, but such persons could the crime and censure attached. There are be considered full cooperators and included many mitigating circumstances about the personal attitude toward the crime of an within the definition of ‘procurers’.21 abortion. These circumstances are discussed in general norms of penal law. Main reasons Accomplices for excommunication not to incur are: igno- rance of the church law with penalty attached, A second type of participator is to be an age, which is also important characteristic, accomplice. Accomplices are principal or as is grave fear, and other things. If all those necessary collaborators without whose help Canon Law requirements are not met, we are the offense could not have been accom- dealing with a sin, but not with a crime in the plished. terms of Canon Law. Of course not every In the 1917 code, canon 2209, §3 named action of abortion is a sin. Moral theology the principal accomplices as those who or- presents requirements that must be met, if der the action, who persuade others to go we are to talk about the sin of a person through with it, or are necessary coopera- involved in the action of abortion. The ac- tors. The 1983 code (canon 1329, §2) sim- tion, (abortion) must be known as bad (not plifies the matter by coalescing the catego- in accord with God’s will) and it must be ries into one. The meaning is basically the freely willed. These two generally expressed same, but the present canon is even clearer: features are primarily what turn the action accomplices who incur the same latae sen- of abortion into a personal sin. But if we are tentiae penalty as the principal authors are talking about the abortion in the terms of only those without whose efforts the delict Canon Law, the act of abortion must meet would not have been carried out.22 Only Canon Law requirements in order to be con- ABORTION: SIN OR CRIME? 23 sidered a crime. However, if the require- In the case of cooperation in the crime ments are not met, then there is no crime, only, those are excommunicated without and therefore there is no excommunication whose help and actions the delict would not involved, which is attached to the crime. have been accomplished.

REFERENCES

1 Coriden J. A. Church Law and Abortion // The Power of the Church”. Jurist. 1973. N. 33. P. 194. 14 New Commentary on the Code of Canon Law. 2 Ibid. P. 194–195. Commentary to the canon 1312. 3 Ibid. P. 195. 15 New Catholic Encyclopedia (1981). S. v. “Abor- 4 Codex Iuris Canonici, Auctoritate Ioannis Pauli tion, IV”. PP. II promulgatus (Rome: Typis Polyglottis Vat- 16 Connell J. E. Abortion and Canon Law. P. 34–35. icanis. 1983), the English text is taken from Code 17 Coriden J. A. The Canonical Penalty for Abor- of Canon Law, Latin - English Edition. Canon tion as Applicable to Administrators of Clinics Law Society of America. 1998. and Hospitals // The Jurist. 1986. N. 46. P. 654. 5 Ibid. Canon 1311, 1315 & 1321. 18 Wernz–Vidal. Ius Canonicum. Vol. 7. Rome: 6 New Catholic Encyclopedia (1981), s. v. “Abor- Gregorian University. 1951. N. 472; quoted in tion, III (Canon Law)”. Coriden J. A. The Canonical Penalty for Abor- 7 Codex Iuris Canonici. Canon 1321. tion as Applicable to Administrators of Clinics 8 New Commentary on the Code of Canon Law // and Hospitals // The Jurist. 1986. N. 46. P. 653. edited by J. P. Beal, J. A. Coriden, T. J. Green 19 Coriden J. A. The Canonical Penalty for Abor- (New York, NY/ Mahwah, NJ: Paulist Presss. tion as Applicable to Administrators of Clinics 2000), commentary to the canon 1398. and Hospitals. P. 653. 9 Ibid. 20 Codex Iuris Canonici. Pii X Pontificis Maximi 10 Connell J. E. Abortion and Canon Law; quoted Iussu Digestus: Benedicti Papae XV Auctoritate in B. P. Raum. Project Rachel (Baltimore: pri- Promulgatus. Rome: Typis Polyglottis Vaticanis. vately printed. 1999). P. 34. 1917. Canon 2209 § 1. 21 11 Huser R. J. The Crime of Abortion in Canon Coriden J. A. The Canonical Penalty for Abor- Law. Washington D. C.: The Catholic University tion as Applicable to Administrators of Clinics of America Press. 1942. P. 116. and Hospitals. P. 653. 22 12 Codex Iuris Canonici. Canon 1321. Ibid. 654. 23 13 New Catholic Encyclopedia (1981). S. v. “Penal Ibid. 657.

BIBLIOGRAPHY

1. Codex Iuris Canonici. Auctoritate Ioannis Pauli vately printed. 1999. PP. II Promulgatus. Rome: Typis Polyglottis 4. Coriden J. Church Law and Abortion // The Vaticanis. 1983. Jurist. 1973. N. 33. P. 194. 2. Codex Iuris Canonici. Pii X Pontificis Maximi 5. Coriden J. The Canonical Penalty for Abortion Iussu Digestus: Benedicti Papae XV Auctori- as Applicable to Administrators of Clinics and tate Promulgatus. Rome: Typis Polyglottis Vat- Hospitals // The Jurist. 1986. N. 46. P. 654. icanis. 1917. 6. Huser R. The Crime of Abortion in Canon Law. 3. Connell J. Abortion and Canon Law. Quoted Washington D. C.: The Catholic University of in Raum B. Project Rachel. Baltimore: pri- America Press. 1942. 24 Þydrûnas KULPYS

7. New Catholic Encyclopedia. Vol. 1 and 11. 1981. New York, NY/ Mahwah, NJ: Paulist Press. 2000. 8. New Commentary on the Code of Canon Law. 9. Wernz–Vidal. Ius Canonicum. Vol. 7. Rome: Edited by Beal J. P., Coriden J. A., Green T. J. Gregorian University. 1951.

Spausdinti rekomendavo: Gauta: 2005 09 10 kun. prof. dr. A. Narbekovas, Parengta spaudai: 2005 10 25 kun. lic. K. Këvalas

Þydrûnas KULPYS ABORTAS: NUODËMË AR NUSIKALTIMAS?

Santrauka

Abortà nagrinëja ir moralinë teologija, ir kanonø tei- intencijà, supranta, kas daroma, ir laisvai pasirenka së. Moralinë teologija gvildenà abortà kaip didelá veikti. Aborto nuodëmë tampa ir nusikaltimu, kai moraliná blogá ir sunkià nuodëmæ. Kanonø teisë nag- þmogus þino kanonines normas, apibrëþianèias aborto rinëja abortà ir kaip teisiná nusikaltimà, uþ kurá auto- nusikaltimà ir uþ já skiriamà ekskomunikavimo cen- matiðkai skiriama grieþta sankcija – ekskomunikavi- zûrà, taèiau vis tiek laisvai pasirenka toká nuodë- mas. Kokiomis aplinkybëmis abortas yra nuodëmë ir mingà veikimà. Kanonø teisë taip pat numato ðvel- kada jis tampa ir teisiniu nusikaltimu, automatiðkai ninanèias aplinkybes, kai þmogus negali bûti kalti- uþtraukianèiu atskyrimà nuo Baþnyèios – ekskomu- namas padaræs nusikaltimà, arba, kai bausmë uþ nu- nikavimà? Vien tik aborto nuodëmë neuþtraukia eks- sikaltimà nëra automatiðka (taikoma ið karto po nu- komunikos. Nors abortas yra sunki nuodëmë, taèiau sikaltimo ávykdymo). Pavyzdþiui, nevisiðkai protið- ne kiekvienas aborto atvejis yra nusikaltimas pagal kai ágalus þmogus arba þmogus, neturintis ðeðioli- kanonø teisës apibrëþtá. Tai reiðkia, kad jei nëra abor- kos metø amþiaus arba neþinantis, kad savo veikimu to nusikaltimo, tai nëra ir uþ ðá nusikaltimà taikomos lauþo baþnytiná ástatymà, nors ir padarytø abortà, sankcijos – ekskomunikavimo. Baþnytinë teisë api- bet nepadarytø teisinio nusikaltimo, uþ kurá eksko- brëþia, kad þmogus padaro nusikaltimà, kai jis iðorið- munikuojama. Todël norint suprasti, ar þmogus, da- kai sulauþo baþnytiná ástatymà. Be to, lauþydamas lyvavæs darant abortà, ir teisiðkai nusikalto bei uþ- ástatymà þmogus turi bûti moraliai pakaltinamas, kad sitraukë ekskomunikà, reikia iðsiaiðkinti, ar tas þmogus padarytø nusikaltimà bei jam grëstø uþ ðá nusikaltimà þinojo kanonines normas dël aborto nusikaltimo ir taikomos bausmës. ar jam netaikytinos atsakomybæ maþinanèios kano- Þmogus bûna moraliai pakaltinamas, kai turi blogà ninës normos.

PAGRINDINIAI ÞODÞIAI: abortas, nusikaltimas, KEY WORDS: abortion, excomunication, crime, Canon ekskomunika, kanonø teisë. Law.

Þydrûnas KULPYS – kunigas, Griðkabûdþio Kristaus Atsimainymo (Ðakiø r.) parapijos klebonas. Vilkaviðkio vyskupijos tribunolo teisëjas. Dësto dvasingumo ir moralinæ teologijà Katalikø teologijos fakultete Vytauto Didþiojo universitete. Teologijos bakalauro ir kanonø teisës magistro laipsnius apgynë Vytauto Didþiojo univer- sitete, teologijos licenciatà – Ðv. Marijos seminarijoje bei universitete (St. Mary‘s Seminary and University) Baltimorëje, Marylando valstijoje, JAV. Adresas: Alyvø 2a, Griðkabûdis, LT–71041, Ðakiø r. El. paðtas: [email protected]. Þydrûnas KULPYS – Reverend Pastor of Christ’s Transfiguration Parish in Griskabudis; Diocesan Judge of Tribunal in the Diocese of Vilkaviskis, Lithuania; teaches Moral and Spiritual Theology at Vytautas Magnus University. Bachelor degree in Theology and Master’s degree in Canon Law both received at Vytautas Magnus University. STL degree was obtained at St. Mary’s Seminary and University in Baltimore, Md. U.S.A. Address: Alyvø 2a, Griðkabûdis, LT–71041, Ðakiø r. E-mail: [email protected].