Canon 1398: A Clarification

I wrote in this space yesterday about the controversy surrounding the remarks of Pope Benedict XVI concerning whether Mexican legislators who voted to legalize certain abortions were excommunicated lata sententia under canon 1398. As I stated yesterday, c. 1398 prohibits only "actually procur[ing] an abortion," and as many of my correspondents have pointed out, it’s far from clear that this prohibition includes voting to legalize abortions.

I tacitly assumed that such was a possible interpretation of the canon, in part because one often hears this interpretation in popular discussions of canon law and in part because the statement of the Mexican bishops and Benedict’s subsequent comments (at least before the Vatican Secretariat of State rewrote them) necessarily presupposed that such an interpretation was possible. Clearly, if the canon does not prohibit certain kinds of actions taken by legislators, it would have been simply wrongheaded for the Mexican bishops to have suggested that the legislators were excommunicated for voting to legalize certain abortions and even more wrongheaded for Benedict to have agreed with them (again, subject to having his remarks corrected by Vatican officials).

It turns out, however, that c. 1398 almost certainly does not include actions taken by legislators. Dr. Edward N. Peters, who teaches canon law at Sacred Heart Seminary in Detroit, explains on his blog that, despite the persistent discussion of c. 1398 in such contexts, virtually no one learned in canon law thinks that it applies to actions taken by politicians in connection with legislation. In fact, according to Dr. Peters, it’s not even a close question. After reading his explanation, I agree, and I’m very grateful to him for calling all this to my attention.

This, of course, puts the exchange between Benedict and the reporters who raised the issue with him, as well as the Vatican’s rewriting of his comments, in a somewhat different light. If c. 1398 simply doesn’t reach political actions taken by politicians, then when asked about the situation in Mexico, Benedict should have made it perfectly clear that, no matter how immoral their actions in the legislature, the Mexican politicians were not excommunicated lata sententia . Since his original remarks seem to say just the opposite, the desire on the part of the Secretariat of State to correct them is understandable. It seems the Vatican officials were more correcting a simple mistake by the pope about canon law than temporizing on the application of that law. If they were less than straightforward about this, they were likely trying to avoid embarrassing Benedict by saying that his original answer was simply erroneous as a matter of canon law.

All that said, however, it’s important not to lose sight of the moral, as opposed to the canonically legal, issues at stake here. Voting to legalize abortion may not violate canon law, but, as numerous bishops have pointed out, and as is reflected in then Cardinal Ratzinger’s letter to the American bishops in 2004 , politicians who persistently and publicly reject the Church’s teaching on abortion gravely impair their communion with the Church and should be denied Holy Communion. In the words of Cardinal Ratzinger:

The Church teaches that abortion or euthanasia is a grave sin. The Encyclical Letter Evangelium vitae, with reference to judicial decisions or civil laws that authorize or promote abortion or euthanasia, states that there is a "grave and clear obligation to oppose them by conscientious objection. [ . . . ] In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favour of such a law or vote for it’" (no. 73) . . . .

Regarding the grave sin of abortion or euthanasia, when a person’s formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church’s teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist.

This seems to be what the Vatican officials who rewrote Benedict’s response to the reporters’ question were trying to say. The result, unfortunately, was even worse confusion.

In a very different context, Wittgenstein said: "Everything that can be thought, can be thought clearly. Everything that can be said, can be said clearly." It’s also true that everything that can be preached, can be preached clearly, as Cardinal Ratzinger’s 2004 letter demonstrates. It would be a shame, and more than a shame, if he speaks any less clearly as pope.

Robert T. Miller is an assistant professor at the Villanova University School of Law.