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