Canon lawyers debate excommunication
If it were up to many frustrated Catholics who follow the news, Gov. Andrew Cuomo of New York already would be excommunicated.
Several Catholic commentators, including some bishops, have said the Democratic governor should have received that serious penalty for fully backing and signing the Reproductive Health Act, a new state law that expands access to abortion, allows late-term abortions and lets medical professionals who are not doctors perform them.
But a careful reading of the relevant canons in the 1983 Code of Canon Law of the Catholic Church makes it doubtful that a Catholic politician can be excommunicated for supporting legal abortion and signing legislation that loosens abortion restrictions, according to canon lawyers interviewed by Our Sunday Visitor.
Language of the canons
“I don’t think there is legally an argument you can say that (an excommunication) can be imposed because of the language of the canons,” said Robert J.B. Flummerfelt, a canon lawyer based in Las Vegas.
Msgr. Jason Gray, a priest of the Diocese of Peoria, Illinois, who is a canon lawyer and runs a website that explains canon law principles, said the possibility of excommunicating Catholic politicians for championing legal abortion is a debated question in canon law circles, with no simple answers.
“When it comes to current penal law, right now it says that a person who commits an abortion, has an abortion, or anyone who’s an accomplice to it, whether they’re paying for it or inducing it, is excommunicated automatically,” Msgr. Gray said. “With politicians, oftentimes, it’s not as clear-cut.”
The idea of excommunicating a politician like Cuomo, who is Catholic, for endorsing pro-abortion legislation is difficult under current canon law because the politician is not directly involved in a specific abortion. One likely would have a difficult time proving that Cuomo is personally responsible for a particular abortion.
“With politicians, it gets complicated,” Msgr. Gray said. “Let’s say a governor is voting for a funding bill that has several things in it, with part of the funding going to abortion. That would be so difficult to conclude that the person has to be automatically excommunicated.”
But the Reproductive Health Act, a standalone law that codifies Roe v. Wade but also goes beyond the landmark U.S. Supreme Court decision to allow late-term abortions under certain circumstances, begs the question: Can a Catholic politician be sanctioned canonically, even excommunicated, for supporting such a law?
“There’s no way to spin it, except they were relaxing any restrictions on abortion and essentially removing anything that would hinder, criminalize or prohibit abortions up to the point of birth,” Msgr. Gray said.
Role of bishops
Cardinal Timothy M. Dolan of New York has taken a dim view of excommunicating Catholic politicians who champion abortion rights. In a statement, a spokesman for the cardinal said that “excommunication should not be used as a weapon” and that too often those who call for that penalty “do so out of anger or frustration.”
The statement mentioned that “notable canon lawyers” have said excommunication is “not an appropriate response” for politicians who support or vote for legislation advancing abortion. It also said Cardinal Dolan has taken the same approach of his predecessors to address issues “personally and directly” with a parishioner.
That would seem to indicate that the cardinal prefers to meet privately with an offending high-profile Catholic, which is not an uncommon step. Oftentimes, canon lawyers told OSV, bishops meet privately to admonish the individual, to tell them how their public actions contradict Church teachings and encourage them to mend their ways. Behind closed doors, the bishop may also tell the offending politician that they should not, in good conscience, present themselves for holy Communion, which is stated in Canon 916.
“That step is aimed at helping to form a conscience that is not acting properly,” Msgr. Gray said.
For the politician or high-profile Catholic who publicly persists in championing abortion or other gravely sinful actions, their bishop has several options to address that situation under canon law.
Canon 915 allows a bishop to publicly prohibit the politician from receiving Communion in their diocese. Canon lawyer Edward Peters has written on his blog that a bishop also can invoke Canon 1369, which says that a person who in their public actions “gravely injures good morals” can be punished “with a just penalty.”
The “just penalty” would have to be determined by a bishop following a Church investigation and can range from withholding Communion to issuing a penal precept, which basically instructs someone to take a specific action or refrain from doing something under the threat of excommunication.
“The politician shouldn’t be comfortable to say, ‘Oh, I personally am opposed to abortion, but I have no right to stop someone else’s right to choose,'” said Flummerfelt, who added that a bishop, after determining that a canon has been violated, can decide how to sanction the individual.
“You determine the penalty, which could be imposing a sentence, such as preventing the politician from receiving the sacraments,” Flummerfelt said. “You can simply declare it or have a judicial process so it’s fair and has due process that allows the politician to respond effectively. It’s what we do with abuse cases in the Church.”
Action is necessary
While Cardinal Dolan seems to have a skeptical view of excommunicating pro-choice politicians, other Catholic bishops appear to think it would be an appropriate penalty for someone such as Cuomo.
In a Fox News interview on Jan. 26, Bishop Edward B. Scharfenberger of Albany, New York, called excommunication “a last resort,” but added that “as the governor continues to distance himself from our communion, it may unfortunately result in that.”
Meanwhile, Bishop Richard F. Stika of Knoxville, Tennessee, tweeted on Jan. 24 that if it were up to him, he’d excommunicate Cuomo. “This vote is so hideous and vile that it warrants the act,” he wrote.
“I’m really happy to hear that there are bishops who have not acquiesced to the will of the government,” said Kelly O’Donnell, a canon lawyer in California and former judge for the Fresno Diocesan Tribunal.
O’Donnell told OSV that a new code of canon law is needed because “so many things have changed” with papal statements, various Church documents and guidance notes from national bishops’ conferences.
“I have to cross-reference so many things today,” she said. “It’s making it very difficult to come to conclusions, because there’s so much research involved since the canons have been either obliterated or mutated.”
Whatever the present Code of Canon Law permits, Flummerfelt said that a Catholic bishop today “cannot be a wallflower” when politicians are passing laws that disrespect the inviolability of human life.
“If you’re actively advocating rules and laws that are not only against Catholic teaching, but go against the basic dignity of the human person and promote murder, then you should be held accountable,” Flummerfelt said.
Brian Fraga is an OSV Newsweekly Contributing Editor.