THE CASUIST, VOL IV, Woywod, 1912.
X. EXCOMMUNICATION ON ACCOUNT OF ABORTION
Bertha is urged by her husband Titius to take a certain kind of medicine in order to procure an abortion. She hesitates for some time, and finally consults her mother about it. The mother is more or less non-committal. She prefers not to interfere. She does not advise the abortion, fearing the consequences to her daughter; neither does she endeavor to persuade the daughter against com mitting the act. Finally, Bertha makes up her mind to take the medicine, to the satisfaction of her husband. The consequence is that an abortion follows, and Bertha very nearly loses her life. The experience has been a very dear one, and all three are very repentant. They are all Catholics. Are they all excommunicated ? Are special faculties required to absolve them? Answer. — Let us consider, first, the case of Bertha, who takes the medicine and causes the abortion. Does a mother who procures an abortion on herself incur excommunication ? It seemed probable that she does not. It is quite true that Pius IX., in the bull Apostolicae Sedis, 1869, expressly says that "procurantes abortum, effectu secuto" incur excommunication, and that the excommunication is reserved to the bishops. Now it would appear that if any one ought to be numbered among the procurantes abortum, it surely would be the mother who procures an abortion on herself. Nevertheless, there are very grave theologians, among others St. Alfonsus, who maintain that the mother herself is not included among the "procurantes abortum" whom the papal decrees punish by excommunication.
They do not affirm that it is altogether certain that the bull Aposto- licae Sedis of Pius IX. does not include the mother herself among the "procurantes abortum" who incur excommunication, but they do maintain that it is probable that the bull does not include her. Their line of argument is this : In all the papal bulls anterior to the bull Apostolicae Sedis of Pius IX., 1869, in which excommunication is decreed against procurantes abortum, a distinction is made between the mother herself and the other procurantes abortum, and the mother was never included among those who incurred excommunication for procuring abortion, even though the term "procurantes abortum" was always employed in such papal decrees. St. Alfonsus considers the opinion which says that the mother herself does not incur the excommunication as altogether probable, by reason of the number and weight of the theologians who defend it; and if the reasons on which it rests be considered, he thought it far more probable than the opinion which maintains that the mother does incur the excommunication. At the time that Pius IX. issued the bull Apostolicae Sedis in 1869, and long before it, the term "procurantes abortum" had come to have a very special and restricted meaning, excluding the mother from the number of those who were included in the term procurantes abortum. When Pius IX., therefore, used the term procurantes abortum, in the bull Apostolicae Sedis, he was cognizant of this special and technical sense in which it was generally used and under stood by the theologians and canonists, and as he used it in his de cree without any qualification or explanation, he is justly supposed to have used it in the peculiar sense in which it was used in the law, and, therefore, that he used it in its sense of excluding the mother. Weight is added to this view, if we bear in mind that the purpose of Pius IX. in publishing the bull Apostolicae Sedis in 1869was to curtail both the number and the application of the excommunications at that time prevailing in the Church. It is probable, therefore, that Bertha did not incur the excommunication decreed by Pius IX. against "procurantes abortum." Would a simple confessor be justified, therefore, in absolving Bertha without first procuring special faculties, at least ad cautelam, in case, de facto, Bertha did incur the excommunication? In that case, a simple confessor would not require any special faculties to absolve Bertha, neque ad validam, neque ad licitam absolutionem. There exists here a dubium juris, that is, a doubt about the interpretation of the law. Now whenever there exists a dubium juris, that is, whenever the theologians do not agree as to the meaning and interpretation of a law, whether, namely, the law deprives the confessor of jurisdiction in the confessional in certain cases or not, then the confessor may absolve validly and licitly in such cases, and if, de facto, the case should be reserved, then the Church supplies the necessary jurisdiction to absolve from it. In this way the jurisdiction of the simple confessor which is in Bertha's case theoretically doubtful, became practically certain ; and Bertha is absolved not jurisdictione dubia, sed jurisdictione practice certa. In dubio juris, Ecclesia supplet. So much as to the history of the case as it refers to the mother. The new Code besides repeating the words of the Bull "Apostolicae Sedis," adds that the mother is not excepted from the excommunication. Thus Canon 2350. The other principles here explained are not changed by the Code. But, again, let us suppose that the woman or mother who pro cures an abortion on herself is included in the Bull of Pius IX. The case is a papal reservation and ignorance of the reservation saves a person from incurring papal censure. For what the Pope reserves is not the sin, but the censure; in our case, the excommunication. The purpose of the Holy See is to deter from the sin of abortion by punishing it by excommunication and reserving the excommunication. But if a woman does not know of the excommunication attaching to abortion or that it is reserved, how can the excommunication act as a deterrent? If the purpose of the censure fails, then the censure itself fails, for it becomes useless. In the case before us, although Bertha may have been fully aware of the gravity of the sin she was committing, still if she did not know that she incurred excommunication by it or that the excommunication was reserved, she did not, in fact, incur the excommunication, and no special faculties are required to absolve her.
In regard to the husband, Titius, who urged his wife to take the medicine for the purpose of causing an abortion, it is certain, that under the law, as it existed up to the time of Pius IX., he incurred the excommunication. For in the bull Effraenatam, of Sixtus V., not only procurantes abortum incurred excommunication, but also all persons who by assistance, or counsel, or favor, aided or abetted in procuring abortions, provided they acted knowingly. In the Bull Apostolicae Sedis, Pius IX restricts this excommunication to the procurantes abortum. Therefore, all those who only cooper ate but do not procure the abortion, do not incur the excommunication. According to Pope Sixtus V., these are to be considered as procurantes abortum, "qui de cetera per se, aut interpositas personas abortus seu foetus immaturi ejectionem procuraverint, percussioni- bus, venenis, medicamentis, potionibus, oneribus, laboribusque mulieri pregnanti impositis, ac aliis etiam incognitis vel maxime ex- quisitis rationibus, ita ut reapse abortus inde secutus fuerit." The sense of the procurantes abortum of the bull of Pius IX. must be gathered from these words of the Bull Effraenatam of Sixtus V. According to these words of Sixtus V., it would be difficult to include Titius among the procurantes abortum, since all he did was to urge his wife to take the potion. He must be numbered among the cooperantes ad abortum, but not among the procurantes abortum.