Christ among the Doctors of the Law



Thursday, June 29, 2006

Excommunication for deliberate embryo destruction?

Alfonso Cardinal Lopez Trujillo, the outspoken president of the Pontifical Council on the Family, has asserted that "destroying human embryos is equivalent to abortion"; therefore, he says, those directly involved in such deeds are liable to the canonical penalty established for abortion, namely, excommunication (1983 CIC 1398). That the cardinal stands on solid biological and moral grounds in equating deliberate embryo destruction with procured abortion is beyond serious question. What I want to ask is whether he stands on solid canonical grounds as well.

Consider: until the last few decades, all canonical discussions of abortion were concerned with actions occurring, obviously, within the womb. The recent development of extra-uterine fertilization technologies, however, including cryogenic storage of embryonic human beings, has created a group of humans at peril for their lives, but who, given the canonical maxim that penal laws are subject to narrow interpretation (1983 CIC 18), might fall outside the scope of the traditional abortion canon. So, one must ask: is the deliberate destruction of an embryonic human being outside the womb the canonical equivalent of an abortion procured within it?

Cardinal Lopez Trujillo believes that it is, and I think he's right. How?

Back in the late 1980's, again in the wake of bio-medical developments, the question arose whether very early abortions caused by the IUD, RU486, and certain contraceptives, were encompassed by the abortion canon which, as canonists knew, envisioned later-term procedures. On 23 May 1988, the Pontifical Council for the Interpretation of Legislative Texts addressed the following question: "Whether abortion, as treated in canon 1398, should be understood as only the expulsion of an immature fetus, or whether it is also the killing of a fetus accomplished in any manner and at any time from the moment of conception?"

The pontifical council ruled for the wider definition (AAS 80 [1988] 1818-1819), and eminent canonists such as Fr. Joseph Fox, op, explained then that the interpretation kept the canonical understanding of abortion medically up to date and morally consistent with the respect owed to innocent human beings regardless of the technique by which they were being killed during their first months of life.

But notice: nothing in the 1988 authentic interpretation limits the understanding of abortion to actions occurring in the womb; indeed, the interpretation clearly asserts that any killing of a fetus, accomplished in any manner at any time after conception, is canonically an abortion for purposes of Canon 1398.

Now, I don't want to put words in the cardinal's mouth, and it is possible that he has other arguments by which to defend his position, but it seems to me that, in asserting that those involved in deliberate embryo destruction are liable to excommunication for abortion, the cardinal, while not authorized to issue binding interpretations of canon law, has simply connected the dots left by offices that do have that authority. At a minimum, I think those disagreeing with Cardinal Lopez Trujillo have the burden of showing why deliberate embryo destruction is not, in light of the 1988 interpretation, a type of abortion punishable by excommunication.

There are, of course, more issues raised by the cardinal's interview than I can discuss here. But for now, I observe only that Cardinal Lopez Trujillo remains one of the most consistently incisive and plain-talking members of the Roman Curia, and that's good news for our side.

Note: As it happens, the Ave Maria School of Law in Ann Arbor MI is dedicating an entire issue of its excellent law review to the legal and philosophical thought of--you guessed it--Cardinal Lopez Trujillo. A host of fine scholars will be responding to an original essay by the cardinal which appears in that same issue, and it all begins with an introductory essay provided by yours truly. Look for it soon!

Pertinent follow-ups: John Allen; Chronicles of Higher Education; Amy Welborn; Jimmy Akin; Sandro Magister.