Legislating in mid-air? First thoughts: possible, but not likely.
USA Today is now reporting "Vatican spokesman, the Rev. Federico Lombardi, later issued a statement approved by the pope clarifying the [pope's and his own] remarks. The statement said the pope did not intend to excommunicate anyone. Politicians who vote in favor of abortion should not receive the sacrament of Holy Communion, Lombardi said." Read on, and you'll also see that the Mexican bishops have not excommunicated anyone, and that what this event boils down to is but the CORRECT application of Canon 915, which is all some of us have been urging for a long, long time.
Am I glad the interpretation I set out below was correct? Sure, what lawyer wouldn't be? But I am more pleased that a sound and pastorally effective reading of canon law is being promoted. Make no mistake: denial of the Eucharist is grave consequence to seriously sinful behavior; moreover, the pope's comments leave open the possibility of escalating the canonical response to pro-abortion agitation by Catholic politicians, even to the penal level of excommunication. But we see clearly here that all of this must happen in accord with the requirements of law, the same law that seeks above all, "the salvation of souls" (1983 CIC 1752).
Responding to a reporter's question during his flight to Brazil, Pope Benedict XVI said that he supported the Mexican bishops' threat to take canonical action against the politicians who were involved in the effort to legalize abortion. The English version of his comment reads: "Yes, this excommunication was not an arbitrary one but is allowed by canon law which says that the killing of an innocent child is incompatible with receiving communion, which is receiving the body of Christ."
Now, the very first thing to notice about this quotation is that, as reported, it is susceptible to the chronic confusion that wearies discussions of the ecclesiastical consequences for involvement in abortion: "excommunication" and "denial of the Eucharist" are not, not, not, the same thing and understanding the difference between the related but quite distinct institutes of "excommunication" and "withholding the Eucharist" is a prerequisite for any productive commentary on the pope's remarks.
Excommunication is a canonical penalty, imposed for certain specific crimes, one consequence of which penalty is the denial of the right to receive the Eucharist. 1983 CIC 1331. As a penalty, excommunication can only be imposed, enforced, and lifted, in accord with a canonical process at a fairly high level of Church authority.
Denial of the Eucharist is a sacramental disciplinary norm, invoked in response to personal sins that meet certain criteria. 1983 CIC 915. As a sacramental norm, denial of the Eucharist can be invoked by ministers of the Eucharist down to at least the parish priest level, who need follow no specific process but must nevertheless verify that conditions for withholding the Eucharist have been met.
Briefly I see two things that could account for the pope's remarks.
1. Politicians who support the legalization of abortion generally meet the conditions for denial of the Eucharist under Canon 915. Such a comment would be interesting (though to me, not surprising) in that it lends support to the position that I and some other canonists and bishops have promoted for many years. Such political behavior is objectively gravely wrong and, if engaged in obstinately, merits, in my view, withholding of the Eucharist.
2. The Mexican bishops, using particular law or precepts (1983 CIC 1315-1319), have made support for the legalization of abortion an excommunicable offense in Mexico, and the pope supports their actions. I don't have access to the original documents, so I can't verify whether that has happened, but if it has happened, that too would not surprise me. I have already reminded people of the ability of canon law to respond to new crises over time, and the scandal of pro-abortion Catholic politicians surely merits a strong response by the Church.
Note that interpretations 1 and 2 are not incompatible; they both could be happening.
But to be complete, there are, admittedly, two other things that could explain what is being reported today:
First, the pope's remarks might have been misunderstood and/or misreported (gee, can that really happen today?) We know, for example, that there are reportorial ellipses in exactly the places that canonists would most want to see the pope's exact words, as in, verbatim: "Reuters reports the Pope added, 'They did nothing new, surprising or arbitrary. They simply announced publicly what is contained in the law of the Church . . . which expresses our appreciation for life and that human individuality, human personality is present from the first moment'."
Or, maybe, the pope is legislating in mid-air, issuing what canonists must take as an "authentic interpretation" (1983 CIC 16) of the scope of Canon 1398 on abortion, one that dramatically extends the reach of the canon beyond what (I and virtually all other canonists suggest) is the long-accepted interpretation of this penal law (pace Canons 18, 1323, 1324, among others), and at the same time reminding the world that even papal comments to reporters' carry the force of law in the Church whenever, that is, they are supposed to carry the force of law.
My guess: Pope Benedict XVI takes his law-making authority more seriously than that.
PS: About Vatican spokesman Rev. Federico Lombardi later telling reporters that the politicians who voted for abortion had automatically excommunicated themselves by their actions, well (assuming that report is accurate), it must be simply stated that Vatican press secretaries have no authority to issue binding interpretations of canon law. None. 1983 CIC 16 and Pastor Bonus 154-158.
PPS: For more information on this important area, see my new book Excommunication and the Catholic Church, and this recent Ignatius Insight Scoop interview.