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Dr. Edward Peters 

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5 jan 2013

Church Law and Euthanasia: Time to Oil a Rusty Canon?


Edward Peters, "Church law and euthanasia: time to oil a rusty canon", Lay Witness (Jan-Feb 1997) 13, 27.

During the process of canonical reform that followed Vatican II, some suggested that the canonical penalties for abortion be dropped from the new Code of Canon Law. Some noted that there is nothing particularly ecclesiastical about abortion and that, as a rule, such matters are better treated under civil law. But it was precisely the growing failure of civil law to protect the pre-born that tipped the scales toward retaining the canonical penalties against abortion (see Canon 1398). Preferably, civil governments would recognize and accept their duty to protect the most vulnerable of people. But if they fail to do so, the Church, by maintaining its ecclesiastical penalties against abortion, showed that it is willing to step into the breach and do what it can to uphold innocent human life and dignity.

 

Unfortunately, besides the rise of abortion, the last several years have seen the rapid unraveling of respect for human life at the opposite end of the age spectrum. Despite repeated legislative efforts at curbing, if not outlawing, euthanasia, judicial activists seem especially intent on doing with the elderly exactly what they did to the pre-born: killing the inconvenient. Within just weeks of each other, two 1996 federal court cases have further advanced the euthanasia agenda. As Boston's Bernard Cardinal Law observed at the time, "The other shoe has fallen far more quickly than many anticipated."

        

But if some political and even Church leaders underestimated the speed with which society seems bent on destroying itself, the Holy Spirit was not "caught napping. After all, the Spirit saw to the preservation of a specific antiabortion provision in canon law just when some felt that it could be safely omitted. Was there some similar spiritual foresight with respect to euthanasia? Perhaps so.

 

Canon 1398, which outlaws abortion for Catholics, is actually the second of two canons that comprise the Church's direct legislation on "offenses against human life and liberty." The first of those two provisions, Canon 1397, provides in part: "Anyone who commits a homicide ... is to be punished with the deprivations and prohibitions contained in Canon1336 in accord with the seriousness of the act....

 

I suggest that an exercise of elementary canonical and moral science would demonstrate that most of what today is termed "mercy killing" falls squarely within the definition of "homicide" as provided in Canon 1397 (see generally Pope John Paul II,  enc. Evangelium vitae, especially nos. 64-74.) But what I want to consider here is something else: Assuming that euthanasia is banned according to Canon 1397, what action might ecclesiastical authority take in the face of Catholic participation in mercy killing?

 

As we have seen, the text of Canon 1397 refers directly to Canon 1336, which happens to be the first of three canons regulating "expiatory penalties." Formerly called "vindicative" penalties, modern expiatory penalties vindicate, as it were, the norms of social order and public justice.  They differ from the other major category of canonical penalties known as "censures," i.e., excommunication, interdict, and suspension, in not being strictly ordered to the reform of the offender. As such, expiatory penalties, although they must always be consistent with the supernatural ends of the Church, are more flexibly applied than censures for the defense of good order and the rights of the innocent.

 

Looking at Canon 1336 in the context of euthanasia, two things are immediately apparent. First, the list of penalties outlined in Canon 1336 does not exhaust the canonical actions Church authority can take. Thus, in an area like "mercy killing," which rears its head in a wide variety of forms and circumstances, a similarly wide variety of canonical responses tailored to the specifics of the crime could be applied. There is no need, therefore, to commit to the "all or nothing" responses which, for example, excommunication cases often imply. Note, however, that in the face of truly scandalous disregard for canon law and human dignity, even penalties like excommunication can be brought to bear in the euthanasia context (see Canons 1315-1318, 1393).

 

Second, the penalties listed in Canon 1336 seem useful for addressing many of the concerns that the participation of Catholics in euthanasia would raise. For example, lay people in general, who by station in life are more likely to be directly involved in euthanasia situations, increasingly have jobs with ecclesiastical "power, office, [and] functions" (Canons 1336 & 129). Their removal from such Church-related positions, in accord with the procedures of canon law, would seem consistent with goals and methods of ecclesiastical penal law.

 

Catholics who participate in the social and political campaign to legalize euthanasia, for that matter, might also be subject to ecclesiastical penalties. In addition to their possible direct involvement in specific acts of euthanasia (Canon 1397) or their possible roles as accomplices in such acts (Canon 1329), they might also be in violation of, for example, Canon 1369, which authorizes a "just penalty" against those who use "speeches, published writings, or other means of social communication to ... seriously damage good morals. . . ." However, in formally pursuing any such cases, the Church must strictly follow the norms of canon law, not just out of a sense of justice owed to accused persons, but also to avoid shifting the focus of attention from the deeds of offenders to the technicalities of the canonical process.

 

Of course, without detracting from any of the above analysis, the chief value of Canon 1397 will likely be, for the time being, educational. Americans are not immune from the tendency to equate what is legal with what is moral. American civil law is increasingly calling "mercy killing" legal, thereby sowing the seeds for our acceptance of such deeds as moral, in much the same way that a whole generation of Americans have now grown up with legal (misread: moral) abortion. But, in contrast to what civil law claims, canon law labels abortion and euthanasia as the moral evils they are.

 

To serve any educational value, the Church's legislation on behalf of human life needs much more attention. All would concede that Canon 1398, which provides for the automatic excommunication of Catholics who procure an abortion, is more talked about than it is applied. But Canon 1397's criminalizing homicide is hardly even mentioned in ecclesiastical circles, and virtually no pew Catholic is even aware of its existence. Indeed, those who might wonder how the Spirit saw to the inclusion of Canon 1397 in the 1983 Code will need to begin their studies by blowing the dust off its neglected words, while those who might wish to consider actually applying Canon 1397 amidst today's culture of death will probably find that its hinges need some oiling before becoming fully operational.

 

For all of that, Canon 1397 is a living part of our Church law. An ecclesiastical witness against other human crimes like kidnapping and assault, Canon 1397 also stands against those in the Church who would practice murder, even if the state calls it mercy.