To work for the proper implementation of canon law is to play an extraordinarily
constructive role in continuing the redemptive mission of Christ. Pope John Paul II
1152 x 864
6 jan 2013
Neither Shalt Thou Kill Thy Spouse
A canonical aspect of the Terri Schiavo case
Edward Peters, "Neither shalt thou kill thy spouse: a canonical aspect of the Terri Schiavo case", This Rock (Jan 2004) 16-19.
An archived version of this article is available here.
Terri Schiavo is a brain-damaged Catholic woman in Florida whom her husband Michael, through the instrumentality of the courts and with the widespread (but not unanimous) support of the mainstream media, wants to eliminate. The fight to save her life has been taken up by her parents, Governor Jeb Bush, a Catholic, the majority of the Florida legislature, and thousands of right-to-lifers around the world. Despite this impressive array of defenders, Michael continues to probe a sympathetic court system looking for a "legal" way to starve his disabled wife to death.(1)
Terri's situation and that of her supporters is a pointed illustration of how quickly God can take basically unknown and often unremarkable people and make them the occasion for acts of great personal heroism while, at same time, presenting us all with an opportunity to illustrate and defend the fundamental principles upon which sound societies are built. While others ably analyze the chilling civil law implications for America should a woman in Terri's situation be starved to death with court approval, here, I want to address briefly an aspect of Terri's case that involves the Catholic Church's canon law.
Actually, Terri's case raises several canonical issues. For example, in an article published prior to this part of the Schiavo crisis(2), I explained that, regardless of how the civil law might view such deeds, euthanasia--the kind of death with which Terri is now being threatened--falls under the stricture of Canon 1397 of the 1983 Code of Canon Law, rendering those who perpetrate such an offense (as well as those who cooperate in it, per Canon 1329) liable to an ecclesiastical penalty "according to the gravity of the offense." No one can seriously doubt but that euthanasia is a gravely immoral offense (Catechism of the Catholic Church, 2277).
Then, last October, when her pastor was denied access to Terri to administer the Eucharist, I pointed out that such a denial constituted a serious violation of her ecclesiastical rights, and how, within the terms of the then-operative, albeit unjust, court order, her right to the Eucharist could be honored without having to challenge directly the court order.(3) In this article, though, I wish to look at another canonical aspect of this case that would impact not so much Terri, but rather, potentially at least, her husband Michael.
It is widely known that Michael has fathered a child by another woman since Terri's hospitalization, and that he awaits the birth of a second child by the same woman, one whom he reportedly hopes to marry once his current wife Terri is dead. But, I would like to ask, would the starvation death of a disabled spouse, brought about at the request of the other spouse albeit with some kind of civil court approval, clear the path to the altar for the survivor spouse?(4) I think not.
When two people marry, there arises between them a "bond" of marriage, known in canon law as ligamen (Canon 1085). This marriage bond is what canonically prevents either spouse from marrying someone else for so long as the other spouse is alive, even if the couple has obtained a civil divorce from their marriage. Ligamen is the canonical enforcement of the familiar wedding words "till death do us part" and, with rare exceptions not applicable in a case like this one, only the death of one spouse can free the other from the bond of marriage.
Now, the Church has been around for a long time and she is, in Pope Paul VI's memorable phrase, "an expert in humanity." The Church has seen people try any number of ways around the demands of permanent Christian marriage, including even, the killing of one spouse in order to marry another. But while the death of a spouse, natural or otherwise, certainly ends the bond of the marriage that once existed, if that death was brought about by the surviving spouse, it is quite possible that canon law will step in to prevent the survivor from gaining by the misdeed and attempting another marriage in the Church. It does this by establishing on a killer spouse an impediment to marriage known as crimen (Canon 1090).
If you think you see in the Latin word "crimen" an ancestor of our English word "crime", you're right, for both terms are getting at what is, in the eyes of the Church at least, criminal behavior. According to Canon 1090, "One who, with a view to entering marriage with a certain person, brings about the death of one's own spouse or of the other person's spouse, invalidly attempts that marriage." Thus does the Catholic Church prevent someone from entering a marriage when, in order to be free to contract such a marriage, that person had brought about the death of a former spouse.
The impediment of crimen was present
in the 1917 Code of Canon Law (see 1917 CIC 1075) and even before
that it had been a part of ecclesiastical law for many centuries.
Today's canon law on crimen is, in comparison with earlier law,
much simplified, but reliable commentators on it such as Beal,
Doyle, Kelly, and Hervada believe it means pretty much just what
it says.(5) Focusing our discussion, then, on
factors suggested by the Schiavo situation, three things are
required in order for the canonical impediment of crimen to apply.
1) The original
parties must have been validly married. This fact that can be
presumed, however, whenever there is a public celebration of a
2) At the time of
the killing, the surviving spouse must have been intending to
enter marriage with a specific person once free of the prior
marriage bond. This is a question of fact to be determined on a
case-by-case basis. Evidence such as positive statements about
wanting to marry another or behavior consistent with future
marriage plans, can be used to show this intention to marry. By
the way, the fact that one might have multiple motives for wanting
to cause the death of one's spouse (say, also the desire to save
money on the disabled spouse’s health care), would not obviate the
3) The death of one spouse must be brought about by the surviving spouse. This does not mean, though, that the survivor spouse needs to have "struck the deadly blow". Commentators agree that a death brought about at the behest of the survivor qualifies for imposition of the impediment. Even if, therefore, spousal death came about with the approval a civil court and no civil liability could be attached to the instigator, one would still be burdened by the canonical impediment if, under the Church's moral analysis, one is found to have been morally responsible for the death of one's former spouse.
Once incurred, the impediment of crimen never ceases on its own. The mere passage of time will not erase it, not even if, sadly, after many years, people more or less forget about the dead spouse. Pastors cannot grant a dispensation from this impediment, nor can bishops. Even if a cleric is found to witness the wedding of one laboring under the impediment of crimen, such an attempt at marriage is null and of no effect in the eyes of the Church. Only the Apostolic See can dispense from the impediment of crimen (Canon 1078 § 2, n. 2), and commentators agree that the Holy See only very rarely considers such dispensations. Going back at least a hundred years, they can find no example of a dispensation from the impediment of crimen being granted where the fact of one's moral responsibility in the death of a former spouse is public knowledge.
In sum, if, in order to be free to marry a third party, one spouse succeeds in ending the other spouse's life, even through a civilly-approved death by euthanasia, and then goes on to attempt that marriage, such a person, besides facing other moral and even canonical consequences for the spousal death, attempts the subsequent marriage without the blessings of or recognition by the Catholic Church.
Of course, there are those who could say that anyone who is
willing to kill a spouse in order to marry another is not likely
to worry too much about what the Church thinks about their second
wedding. There might be some truth in that, but the fact that some
people are going to disregard moral and canon law in their
decisions does not mean the Church cannot, or should not,
enunciate clearly the rules are by which we should strive to live.
The matrimonial impediment established under Canon 1090 is not,
and is not intended to be, the Church's primary response to the
threat of legalized euthanasia, but it is part of that response,
and it would behoove us all to know that, in its way, it too
strives to defend the innocent. +++
(1) Actually, Michael wants his wife's food and
water cut off and, given the body's more urgent need for
hydration, Terri might be parched to death before she starved to
My article prompted a letter to the editor (May-June, 2004), and I was asked by TR to reply.
I was disappointed by Edward Peters’ article on the Schiavo case (“Neither Shalt Thou Kill Thy Spouse,” This Rock, January 2004). One doesn’t need to rely on canon law to know that killing one’s spouse is wrong. Peters makes the same error as the lay press: he equates the withdrawal of extraordinary means of sustaining life (intravenous fluids, gastronomy tube feedings) with murder. The Church’s stand on this is clear. “Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of ‘overzealous’ treatment. Here one does not will to cause death; one’s inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able, or, if not, by those legally entitled to act for the patient whose reasonable will and legitimate interests must always be respected” (CCC 2278). I was surprised by the editor’s failure to note Edward Peters’ twisted logic and lack of knowledge of Church teachings.
Considering that Terri Schiavo cannot eat or drink on her own, or perform any other normal function of daily living, it would be reasonable and perhaps even merciful to withdraw artificial means of keeping her body alive. Since Terri cannot convey her wishes, it is her husband’s responsibility to determine her “will and legitimate interests.” The Florida legislature has disregarded Terri’s human dignity by interfering. I agree that it is wrong for Mr. Schiavo to pursue another relationship, but it cannot be inferred that this is guiding his judgment regarding her whishes.
XXX (name and city appeared in original)
Catechism of the
2277: Whatever its motives and means, direct euthanasia consists in putting an
end to the lives of handicapped, sick, or dying persons. It is morally unacceptable.
Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his creator. The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded.
Dr. Peters replies
Apologies, of course, for any twisted logic or ignorance of Church teaching. I am a worry to my friends. But golly, where to start?
First, XXX needs to explain how nutrition and water are “extraordinary care” in a case where death is not imminent, and how his version of “mercy” passes muster despite the clear prohibition in CCC 2277 of any action designed to hasten death.
More disturbingly, though, XXX’s test for who lives or dies seems to be whether one possesses the ability to eat or drink unassisted and to perform other functions of daily living. Such a criterion in a legal system would be ghastly. Not a baby born into this Valley of Tears would merit legal protection for years (a prospect that pleases promoters of infanticide, I admit). For countless others visited by certain kinds of cancers, stroke, upper body injuries, etc., diagnosis would be tantamount to a death sentence. True, by extending to them the kind of “mercy” XXX suggests for Terri Schiavo, we would save billions of dollars in health care costs, but is not something more at stake?
If (I say if) anything about the Schiavo case helps XXX avoid such uncomfortable comparisons, it is that Terri apparently cannot swallow her food. But here XXX’s deference to husband Michael’s authority (an approach I might otherwise share) is seriously misplaced. It is a cornerstone of law, not to mention common sense, that a prejudiced person should not serve as the representative of one whose demise would directly benefit the representative. Michael Schiavo, despite clear interests strongly counter to Terri’s, has found a judge willing to support him in refusing the very therapies that might help his wife regain her swallowing skills, thus wrapping his self-fulfilling prophecy in legal robes! No wonder Terri’s plight sends shivers down the spine. Or should.