Christ among the Doctors of the Law



Friday, May 21, 2010

The Phoenix abortion case

The irony (no, make that, the hubris and hypocrisy) of "Catholics for Free Choice", a group notoriously dedicated to disregarding the right to life of pre-born babies, criticizing a Catholic bishop for allegedly disregarding a hospital administrator's right to a good reputation after she admitted her cooperation in the killing of an innocent baby, is, well, beyond comment. So let's just move on.

To follow the discussion below, one needs to know that, in late 2009, a Sr. Margaret McBride, an administrator at St. Joseph's Hospital in Phoenix, apparently formally cooperated in the direct abortion of a baby in the hospital. Because of medical record privacy laws, however, and against the backdrop of the chronic unreliability of secular reporting when it comes to Catholic issues, exactly who said what after that is a matter of some confusion. But, we do have a recent Diocese of Phoenix Communications Office "Q-A" on the case, CFFC President Jon O'Brien's critiques of the Phoenix Q-A, and some statements about the case by Phoenix Bishop Thomas Olmsted (who is a canonist). Read these carefully before proceeding.

My observations:

1. The Phoenix Q-A has only the authority of the Office of Communications to support it. If there are errors or ambiguous statements in the Q-A, they would be attributable only as far as the signed author of the document (a Rob DeFrancesco who, I doubt, is a canon lawyer).

2. No one can challenge, or is challenging, the idea that most of the assertions in the Q-A are plainly correct. CFFC might not like what the Church says about the absolute inviolability of innocent human life, and it might resent the fact that the Church takes violations of such rights so seriously, especially when such crimes are committed under the auspices of prominent Catholics, but CFFC cannot dispute that the Church teaches what she teaches on abortion.

3. Canon 1398 establishes a latae sententiae excommunication against any Catholic who "procures" an abortion. Because it is canonically possible for persons other than the mother and the abortionist to "procure" an abortion and come under the penalty, the Phoenix Q-A is right to make this legal point. But, where the Q-A seems to overstate its case is when it uses language implying that anyone who might fall within the terms of Canon 1398 necessarily does so. Canonists (like Olmsted) know what non-canonists (like DeFrancesco) might overlook, namely, that every canon in the Code must be read in light of every other canon in the Code and that sometimes other canons (not to mention the specific facts of a concrete case) might impact the application of a given canon in a given case. If this is O'Brien's point, he is correct in making it.

4. Further, canon law, like every legal system, recognizes that some crimes are committed with the cooperation of several people and that such cooperation can come in different forms and degrees, warranting different levels of punishment. The Phoenix Q-A is right to alert readers to the possibility that others could share not only in the moral guilt of cooperating in the killing of an innocent baby, but also in the canonical liability attached to cooperation. But what the Q-A cannot do, and what it should not have come across as trying to do, was to apply that complex area of law to the facts of a specific case. Again, if this is O'Brien's complaint, he has some basis for raising it.

5. There is disagreement among canonists as to how far one's facilitation of a specific abortion can be removed from the act and yet still fall within the canonical definition of an accomplice (esp. per 1983 CIC 1329). Good arguments against holding medical administrators liable for abortions have been made (see, e.g., James Coriden in CLSA Advisory Opinions 1986, beginning at p. 141), but, canonical counter-arguments aside, such opinions depend heavily on the facts of specific cases. Here I think O'Brien skirts a crucial point.

In the Phoenix case, it appears that the abortion in question could not have occurred without the specific and express consent of hospital authorities, and that Sr. Margaret either voted for the request in the hospital ethics committee or independently supplied the necessary authorization for the abortion to proceed. Either way, a compelling case that Sr. Margaret was a necessary, formal cooperator in the killing of an innocent baby is present. That's what I think her own admission concedes, and neither Bp. Olmsted nor the Phoenix Q-A seems to be saying anything contrary.

6. As to whether Bp. Olmsted, as a well qualified canonist, simply confirmed that the objective elements of a crime (especially those elements revolving around "cooperation in crime") seem to him to have been met in this case, or whether he intended his statement to be a formal declaration of the incurrence of a latae sententiae excommunication for purposes of Canon 1331.2, is not clear to me (and certain phrases in the Q-A suggest that he has not made such a formal decision), but neither is it crucial for appreciating what is happening in this case. And I say that even though I have long held that latae sententiae penalties are unsustainable in a modern legal system, that their use inevitably distracts attention from the underlying offense and redirects it toward the complexities of the canonical legal system (which most folks are not prepared to assess), and that the 150 year trend toward reducing automatic penalties in the Church is good and should be maintained. Still other issues, such as authority to remit sins and sanctions, are unnecessary complicated by automatic sanctions as well.

But Bp. Olmsted's reported approach in this case (occasionally to be distinguished from how the Phoenix Q-A explains things) moots these issues and puts the focus where it needs to be: on the inviolability of innocent human life, on the Church's duty to reprove offenders, and on her desire to win back sinners even from something as terrible as abortion. Bp. Olmsted's actions are, to put it simply, three-for-three here.

Sr. Margaret's frank admission of complicity seems a welcome first step toward her reconciliation, and the last thing she or Bp. Olmsted needs now is for Catholics for Free Choice to stir up a “let’s you and him fight” scenario.
Not when real babies' lives are at issue.

One last thought: I would encourage Mr. O'Brien to keep reading canon law. Maybe starting with Canon 1369. + + +

See also my June 01, 2010 response to Fr. Thomas Doyle on this case.