Last week’s post examined retroactive validation of marriages (sanatio in radice). Today’s post explores the spirituality of canon law and the offence of abortion in light of the faculty Pope Francis granted to priests to absolve abortion during the Extraordinary Jubilee of Mercy.
The offence of abortion is based on the fifth commandment (Thou shall not kill), the Church’s emphasis on the inherent dignity of the human person rooted in his creation in the image and likeness of God (CCC, 1700), and that life starts at conception (Donum Vitae, 5).
Hence, the Church has always considered abortion a grave offence, and among the offences that are both simultaneously a sin (moral) because it is a grave offence to God and a delict (juridical) because it causes a wound to the community. The penalty for the delict of abortion is automatic excommunication (Can. 1397 §2), and the subsequent sentence of the competent authority after a penal trial is merely declaratory. It is not reserved to the Apostolic See. The sin of abortion is forgiven through sacramental absolution (internal forum), while the delict of abortion is remitted by the competent authority (external forum).
However, excommunication, among other things, prohibits one from receiving the sacraments (Can. 1331 §1, 2°). This means that one who committed or procured abortion cannot licitly receive sacramental absolution for the sin of abortion without first being remitted of the sanction of the delict of abortion. It also means that only priests with jurisdictional power to remit penal sanctions can deal with this situation. This is the basis for the restriction of those who can absolve penitents who have committed abortion (Reserved sins no longer exist in the Latin Church).
Canon 1355 §2 lists those who can remit the penalty, which has not been declared (when the offence remains occult), that are not reserved to the Apostolic See. They are the Ordinary in respect of his subjects or those who committed the offence in his territory, and any bishop in the course of sacramental confession.
However, in line with the spirituality of canon law in promoting the salvation of souls, the law also allows confessors (any priest) during confessions to remit automatic excommunication, which has not been declared “if it is difficult for the penitent to remain in a state of grave sin for the time necessary for the competent Superior to provide” (Can. 1357 §1). During the confession, the confessor is also to oblige the penitent, under the pain of incurring the excommunication again, to make a recourse within one month to the competent Superior or to a priest having the requisite faculty. This recourse can be made through the confessor, without mention of a name (Can. 1357 §2).
Hence, before the Extraordinary Jubilee of Mercy in 2015, absolution for abortion varied. In some dioceses, only the Ordinary (diocesan bishop, Vicar General, Episcopal Vicar, and Canon penitentiary) could absolve those who committed abortion. For pastoral reasons, some bishops permitted all priests in the diocese to absolve only on the first occasion. The penitent was to be referred to the Ordinary in the second and subsequent cases. Some bishops also delegated the deans or certain other priests to facilitate access to absolution. However, while the absolutions were valid, some were illicit if the priest did have the faculty to remit the penalty and the aforementioned conditions necessary for a confessor to act were not met.
In the 2015 letter granting indulgence for the jubilee of mercy, Pope Francis wrote:
“I have decided, notwithstanding anything to the contrary, to concede to all priests for the Jubilee Year the discretion to absolve of the sin of abortion those who have procured itand who, with contrite heart, seek forgiveness for it. May priests fulfil this great task by expressing words of genuine welcome combined with a reflection that explains the gravity of the sin committed, besides indicating a path of authentic conversion by which to obtain the true and generous forgiveness of the Father who renews all with his presence.”
In the apostolic letter at the conclusion of the jubilee, Pope Francis wrote:
“Lest any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father.”
Pope Francis’ intervention demonstrates the spirituality of canon law. First, while emphasising the gravity of abortion, the pope did not change the law or suppress the penalty of excommunication for the delict of abortion. This would have undermined the gravity of the sin. Second, the pope removed the bottleneck hindering reconciliation for abortion penitents by granting all priests the habitual faculty to absolve (facultas absolvendi) the sin of abortion in all cases and irrespective of the number of abortions done. This facilitates their access to absolution and improves their spiritual well-being and journey of holiness.
Nevertheless, this faculty also raised some legal concerns because in the two letters, the pope exclusively used the expression “sin of abortion.” He never mentioned the “delict of abortion” nor the remission of the delict, without which most priests cannot licitly absolve the penitent. Did Pope Francis grant all priests the power to remit excommunication arising from abortion?
In response to this dubium, the Pontifical Council for Legislative Texts, on two occasions, reaffirmed that the pope granted all priests the jurisdiction, to be used exclusively during sacramental confessions, to remit the automatic penalty of excommunication resulting from abortion in line with the provisions of canon 1355 §2.
This is based on canon 138, which provides that “one who has delegated power is understood to have been granted also those things without which the delegate cannot exercise this power.” Moreover, habitual faculties are governed by the norms on delegated power (Can. 132 §1). In other words, by delegating all priests to absolve the sin of abortion, the pope also gave all priests the jurisdictional power to remit the penal sanction of excommunication for the delict of abortion, which paves the way for licit absolution of the sin of abortion.
One must note that this faculty does not derogate the provisions concerning the irregularity to the reception and exercise of orders arising from procured abortion. This is because the dispensation to this irregularity, whether public or occult, is reserved to the Apostolic See (Can. 1047). In 2016, the Pontifical Council for Legislative Texts clarified that the irregularity from abortion also binds non-Catholics who have completed the act. While canon 1048 allows a cleric irregular for procured abortion to exercise orders in more urgent occult cases, the obligation remains for the cleric to make recourse as soon as possible to the Apostolic Penitentiary, through a confessor.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
