174. Abortion

1. Caius, a priest, opened a vein for a pregnant woman so that abortion would follow; and since it was not established that there had been an abortion, he gave her counsel of immersing her feet in hot water for half an hour; nor nevertheless, even this time, could it be established that there had been an abortion. Is Caius irregular?

R. "Diana says with Nav. etc. that if a physician opened a vein for a pregnant woman so that abortion would follow, but afterward it is not established that an abortion followed, he is not to be judged irregular... because proceedings are not taken against someone for penalties unless the body of the crime is established. But otherwise it must be said if the means applied for abortion were so efficacious that from them the effect commonly follows, because then presumption is made from things commonly occurring." St. Alph., l. 7, n. 347, dub. 3. But since even that washing of the feet is not a remedy altogether efficacious for procuring abortion, it does not seem that Caius incurred irregularity. But a fortiori he is to be excused from irregularity if it is not established that the fetus was animated, and still much more if the pregnancy itself is not established. St. Alph., l. 3, n. 395, 396; I. M. 1330.

2. Sempronius, a priest, doubts whether by his counsel he procured an abortion that in fact followed. Is Sempronius irregular?

R. Negatively. St. Alph., l. 3, n. 396, says: "What must be said if there were doubt whether someone by his counsel or work cooperated in the certain death of a fetus now certainly animated? See what is to be said, l. 7, n. 371." Now in that place the Holy Doctor raises the general question whether one commanding or counseling homicide is irregular in doubt whether the mandate or counsel was or was not the efficacious cause of the homicide. And then he brings forward two opinions, one more common, affirming, the other, which does not seem to have to be called improbable, denying. Wherefore Sempronius, in the Case, can probably be excused from irregularity. I. M. 1318.

3. Fuscus, a priest, so that he might sin more freely with a certain woman without danger of infamy, persuaded her to procure for herself the perfect excision of each ovary by a surgical operation, so that she would thus be made sterile or impotent with no danger of generation. That woman did this, and thus both continued in sin for several years. On the occasion of the Holy Year Fuscus is converted to good fruit, and asks whether he ought to be dispensed from irregularity.

R. Irregularity here would be first by reason of mutilation. St. Alph., l. 7, n. 380, raises the question: "Whether he is irregular who cuts off the testicles of another." And he responds: "Bon. etc. deny it, because, as they say, those are not a member, but part of a member. But Roncaglia etc. more probably affirm it, because the testicles now have their proper operation." Now the same seems to have to be said concerning the ovaries. Moreover, not only he who mutilates another incurs irregularity, but also he who proximately cooperates in that mutilation, as in homicide, because mutilation is equated to homicide. "Hence," says Reiffenst., l. 5, t. 12, n. 57, "by the same reason the doctors commonly hold that in those cases in which he contracts irregularity who counsels, commands, cooperates toward an unjust homicide, or does not prevent it, or ratifies it, in the same cases one counseling, commanding, etc. mutilation also contracts the same irregularity." Therefore Fuscus, as one commanding or at least counseling mutilation, contracts irregularity in the Case.

But Fuscus would have to be punished with still graver penalties. For "Sixtus V in the year 1588 issued a Bull which begins Effraenatam, in which he subjected all knowingly procuring abortion of a fetus, whether animated or inanimate, and in any way consenting in this or furnishing to women poisons of sterility, to all penalties which are owed to homicides by civil and canon law, such as privation of every clerical privilege, dignity, or ecclesiastical benefice, and also inability to obtain them in the future, etc." St. Alph., l. 3, n. 395. Fuscus indeed did not procure abortion, nor did he furnish poisons of sterility for killing a fetus. But did he not furnish more than poisons of sterility, by commanding or counseling that excision for impeding generation?