Case LVIII: Who Incurs the Censure for Procuring an Abortion That Takes Effect?

Applied correction from Woywod’s opening insert: Case LVIII.—This case must be corrected as far as the mother is concerned, for Canon 2350 of the Code explicitly states that the mother is included in the penalty of excommunication for abortion.

As exempt from the censure is considered a mother who for fear of infamy procures the abortus on herself. In a prudent, and it appears very proper way, this exemption has been restricted to theone case where an otherwise reputable woman who commits this crime in fear of disgrace is concerned. The reason for this exemption may here be explained. The words of the censure, as issued by Pius IX., reads quite generally: procurantes abortum effect secuto. And Ballerini states: atqui etiam in Constitutionibus Sixti V. et Gregorii XIV. indistincte in procurantes abortum censura forebatur. If, then, vi huius censurae, mothers are included, they may for another reason be exempted, namely, on account of fear of disgrace, because, in the first place, metus gravis generally frees from papal censures (Gury, II. n. 940; Lehmkuhl, III. n. 867), and the exception may be accepted all the more as safe because authors like Lehmkuhl (JJ, ». 970), probabiliter exempt all mothers. Also St. Alphonsus, inasmuch as he exempts the mother, seems to have based his opinion upon the ground of fear of disgrace, since he says attenta ratione intrinseca probabilior (lib. 4. n. 395). There is, however, no interior reason valid except the fear of infamy, because the other reason, the fear of many children, can in the married state be no valid reason, since this state was instituted to that very end.

1. For this reason it is my opinion that unmarried, reputable, women, who for fear of disgrace, procure abortion on themselves, are exempt; but not disreputable women in places where it is not considered as disgrace, nor married mothers. (Vide Bucceroni, Comment. Const. Apost. Sedis.)

2. Further, there are exempt from this censure those who, without guilt, are not aware of the same. This applies in general to all papal censures (as Gury, Lehmkuhl, etc., teach), but not to censures reserved to the bishop. If, therefore, this sin is not reserved to the bishop in a diocese, and the person in question had no knowledge of the papal censure, any priest can give absolution, and this case very frequently occurs.

3. In order to incur this or any other papal censure there is commonly presumed a culpa gravis, a mortal sin (Gury, II. n. 934). If the confessor can reasonably conclude that the penitent has acted in confusion, without sinning grievously, he may also grant absolution.

4. Further cases and exceptions are suggested by a consideration of the wording of the censure: procurantes abortum effectu secuto. By procurantes the theologians (Gury, Lehmkuhl) understand those who directa voluntate, studiose, ex industria proxime causam foetus ejicientem ponunt, those, therefore, who actually intend to directly bring about the abortus. In consequence there are exempted: (a) those who are merely aware of the operation being performed, for knowing of a fact does not mean to actually bring it about; (b) those who merely make the mental resolution of procuring the abortus; for this is only desiring the abortus, not actually procuring it. Further, (c) druggists and venders who know of the intended act and supply the necessary drugs for it, because their aim is not to bring about the abortus, but to make the sale and to gain profit from it. Finally, (d) those who advise or suggest the act (Lehmkuhl, n. 970). It is to be well remembered here, in order to prevent misunderstanding, that one may sin very grievously by such participation without, however, incurring the censure. To be guilty of a censure it is necessary that one has committed the crime which falls under the censure. This censure, however, presumes the procurare, and procurare means studiose, directe, proxime causam foetum ejicientem ponere.

5. The censure, furthermore, reads procurantes abortum; therewith it is supposed that the abortus is intended, and not some other result, as would be the case, for instance, if on account of illness drugs are given by the doctor’s orders which directly cure the sickness, but, at the same time, indirectly bring about the abortus; this remark is all the more important here, as this may be done in certain cases without sin (compare Gury-Ballerini, I. n. 402).

6. What does, finally, effectu secuto mean? It means that a person who endeavors to procure the ejectio foetus does not incur the censure if the ejectio does not take place, because the decree says effectu secuto. A person will incur the censure only after this effect takes place; this is conveyed in the words effectu secuto. If such a person, before this result takes place, comes to Confession, he or she may be absolved. This is the logical conclusion of our argument: (e) Finally, the words of the decree provide that the abortus must be the actual result, effectus procurationis, because the words are effectu séecuto, and here the odiosa interpretatio must be allowed to rule. The case may happen that a person who had actually intended to cause the abortus on herself suffers a bad fall, or gets into a condition that of itself is sufficient to effect the ejectio foetus. Under such circumstances the abortus is procured, but not as a result of the sinful intention and preparation, and as effectu secuto is not true here, this person does not incur the censure.

Still other cases may be imagined, but these suffice for the practise of the priest, so that he may readily give a correct answer to such questions. As is evident from the discussion, the full literal meaning of the censure procurantis abortum effectu secuto is not often present in a case. Dr. Anton Pauritsch.