7. On The Procurement Of Abortion

137. Definition. Abortion is the ejection of an immature living fetus from the maternal womb.

It is said: of an immature fetus, i.e., one who outside the maternal womb will certainly and soon die. Physiologists are accustomed to call a man in the maternal womb up to the first month after conception an embryo,¹⁷² and afterward a fetus, which fetus indeed is considered viable, or able to live outside the maternal womb, around about the seventh month of gestation. For grave causes physicians sometimes licitly cause the artificial birth of a viable fetus, as will be said below. This birth indeed is the premature bringing-forth of a fetus, but it is not abortion properly speaking, because after such premature birth the fetus can live; on the contrary, the ejection of an immature fetus necessarily causes his death. Therefore one thing is acceleration of birth (artificial birth), another thing is abortion.¹⁷³

¹⁷² Some physiologists call the female ovule fecundated by semen, during the first two weeks, an ovum, and then up to the fifth week give it the name of embryo.

¹⁷³ In German the acceleration of birth is called Frühgeburt, but abortion is called Fehlgeburt.

138. Divisions. 1. A twofold abortion is distinguished: accidental, which occurs by chance without any intention on the part of man; artificial, which is procured intentionally. Moreover, the procurement of abortion is one thing direct, another thing indirect. It is called direct if the means employed of themselves and immediately kill and expel the fetus. But it is called indirect if the means employed of themselves and immediately are ordered to the health of the mother, but by accident and beyond the intention (although not beyond foresight) expel the fetus.

2. A twofold fetus is distinguished: animated and inanimate, according as it has or does not have a rational soul. Several Holy Fathers, e.g., Gregory of Nyssa,¹⁷⁴ Basil the Great,¹⁷⁵ likewise St. Maximus, Meletius, Tertullian, and all the Traducianists taught that the rational soul is in the fetus from the first instant of conception. The same is today admitted rather commonly by physiologists. But Aristotle and very many older theologians, e.g., Cassiodorus, Theodoretus, Gennadius, St. Anselm, Peter Lombard, St. Thomas, and almost all the Scholastics (who teach that the soul is the substantial form of the body) affirm that the rational soul is not infused into the embryo before it is sufficiently formed and capable of receiving its substantial form. Now this sufficient formation is had in a male fetus around 40 days, but in a female fetus 80 days after conception. Before this time the embryo indeed lives, and indeed even by a life of its own, but the vivifying principle is something vegetative or merely animal.¹⁷⁶ The Scholastics chose this determination of time chiefly because of the law of the Old Testament prescribing a purification of 40 or 80 days, according as women bore a boy or a girl.¹⁷⁷ The opinion of the Scholastics is more conformable both with the philosophical doctrine concerning the soul as the substantial form of the body, and with Sacred Scripture, where it is had according to the version of the Septuagint:¹⁷⁸ "If anyone strikes a woman having in the womb and she miscarries, if the fetus has not been formed, he shall be fined with money; but if it has been formed, he shall give life for life." Therefore there is given a formed or animated fetus and a non-formed or inanimate fetus. He who commits abortion of an animated fetus commits homicide, and consequently must give life for life. But otherwise homicide is not present, and consequently there is only a monetary penalty. Besides, this opinion is much milder. For if from the first instant of conception a rational soul is present, the number of infants dying without baptism is perhaps ten times greater, since abortions are much more frequent especially in the first weeks after conception. - Whatever may be the value of each opinion, this one thing is certain: that the rational soul is in the fetus before birth. For on March 2, 1679, Innocent XI condemned the proposition (35): "It seems probable that every fetus, as long as it is in the womb, lacks a rational soul, and then first begins to have it when it is born, and consequently it will have to be said that in no abortion is homicide committed."¹⁷⁹ Neither in theology nor in canon law is there now any further distinction made between an animated and a non-animated fetus.

¹⁷⁴ De hom. opif. c. 28.

¹⁷⁵ Canonical Epistle I to Amphilochius.

¹⁷⁶ Cf. S. theol. 1, q. 76, a. 3 ad 3, and q. 118, a. 2 ad 2.

¹⁷⁷ Lev. 12, 2.

¹⁷⁸ Ex. 21, 22. - The text of the Vulgate and the Hebrew text have another reading.

¹⁷⁹ Denz. n. 1185.

139. Principle 1. The acceleration of birth of a viable fetus is licit for grave reasons.

The reason is that in this way, indeed, the offspring is accustomed to remain weak throughout the whole life; indeed some danger of life arises both for the mother and for the offspring, yet that danger is not so imminent. But it is lawful from a grave cause to expose life to danger. - A sufficient reason for accelerating birth in this way is the infirmity of the mother, or the difficulty or impossibility of bearing a perfectly mature fetus. - Thus also the Holy Office responded on May 4, 1898: "The acceleration of birth is not illicit of itself, provided it is performed for just causes and at that time and in those ways by which, from ordinary contingencies, care is taken for the lives of the mother and the fetus."

140. Principle 2. For grave reasons it is lawful indirectly to procure abortion.

This principle follows from the rules given concerning the indirectly voluntary. For it is lawful to place a good or indifferent cause from which a double effect follows, one good, the other bad, if there is a good intention and a proportionately grave reason. Therefore it is lawful to provide to a mother laboring under a dangerous illness, which cannot be cured in another way, a remedy which directly and immediately tends to the cure of the disease, although abortion is sometimes connected with it by accident. Such remedies are certain medicines which are given by way of medicine; besides these, diverse baths, injections made under the skin or in other places, bloodletting (commonly, Aderlaß), etc.¹⁸⁰ Indeed, absolutely speaking, it is lawful to excise the pregnant uterus itself affected by disease, if, this operation being omitted, the death of the mother would certainly follow. For the sick mother has a strict right that her sick members be cured. But if from such a cure the death of the fetus follows, this death is caused not directly, but indirectly.¹⁸¹ - As is plain of itself, such remedies may not be employed unless true and ineluctable necessity exists.

But when by remedies of this kind abortion has occurred beyond the intention, the fetus brought forth is to be baptized at least conditionally as quickly as possible, that his soul may be saved. How such baptism is to be administered, see below III, n. 131.

¹⁸⁰ Cf. Capellmann-Bergmann, Pastoralmedizin 19th ed., p. 37 sqq.

¹⁸¹ Cf. Noldin, De praeceptis n. 341.

141. Principle 3. It is never lawful directly to procure the abortion of a living fetus.

It is said: of a living fetus. For if the fetus is certainly dead, it is lawful to extract it from the womb of the mother, as is plain of itself. But the death of the fetus ought not to be presumed, but proved. The enunciated principle is easily proved. For a) the direct procurement of abortion is the direct homicide of an innocent man. But it is never lawful directly to kill an innocent man. Therefore the direct procurement of abortion is never lawful. For a living fetus is a man consisting of body and soul; but according to the opinion of those who teach that the rational soul does not arrive except after 40 or 80 days, the fetus before this time has elapsed is a man in becoming and certainly will be a man unless it is impeded. Hence Innocent XI proscribed proposition (34): "It is lawful to procure abortion before the animation of the fetus, lest a girl discovered to be pregnant be killed or dishonored."¹⁸² - b) Through the procurement of abortion there is caused to an animated fetus not only death of the body, but also death of the soul, since baptism can very rarely be conferred, or at least in fact is conferred very rarely. - c) In the year 1889, on Aug. 19, the Holy Office responded to the Archbishop of Cambrai, who had set forth six diverse ways of procuring abortion: "In Catholic schools it cannot safely be taught that the surgical operation which they call craniotomy is licit, as was declared on May 28, 1884, nor any surgical operation whatsoever directly killing the fetus or the pregnant mother." - From all these things it is manifestly plain that direct procurement of abortion is never lawful. Thus today all Catholic theologians also teach, with some of the older ones contradicting, e.g., Caramuel,¹⁸³ especially if the fetus is not yet animated.¹⁸⁴

You ask what the direct procurement of abortion is. In practice it is not always easy to discern whether some medical action is the direct or indirect killing of the fetus. Let this be the rule: If by such an action or medicine the fetus is directly touched, it seems it must be called direct procurement, e.g., incision of the amnion,¹⁸⁵ which today is the most usual mode of procuring abortion. But if from such an action or medicine there arises indeed a greater or lesser danger of abortion, yet the fetus is not directly touched and abortion is not directly intended, it seems to be only indirect procurement.¹⁸⁶ - As has already been said above, even this indirect procurement of abortion is not lawful unless grave necessity demands it. Hence women sin (at least by a depraved intention) who, fearing that they are pregnant, provoke menstruation again in various ways, e.g., by washing the feet in water seasoned with salt or mustard, by taking expulsive drinks, by compressing the abdomen, by dancing in an excessive manner, etc.; nevertheless, since in the first months after carnal intercourse has been had it cannot be known certainly whether the woman has conceived, therefore the penalties passed against those procuring abortion are not incurred.

¹⁸² Denz. n. 1184.

¹⁸³ Caramuel, Theol. fund. n. 1653.

¹⁸⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 394.

¹⁸⁵ Eihäutstich. I have written more broadly on direct and indirect procurement of abortion in Linz. Theol. Quartalschr. (1921) p. 565-576.

¹⁸⁶ Concerning this matter the response of the Holy Office on July 24 (25), 1895, must be noted: "Titus, a physician, when he was called to a pregnant woman lying gravely ill, commonly observed that no other cause underlay the lethal disease except the pregnancy itself, that is, the presence of the fetus in the womb. Therefore one way alone was at hand for him, in order to save the mother from certain and imminent death, namely to procure abortion or the ejection of the fetus. He commonly entered upon this way, yet employing means and operations of themselves and immediately not indeed tending to this, that they should kill the fetus in the maternal womb, but only that they should remove it from there, and that the fetus, if it could be done, should be brought forth alive to the light, though certainly about to die soon, since it is supposed still altogether immature.... Titus asks whether he can safely undertake the stated operations in the repeated said circumstances. Resp.: In the negative, according to the other decrees, namely of May 28, 1884, and Aug. 19, 1889. His Holiness approved." - Therefore the aforesaid operation is had as direct procurement of abortion. On account of this decree Lehmkuhl retracted the opinion previously proposed, namely that a violent invasion upon the fetus and its vital element could be done licitly in order to save the mother otherwise about to perish (cf. Lehmkuhl, Theol. mor. I, n. 1006).

142. Penalties against those procuring abortion.

The antiquated laws being omitted,¹⁸⁷ according to the current ecclesiastical discipline, by common law the following penalties are inflicted upon those procuring abortion:

1. Excommunication reserved to Ordinaries.

The Code of Canon Law c. 2350, § 1 establishes: "Those procuring abortion, the mother not excepted, incur, the effect having followed, a latae sententiae excommunication reserved to the Ordinary; and if they are clerics, besides this they are to be deposed." For incurring this penalty it is required that the abortion has certainly followed. Hence if someone has vainly attempted to procure abortion, or if it is doubtful whether a fetus truly had been conceived (which happens very often), the excommunication is not incurred. In ancient times this censure was not present if the aborted fetus was inanimate, but today every direct procurement of abortion induces the penalty of excommunication. - Under the name "those procuring" are comprehended all who directly and proximately, but not those who remotely, produce the abortion. Hence, for example, he who merely advises abortion, or a pharmacist who prepares an abortive medicine prescribed by a physician, does not incur this censure; but if - as not rarely happens - the pharmacist himself, without the prescription of a physician, compounds a medicine for procuring abortion, he is a truly efficacious and principal cause of the abortion, and consequently incurs excommunication. But a physician doing a surgical operation for this end or prescribing a medicine is excommunicated. - Cooperators do not fall under this censure unless the delict would not have been committed without their work.¹⁸⁸ But those commanding, and all those who induce the woman by grave fear, seem to be excommunicated. Wherefore the father, husband, fornicator, seducer, etc., who command abortion, fall under this censure, because in reality they are the principal cause of this crime.

¹⁸⁷ Cf. Hollweck, Die kirchlichen Strafgesetze § 163.

¹⁸⁸ Code of Canon Law, c. 2231.

143. You ask: Whether craniotomy is to be equated with abortion as to the penalty of excommunication. Certain authors, as Haine,¹⁸⁹ Berardi,¹⁹⁰ Génicot,¹⁹¹ Bucceroni,¹⁹² think that craniotomy is not properly the procurement of abortion, and consequently that physicians perpetrating craniotomy and similar actions directly killing the fetus do not incur this excommunication. This opinion indeed seems probable. He who does craniotomy is indeed as evil a murderer as he who procures abortion. Not incongruously the latter is compared with a killer who throws an infant into water or suffocates him; but the former is similar to him who butchers an infant with a little knife. Then, both in abortion and in craniotomy there is had an occisive ejection or extraction of the fetus from the maternal womb. Yet since abortion is the ejection of an immature fetus, but craniotomy is the killing of a mature infant, there is some distinction between the procurement of abortion and craniotomy. Hence just as he who reads a heretical book is excommunicated, but he who hears such a book read is not judged to fall into excommunication, so he who procures abortion is excommunicated; but he who does craniotomy of a fetus (at least a mature one) is free from excommunication. For all censures are to be interpreted strictly. Nor let anyone say that craniotomy is something worse than abortion, therefore worthy of a greater penalty. For it is still worse to kill a king or father perhaps existing in the state of mortal sin, and yet the regicide or parricide is punished by no latae sententiae censure. Now the reason is the general rule: "It is not lawful to extend a penalty from case to case, although an equal reason is present, indeed a graver one."¹⁹³ But irregularity certainly arises from the perpetration of craniotomy, inasmuch as it is true voluntary homicide.

¹⁸⁹ Elem. Theol. mor. IV, 476.

¹⁹⁰ Praxis Confess. IV, n. 1094.

¹⁹¹ Theol. mor. II, 608.

¹⁹² Commentarii n. 81.

¹⁹³ Code of Canon Law, c. 2219, § 3.

144. 2. Irregularity from delict.

By this penalty indeed are punished not only those procuring, but also all culpably cooperating.¹⁹⁴ Therefore everyone who voluntarily procured the abortion of a fetus or culpably cooperated in this, e.g., by advising, preparing medicines, incurs irregularity in the same way as if he had committed homicide. Hence this penalty of irregularity extends more broadly than the excommunication inflicted, since it is borne also against cooperators, who nevertheless sometimes do not incur excommunication, as has already been said. In ancient times this irregularity was not incurred except by the procurement of abortion of an animated fetus; but now it is incurred by the procurement of abortion of any living human fetus whatever, the effect having followed.¹⁹⁵

Irregularity contracted from the procurement of abortion cannot be dispensed except by the Holy See (by the Sacred Penitentiary, if it is a question of occult irregularity; otherwise by the Sacred Congregation of the Sacraments) or by its delegate.¹⁹⁶ But in more urgent occult cases, when, namely, from the observance of this irregularity the guilty person would betray himself with great infamy or with scandal, then, although a proper faculty of dispensing has not been conceded as for other ecclesiastical penalties, nevertheless from epikeia any confessor in the sacramental forum can suspend the obligation of observing the irregularity, with the grave burden imposed of having recourse at least within a month by letter and through the confessor to the Sacred Penitentiary or to a bishop furnished with the faculty, and of standing by his mandates.

¹⁹⁴ Thus from the Constitution of Gregory XIV Sedes Apostolica, May 31, 1591, and from the Code of Canon Law c. 985, n. 4.

¹⁹⁵ Code of Canon Law, c. 985, n. 4.

¹⁹⁶ Code of Canon Law, c. 990.

145. 3. Deposition for clerics.

Thus from the Code of Canon Law c. 2350, § 1 cited above. This penalty is of ferendae sententiae.

Note. From particular law other penalties are still not rarely inflicted upon clerics and religious who have committed the immense crime of abortion.

Scholion 1. On civil laws concerning abortion. Most severe penalties are accustomed to be inflicted also by the criminal codes of diverse nations upon those who procure abortion by private authority;¹⁹⁷ but, marvelous to say, physicians procuring abortion on account of the illness of the mother are in no way punished by civil law, but on the contrary are praised.

¹⁹⁷ Cf., e.g., German Penal Code § 218 sqq.

146. Scholion 2. On ectopic fetuses. Ectopic or extra-uterine fetuses are called those who are found outside the maternal womb, e.g., in the Fallopian tubes. There exist two responses of the Holy Office concerning this matter: "Is laparotomy lawful when there is question of extra-uterine pregnancy or of ectopic fetuses?" The Holy Office on May 4, 1898, responded: "Necessity compelling, laparotomy is lawful for extracting ectopic conceptions from the womb of the mother, provided that the lives both of the fetus and of the mother, as much as can be done, are seriously and opportunely provided for." - But since this response could be badly understood, as if it were always lawful to extract ectopic fetuses, it was again asked: "Whether at any time it is lawful to extract from the womb of the mother ectopic fetuses still immature, the sixth month after conception not yet having been completed?" The Holy Office on March 5, 1902, responded: "In the negative according to the decree of May 4, 1898, by force of which the lives of the fetus and mother, as much as can be done, must be seriously and opportunely provided for; but as to the time, according to the same decree, let the petitioner remember that no acceleration of birth is lawful unless it is performed at the time and in the ways by which, from ordinarily occurring circumstances, the lives of the mother and the fetus are cared for." - These two responses indeed clearly show that ectopic fetuses are to be treated in altogether the same way as fetuses existing in the womb, i.e., they cannot be killed, but their birth after the sixth or seventh month of conception can be accelerated, grave necessity existing. The matter stands otherwise if outside the womb in some organ of the mother there has unexpectedly arisen a tumor or cyst, in which perhaps a living fetus is found, which cyst nevertheless now causes an instant danger of death. For just as it is lawful to excise a gravely diseased uterus, even if it contains a fetus - as was said above - so a fortiori it is lawful to excise a tumor lethal to the mother. For such an operation is not direct, but indirect procurement of abortion, because directly there is removed a gravely diseased organ of the mother, but indirectly the fetus perhaps existing in it perishes. Thus also teach Lehmkuhl,¹⁹⁸ T. Antonelli,¹⁹⁹ and others.

¹⁹⁸ Theol. mor. I, n. 1011.

¹⁹⁹ Medicina pastor. (1905) 224.