Earlier this month, a reporter asked Pope Benedict XVI whether he agreed with the Mexican bishops who warned Catholic politicians voting to legalize first-trimester abortions in Mexico that they would face excommunication. Benedict said that he did indeed agree with the Mexican bishops. As reported in the Washington Post , however, the Vatican Secretariat of State quickly issued an edited version of Benedict’s response that "made his remarks seem a more general statement, rather than referring specifically to Mexican bishops who had said the politicians had excommunicated themselves."

According to the Post , "Benedict’s spokesman, the Rev. Federico Lombardi, told reporters that such edits are common. ‘Every time the pope speaks off the cuff, the Secretariat of State reviews and cleans up his remarks,’ he said." In charity, I think, we have to assume Fr. Lombardi is exaggerating here in order to minimize this incident; it would be shocking to think that, when the pope speaks in public on an important topic, the Roman Catholic faithful shouldn’t take what he says seriously until it has been confirmed in writing by the Secretariat of State. No, the Vatican redacted these particular remarks because it wanted to temporize on the immensely controversial issue of excommunicating pro-abortion Catholic politicians.

We saw this problem in the United States in 2004, when Senator John Kerry was running for president, and we’ll likely see it again if Mayor Rudolph Giuliani gains the Republican nomination for the same office in 2008. What’s important to understand here is that the issue arises not only because of the intense controversy surrounding abortion but also because of certain peculiar provisions of canon law.

To start at the beginning, as a matter of Catholic moral theology (which is prior to any question of canon law), a Catholic who commits a grave sin separates himself from the Body of Christ and imperils his immortal soul. This applies to all grave sins of whatever nature; there is nothing special about abortion here. Until a person who commits such a sin repents and does penance, he ought not receive communion. This is because, Whoever eats the bread or drinks the cup of the Lord unworthily sins against the body and blood of the Lord (1 Cor. 11:27). This is a moral prohibition in moral theology, not a legal punishment under canon law.

Canon law becomes relevant because the Church has chosen to impose penalties for certain forms of wrongdoing in order to create additional incentives for the offender to repent. Such is the primary purpose even of the extreme penalty of excommunication, which denies the subject person access to the sacraments. Now, the Church generally imposes such canonical penalties as the result of a judicial process, much as the state imposes a term of imprisonment through the sentence of a judge. Although there are canon courts able to adjudicate cases of alleged canonical crimes and impose penalties therefor, it is quite rare for the Church to charge anyone with a canonical crime. Catholic politicians who support abortion are thus not remotely likely to be prosecuted in a canon court, and they are thus not remotely likely to have imposed on them any penalty as a result of such procedure. If this were the end of the matter, therefore, there would be no live question of Catholic politicians who support abortion being excommunicated.

The issue of excommunication persists, however, because canon law treats abortion much more severely than most other kinds of wrongdoing. It imposes on the canonical crime of procuring an abortion a so-called latae sententiae excommunication (canon 1398). An excommunication latae sententiae attaches to the offender merely because he has performed the prohibited action and without any judicial action by the Church¯indeed without any further action by anyone whatsoever. The penalty is imposed automatically, or, as an American lawyer might say, by operation of law. Ecclesiastical authority will, at most, take note of the fact that the wrongdoer has incurred the penalty. That is precisely what the Mexican bishops were doing when they said that the legislators voting to legalize abortion had excommunicated themselves, and this is what Pope Benedict was acknowledging as well, at least until the Vatican Secretariat of State decided that, although Pilate wrote what he wrote, Benedict didn’t say what he said.

Procuring an abortion is not the only offense punished with a latae sententiae excommunication. The others are apostasy, heresy, and schism; desecrating the consecrated eucharistic species; using force against the person of the Roman pontiff; absolving a partner in a sin against the Sixth Commandment; ordaining or being ordained a bishop without pontifical mandate; and directly violating the seal of the confessional.

When these other canons have been violated and the matter is of public importance, the Church has been reasonably quick to take note and confirm that the offenders are excommunicated lata sententia . For example, when Archbishop Marcel Lefebvre ordained several men to the episcopate without a pontifical mandate, and thus violated canon 1382, Pope John Paul II issued a motu proprio noting the excommunication , and when Fr. Marek Bozek ran a schismatic parish in St. Louis in violation of canon 1364, Archbishop Raymond Burke took similar action. This is as it should be, for such declarations serve important purposes. If Archbishop Lefebvre is excommunicated, for example, this is important information for Catholics deciding whether to participate in the activities of the sect he founded.

The Church has been very hesitant, however, to make similar declarations in connection with violations of canon 1398 against procuring abortions. The reasons for making such declarations, however, seem as strong in this case as in any other. If a Catholic legislator has incurred an excommunication latae sententiae because of how he voted on abortion legislation, presumably this is important information for Catholics deciding how to vote in the next election. If so, when a Catholic politician incurs an excommunication latae sententiae for violating canon 1398, the Catholic bishops owe the faithful a clear statement that this has occurred.

Which brings us back to the rewriting of Pope Benedict’s comments about the Mexican lawmakers. The Church’s reluctance to speak straightforwardly about whether Catholic politicians incur an excommunication latae sententiae for their actions related to abortion legislation seems to derive from a desire to avoid embroiling the Church further in the bitter controversies about abortion. If so, such considerations are misguided. The Church has embodied in canon 1398 her judgment that procuring an abortion is a crime so serious that it warrants the penalty of excommunication latae sententiae . If the Church has changed her mind about that, then canon 1398 should be amended accordingly.

Assuming, however, that procuring an abortion is as gravely wrong as the canon implies, then the Church should stand by this judgment. If I say to the wicked, "You shall surely die," and you give him no warning, nor speak to warn the wicked from his wicked way, in order to save his life, that wicked man shall die in his iniquity; but his blood I will require at your hand. But if you warn the wicked, and he does not turn from his wickedness, or from his wicked way, he shall die in his iniquity; but you will have saved your life. (Ezek. 3:18¯19). Hence, when Catholic politicians violate the canon, the Church should declare openly that they have incurred the penalty of excommunication latae sententiae . The pope, of all people, must be straightforward about the truth of the Gospel (Gal. 2:14).

Robert T. Miller is an assistant professor at the Villanova University School of Law.

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