Sweeping the internet this morning, it became clear that the pope’s announcement caught the Canon Law community off guard. The official site of the Canon Law Society of America was not posting this news and its implications as of 11:45 AM today. I had better luck with two conservative news/blog sites for a detailed analysis here and an even more detailed explanation here. The progressive National Catholic Reporter coverage is interesting but not technical.
The fact is that the 1983 Code of Canon Law, as did the 1917 Code, identified a number of actions which are both mortally sinful and crimes against the community of the Catholic Church. Generally these sins bring an instant excommunication, or what the law refers to as a latae sententiae, that is, the act itself is the excommunication, without any formal external proceeding by a bishop, for example. Excommunication excludes the subject from any Church benefits, including sacraments. Thus, the penitent who confesses cannot be absolved by the confessor until the excommunication can be lifted. When I studied Canon Law in the early 1970’s, we were still under the 1917 procedures, which were quite detailed. Reserved sins, as they were called, required submission to a Roman Office, the Sacred Penitentiary. While the contents (in writing) of the sin and its circumstances were dispatched to Rome, the secrecy was maintained. The Penitentiary would issue its decision to the bishop of the particular diocese, and in turn to the specific confessor.
The 1983 Code gave individual bishops much more power to act in such cases, and it reduced the number of reserved sins required for Roman review to a handful. The 1983 Code of Canon Law identifies reserved sins as follows, although I omitted a few technical ones, and I am including the Canon number for your own research, if interested: (1364) Apostasy, Heresy, Schism; (1366) parents who hand their children over to be baptized or educated in a non-Catholic religion; (1367) throwing away or desecrating consecrated bread or wine; (1370) physical attack upon the Holy Father; (1371-73) various acts of public defiance against the doctrinal teachings of the Church; (1374) membership in “secret societies” such as the Masons; (1377) illicit use of Church funds or property, “alienation of Church goods;” (1378) impersonating a man in sacred orders; (1380-81) purchase of religious position of authority; (1382) unauthorized episcopal consecration by another bishop; (1385) trafficking in Mass stipends; (1386) bribery of Church officials; (1387) solicitation of a penitent by a priest in the confessional; (1388) violation of the confessional seal; (1390) violation of reputation; (1394) a man in orders who attempts a civil marriage; (1395) clerical concubinage; (1398) “a person who procures a completed abortion incurs a latae sententiae excommunication. If my memory is correct, 1390 applies to, among other things, false allegations of solicitation against priest confessors.
The Code of Canon Law: A Text and Commentary observes that there was some considerable discussion in the drafting involving “the disparity between the penalty for abortion and for homicide.” (p. 930) However, the 1917 Code had placed such emphasis upon the matter that much of its force was carried into the 1983 Code. Factors such as “Roe v. Wade” were not unknown to the draft writers, either. I searched exhaustively to discover if the 1983 Code differed from the 1917 Code in terms of what was necessary to lift the latae sententiae excommunication. Just about every source indicated that the power to lift the excommunication today resides with the local bishop, not the Roman Penitentiary. I also discovered from several canonists that in a number of dioceses in the United States local bishops have already given their priests standing faculties to absolve the sin of abortion in the confessional. I saw a few blog posts by priests who complained—not without merit—that the paperwork for the lifting of the excommunication was as simple as a routine request for a marriage in a Protestant church, a “dispensation from form” request which is just about always given.
In his statement yesterday Pope Francis noted the pressures that sometimes lead an individual to seek this most unfortunate course of action. This statement of his is part and parcel of centuries of Catholic teaching regarding mortal sin, most recently summarized in the Catechism, (CCC, 1857-59). For an individual to commit a mortal sin, there must be (1) grave matter; (2) full knowledge, and (3) deliberate consent. Whether all of these factors are in play is ultimately determined by the confessor in discernment with the penitent. So Francis did not change a wit of Catholic traditional teaching, truth be told, but he did add a pastoral instruction to priests. “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.” Popes write nothing by accident; a few days ago he reflected publicly on the sin of arrogance among those who consider themselves “real Catholics,” among whom, I am sure, are some of the so-called young “John Paul II priests” who carry a poorly hidden contempt for Francis and what they see accommodation to the modern world.
A point of some irony is the fact that Francis has granted the same confessional authority to priests of the Fraternity of the Priests of St. Pius X; these men were ordained by bishops presently under latae sententiae per Code 1382. Well, who am I to judge?