“This is ‘progressive’?” wrote Cardinal Timothy Dolan just prior to the passage of a New York law expanding abortion up to the moment of birth. Andrew Cuomo signed the bill into law on Tuesday, and even ordered that landmarks in the state be illuminated with pink lights to celebrate the bill’s passage as “a historic victory for New Yorkers.” That came to the attention of the head of Cuomo’s diocese in Albany, Bishop Edward B. Scharfenberger, who had warned the governor prior to the bill’s passage that his support for this abortion law would call into question his communion with the Catholic Church — not to mention the hypocrisy of citing Pope Francis on repealing the death penalty:

Although in your recent State of the State address you cited your Catholic faith and said we should “stand with Pope Francis,” your advocacy of extreme abortion legislation is completely contrary to the teachings of our pope and our Church. Once truth is separated from fiction and people come to realize the impact of the bill, they will be shocked to their core. By that time, however, it may be too late to save the countless lives that will be lost or spare countless women lifelong regret.

The so-called Reproductive Health Act (RHA) will expand abortion under the pretenses of choice and progress, which, in fact, it will do little to enhance. At the same time, this legislation threatens to rupture the communion between the Catholic faith and those who support the RHA even while professing to follow the Church, something that troubles me greatly as a pastor.

Contrary to what its proponents say, the RHA goes far beyond Roe vs. Wade in its aggressive extremism. Granting non-doctors permission to perform abortions does nothing to advance the security and health of women. Condoning coerced or involuntary abortions by repealing criminal sanctions even in cases where a perpetrator seeks to make his partner “un-pregnant” through an act of physical violence does not represent any kind of progress in the choice, safety or health of women. Removing protection for an infant accidentally born alive during an abortion is abject cruelty, something most people of conscience would deem inhumane for even a dog or cat. Finally, allowing late-term abortions is nothing less than a license to kill a pre-born child at will.

It is very difficult to understand how you can align yourself with Pope Francis and so vehemently advocate such profoundly destructive legislation.

If that’s a threat of excommunication, it’s about time, argued Monsignor Charles Pope last night at the National Catholic Register. While noting that he’s not a canon lawyer, Msgr. Pope writes that “it’s time to end the charade, even the lie, that Andrew Cuomo and others like him are Catholics in good standing”:

Even worse, the “Catholic” governor of New York Andrew Cuomo not only signed the bill on the 46th anniversary of Roe v. Wade, but decreed a celebration. He said, “I am directing that New York’s landmarks be lit in pink to celebrate this achievement and shine a bright light forward for the rest of the nation to follow.”

To date the Catholic bishops of New York have issued a statement expressing dismay and “profound sadness” and rang a Church bell in protest. Respectfully, that is not enough. Canonical penalties are due to the Governor and other Catholics who voted for this legislation. This is necessary both for the common good, to avoid the scandal of tolerance of evil, and as a strong summons to the governor and others to repent before the Day of Judgment. …

This cannot be allowed to stand without canonical penalties. I am not a canon lawyer, but the truth is clear that Governor Andrew Cuomo is not in communion with the Catholic Church. At this point canonical penalties forbidding him to receive Holy Communion — or even, if possible, issuing a formal excommunication — are simply affirming what is already true and what he himself has done. To fail to issue all possible canonical penalties at this point would, to my mind, show the Church to be irrelevant and a laughingstock.

Some will argue that the Church is in no moral condition to issue statements let alone penalties. But that cannot stop us from doing what is right and necessary. Even a compromised judge still has the obligation to apply the law. Even an imperfect parent must still insist on what is right with his children and apply necessary punishments. It is precisely our lack of insisting on what is true, and our reluctance to correct error and apply medicinal penalties, that has gotten us into the many internal problems we face. Catholics and non-Catholics must understand that we are serious about our teachings and that we cannot and will not stand idly by while a “Catholic” political leader celebrates the killing of children in the womb.

We’ve been down this road before. In the 2004 election, some within the Catholic Church called for John Kerry’s excommunication over his support for abortion. Before (and after) that, the arguments got applied to Ted Kennedy, Joe Biden, and others. Nancy Pelosi is a particularly favored target, in part because of the nonsense she spews in defense of her position.

The rationale for arguing for excommunication rests on Canon 1398, which declares that the act of procuring an abortion results in excommunication latae sententiae — “by the commission of the act,” automatically. However, that has its own limiting principles. Excommunication results from the actual procurement of an abortion, which means culpability — in regards 1398, anyway — has to be limited to those who explicitly and acutely facilitated it. The woman who procured the abortion, the doctors and nurses who performed it, and even the people who willingly took the woman to the facility would fall under 1398 for their connection to the specific act. Politicians and voters uninvolved in the specific act would not.

Respected canon lawyer Edward Peters rebutted the idea that it extends to politicians or to voters when this came up again in 2007 over remarks made by then-Pope Benedict XVI:

Excommunication is a powerful and potentially effective response to certain offensive behaviors in the Church. Nevertheless, I think that calls to excommunicate pro-abortion politicians under Canon 1398 will fail, not because Church leaders lack the gumption to apply the canon, but because the canon cannot be applied that way in the first place. But here, rather than trying to recreate the substantive canonical arguments behind this assertion for a readership that brings vastly different backgrounds to this discussion, let me, even at the risk of coming across as making only an argument from authority this time, propose only this much: Those wishing to invoke Canon 1398 against pro-abortion politicians should, at the very least, be aware that there is little, and perhaps no, support for their position among credentialed canonical scholars around in the world.

There are now at least ten pantextual commentaries on the 1983 Code of Canon Law: four from Spain, two from the United States, two from Germany, and one each from Great Britain, Italy, and France. I don’t have access to the German works, but the others include: CLSA New Commentary (2000, American); Exegetical Commentary(1996, originally Spanish); Letter & Spirit(1995, British-Irish); Edicep (1993, Spanish); Code Annotated(1992, originally Spanish); CLSA Commentary (1985, American); Urbaniana (1985, Italian);Guide Pratique (French, 1985); and Salamanca (1983, Spanish). Each of these commentaries discusses Canon 1398, and not one of them even suggests that Catholic politicians are liable to its excommunication for procured abortion. Indeed, the CLSA New Comm expressly rejects the idea (even when Canon 1329 on accomplices is invoked, but that argumentation requires a separate explanation) and several others reject it by clear implication.

There are, in addition to the above, at least four major monographs on modern penal canon law: Woestman, Ecclesiastical Sanctions (Canadian, 2003);Calabrese, Diritto Penale (Italian, 1990); Borras, Les Sanctions(French, 1990); and De Paolis, De Sanctionibus (Italian, 1986). These, too, discuss Canon 1398, and none holds that Catholic politicians are liable to its excommunication for pro-abortion governmental activity. Or, to cite just one example of smaller, peer-reviewed canonical studies, Coriden’s demonstration of the limited reach of Canon 1398 (1986 CLSA Advisory Opinions), has to my knowledge not even been challenged, let alone refuted.

That’s not to say that there aren’t any canonical solutions to the scandal of pro-abortion Catholic politicians, Peters argued:

I conclude by reminding readers that the above observations do not, in the slightest, suggest that Church law is bereft of responses to scourge of pro-abortionism among Catholics. Canon law can be effectively applied to the grave scandal of pro-abortion Catholic politicians. With others, I have pointed to several options worth investigating, including the wider use of particular legislation and personal precepts (cc. 1315-1319), a closer look at Canon 1369, and, under or in addition to Canon 1399, special universal legislation to address the peculiarly modern problem of pro-abortion Catholic politicians. Most immediately, though, we are finally seeing, Deo gratias, a wider application of Canon 915, and I would urge greater catechesis on Canon 916.

That’s a lot of options, and none of them require a tortured reading of Canon 1398 and disregard of several other important norms (including 1983 CIC 18, 221, 1323-1324, and 1425), for implementation.

The better approach would probably be to raise this issue as a chronic problem of misleading Catholics on church teachings at a synod of bishops. That could result in either a canon law that directly addresses the issue, a standard process of dealing with pro-abortion Catholics in public life that allows for them to learn and repent ahead of excommunication, or both. The problem is hardly limited to the US, and the expansion of abortion in primarily Catholic countries is getting worse, fueled by politicians who ignore their church’s teachings to pander to popular opinion. Of course, if the Vatican and its episcopacy hadn’t undermined its credibility on moral issues with decades of sexual scandals and cover-ups, they might have retained their standing on these issues in the first place.

That doesn’t make Monsignor Pope wrong about the Catholic Church needing to take action on politicians like Cuomo. But that action shouldn’t be ad hoc, and it shouldn’t be accomplished in a manner that makes the Eucharist appear like political leverage, either. This has been going on long enough to justify the effort to create a formal and comprehensive response to the plague of abortion-supporting — and especially abortion-promoting — Catholic politicians like Cuomo.