Abortion in the penal legislation of Pope Francis (I): The “ratio legis”, i.e. the legally protected good and the mental element of the offender

Abstract

In the first article of the series, the Author deals with the “ratio legis theologica” (II.) and the perpetrator element (III.). The Author highlights the actuality of the topic, even though the Latin norm itself has retained its previous wording (I.), following Pope Francis’ penal reform. However, there has been a change in the systematisation of this delict in the Latin Code with the addition of a new § 3 to can. 1397 CIC 2021 concerning the responsibility of the cleric (II.2.). In this way, the immutable “ratio legis theologica” of the protection of human life in the Church’s penal legislation was reaffirmed (II.1.). However, the Author criticises the lack of similar protection of life in the situation of euthanasia and assisted suicide, although in both cases – conception and natural death – the same legal good is at stake (II.3.). According to the Author, it is clear that canonical abortion is a common delict (III.1.). However, by aggravating the penalty for abortion for the cleric, the ecclesiastical legislator has also introduced the aggravated figure of the offence of abortion into Latin criminal law (III.3.). The Author regrets that, on the occasion of the reform, the expression “matre non excepta” in can. 2350 § 1 CIC 1917 was not reinstated in the description of the delictual action. Indeed, against the background of secular legislation, it would have been appropriate to regulate explicitly the question of the canonical penal liability of the mother (III.2.).