Abortion in the penal legislation of Pope Francis (II): the perpetration of the delict and its result

Abstract

In the second article of the series, the Author deals with the description of the anti-juridical act of canonical abortion, analysing its traditional objective elements: the abortion (abortum – I.), its accomplishment (procurat, procuravit – II.) and the provocation of the result (effectu secuto – III.). With regard to the element abortum’ the Author presents a controversy on the interpretation of this term under canon 1398 CIC 1983, which has been strictly understood in canonical tradition (I.2.1.). However, in the authentic interpretation of 1988 and in No. 58 of St John Paul II’s 1995 encyclical Evangelium vitae, the ecclesiastical legislator has interpreted canonical abortion in an extensive manner (I.2.2.). In the Author’s opinion, the latter definition is still in force, the validity of the above-mentioned authentic interpretation being doubtful following the abrogation of the entire Book VI CIC 1983 in 2021 (I.3.). Therefore, at present, according to the principle in dubio pro reo, it is not possible to criminalise as a canonical delict of abortion the killing of fertilised ova created in the in vitro procedure and not transferred to the mother’s womb (I.2.2.2.). With regard to the element of the accomplishment of the abortion, the Author criticises its broad, subjective approach, which encroaches on the question of the culpability and criminal liability of atypical perpetrators, referred to in can. 1329 CIC 2021 (II.1.). Therefore, a narrow, objective concept of the commission of an abortion should be adopted, even though, due to the lack of harmonisation of can. 1397 § 2 with can. 1329 CIC 2021, this may give rise to difficulties with regard to the liability of atypical perpetrators (II.2.). The Author considers that politicians who support pro-abortion legislation or members of pro-abortion movements do not commit the canonical delict of abortion, but not because of the absence of a delictual result, but because of the absence of an act (II.3.). Finally, after commenting in general on the element of the result (III.1., III.2.), the Author dwells on the lack of a causal connection with the result of the killing of the child in the following situations: the father of the child who does not prevent the killing of the child (‘improper delict of omission’, III.3.1.); the haematologist or radiologist who examines the pregnancy (III.3.2.); the activity of the hospital administration and auxiliary staff, even if they participate in the evil of abortion and are morally responsible for it (III.3.3.).