Diocese of Phoenix Maligns Nun, Errs on Canon Law

Jon O’Brien

The Archdiocese misrepresents church law to defend the excommunication of a nun who helped save a woman's life by helping her access an abortion. Catholics for Choice calls out the inaccuracies with some clarification of canon law.

The recent news about a woman in Phoenix who received an abortion in a Catholic hospital has raised again the issue of Catholics, abortion and excommunication.

The bishop of Phoenix has declared that a nun who is a hospital administrator and a member of the ethics committee is excommunicated because of her alleged action, or inaction, in regard to the pregnant woman’s care.

To defend the bishop’s announcement that Sister McBride was “automatically excommunicated” for her actions, the diocese has published a document called “Questions & Answers Re: The Situation at St. Joseph’s.” While the questions are timely, the answers unfortunately misrepresent the church’s law.

For example, one of questions reads: “Does that mean that all women who have had an abortion are excommunicated?” The incorrect answer the diocese provides reads: “Yes, anyone who has had an abortion is automatically excommunicated. But so are those who encouraged the abortion, helped to pay for the abortion, or performed the abortion, including those who directly assisted in its performance.” This claim is simply not supported by Catholic canon law.

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The real answer to that question is: No. Not every woman who has an abortion is excommunicated. The Catholic church’s law on crimes and punishments is very strict, and, as in secular criminal law, provides a range of characteristics that would make a person incapable of committing a crime (for example, being under the age of seventeen, or acting in self-defense). There are also mitigating factors that would make a person who committed a crime ineligible for punishment or eligible only for a lesser penalty. These include people who act in fear or in case of necessity.

Another wrong answer is provided in response to this question: “From the news reports we were told that Sr. McBride also consulted with others who agreed that the abortion should be performed. Are they also excommunicated?” The diocese says: “Yes. Those Catholics who gave their consent and encouraged this abortion were also excommunicated by that very action. So too is anyone else at St. Joseph’s who participated in the action; including doctors and nurses.”

The real answer is, again: No. The Catholic church’s law does, in limited circumstances, provide penalties for accomplices, but the scope of people who might be eligible is even smaller than in the first case. In the situation at St. Joseph’s, even if all the requirements were met, the penalty of excommunication would only be available for someone whose participation was so necessary that the abortion would not have been provided without his or her action. It’s not clear that this is the case for Sr. McBride. Canon lawyers have long agreed that the actions of hospital administrators rarely if ever rise to the level that would consider them “accomplices” according to canon law.

It is unfortunate that once again, given an opportunity to show compassion and understanding, the Catholic hierarchy has instead taken the low road and persecuted a Catholic who, in good conscience and based on her experience, provided her opinion in a difficult medical and ethical situation. The bishop’s response was to publicly damage the good reputation of a woman who has, by all accounts, dedicated much of her life to caring for those in need. In the Catholic church, Sister McBride has a right to her good reputation and a right, as well as a duty, to follow her conscience. It’s notable that the diocese isn’t talking much about those provisions of canon law.

Commentary Religion

It’s Pope Francis Who Should Apologize on Abortion

Erin Matson

With his latest comments, Pope Francis has built a shiny new smokescreen to distract from the grave and immoral harms caused by the Vatican's opposition to abortion and women's equality.

Pope Francis has a limited-time offer just for women who have abortions: Confess, and you won’t be excommunicated. Hurry! Only women who confess to a priest before November 20, 2016—during the “Year of Mercy”—will remain eligible to kneel and pray at the instruction of an all-male hierarchy that insists upon the subordination of women.

“I am well aware of the pressure that has led [women who have abortions] to this decision,” the Pope said. He suggested women “believe they have no other option.” Priests will have the “discretion to absolve of the sin of abortion those who have procured it and who, with contrite heart, seek forgiveness for it.”

It seems the Pope Francis Sex TalkTM brand is expanding. With his latest comments, Pope Francis has built a shiny new smokescreen to distract from the grave and immoral harms caused by the Vatican’s opposition to abortion and women’s equality.

This has practically become a formula: Cool Pope says something that sounds like he cares about the huge swaths of people routinely discriminated against by the biggest patriarchy in the world for being women, gay, or unwilling to have children. But the doctrine doesn’t change, which means that nice comments don’t make for nice policy. Lobbyists representing the Catholic Church’s leadership continue to wreak great destruction around the world, whether messing with the Affordable Care Act at home or insisting on denying condoms to people in AIDS-ravaged areas abroad. And billions of public dollars are funneled into Catholic institutions that insist they have a right to discriminate on the taxpayer dole.

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His latest ploy on abortion is more of the same. Yes, people love Pope Francis and his tone is different and refreshing. Many may also find his pastoral approach comforting. But although we need to start somewhere, we also need to look at the bigger picture. The Pope’s comments are just stigma masquerading as understanding.

A woman who has had an abortion has done nothing wrong. She doesn’t need to apologize, and she certainly doesn’t need to apologize to a man representing an institution that denies her equality. (Remember when Pope Benedict compared the ordination of women to pedophilia? Pope Francis has enforced the same toxic nonsense about keeping women out of the priesthood; he just says things that make it sound nicer.) So, then, this isn’t actually about reassuring women who have had abortions. This is about continuing to single them out and shame them.

In the context of women’s lives, access to abortion is a matter of human dignity. And that dignity includes being trusted to make moral decisions—such as the one to end a pregnancy—for ourselves. Any outsider looking in who thinks he knows better is frankly sexist, drawing upon awful ideas that women are too stupid and wicked to be trusted with the management of our own lives. Preventing a woman’s access to abortion through advocating for restrictions upon reproductive care, as the Vatican does, is immoral.

A few weeks ago I helped to transport an abortion fund patient from a clinic to a hotel room. Prior to her procedure, she’d been growing frustrated with the several weeks it was taking to raise the money, find someone to watch her kids, and manage travel to another city where abortion is available after the first trimester. She’d started to wonder openly if she could “do something’” to force a miscarriage at home. This is how a great variety of piecemeal abortion restrictions—funding restrictions, TRAP laws, waiting periods, bans on specific procedures—work together to put woman in potential danger. (Or serve time in prison for trying to take matters into their own hands.)

Women who decide to have abortions will have abortions, and the question is merely if we want them to be safe. Should the woman I met have put herself at risk from an illegal abortion instead? Or found herself in handcuffs, like Kenlissia Jones? We don’t know: Unfortunately, Pope Francis hasn’t issued statements on the dire need to replace illegal abortion with safe abortion, or the criminalization of pregnancy outcomes; he just wants women to apologize to priests.

Pope Francis has it all wrong on abortion. The Catholic Church’s leaders owe women a profound apology.

It is thanks to the Vatican’s terrible rules against reproductive health care that a woman in California was nearly driven to travel 160 miles away from her family to give birth, because her local “pro-life” Catholic hospital initially refused to give her a tubal ligation after a planned cesarean section. It is in the name of “a Catholic country” that women like Savita Halappanavar have been forced to die after begging for life-saving abortions. Some advocates even argue that it is in anticipation of the Pope’s visit and in deference to the U.S. Conference of Catholic Bishops that President Obama has continued his bad legacy on reproductive rights by failing to take executive action that would extend abortion funding to rape victims in war zones.

In 2010, Sister Margaret McBride was excommunicated for authorizing a life-saving abortion at a Phoenix hospital. Is Pope Francis really telling her, and the woman whose life she helped to save, that they are the ones who committed evil and need to come back and apologize?

Maybe the better thing would be for Pope Francis to listen. That’s why my organization, Reproaction, has launched a #HeyPopeFrancis campaign that invites people to tell Pope Francis what they think he should do next. The responses so far have been varied and creative; many folks are concerned by the Vatican’s stance against abortion, contraception, and women’s ordination, and take exception to Pope’s statements about LGBTQ families. Still others are urging him to do even more on the environment and immigration. The bottom line is that this Pope is presenting himself as an agent of hope and changeand it’s now on all of us to share with him our hopes for meaningful change.

This is 2015. Women are human beings. They have dignity, and they must be respected. Women must be treated as equals, and there is no such thing as equality without easy access to abortion. If we are to have a just society that upholds its moral obligation to ensure no one is held back on the basis of gender, abortion must be accessible and funded for every person who needs it—no harassment, stigma, or “religious liberty” attached. And if you think equality for women makes sense so long as women abstain from sex or are willing to accept the “consequences” of pregnancy, then you don’t believe in equality for women. That’s wrong, and it’s that simple.

Rather than a call to confession about abortion, it would be far more redemptive for Pope Francis to call for a new dialogue within the Catholic Church about gender equality that would elevate the voices of a diverse group of women—including women who have had abortions, women who aren’t sorry about their abortions, and, oh yeah, women priests. That would represent major progress too.

Investigations Law and Policy

Influential Christian Group’s Real View of ‘Religious Freedom’ Laws: They Could Undermine LGBTQ Rights

Sharona Coutts

Comments made last year by a senior attorney at the Alliance Defending Freedom could have enormous implications for how Americans now grapple with the development of LGBTQ rights in the wake of the U.S. Supreme Court’s recent decision on same-sex marriage.

At an event in Phoenix, Arizona, last September, a senior attorney at the Alliance Defending Freedom (ADF) was asked by an audience member whether laws that purport to protect religious freedoms could also be used by a restaurant that didn’t want to serve a same-sex couple.

The lawyer, Joseph Infranco, gave an answer that could have enormous implications for how Americans now grapple with the development of LGBTQ rights in the wake of the U.S. Supreme Court’s recent decision on same-sex marriage.

“Even if you have certain rights, I just think it’s a lot clearer for people when the objection is, ‘I don’t want to be a part of a ceremony that my religious beliefs prohibit,’” said Infranco, referring to the commonly made distinction between wedding ceremonies, versus the denial of general services to LGBTQ people.

Rewire obtained an audio recording of the 2014 event—held at the Arizona Chamber of Commerce—which was a discussion of the then freshly minted U.S. Supreme Court decision in Hobby Lobby and Conestoga Woods. That ruling said that certain companies have religious freedoms that can trump individual rights created by state and federal laws.

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Infranco continued: “The sort of general idea that there’s people I don’t want to serve just because I don’t like those sort of people is a much more societally, a much more problematic … I don’t doubt that there are people who have that view, but that’s not been the cases that we’ve seen. The cases have been limited to, ‘I don’t want to be a part of the event.’ But you know there’s always this matter of individual conscience,” Infranco said. “The publicity will be a major headache.”

Infranco’s views on the meaning of religious liberties laws matter because of his position of power at the Alliance Defending Freedom, the radical fundamentalist Christian group that has been the legal architect of some of the most important lawsuits that have tested the limits of those liberties. Their lawyers played a central role in shaping the winning arguments in Hobby Lobby, and the group is now a central player in pushing to expand the use of so-called Religious Freedom Restoration Acts (known as RFRAs) to thwart efforts to protect LGBTQ rights.

Infranco’s answer is telling because of what he did not say. He did not condemn the idea that a restaurant would refuse service to LGBTQ people; nor did he say that RFRAs would not cover that scenario. Instead, he coyly followed the public story that has been told by ADF and other LGBTQ foes—that they are really concerned about religious people being forced to participate in same-sex wedding ceremonies, in violation of their conscience.

But at the same time, Infranco’s answer indicates a “wink-wink, nudge-nudge, say-no-more” admission that RFRAs could indeed be used to assert religious “freedoms” that extend far beyond the narrow confines of wedding ceremonies.

In a written statement in response to Rewire’s questions about Infranco’s comments, ADF spokesperson Greg Scott maintained Infranco was explaining the “important distinction between general services and participating in an event (such as a wedding) that violates one’s conscience.”

“It’s not the identity of the customer, but the nature of the event that matters,” Scott wrote. Referring to the scenario presented by the audience member about a restaurant refusing service to a same-sex couple, Scott said, “ADF would not take the case of a business owner who kicked someone out of their establishment.”

Perhaps.

But legal experts on RFRAs told Rewire that there are many plausible scenarios where these laws could allow exactly that kind of discrimination.

Marci Hamilton is a professor at the Cardozo School of Law and a leading expert on extreme religious liberty. She said that each of the 21 states that already have RFRAs have drafted them slightly differently. Courts could also interpret these laws in a variety of ways, leading to a patchwork of laws and decisions around the nation.

Hamilton said, however, that the underlying strategy of RFRA backers is the same.

“They’re trying to set up a universe where they can continue to be in their bubble where they don’t have to deal with people they don’t like,” Hamilton told Rewire. “That’s why you’re seeing such a fast and furious drive to get laws in place to permit discrimination against LGBT people.”

Indeed, recent years have seen a rush by states to pass RFRAs, according to an analysis by Rewire. In addition to the 21 states that already have RFRAs in place, this year 33 states moved to introduce or amend their religious freedom laws. That’s a marked increase in activity since 2012 when only ten states sought either to introduce or amend their religious freedom laws.

LGBTQ rights advocates are keenly aware of the threat posed by RFRA laws, and have launched a new campaign to pass federal laws protecting LGBTQ people from all forms of discrimination.

On the other side of the divide, anti-LGBTQ activists are attempting to claim the moral high ground, casting their arguments in genteel language and almost friendly tones, arguing in favor of a “balance” between competing rights.

In a speech entitled, “Why Can’t We All Just Get Along?” ADF’s senior vice president Kristen Waggoner called for “toleration” of religious beliefs.

“We’re getting to a place where Americans are being forced to surrender their constitutionally protected freedoms, their freedom of association, their freedom of expression, the freedom of religion, the freedoms that have made our nation great, that have given us a cherished diversity,” Waggoner said in the speech, which was posted by the organization to YouTube in March.

“But here’s the good news for you,” she continued. “In this nation we also have a strong, noble, rich history of successfully balancing religious liberty against other important governmental interests.”

And in an appearance on CBS’ Face the Nation Sunday, Ohio Gov. John Kasich, who is widely expected to declare himself a Republican presidential candidate in the near future, also called for striking a “balance.”

“Look, I believe in traditional marriage, but the Supreme Court has ruled, and it’s the law of the land, and we’ll abide by it,” he told host John Dickerson. “Religious institutions, religious entities, you know, like the Catholic Church, they need to be honored as well. And I think there’s an ability to strike a balance.”

However, as the decision in Hobby Lobby showed, what religious fundamentalists consider to be a “balance” can frequently result in the outright denial of rights to citizens who don’t conform to an extremist view of Christianity.

In the absence of federal and state laws that specifically protect the rights of LGBTQ individuals, the Supreme Court’s decision on Friday could, in retrospect, appear to be a very narrow ruling that does little to ensure that LGBTQ people will be free from discrimination at work, in housing, and in service from general businesses.

Certainly, that is what fundamentalist Christian organizations are banking on.

Brie Shea contributed research to this report. 

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