Excommunication, Abortion and Catholic Lawmakers: What Can Be Done?

Bishop Edward Scharfenberger of Albany, New York, discusses possible canon-law responses in the wake of New York State’s new legislation that removed third-trimester-abortion restrictions.

(photo: Kate Costello/Roman Catholic Diocese of Albany)

Following the passage of the Reproductive Health Act in New York state, many Catholics have asked, “How can a Catholic lawmaker call him or herself a member of the Body of Christ and remove from law protections against killing human beings, particularly for the weakest and most vulnerable members in society?” And because the state’s Catholic lawmakers, headed by Gov. Andrew Cuomo, led the charge that has inspired other U.S. states to follow suit, many are looking toward the U.S. bishops to take a stand.

Bishop Edward Scharfenberger of the Diocese of Albany, New York, told Register staff writer Peter Jesserer Smith that he takes these concerns from the Catholic faithful very seriously and that sanctions, including excommunication, are not off the table. But the bishop explained that canon law requires a bishop cite a canonical crime and follow due process. And while canon law is clear that formal heresy, schism or apostasy are traditional grounds for excommunication, the law has no explicit guidance about what to do with Catholics who advance abortion and other grave crimes condemned by the Second Vatican Council as modern “infamies” that “poison human society” and are a “supreme dishonor to the Creator.”

While he continues to weigh possible canonical measures against Cuomo and his Catholic political collaborators, Bishop Scharfenberger stresses that the ultimate core of the struggle lies elsewhere, in finding ways to overcome the destructive anti-life “ideology” that he says has permeated throughout American society, including within the Church.


With the particular issue of Gov. Cuomo, and other Catholic legislators now actually legislating for abortion law, what is the role of the bishop here?

I have some very important functions. One, of course, is pastoral, and that is to be an agent and a servant of communio, of the communion of the faith. That’s primarily what I’m there for, to take care of the pastoral life of the people, all people. Jesus is everyone’s savior, and therefore there is also a concern not only for my own people, but for all people that are affected in any way by actions which are good or evil. I have to be in some way someone that calls out what is true, what is not, what is good and what is bad. I have a certain moral authority that I have to exercise not only in my pastoral role but also over all people. So I have to speak the truth, and I have to do what is true in a charitable way and effective way.


What is happening now in this push to undo any remaining restrictions on abortion?

We’ve come to this point where we’re no longer talking about so-called “abortion rights,” or the right of a woman to abort her child if she so chooses, which was pretty much the conversation of Roe v. Wade. We’re coming to a point now where there’s an assumption that a woman’s liberty is advanced and her equality is secured only when the body within her body no longer has any value at all. And that’s really what this law has done. In my view, it does not truly advance the freedom of a woman or her equality; in fact, it devalues both mother and child, setting them up as rivals to the table of life.

There are these false assumptions that this somehow advances women’s rights and this is good for women. Many of the people on the pro-life side, for want of a better word, have been very sensitive that this is not only an issue that involves the fate of the unborn child, as obvious as that is, and the clear acceptance, really, of infanticide, which has finally arrived, and which will only continue. That’s obviously an evil that has really shocked a lot of people.

This is not merely about abortion. This is about an assumption, or an ideology, that a woman’s liberty is advanced and her equality secured only when the body within her body no longer has any value at all. This devalues the mother, at least as much as the child, if not more so. And this is what I think is the most important truth to call out now.


The Second Vatican Council decried abortion as one of the “infamies” that “poison human society,” that cause even greater harm to the societies that practice them than to their victims and are a “supreme dishonor to the Creator.” Would excommunication be warranted for a Catholic advancing such “infamies” into law?

As far as excommunication is concerned, that is a sanction that certainly can be imposed for a crime that is serious enough to merit that. What first has to happen is excommunication is a penalty for a [canonical] crime, or, as we say in canon law, a “delict.” In order for excommunication to be imposed as a sanction, there must first be the finding of a crime.

It seems to me that most of the writings that I’ve seen of canonists who have been opining on this issue have been a debate of what exactly is the crime for which the sanctions would be imposed. That’s as far as excommunication is concerned.

Another point is that there’s a feeling that there has to be some public rebuke, not necessarily in the form of excommunication or whatever. It has to be some sort of public rebuke because many of the politicians, particularly Andrew Cuomo, have been so public, so it seems there has to be a balance, and somehow it has to be some public rebuke.

I don’t know whether that could be done in one statement. It seems to me that what has happened to lead to this current state of affairs, where we have this radical law in New York state, did not happen overnight. The thinking for the ideology and the assumptions behind it have been percolating for a long time, and they’re not limited to the secular community.


So in other words, we have people who regard themselves as good Catholics who have soaked up this ideology over time?

Many, many people, who would clearly regard themselves as good Catholics, and who are approaching for Communion every week and are praying, have become accustomed to the idea that, somehow or other, it’s okay in our society that unborn human life can be regarded as somehow inferior to other forms of life. They would be very much in support of, or at least acquiesce to, laws like Roe v. Wade, for example. They’d say, “Well, you know, maybe the first trimester, not so bad.” And that is a form of thinking that has characterized not only politicians who have voted pro-choice, but even clergy and religious and many laity. You know, I do hear a lot from my people, “Why don’t I hear enough preaching about the moral ills behind this kind of thinking, so that people were more prepared to see what we’re facing?”

My primary role is a pastoral one, to be able to build up communion among the People of God and to recognize that I also have a broader role, to reach out to those outside of the fold, which I think is a pastoral role, as well. We’re all about welcoming everyone to the table of life without exception, from conception to natural death. To put somebody outside of the table of life, which is exactly what the RHA does — that is why it is heinous.

For those who promote that, for the legislators who vote for this — the governor who’s been almost a cheerleader for abortion — for somebody who clings to that falsehood so strongly, at what point does one say, “You’re no longer a part of the Catholic communion”? That’s what people are asking. So that could be done very suddenly and quickly, but you always have to have a way back. When you put somebody out of the community, or if they put themselves out of it, you have to also have some way of going back, or what must be done to restore communion.


What do we do about the issue of scandal? The Church teaches scandal is a sin whereby a person induces others to sin — and certainly we see Gov. Cuomo and New York’s Catholic legislators have induced other lawmakers in U.S. states to follow their lead with enthusiasm.

Canon 915 [which addresses reception of Communion] doesn’t mention the word “scandal,” but does state clearly a person that has obstinately persisted in the promotion of a grave moral evil that includes abortion and euthanasia, at least in this interpretation, should not approach Communion. It doesn’t say because of scandal, but Canon 915 is not a penal canon. It’s to regulate the good order of the sacramental life of the Church and also emphasize its sacredness.

But Mr. Cuomo does not, in fact, receive Communion, and this preceded his advocacy of abortion. Because of his marital situation, he has indicated that he understands that [living openly with a woman who is not his wife] puts him in this position. So he already is in observance of Canon 915. But Communion is not to be given to anyone who publicly promotes these positions, and that I believe would apply to many of the legislators who voted for this horrendous bill.

This discipline is already in effect. You have to make people aware of it, and I’ve done that. It’s on the [diocesan] website. We have ongoing conversation with our public figures. We don’t say who or when, because we have to leave open the confidentiality. I want anybody I would be speaking with to know that we’re going to have a pastoral conversation, and I’m not going to use it for a public statement. Were I, for example, to issue some public rebuke in some way, I would inform the person that I’m about to do it and give them the opportunity to change their behavior. I won’t just suddenly do that without letting the person know.


Wouldn’t sanctions help the Church underline that a Catholic places himself out of communion with the Body of Christ by advancing publicly grave moral crimes, or infamies, such as abortion?

Whether or not you can address such behavior as being a crime according to canon law is something canon lawyers have been debating. Some have suggested that [Gov. Cuomo] could be excommunicated or sanctioned for being a heretic. However, we do not have any precedent that I can see whereby somebody has been deemed a heretic for [his or her] stance on a moral teaching. It’s usually something that’s dogmatic, that’s doctrinal.

Somebody is not found to be a heretic because of just their behavior. It’s usually something they specifically said: “I don’t believe in God”; “I reject the two natures of Jesus Christ”; “I think Jesus was only a man.” That is a clear statement.

I don’t see right now that Mr. Cuomo has put himself in the situation of being a heretic. If he were, then it would be a fairly quick step to declaring him excommunicated. But I don’t see that as a possibility. There are other canons that you can be sure I’m looking at. As I said, I’ve always held the door open that some form of sanctions, even excommunication, is an eventual possibility if he continues down this road.


Do the potential political ramifications for the Church enter into your thinking about imposing sanctions?

I would act regardless of what people may say are the political consequences, because that’s not part of my calculation. Some have said, well, if you do something like this, then Mr. Cuomo will just use this as a “badge of honor” to parade around and say, “I’m a progressive Catholic.” That is not part of my calculation.

To me, you have to do what’s right; but I have to find the point where you have a crime according to canon law and then take the necessary steps. There’s a temptation to want to do this by the flick of a hand. For the sake of its integrity, the Church has to follow due process, whether it is the 16th or the 21st century; otherwise [a sanction] becomes just the whim of one individual or something that just is based upon public opinion. That’s not why we do things.


Is it a weakness in canon law that the “infamies” listed by the Second Vatican Council are not explicitly listed in law as delicts? A lot of Catholics have difficulty understanding how a Catholic governor can’t be excommunicated for leading the charge to strip away protections from human life unless he also declares himself the head of the Church of New York.

I don’t know if it’s a weakness, because there are some pretty broad canons. Canon 1398, which some call kind of a “catch-all” canon, does give a great degree of leeway. I think canon law, even though there’s not a specific delict mentioned in the code, is broad enough to enable a bishop to come up with one. And I don’t mean invent one, but I mean to find one as you [would] with actions like this.

The difficulty is this: Even though the Code of Canon Law gives a bishop a wide range of grounds under which he can say somebody is in violation of Church law, it also puts the burden upon one who would use that canon — I’m speaking specifically of Canon 1398 — to be very specific on what the delict is.

The code is effectively saying (or the pope, who is the primary legislator who promulgated it), “I can’t predict all of the possible crimes or delicts that could possibly be committed. But if another one turns up, you have the authority to specify what that is, and you can act accordingly.” So if the bishop or some canonical advisers who advise him, say, “This is a problem; this is a specific delict,” the difficulty is defining clearly what the delict is.


Can you give an example?

Let’s say, hypothetically, you were to say anybody that votes for the RHA is guilty of a canonical crime. Fine — what’s the RHA; what’s in it? It’s far too broad, because what would happen then is, therefore, everybody who supported this — not only in the government, but also every single person who voted for them — would be governed by that. If you’re going to treat everybody equally with due process, once you say, “This is something that is a heinous delict,” now you have to prosecute everybody.

You have to be very clear about what that crime is. Is it a crime to be arrogant, to paint the city in pink? Many people were outraged by the apparent celebration of death. How do you define that: To celebrate a piece of legislation that promotes death, is that going to be the delict? So, it’s a big undertaking, and you have to define the delict first.


So, right now, you will have to be morally educating people about what the RHA does and make sure Catholic lawmakers are clear about what they have done, before imposing sanctions for a specific delict? 

We have to understand that not only does this devalue the life of the unborn, it excludes the life of the unborn — it has no value at all. I think that has to hit home first. And then we have to tie it together and say, “Okay, in voting for this, do you understand that you were voting for the complete stripping of any value to human life?” That’s where I think the conversation has to go. But it’s still an ongoing conversation because I don’t think most legislators or supporters of this legislation see that that’s what they did. And I think that’s the truth that has to be pointed out and pulled out.

This interview has been

edited for length and clarity.