In the Corpus Juris,[92] among the decretals of Gregory, there is the following law: "If any one, through lust or hatred, does anything to a man or woman, or gives them any drug, so that they cannot either generate or conceive, or bear children, he is to be treated as a murderer."
Sixtus V., in the Constitution Effraenatam, October 29, 1588, mentions a decree of the Sixth Synod of Constantinople, in session in 680 and 681, which subjects those who perform abortion, or kill a fetus, to the punishment inflicted on murderers. Sixtus then decreed that any one who effects the abortion, directly or indirectly, of an immature fetus, whether the fetus is animated, formed, or not, either by blows, poison, drugs, or potions, or tasks of hard labor imposed on pregnant women, or any other method, however subtle or obscure it be, is guilty of murder, and is to be punished accordingly. He recalls all ecclesiastical privileges from clerics who cause abortion, and says that they are to be reckoned as murderers according to the decree of the Council of Trent,[93] and he makes a law that abortionists may never be promoted to orders.
In the fifth paragraph he says: "Moreover, we decree that the same penalties are incurred (1) by those who give potions and poisons to women to induce sterility or prevent conception, or who cause these drugs to be administered, and (2) by the women themselves who freely and consciously take these drinks."
In paragraph seventh he decrees that any one, man or woman, cleric or lay, who procures abortion by counsel, favor, drinks, letters of advice, signs, or in any way whatever, are ipso facto excommunicated, and the excommunication is reserved to the Pope himself.
Gregory XIV., in the constitution Sedes Apostolica, May 31, 1591, gave to priests who have special faculties for the purpose from the bishop, permission to absolve from this excommunication, but only in foro conscientiae. Sixtus V. and Gregory XIV. used the term foetus animatus, in keeping with the old Aristotelian notion of animation.
Pius IX., in the constitution Apostolicae Sedis Moderationi, deleted the epithet animatus, and extended the excommunication to all abortions, no matter at what time of the gestation they occur. He ordered that only the actual physical abortionist is to be excommunicated, not those who counsel the crime. Some moralists hold that those who order abortion are direct abortionists and fall under this excommunication; other moralists oppose this opinion. Pius IX.[94] excommunicates procurators of abortion if actual abortion is effected, and this excommunication is reserved to the bishops, not to the Pope.
In this decree occur the words "Procurantes abortum, effectu secuto," and there has been considerable discussion of the question who are the procurantes, the agents who fall under the excommunication? Again, are craniotomy, cephalotrypsis, decapitation, embryotomy, and exenteration, when performed on the living child, abortions in the sense of the decree, and thus matter of the excommunication?
Those who do abortion are the principal agents who physically, immediately, of themselves, in their own name, or who morally, through others, perform an abortion. The common opinion of moralists is that all those who of themselves or through others bring on an abortion are excommunicated, but that assistants, although guilty of crime, are not excommunicated.
Many eminent moralists are of the opinion that the mother herself who seeks an abortion does not fall under the excommunication because Sixtus V. does not explicitly mention her in this penal law, and a penal law is to be interpreted literally. If a pregnant woman goes to an abortionist and persuades him by speech and pay to do an abortion, she is the direct moral cause of that abortion. If it were not for her, the abortion would not take place. Virtually all abortions done on married women are effected morally by the woman herself. In my opinion, and the new canon law states this explicitly, the woman who procures an abortion on herself or on another woman is excommunicated.
Sabetti-Barrett[95] holds that craniotomy on a living child and the removal of an inviable extrauterine fetus are not abortion in the scope of this excommunication, because as a penal law these operations are not specifically mentioned. All mutilating operations, like craniotomy and the others enumerated above, first kill the fetus, then extract its body from the womb; abortion first extracts the fetus and then lets its die. The result is the same, but the operations differ technically, and a penal law is ad literam. A cleric who procures abortion of an inviable fetus at any time of gestation falls under the excommunication and suspension a sacris perpetually, although he probably is not technically irregular canonically if he procures the abortion before the Aristotelian date of animation. The bull Effraenatam makes the canonical irregularity at the Aristotelian date obsolete practically.