A critical exploration of canon 1397§2 throughout history and its application in Scotland

This thesis will explore the meaning of “procure a complete abortion” (canon 1397§2) with particular regard to abortions carried out after the 16th week of pregnancy which normally involves a medically induced labour. Canon 1397§2 states that “anyone who procures a completed abortion incurs a latae sententiae excommunication”.  However, there is no evidence based consensus as to the meaning of procuring an abortion. Available commentaries on the canon are based on surgical abortion used almost exclusively at the time of the promulgation of the 1983 Code but are unable to provide guidance for Catholic nurses and midwives employed in clinical practice today.

In order to address the main research aim the following sub aims are: to clarify the relationship between participating in an abortion and procuring an abortion;

to provide a clear definition of a completed abortion; to gain an understanding of how “mid level” health care providers (nurses and midwives) perceive their role in relationship to procuring of late abortions.

Because canon law is an applied discipline, encompassing elements of both theology and law, it does not have a discrete or exclusive research method. I therefore propose in this study to adopt a problem based doctrinal legal method to examine legal documents from both canon and civil law and to reach tentative conclusions based on an in-depth analysis and synthesis of them to address the main part of the study. This will be supplemented by a case study collecting empirical data from midwives using a five stage hermeneutic method.  These will be formed into themes and compared with the legal documents using symbiotic empirical ethics to integrate the two processes.

The study will provide new knowledge by its consideration of canon 1398 in the light of current practice in the maternity sector. It also moves from traditional doctrinal legal research and integrates some of the key legal documents with empirical data. It thus offers a starting position in that it will reveal the shared understandings of the participants in one country and the potential impact of them upon canonists’ understandings. The rigour of the research will allow readers to judge for themselves the relevance of this knowledge. It will be the duty of the researcher to publish the findings of this study in professional journals so that they can be available to a wider readership.