By: Larry Cunningham
Catholic lawyers are uniquely positioned to appreciate the
existence of conflicts between religion, morality, and professional
obligation. Catholic teaching holds that it is not possible
to separate one’s existence into different identities—Catholic and
lawyer, for example—allotting different moral rules and standards
to each role. One’s conscience is inseparable and guides all
aspects of one's life. There are certain fundamental beliefs
that are central to Catholicism and that impact all daily
decisions; one of them, for example, is the belief that life, at
all stages, is to be respected and protected. Flowing from
this respect for human life, in turn, is the unequivocal, Catholic
opposition to abortion.
In certain states, a minor who wishes to obtain an
abortion must first get the consent of her parents or at least
notify them of her intentions. The Supreme Court has held
that the abortion decision cannot be subject to the veto of a third
party, such as a parent. Accordingly, states with parental
notification or consent statutes must afford minors a “judicial
bypass”—a confidential, ex parte proceeding in which the minor is
afforded an opportunity to convince a judge that she is either
mature enough to make the decision to get an abortion or that an
abortion is in her best interests. In some states that have
judicial bypass procedures, minors are afforded the right to
court-appointed counsel.
Enter now the Catholic lawyer. Can he or she assist
a minor in obtaining a judicial bypass? I will begin this
article with an analysis of the context of the dilemma: the
law of access to abortions by minors and the judicial bypass
procedures that are in place in many states.
Next, I will examine the canonical implications of a
lawyer's representation of a minor in a judicial bypass case. Canon
1398 imposes an automatic excommunication upon any Catholic who
procures a completed abortion. I will address whether a
Catholic lawyer who represents a minor in a judicial bypass
proceeding incurs this penalty.
Finally, I will attempt to resolve the moral conflict
between, on the one hand, helping those in need and, on the other
hand, the strict Catholic teaching against abortion. Even if
the lawyer does not incur a canonical penalty for his professional
assistance, there remains another question: As a matter of
morality, should the Catholic lawyer take the case in the first
place?
A Catholic lawyer who helps a minor to obtain a judicial
bypass must come to grips with the moral reality that he is
assisting a person to commit an act that the Church teaches as
unequivocally immoral. A bedrock principle of Judeo-Christian
theology is that there are indeed fundamental, moral truths,
including the sanctity of life. He cannot justify
representation by adherence to amorality or moral relativism—that,
as a lawyer, he does not make moral judgments about or for his
client, that he is only following the law, providing access to
justice, and enabling his young client to have full access to her
rights under the law.
Canonically and morally, a Catholic lawyer should not
represent a minor who seeks a judicial bypass. The lawyer who
undertakes such a representation, with knowledge of the crime and
the canonical penalty, incurs the canonical penalty of automatic
excommunication. Morally, he is assisting another person to
commit a violation of a fundamental, moral belief of the Catholic
faith. Whether for pay or pro bono, such cases should be
declined by the lawyer. Little doubt exists that a Catholic
lawyer would be justified in seeking court permission to withdraw
from a judicial bypass case on the grounds espoused in this
article.