By now, most of you are familiar with the Terri Schindler-Schiavo situation down in Florida. Now that her life has been spared through the intervention of the Florida State Legislature and Governor Jeb Bush, many of us can sit back and reflect upon the events as they unfolded.
Serious Questions About Religious Rights
From my own perspective as a canon lawyer and a baptized Catholic, the incident I found most troubling throughout this drama was the denial of Terri's right to the sacraments. Terri is a baptized Catholic. As such, she enjoys certain basic canonical rights. Thus we should find it troubling that Michael Schiavo and his attorney George Felos neither of whom are Catholic were capable of denying Msgr. Malanowski permission to administer the sacraments to a dying woman. And even more troubling was the Diocese of St. Petersburg's apparent refusal to back Monsignor up. Where was Bishop Lynch when the police threatened this eighty-year-old priest with arrest?
As an aside, many also raise serious questions about Terri's religious rights. Was Terri's constitutional freedom to practice her religion, which the First Amendment ought to protect, violated? Indeed, this question should trouble every Catholic living in America. Because my legal training does not extend to civil law, however, I will limit my following commentary to the denial of Terri's canonical rights. Nevertheless, as a concerned Catholic I would welcome the response of a qualified civil lawyer.
Of the canonical issues involved, the first concerns Terri's right to the sacraments. The Church considers this a fundamental right of all those who are baptized or received into her membership. As canon 213 clearly states: “Christ's faithful have the right to be assisted by their Pastors from the spiritual riches of the Church, especially by the word of God and the sacraments” emphasis mine). There are very few exceptions where this right may be limited, and even then only in view of the common good (cf. canon 223) and according to an application of the law that is restricted to as few cases as possible (cf. canon 18). Neither applies in the Terri Schindler-Schiavo situation.
Beginning with the sacrament of Anointing of the Sick, Terri may receive this sacrament more than once. Yet certain individuals in Michael Schiavo's corner have reportedly attempted to deny Msgr. Malanowski permission to repeat the administration of Extreme Unction, claiming that this sacrament may only be administered once. Obviously these individuals are not familiar with the Church's teaching concerning this matter, since the only sacraments that cannot be repeated are Baptism, Confirmation and Holy Orders. In other words, the sacraments that leave an indelible mark upon one's soul.
One may even repeat the sacrament of marriage, for the death of one's spouse dissolves the matrimonial bond and allows the surviving spouse to enter a valid sacramental marriage with another. Of course, if one killed one's spouse in order to marry another particular individual, the marriage would still be invalid. For as canon 1090 states: “§1 One who, with a view to entering marriage with a particular person, has killed that person's spouse, or his or her own spouse, invalidly attempts marriage. §2 They also invalidly attempt marriage with each other who, by mutual physical or moral action, brought about the death of either's spouse.” While such incidents are fortunately rare, they nevertheless still happen in our day.
Yet returning to my initial point, Anointing of the Sick does not leave an indelible mark upon one's soul. It may therefore be repeated. In fact, when necessary it should be repeated. With merely the most elementary of research, this would become apparent to even a non-Catholic attorney with no background in canon law. For canon 1004 §2 is clear concerning this issue: “This sacrament [Anointing of the Sick] can be repeated if the sick person, having recovered, again becomes seriously ill or if, in the same illness, the danger becomes more serious.” Starvation and dehydration obviously increase one's danger of death.
Canonical Rights of the Very Ill
Let us now turn our attention to the more serious abuse of Terri's canonical rights, namely, that of denying her the possibility of receiving Holy Communion. Reception of the Holy Eucharist is not merely just another spiritual practice of the Catholic faith. Rather, following the Church's
sacred Tradition, the 1983 Code of Canon Law establishes the centrality of the Holy Eucharist to the spiritual life of Christ's faithful. This is found in canon 897 which states:
“The most august sacrament is the Blessed Eucharist, in which Christ the Lord Himself is contained, offered and received, and by which the Church continually lives and grows. The Eucharistic Sacrifice, the memorial of the death and resurrection of the Lord, in which the Sacrifice of the cross is forever perpetuated, is the summit and the source of all worship and Christian life. By means of it the unity of God's people is signified and brought about, and the building up of the body of Christ is perfected. The other sacraments and all the ecclesiastical works of the apostolate are bound up with, and directed to, the Blessed Eucharist.”
In short, the Eucharist is both the source and the summit of our spiritual life as Catholics. All our actions should flow from the Holy Eucharist, and all our actions should ultimately be directed toward the Holy Eucharist.
When the Holy Eucharist is administered to a dying person, this is known as Viaticum or “food for the journey”. Canon 921 §1 of the 1983 Code of Canon Law establishes the basis for seeking Viaticum as follows: “Christ's faithful who are in danger of death, from whatever cause, are to be strengthened by Holy Communion as Viaticum.” Under canon 864 §1 of the 1917 Pio-Benedictine Code of Canon Law, the Catholic faithful were bound by ecclesiastical precept to seek Viaticum when the danger of death presented itself.
Although the 1984 Code of Canon Law no longer binds under precept, it is clear that Christ's faithful remain bound in spirit to seek Viaticum when the danger of death arises. This is in keeping with the canonical principle of canon 21, which states that “[L]ater laws are to be related to earlier ones and, as far as possible, harmonized with them.” Additionally, when interpreting any canon it is important to follow the canonical principles of canon 17. One of these principles is “recourse to parallel places, if there be any….” In the case of administering Viaticum, canon 708 from the Code of Canons of the Eastern [Catholic] Churches speaks of “the obligation of receiving the Divine Eucharist in danger of death.…” Thus the reception of Viaticum is both an essential right and an essential obligation of all Catholics in danger of death.
What if the Sick Person is not Fully Conscious?
But what if the individual either lacks consciousness or has fallen into a persistent vegetative state, as is alleged in Terri Schindler-Schiavo's situation? Although much evidence suggests that Terri is merely severely brain-damaged and not in a persistent vegetative state, let us assume the latter for the sake of the argument. Does not canon 922 state the following: “Holy Viaticum for the sick is not to be unduly delayed. Those who have the care of souls are to take assiduous care that the sick are strengthened by it while they are in full possession of their faculties”?
This canon speaks of the ideal, namely, that the individual in danger of death receive Viaticum before losing consciousness. Its intention is obviously to stress the urgency with which Viaticum should be administered when the danger of death arises. This canon speaks nothing of how a pastoral agent should proceed if the individual merely possesses partial consciousness or if the individual loses consciousness completely. Similarly, both the 1917 Code of Canon Law and the 1990 Code of Canons of the Eastern Churches express the ideal, but are silent concerning the other possibilities mentioned.
Fortunately, the Church does not leave us without a means of resolving this pastoral and canonical dilemma. For drawing upon the Church's great canonical tradition, the Roman principle of “favorabilia amplianda, odiosa restringenda” applies in such situations. English-speaking canonists commonly although not literally translate this revered principle as “favors are to be multiplied, and burdens restricted.” Without question, the favorable interpretation is to administer Viaticum to Terri Schindler-Schiavo.
Moreover, keep in mind that Viaticum is usually, although not always, intimately linked to the sacrament of Anointing of the Sick. Therefore, canon 1005 offers another parallel place to which a pastoral agent may have recourse. This canon states: “If there is any doubt as to whether the sick person has reached the use of reason, or is dangerously ill, or is dead, this sacrament is to be administered.”
Finally, let us look at the reason why Michael Schiavo and his legal team continue to deny Terri her fundamental right to receive the Holy Eucharist. According to most press reports, they allege that allowing Monsignor Malanowski to administer Viaticum to Terri would “cause her distress.” As an aside, I am by no means a medical expert, but it is inconceivable to me how someone who is truly in a permanent vegetative state could experience distress at receiving the Most Holy Eucharist. What adds to my incomprehension is that these same individuals reportedly allege that Terri feels no distress from her starvation and dehydration. But setting aside this medical marvel, it is not inconceivable that someone in a persistent vegetative state could find the Holy Eucharist comforting since Viaticum is primarily food for the soul and not for the body.
Nevertheless, this is a significant admission on the part of Michael Schiavo and the legal and medical team assisting him. For if Terri possesses sufficient consciousness to potentially find reception of the Holy Eucharist distressing, then for pastoral and canonical purposes she also possesses sufficient consciousness to find Viaticum comforting. At the very minimum, Mr. Schiavo and his team have raised a doubt of fact concerning Terri's condition. Thus following both the Church's canonical and pastoral custom, a pastoral minister must err on the side of administering the Sacrament.
As I have already stated, Viaticum is not food for the body but food for the soul. And as such, it is the fundamental right and obligation of every Catholic in danger of death to receive Our Lord as food for the journey. Thankfully, just as Michael Schiavo and the Florida judiciary prevented Msgr. Malanowski from providing Terri with food for the journey, so too did God, through the intervention of Governor Jeb Bush and the Florida Legislature, prevent Terri from making the journey.
(c) Copyright 2003 Catholic Exchange
Pete Vere, JCL, earned his ecclesiastical licentiate in canon law from Saint Paul University in Ottawa, Canada. In his spare time, he volunteers as a Deputy Regional Director for the International Order of Alhambra a Catholic family organization dedicated to serving the needs of the mentally and developmentally challenged.