BACK TO TABLE OF CONTENTS

LET THE ABORTION DEBATE BEGIN

By Patrick Brode
Barrister and Solicitor

During the Alliance leadership debates, I was struck by Tom Long's assertion that abortion was such a sensitive issue that it should never be mentioned by the party. In response, Stockwell Day asserted that while he was pro-life, he would not force his views on the country and that a national referendum on abortion was unlikely. Yet, he would not stifle debate on the question. As he later stated,

The whole discussion around the sale of fetal tissue doesn't require a referendum. If someone wants to bring that forward for discussion I'm not going to put the verboten stamp on that.

A renewed debate on abortion may be in the offing, and it made me think back to the origins of Canada's current abortion laws.

In the spring of 1956, Glanville Williams, a pre-eminent English legal thinker, delivered the Carpentier lectures at Columbia Law School in New York. These lectures were enormously influential on progressive thinkers of the day and after their publication as The Sanctity of Life and the Criminal Law, aroused policy makers in the United States and Canada. Williams attempted to analyze the historical reasons for the Roman Catholic Church's opposition to abortion. It arose, he held, out of the Church's "horror of bringing about the death of an unbaptised child." No citation was given for this assumption. Nevertheless, it formed the core of his argument that the ban on abortion was founded in medieval notions of the soul and baptism and that these notions had no place in the modern world. The state had no place in the abortion clinics of the nation.

On closer inspection, Williams was wrong, and Western civilization's ban on abortion did not originate on the narrow theological concepts, but rather on 19th Century advances in medicine which established the humanity of the child prior to its birth.

Starting from a mistaken base, that abortion laws were medieval relicts, the U.S. Supreme Court in its 1973 Roe v Wade decision compounded the error by concluding that unborn children were not protected under the Constitution. The Court concluded that 19th Century anti-abortion statutes were intended to protect pregnant women against dangerous medical procedures and were not intended to protect the child. This was absolutely incorrect, and amendments to those statutes reveal that they were specifically designed to protect unborn life. The Court also misunderstood or failed to appreciate the growing status of unborn children in cases where they were injured prior to their birth ad were entitled to legal protection.

Where American judges had gone astray, Canadians were soon to follow. In its landmark Morgentaler decision of 1988, the Supreme Court of Canada struck down the 1969 abortion laws. Despite the assurances of Jean Chrétien that the Charter of Rights could never be used to change the abortion laws, the majority of the Court ruled that these laws were a profound interference with a woman's "bodily integrity in both a physical and emotional state." And, according to Madame Justice Bertha Wilson:

The right to reproduce or not to reproduce which is in issue in this case is one such (Charter protected) right and is properly perceived as an integral part of modern women's struggle to assert her dignity and worth as a human being.

The majority disregarded the concern to protect unborn children that had motivated Parliament in 1969. The community-at-large did recognize and wish to protect these children. But based on feminist rhetoric on "protected" rights and the outdated legal doctrine that life only began after the child was delivered, abortion on demand became a fact in Canada and a legal precedent was established.

In so many cases, a precedent is a mistake that has been repeated so many times that it is considered correct.

That our abortion laws are based on a set of increasing errors and false assumptions was never as clearly shown as in the Supreme Court of Canada's July 1999 decision in Dobson v Dobson. In that case, the issue before the Court was whether a child in utero could sue its mother for damages caused by the mother's neglect. It raised the same fundamental question as in Morgentaler as to whether or not the child was a legal person.

The Supreme Court unanimously ruled that the child had no rights. To consider the child a person who could be subject to damages was an unacceptable intrusion into the bodily integrity of the woman. While the decision is couched in the usual language of the supremacy of women's rights, the real issue was the separate identity of the mother and child. The Court reached back in time to pronounce an almost pre-medieval notion that the child is one with the mother and therefore has no separate life or rights. "The biological reality is that a pregnant woman and her foetus are bonded in union," observed Justice Peter Cory.

He thereby ignored the reality of all modern science, which is unequivocal, that mother and child are not bonded. They do not share the same blood type, DNA and are, for all biological purposes, two distinct persons.

The trial judge in the Dobson case had ruled that the child was a separate individual who could sue and that prenatal negligence was a "reasonable progression" of the law. Indeed, if parents are responsible for injuries after birth, why not before? However, the Supreme Court of Canada would have none of it. Consistent with the Morgentaler decision, and in defiance of modern science, it was held that the child had no rights.

Historically, these views derive from Glanville Williams and other writers who have left us a distorted and inaccurate view of the relationship between the unborn child and the community. It is an area which cries out for a renewed debate. While, as Stockwell Day has noted, there is no likely consensus on the matter, it is a legitimate area for a fresh discussion based on the realities of life and its consequences.

BACK TO TABLE OF CONTENTS