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THE UNBORN CHILD BEGINS A COMEBACK
Changes occur in the US, usually at least
10 - 15 years before they take place in Canada. This happened
in regard to the abortion issue, when in 1973, the US Supreme
Court in Roe v. Wade, brought abortion on demand to
that country. It was a full 15 years later, in 1988, before
Canada acquired the same dubious distinction when the Canadian
Supreme Court struck down the abortion law in the Morgentaler
case.
In the US, even though it is at a glacial
pace - so slow it is often undetected by the human eye - a
seismic change in the abortion situation is occurring. The
abortion rate in the US began to decline in 1990. It fell
by 15% between 1990 and 1996 when it bottomed out. However,
in the year 2000 the lowest number of abortions were performed
in the US since 1974, according to the pro-abortion Alan Guttmacher
Institution, New York. In 2000, there were 21.3 abortions
per 1,000 women of childbearing age, down from the all-time
high rate of 29.3 abortions per 1,000 women in 1980 and 1981.
The number of abortion providers in the US have also decreased
by 11% in 2000. The reason for the decreasing numbers? Decreased
demand.
The polls in the US also continue to indicate
a decrease in support for abortion. A November 22, 2002 poll
by Zogby indicated that a third of Americans have changed
their minds on abortion in the past ten years, and are now
less in favour of it than they were then.
Wirthlin Worldwide Company conducted a poll
in the US in December 2002, asking 1,000 adults whether, in
light of medical advances that reveal the unborn child's body
and facial features in detail "[they are] in favour of
restoring legal protection for unborn children?" The
response was that 68% of the randomly surveyed adults said
they were in favour of legal protection, with 44% in strong
agreement of such action. Almost the same number - 66% were
in favour of nominees to the Supreme Court "who would
uphold laws that restore legal protection to unborn children."
In August 2002, President George W. Bush signed
the Born Alive Infants' Protection Act which ensures
every infant born alive in the US - including infants who
survived an abortion procedure - were to be considered a legal
person under US law. In October 2002 Mr. Bush extended welfare
coverage, which also applied to immigrants, to all children
in the womb so that "all babies born in the US are healthy
babies."
On March 12, 2003, the Senate Labour Committee
gave its approval to protect pharmacists who, for reasons
of conscience, object to dispensing drugs used in abortion
and euthanasia. This bill is expected to pass easy approval
of the full Senate.
On March 13, 2003, the US Senate voted overwhelmingly
to ban partial-birth abortions. The measure must still go
to the House of Representatives where it is expected to easily
pass in that Republican-dominated House.
It is in the US courts, however, that the
most interesting changes in the abortion issue are quietly
taking place:
· In October 2002, the Michigan Court
of Appeal dismissed a murder charge against a woman who was
pregnant with twins when she stabbed to death her partner
while he was abusing her. The Court held that she was not
guilty of murder because she was defending and protecting
her unborn children. In 1999, the Michigan legislature had
passed legislation giving some protection to the unborn children
under the Fetal Protection Act - legislation that the Court
of Appeal upheld in this decision.
· In February 2003, the South
Carolina Supreme Court held that a woman who smoked crack
cocaine during her pregnancy, which led to the baby's death
shortly after delivery, was guilty of homicide by child
abuse since her unborn child was a "legal person"
requiring protection.
· In February 2003, the US
Supreme Court upheld an eight-year old Indiana law on informed
consent that provides for the country's most rigorous abortion
requirements, which include:
- mandatory face-to-face counselling about
the risks;
- pictures of what the unborn baby looks like at the appropriate
number of weeks;
- a mandatory 18-hour waiting period before an abortion
can be carried out.
· In February 2003, the US
Supreme Court held in a 8-1 vote that a federal racketeering
law, RICO (Racketeer Influenced and Corrupt Organizations
Act, passed to control organized crime in the US) cannot
be used to prosecute pro-life picketers outside abortion
clinics.
The Abortion Situation in Canada During
the Past 20 Years
The courts in Canada have ignored the historical
precedents in the law which gave protection to the unborn
child. Instead, the Supreme Court of Canada adopted within
the past 20 years, without hesitation, the ideology argued
before them by the government-funded legal arm of the feminist
movement, LEAF (Women's Legal Education Action Fund), that
the child in the womb is nothing more than a part of its mother's
body. This position, since it was not based on the traditional
legal pillars of reason and logic, but rather on the shifting
sands of contemporary cultural ideology, has placed the court
in an awkward position which cannot be sustained indefinitely.
It is a position that a future Supreme Court will view with
embarrassment. Advances in medicine, science, (DNA) and biology
have already exposed the inadequacy and impracticality of
the Court's position on abortion.
For example, in 2001, in the case Martin
v. Mineral Springs Hospital, which was a case before the
Alberta Court of Queen's Bench, a mother of a child that died
during the delivery because of the admitted negligence of
the attending physician, sought compensation for the loss
of her unborn child, as "a part of her body", as
the courts had so decided in previous cases. That is, the
mother argued that she was entitled to damages for the loss
of a part of her body, the unborn child, in a personal injury
action, to the same extent as she would receive compensation
for the loss of other parts of her body, such as an eye or
a limb. This was the logical extension of the position that
the unborn child was a part of the mother.
The Court did not accept this conclusion and,
instead, denied the claim on the grounds that compensation
for loss of the unborn child could not be awarded because
this would be a conflict with the principles of tort law,
according to which there is no compensation awarded against
someone who has caused the death of a born family member.
In short, the Court was forced to conclude that the unborn
child is a separate human being from its mother, i.e. is not
merely a part of its mother's body, and that the loss of an
unborn child cannot be compensated only because there was
no similar compensation permitted for the loss of an already
born child.
Bizarrely, although the Canadian courts presently
uphold the feminist position on abortion, the courts will
eventually be required to overturn this position not on moral
grounds or for justice considerations, but rather on the grounds
of economic and practical necessity.
For example, one of the economic problems
caused by the Supreme Court's position on abortion was exposed
in 1997, in the case of the Winnipeg Child and Family Services
v. DFG. In that case, a woman who was addicted to glue-sniffing,
which resulted in two of her children being born with symptoms
of drug withdrawal and abnormalities, according to the Supreme
Court of Canada, could not be detained for treatment during
the course of another pregnancy. Her previous two children,
as well as her first-born child, had already been removed
from her care by child care services with court orders of
guardianship obtained by the province, because the children
were at risk because of the mother's unresolved addiction
problem.
When the mother became pregnant with another
child while continuing with her glue-sniffing addiction, the
child welfare services obtained a court order to place her
in a treatment centre so that her withdrawal from solvents
could be safely monitored. However, the Supreme Court of Canada
held that an unborn child has no legal status until it is
born alive and viable, and, therefore, the mother could not
be detained in the treatment centre without her consent.
Many who are not in any way pro-life, but
who form the large so-called "middle" ground on
the abortion issue, considered this decision to be unreasonable
for economic reasons in that the taxpayers were required to
financially support this unfortunate disabled child throughout
his life owing to the legal fiction that, while in the womb,
he did not exist, i.e. was not a legal person. This economic
consideration, together with the obvious sad fate of such
a child, condemned to life-long suffering because of his mother's
unreasonable and unacceptable behaviour during pregnancy,
provided compelling reasons for many to severely criticize
the Supreme Court's decision in that case
It is interesting, too, that in this Winnipeg
Family Services case, two of the judges, Mr. Justice Jack
Major and Mr. Justice John Sopinka, wrote a passionate dissent,
arguing that the Court should "modestly" in such
"extreme cases" protect the unborn child who is
being carried to term when the mother's conduct has a reasonable
probability of causing "serious irreparable harm."
Mr. Justice Major argued:
… modern medical technology has
rendered the Common Law's old "born alive" standard,
… obsolete. The notion that a child has to be born
alive in order to obtain legal rights derives from an era
when many children failed to survive birth. But modern medical
technology has vastly increased the likelihood of live birth,
even if the fetus is extremely premature or crippled by
change or maternal abuse. Under these new circumstances,
if our society is to protect the health and well-being of
children, there must exist the jurisdiction to order a pre-birth
remedy, preventing a mother from causing serious harm to
her fetus. Someone must speak for those who cannot speak
for themselves.
This concern resonated again in February 2003
with a similar position taken by the Manitoba Provincial Court
Judge, Linda Giesbrecht, who conducted an inquest into the
suicide of an aboriginal teenager while in the care of a white
foster couple. The young boy, who had hanged himself in August
1999, suffered from Fetal Alcohol Syndrome (FAS). Judge Giesbrecht,
noting the Winnipeg Child and Family Services case
which did not allow family services workers to protect the
unborn child by detaining the mother for treatment, recommended
that legislation be passed in order to protect children from
the effects of substance abuse by their mothers during pregnancy.
Slowly, painfully slowly, the wheel seems
to be turning in favour of the protection of the unborn child.
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