On Jan. 28, 1988, the Supreme Court threw out existing, limited restrictions on abortion put in place by the 1969 Omnibus bill, which permitted abortions in hospitals that were approved by (rubber stamp) therapeutic abortion committees. Over the past two decades, abortion advocates have simply lied about what the court’s majority said in its decision and politicians have hidden behind these lies.
According to some abortion supporters, and their media sycophants, the Supreme Court created a woman’s right to abortion in Morgentaler. That is untrue. Canada’s scant abortion laws were struck down on narrow procedural grounds; namely, that abortion services were uneven throughout the country and asking a hospital committee was too burdensome for women and thus violated their Section 7 (security of the person) Charter rights. It was on this basis, not the creation of a new right, that the abortion licence was declared.
What has often been ignored – or conveniently forgotten – is that the court also urged Parliament to pass new abortion legislation, thereby recognizing that the state can (at least) limit and regulate the abortion procedure. One justice, Bertha Wilson, claimed that there was a right to abortion, but even she conceded that only the state could pass legislation regulating abortion.
Twice, the Mulroney government introduced (flawed) abortion bills that went nowhere, but Parliament hasn’t considered any limits on abortion since 1993. Many politicians today hide behind the abortionists’ lie that the Supreme Court declared women have a constitutional right to abortion to justify not addressing the issue.
For years, social conservatives have criticized the courts for judicial activism and justly so. But, in the case of abortion law, the courts passed the ball back to Parliament, which proceeded to drop and ignore it. The Supreme Court of Canada, despite four subsequent rulings (Daigle, Dobson, Sullivan and Winnipeg Family Services) denying fetal rights, urged Parliament to enact abortion legislation, but cowardly politicians have failed to act.
The Morgentaler decision was bald judicial activism and poorly decided. The court has compounded its error by routinely and systemically ignoring the rights of the unborn child. But, elected politicians have opportunistically avoided the question and a divisive and emotional, but vitally important, debate by hiding behind lies.
Despite the myths surrounding the Morgentaler decision, the Jan. 28, 1988 decision was not the last word in the abortion debate. Canadians deserve better; the unborn require action. It is up to pro-life Canadians to spread the truth and keep politicians accountable. While there might have been quiet on the abortion front at times – enough that some politicians claimed we had “social peace” – two decades after Morgentaler, the fight to protect the sanctity of all human life continues.
