Parliament can and must act to protect unborn life

Editor’s Note: This article originally appeared in the June 2004 The Interim.

We live with a terrible reality in Canada. Unlike any other modern democracy, there is no law regulating abortions at any stage of pregnancy. A pregnant woman can get an abortion at any time, for any reason, at any stage of pregnancy.

For all 9 months, indeed at any time. Even during child birth, the unborn child has no rights in criminal law. The Supreme Court has consistently ruled that Parliament must act for the unborn to have any rights.

How Did We Get Here

In 1988, the Supreme Court of Canada ruled in the Morgentaler case that due to the procedural unfairness of the laws regulating access to abortion, these restrictions were being stuck from the Criminal Code. However, in the 3 decisions representing the majority and the 1 decision for the minority, none of the 7 justices proclaimed a constitutional right to unrestricted abortion. Moreover, all 4 decisions clearly stated that Parliament had a right to define the rights of the unborn.

No Constitutional Right To Abortion

In a well-publicized Montreal speech in 2002, Jean Chretien insinuated that the abortion issue has been settled by the courts when he stated, “We don’t have big debates on the rights of abortion because we decided a long time ago in Canada it is the choice of women, which is not the case in a lot U.S. states.”

Likewise, at a speech to a Quebec Liberal women’s group leading upto the last federal election, Chretien stated: “There was a decision in 1988 of the Supreme Court [striking down Canada’s abortion law]. We have had social peace in Canada on the question of abortion.”

Of course, Chretien was quite incorrect in these assertions. While there may be no abortion “law,” there is also no court-imposed right to abortion either. Such claims must be refuted.

In the multiple decisions that constituted the majority in the Morgentaler case, then Chief Justice Brian Dickson and Justices Beetz and Wilson each stated Parliament had the right to regulate abortion. The Chief Justice stated, “Protection of foetal interests by Parliament is … a valid governmental objective” (p 38, Dickson) Likewise, J. Beetz wrote: “I am of the view that the protection of the foetus is, and as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law…” (Beetz, p. 56) These two writers represented four of the seven justices.

The preamble to the decisions clearly found there is no constitutional right to abortion when it stated: “The proposition that women enjoy a constitutional right to have an abortion is devoid of support in either the language, structure or history of the constitutional text, in constitutional tradition, or in the history, traditions or underlying philosophies of our society” (p. 39).”

LeMay and Sullivan Case

In 1991, the Supreme Court ruled that the unborn child had no rights under Canadian law. Two midwives were charged with criminal offences when their efforts resulted in the death of a child during birth.

The British Columbia Court of Appeal, in the decision upheld by Chief Justice Antonio Lamer in the Supreme Court decision of March 1991, stated that the unborn child, even during birth, has no rights in Canadian law because Parliament has refused to act since the 1988 Morgentaler decision. The Court stated: “If Parliament considers it appropriate to protect a child during the birth process from criminally negligent acts by those attending and assisting at the birth that is a matter upon which Parliament can legislate”. Consequently, because Parliament has not acted, there is no protection for the unborn at any stage of pregnancy, including during the birthing process.


This election, when considering the issues presented, if you think that the unborn child deserves protection, you must act on these convictions and challenge your local candidates about what action they will take to protect the unborn.

It is time for Parliament to act. There is no constitutional right to abortion, and since it was legalized in 1969, there have been over 2 million reported abortions in Canada. Get your local candidates to take a stand, then vote on Monday June 28, 2004 for the one prepared to defend the unborn in our next Parliament.