TORONTO – Canada’s pro-life community is once again lamenting the justice system’s failure to recognize the personhood of the unborn child.
Reacting to the Supreme Court’s decision in the Winnipeg child case, pro-life officials said justices missed an ideal opportunity to free the unborn child from legal limbo.
In a 7-2 ruling October 31, the Supreme Court ruled the courts have no authority or interest in ordering pregnant women to abstain from behavior that will harm their unborn child.
The ruling was in response to a Winnipeg woman – Mrs. G. – who last December was ordered by Manitoba child welfare authorities to seek treatment for a glue-sniffing addiction. Mrs. G., who was five-months pregnant with her fourth child, had previously given birth to two children who suffered permanent brain injuries as a result of her solvent addiction.
Karen Murawsky, director of public affairs for Campaign Life Coalition, said the ruling is unjustifiable on several points. “This decision defies scientific truth and logic and is the total opposite of the statements made by Chief Justice (Antonio) Lamer who (in June) said, ‘It’s not an earth-shaking proposition to say that an unborn child … is entitled to some protection.'”
Campaign Life Coalition national president Jim Hughes said it is now up to Parliament to introduce legislation to protect the unborn child. “It is a matter of scientific truth and fundamental justice,” he said.
The Manitoba Court of Queen’s Bench last spring upheld the Manitoba welfare authority’s right to force the woman into a substance abuse program. The ruling was later rejected by the Manitoba Court of Appeal, leaving the matter in the hands of the Supreme Court.
Although Mrs. G’s child, William, was born healthy, and Mrs. G. apparently has overcome her addiction, the case opened a morass of legal complexities. In addition to focusing attention on the lack of protection afforded unborn children, the case invited examination as to the kind of restrictions society might impose on a pregnant woman choosing to carry her child to term.
Speaking for the majority, Madam Justice Beverley McLaughlin said it is up to the Parliament, and not the courts, to resolve such delicate moral questions.
“A pregnant woman and her unborn child are one,” Justice McLaughlin said. “To make orders protecting fetuses would radically impinge on the fundamental liberties of the mother – both as to lifestyle choices and as to where she chooses to live and be.”
While pro-lifers support the emphasis on Parliament as the forum to resolve such delicate matters, they are disturbed by the court’s failure to draw a distinction in law between the pregnant woman and her unborn child.
The ruling leaves unborn children with non-person status under Canadian law. They acquire no legal rights until they fully pass from their mother’s womb.
Two Supreme Court justices John Sopinka and John Major, dissented from the majority opinion, arguing that the “born alive” rule has been overtaken by medical advances. They called the born alive rule “a legal anachronism which should be set aside, at least for the purposes
of this appeal.”
Judges Sopinka and Major said intervention in a woman’s pregnancy
could be restricted to cases where it is probable that her behavior would cause “serious irreparable harm to the unborn child.”
The dissenting judges, however, refused to extend their argument about protecting the unborn child to cases where a pregnant woman chooses an abortion.
“In any event, this interference is always subject to the mother’s right to end it by deciding to have an abortion,” they said.
Pro-lifers note the inconsistency of the courts recognizing that unborn child should derive some protection in law, but ignoring that protection if the mother chooses to abort.
Despite disappointment with the ruling, pro-life organizations believe the issue has forced Canadian society to re-examine the unborn child’s legal standing.
“The federal government must never again allow an unborn child’s rights to be pitted against those of its mother in court and should pass legislation protecting the rights of both,” said Jim Read, chairman of the Evangelical Fellowship of Canada’s social action commission.
“The court’s ruling, while disappointing because it maintained the status quo on the rights of the unborn, has confirmed that society must make a moral choice here,” Read said.
Michelle Blanchette-Lavergne, executive director of the Winnipeg-based Alliance for Life organization, said the ruling is a tragedy for all parties involved.
She added however that if nothing else, the circumstances of the case helped Mrs. G break free of her substance abuse pattern.
“Alliance for Life is hopeful that one day Canadians will acknowledge the needs of pregnant mothers and their children who cry out for intervention and help because of their addictions,” Blanchette-Lavergne said.
