For two weeks, Canadians across the country were caught up, in a legal struggle, by a father, to save his unborn baby’s life.
Christine Medhurst, 22-year-old mother of a year-old child was scheduled to have an abortion performed at Toronto Queensway Hospital. However, the woman’s 27-year-old husband, Alex obtained an injunction (prohibition) against the abortion being performed, from the Supreme Court of Ontario on March 8th, the day before the abortion was scheduled to take place. One the provisions of the injunction, however was that the mother could apply to the court for setting aside of the injunction on 24 hours’ notice. This the mother did, claiming that she could not afford a second child, had difficulty with the first pregnancy and believed that her marriage was breaking down; namely, social and economic reasons for an abortion.
Ontario Supreme Court Judge Robert Reid, after hearing her application, set aside the injunction, stating although he was “appalled” by abortion, he must apply the law as contained in the Criminal Code, as there was evidence that the abortion committee had acted improperly. He stated that this was “the first occasion when the issue presented here has been disputed between man and wife…” and most importantly, he state that the husband did have status to apply to the court in an abortion action. In other words, an abortion is not necessarily solely a “woman’s decision.”
Following the setting aside of the injunction, the abortion was rescheduled, but Mr. Medhurst again took legal action to try to stop it. He applied to Judge Horace Krever of the Supreme Court of Ontario to overrule Judge Reid’s decision on the grounds that there was sufficient evidence. But Mr. Justice Horace rejected his application on the basis that the father “has failed to prove that the committee did not have enough evidence since its records were not in court.” The judge stated that the father had failed to prove that the Therapeutic Abortion Committee’s approval was passed on little or no evidence. The father was caught in a Catch-22 position because he did not have access to the committee’s records and therefore had no way of proving that the abortion was being improperly carried out.
Judge Krever also expressed concern over delays by the court action (the mother was thirteen weeks pregnant) and stated “I am sure the continued delay would increase the risk to the wife.” However, it would appear that Judge Krever overlooked the person whose life was most in danger – that of the unborn child.
Interestingly, when the case was before Mr. Justice Horace Krever, the latter stated, “I hope this is a genuine case and not a cause.” It certainly was a genuine case as regards an infant human life and as far as a caring and distraught husband was concerned. Mr. Medhurst had desperately tried to save the life of his unborn child. Yet it did rapidly become a cause when the Canadian Abortion Rights League (CARAL) retained Morris Manning (Morgentaler’s lawyer) and agreed to pay all the mother’s legal fees.
Although a baby has lost its life in this case, it may not have been totally in vain or without meaning in that this case has set an important legal precedent: the father has now been acknowledged by the court as having the right to bring an application on his own behalf in an abortion situation.
Further, much has been learned by pro-life lawyers from this case, and it is believed that in future cases it will be possible to obtain the documents of the therapeutic abortion committee so as to prove an abortion has not been performed in accordance with the law.