The status of the unborn child: One aspect of the legal tradition
At the beginning of his book Kill our Unborn Canadians, David Dehler employs a series of epigraphs, including two from distinguished twentieth-century Protestant theologians. Karl Barth writes:
The unborn child is from the very first a child. It is still developing and has no independent life. But it is a man, and not a thing, not a mere part of the mother’s body…. He who destroys germinating life kills a man and thus ventures the monstrous thing of decreeing concerning the life and death of a fellow man, whose life is given by God, and therefore, like his own, belongs to him.
Dietrich Bonhoeffer writes:
Destruction of the embryo in the mother’s womb is a violation of the right to live, which God has bestowed upon this nascent life. To raise the question whether we are concerned already with a human being or not is merely to confuse the issue. The simple fact is that God certainly intended to create a human being and that this nascent human being has been deliberately deprived of his life. And that is nothing but murder. A great many different motives may lead to an action of this kind. Indeed, in any case where it is an act of despair performed in circumstances of extreme human or economic destitution and misery, the guilt may often lie with the community rather than with the individual…all these considerations cannot in any way alter the fact of murder.
We cannot expect the common law to take exactly the same view of God’s wishes and intentions as these Christian thinkers do; but until recently it took a most serious view of the crime to which they are referring. It did regard foetal life as worthy of protection.
An innocent person
In his discussion of “Law and the Sins of the Mothers” in Death before Birth, Msgr. Synan discusses the Salem witchcraft trials in 1692, after which six people were found guilty. Five of them were hanged. The sixth, Elizabeth Proctor, could not be executed because she was with child. “Her execution was stayed until such time as her child should have been born ‘on the ground,’ as an excellent historian of these grim events has not hesitated to put it, ‘that the child she was carrying was an innocent person.” Those who wish to pursue the Salem trials further can read Msgr. Synan’s brief chapter and follow up the leads given in his learned footnotes, especially the book Witchcraft at Salem by the “excellent historian” to whom he alludes, Chadwick Hansen. What happened at Salem was entirely in accordance with English legal tradition. As Msgr. Synan shows, there are many references in English plays (and also in novels) to women being saved from the gallows by pregnancies real or feigned. In John Gray’s Beggar’s Opera (1722), a young man named Filch describes how he has helped women on the wrong side of the law to escape the law’s severity. “I have picked up a little monkey by helping the ladies to a pregnancy against their being called down to sentence.” The law had the right to take the life of the mother, but not of the unborn child.
The development of jurisprudence, Msgr. Synan writes, has been a prolonged effort to conquer excessive severity while achieving the goals of the law. Torture, which was in common use in earlier centuries, is now unthinkable as an ordinary resource of the courts; capital punishment has disappeared in many countries. The destruction of intra-uterine life must therefore count as an expectation to our all but universal tendency towards mildness, “whereas the immunity of the foetus was an exceptional provision in the harsh Roman Law and in the hardly more human Common Law of England and her daughters.” In Msgr. Synan’s view, therefore, the protection for the fetus is not a new idea; it has always been there; it is a part of our legal heritage.
In similar vein, when he analyzes the Roe vs. Wade decision, John T. Noonan ridicules the declaration by the U.S Supreme Court – in a judgment written by Justice Blackmun – that a new personal liberty, the liberty of a woman to produce the termination of her pregnancy at any time in its course, was implicit in the Constitution. Neither the Ninth not the Fourteenth Amendment, in Noonan’s view, provides any solid ground for such an argument. He regards the decision as arbitrary and far-reaching; in fact he entitles his discussion of it “Raw Judicial Power.”
The court held as follows:
- Until a human being is “viable” or “capable of meaningful life” a state has no compelling interest which justifies it in restricting, in favour of the fetus, a woman’s personal liberty to have an abortion
- After viability is reached the human being is not a person “in the whole sense,” so that he or she cannot be protected by the 14th Amendment, which guarantees that life shall not be taken without due process of law. He or she is, however, recognized as “potential life.”
- A state may not protect a viable human being by preventing an abortion performed to preserve the health of the mother. Therefore a fetus of seven, eight, or nine months is subordinated by the Constitution to the demand for abortion on grounds of health.
Noonan maintains that these provisions mean a decisive, unexplained, and unwarranted break with the past. During the 19th century, as Blackmun himself described with clarity, the American Medical Association led the fight for statutory protection of the embryo. A main reason for this was the popular ignorance of the real nature of the crime of abortion – especially the belief even among mothers that the fetus is not alive until after quickening, so that there could have been “unwarrantable destruction” of human life before the fifth month. “If Justice Blackmun can read the history, cite the American Medical Association jeremiads, and trace the development of the law, and yet be uncertain as to the law’s intent,” Noonan writes, “it must be that he has failed to grasp, failed to integrate, the purposes which animated our ancestors in laying down a thick wall of protection about the baby in the womb.”
He was wooden, too, in determining the meaning of “person” in the 14th Amendment’s guarantee: “he does not ask if the new biological data on the fetus compels the Court to be as evolutionary in its definition of person as it is in its definition of liberty.” As a result, he was able to write a decision valuing the fetus at precisely zero. No wonder that the volume of essays in which Noonan’s piece is reprinted, edited by Jeff Lane Hensley, is called the The Zero People.
The Borowski judgment in this context
What Noonan says about the thick wall of protection provided for the baby in the womb by United States law has no particular relevance to Canada. Nor, on the other hand, does the U.S Supreme Court decision in Roe vs. Wade, with its establishment of so-called right of a woman to have an abortion. But the fact that the English common law always did provide protection for the child in the womb is surely of great and continuing importance to us.
In his decision in the Borowski case, Mr. Justice Matheson refers to Roe vs. Wade, but really to stress some of the differences between the American situation and the Canadian. After discussing Blackmun’s contention that a woman has a constitutional right to privacy which is broad enough to allow her to terminate a pregnancy, he notes that it was also emphasized that the State acquires a compelling interest in the potential human life of the fetus at the moment when it becomes “viable.” After this, the State may prohibit all abortions not necessary to protect the life or health of the mother.
In contrast, section 251 of our Criminal Code does not make any abortion lawful unless it has been certified that the continuation of the pregnancy would be likely to endanger the woman’s life or health. As contrasted with the Roe vs. Wade decision, where it was concluded that the State has no right to interfere before the stage of viability, out legislation prohibits abortion at any stage except in the prescribed circumstances.
Interest in the fetus
In fact, Matheson found a parallel to the Canadian law in an American dissenting opinion, that in the City of Akron case in 1983. A majority of the members of the U.S Supreme Court affirmed the Roe vs. Wade decision, but Justices O’Connor, White, and Rehnquist disagreed. Even assuming that there is a fundamental right to terminate pregnancy in some situations, they held, the State does have an interest in the fetus even before viability, because potential life is no less potential in the first weeks of pregnancy than at the viability stage. This opinion, Matheson observes, seems to be consistent with the general intention manifested by the Canadian Parliament in section 251 of the Criminal Code.
When Matheson goes on to discuss a proposal for legal protection of the unborn made by Patricia A. King in the Michigan Law Review, he enters on the contentious subject of whether some of our present definitions ought to be revised in the light of new knowledge. Miss King said that two developments in medicine have affected the adequacy of the legal position that life begins when there is a live birth. First, it has been established that the fetus is genetically a separate entity from the time of conception or shortly thereafter.
Impressive witnesses
Second, advances in medical procedures have made it possible for a fetus to be treated separately from its mother. The parade of expert witnesses testifying on Borowski’s side had made enough impression for Matheson to state that the evidence substantiated Miss King’s assertions.
Yet it proved possible for him to quote the conclusion to Miss King’s article and turn it against Borowski. She maintained that whether or not the fetus is a person is irrelevant to whether it should have legal protection; the personhood debate has only obscured the decisive issues. The juridical status of developing humans, she said, has historically depended on their capacity for separate existence; we do not need to abandon that traditional understanding, but rather to revise it in the context of advancing scientific knowledge. The plaintiff could hardly accept this submission, Matheson notes, since it would really mean that the new legislative amendments would have to be passed extending the recognition given to fetuses at stages of their development – whereas he wanted to show that the fetus already possesses all of the rights guaranteed to everyone by the Charter.
Matheson devotes a number of pages to showing why he rejects this latter view. One reason is the wording in the Criminal Code. It makes a distinction between a human being and an unborn child, showing that Parliament does not equate the life of a fetus with that of a living person. Another is that the plaintiff’s argument is substantially the same as that advanced in the Dehler case, where it was claimed that the unborn, as human beings from the time of conception, have a right to life and to full protection of the law. Mr. Justice Robins noted that Dehler had not cited any case which holds that a fetus is regarded as a legal person and is therefore entitled to the rights asserted; the judicial decisions demonstrate the opposite – that the law has selected birth as the point at which the fetus becomes a person with full and independent rights.
Everyone and The Charter
Finally, Matheson says there is nothing in the Canadian Bill of Rights which clearly supports any suggestion that a fetus is included in the clause regarding “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” The Charter uses the term “everyone”; where it is used elsewhere in the Charter, it is used in a manner which absolutely precludes the extension of the term to fetuses. There is no evidence that Parliament intended the term to include fetuses, and the courts have no power to import into terms utilized in the Charter interpretations which they cannot reasonably bear.
One of the precedents he quotes is very discouraging for those interested in the protection of unborn children. The question of the status of the fetus, he says, was squarely faced in an English case of 1978, Paton vs. Trustees of B.P.A.S., in which a husband applied for an injunction to prevent his wife from undergoing an abortion without his consent. “It was concluded,” Matheson writes, “that a fetus cannot, in English law, have any right of its own at least until it is born and has a separate existence from its mother.” When Paton took his case to the European Human Rights Commission, arguing that an unborn child is covered by an article of the European Human Rights Convention providing that “everyone’s right to life shall be protected by law,” the Commission concluded that the abortion was covered by an implied limitation: the right to life of the fetus at that stage was subject to an abortion necessary to protect the life or health of the pregnant woman.
It is hard to disagree with Mr. Justice Matheson’s line of reasoning; within the limits he sets himself, he seems logical and consistent. Nevertheless, his judgment contains many implications which are worth pursuing, and some sections which are bound to provoke controversy.
● If Matheson rejects the argument that the fetus is guaranteed rights by the Charter, he also shows that the Canadian law does not do what Noonan says the American Supreme Court did – value the fetus at precisely zero. In fact, as we have noted, he says that a dissenting opinion in a U.S Supreme Court decision seems consistent with what our Parliament intended: the state has a compelling interest in both maternal health and the “potential human life” present during pregnancy.
● Much of the evidence in the recent Morgentaler “trial within a trial” in Toronto was apparently intended to show either that abortion is a fundamental and unqualified right or that equality of treatment is not assured under the present legislation. Nothing in the Matheson decision would seem to support either of these positions.
In fact, Matheson makes it clear that Parliament had the right to pass the legislation it did. Quoting Chief Justice Laskin, he maintains that the fact the Charter now exists does not detract from the basic premise that “Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in the criminal legislation.” So, if Parliament may say that abortion is permissible under certain circumstances, it may also say that under ordinary circumstances it is criminal.
● Evidently Matheson envisages a conservative role for the courts, unlike that played by the American courts, especially the U.S. Supreme Court, which has often been innovative – sometimes dangerously so, as Noonan declares. He will even maintain that it is not the business of the court to comment on the quality of legislation passed, though presumably it can say that certain legislation conflicts with the Charter of Rights, legal precedent, natural justice, or common sense.
Again he quotes the Chief Justice as pointing out “how foreign to our constitutional law and to our conceptions of judicial review was any interference by a court with the substantive content of legislation.” Certain interpretative considerations do have a bearing on substantive terms, but Parliament possesses primacy within the limits of its legislative authority.
● On p.24 of his judgment, Matheson refers to minutes of the proceedings of a special parliamentary committee on the Constitution, in a discussion of the meanings of terms. It is often said that, by not defining health in the abortion legislation, Parliament left its meaning wide open. If committee proceedings can be employed to clarify on piece of legislation, however, they can be employed to clarify another.
On p. 80 of his Morality and Law in Canadian Politics, Fr. Alphonse de Valk describes the final report on the proposed abortion legislation presented to the House of Commons by the Standing Committee on Health and Welfare. The committee acknowledged that there had been a great deal of concern over the meaning of “health.”
It recommended that abortion be permitted only when a clear and direct serious threat to the mother’s health was present, adding that it “intended health to mean physical and mental health and not the wider definition given to it by the World Health Organization.” In opposing amendments purporting to strengthen the language of the bill, Justice Minister John Turner declared that the bill had rejected the eugenic, sociological, or criminal offence reasons, and that the word “endanger” employed in it imports or connotes the element of hazard, peril or risk.
Influence and politicians
The W.H.O. definition describes health as “a state of complete physical, mental, emotional and social well-being and not merely the absence of disease and physical well-being.” It is a utopian definition – certainly not one which could be used by a physician in his normal practice. It was rejected by the House of Commons committee dealing with abortion legislation. It was rejected by the Minister of Justice who brought the legislation forward.
Yet according to the Badgley Report (p.254), the W.H.O. definition is used by provincial health authorities in four provinces, referred to by another, and accepted by the Department of National Health and Welfare “in a conceptual sense.” And obviously in most of the other provinces the strict interpretation of danger to health given by Mr. Turner is more honored in the breach than in the observance.
● On p.26 Matheson writes that fetal life, “it seems quite clear, is an existence separate and apart from that of the pregnant woman…” In several places, however (as on p.30), he seems to accept the idea that the child in the womb is only a potential human being. During the Borowski trial, both Sir William Liley and Dr. Jerome Lejeune very adroitly avoided the linguistic traps which Edward Sojonky, lawyer for the Crown, was trying to set for them. Dr. Lilely maintained that the word potential is not useful in medical science. The unborn are considered growing or developing human beings. “Life as we deal with it in biology, is defined in absolute terms. Life is either there or not.”
Similarly, when Dr. Lejeune was asked whether a foetus is a human being, he replied that “Fifty years ago, no scientist would question that the thing growing inside the uterus was a human being. But because there are those who find it disagreeable they want to make a grey zone obscuring the biological facts.” When all the genetic information is there at conception, he said, if the embryo is a part of our species then it is a human being.
Ignorance and the evidence
Among the non-scientists who want to make a grey zone obscure the biological facts are surely Michele Landsberg and Laura Sabia, who referred in their vitriolic columns of last May concerning the “lunatic spectacle” in Regina (as they described the Borowski trial) to “this whole cult of the worship of fertilized eggs,” They, like Dr. Morgentaler himself, are ignorant of the fact that so much has been discovered about fetal life that it has to be looked at in a new way; this was the burden of much of the evidence by Borowski’s witnesses.
Matheson says that the fetus is not a person; it cannot be included in sections of the Charter where “everyone” is used – “everyone” has the right to be secure against unreasonable search or seizure; “everyone” has the right not to be arbitrarily detained or imprisoned, and so on. But what is the child in the womb?
Matheson quotes sections of the Criminal Code referring to the child becoming a human being at birth. But, as Liley and Lejeune say, the child in the womb is a human being. What else can it be? As Patricia King suggests, somehow or other our laws must reflect the new medical knowledge, which makes disparaging references to the “cult of the worship of fertilized eggs” seem the product of invincible ignorance.
● Finally, on p.5 Matheson quotes a subsection of the Criminal Code which might be thought to provide some guarantee that unlawful abortions will not be carried out. The Minister of Health of a province may require a therapeutic abortion committee to provide him with a copy of any certificate approving of an abortion which it has issued, together with any information concerning the case which he may require.
At the Morgentaler trial, Dr. Sheila Cohen testified that she performed more than 550 abortions between 1974 and 1979 and that not one was irrevocably refused by abortion committees at the hospitals involved. Will the Minister of Health for the Province of Ontario now call for certificates and surrounding evidence, as the Criminal Code empowers him to do, in order to determine whether the abortion committees at these hospitals have failed to observe the law concerning abortion – as seems likely on the face of it? When will any Minister of Health, in any province, actually carry out his oath of office and take some action to stop abortions being performed for causes, which the present Canadian Criminal Code rejects?
Long, long ago, when knowledge of fetal development was much less advanced than it is now, a convicted felon like Goodwife Proctor could not be hanged because she was with child. In terms of legal precedent, established centuries before the enactment of our Charter of Rights, the child in the womb did get some consideration and receive some protection.
If the Charter is not going to provide the unborn child with special protection, if the Patton case is going to be regarded as a precedent, if the present legislation is regarded (as it evidently is by Mr. Justice Matheson) as containing sufficient safeguards, then our only recourse for the moment is to convince those who perform and sanction abortions and those responsible for the operations of the law first to inform their consciences and then to follow them. They must realize that virtually all of the abortions now performed in Canada are both immoral and illegal.
