Joe Borowski’s court case, in which he is seeking legal protection for unborn children is now in the hands of the Supreme Court of Canada. The case, launched more than nine years ago, is now nearing its conclusion. In his application, Mr. Borowski is asking the court to declare that the 1969 amendment to the Criminal Code legalizing some hospital abortions is unconstitutional. Borowski’s lawyer, Morris Schumacher, has argued that the guarantee of the right to life contained in the Charter of Rights applies to unborn children. That right to life is abrogated by the legalization of abortion and, consequently, the 1969 abortion law amendment is unconstitutional and must be declared void.
On April 30,the Saskatchewan Court of Appeal rendered the most recent decision in this case. The court ruled against Mr. Borowski, stating that unborn children are not protected by the Charter of Rights. In an unanimous judgment the three judges observed that the Charter recognizes the right to life belongs to “everyone” but concluded that “everyone” means every legal person, not every human being. Traditionally, English and Canadian courts have held that only “legal persons” have rights and, furthermore, that a human being becomes a legal person only when he or she is born. The Saskatchewan court relied on this traditional view and ignored the scientific evidence put forward at the original trial which established the humanity of the unborn child.
Similarly, the Court rejected Mr. Schumacher’s argument that Section 15 of the Charter applies to unborn children. That Section guarantees to everyone equal protection under the law. Again, the Court concluded that because the Section speaks of “everyone,” it does not apply to unborn children.
The Court’s decision is not without good news for pro-lifers. It declared that the Charter is neutral on the issue of abortion.” It remains for Parliament,” the Court concluded “to determine in what circumstances the termination of a pregnancy will be lawful or unlawful.” This assuages some of the worst fears of pro-lifers regarding the Charter. Many pro0life lawyers have expressed a concern that the courts would use certain sections of the Charter to strike down any restrictions on abortion and thereby institute abortion on demand. Their concern was rooted in the precedent set by the U.S Supreme Court in the Roe vs. Wade case. In that 1973 decision, the Court declared that any restriction on abortion contravened the right to privacy found in the Bill of Rights and that any such restrictions would be struck down by the court.
The Saskatchewan Court of Appeal has completely rejected the American approach and ruled that parliament has the right to decide what the abortion law will be and that placing restrictions on abortion is a political not a legal matter.
The Court’s ruling has to be sobering news for the supporters of abortion on demand as they await the Supreme Court of Canada decision in the Morgentaler case. In that case, argued that the Supreme Court should follow the American precedent and strike down the entire abortion law as being an unconstitutional restriction on women’s rights.
Meanwhile Joe Borowski has announced that he will leave the decision to appeal or not up to his friends and supporters. “Your letters and donations will be a vote to go ahead. . . If you do not respond, your vote will mean drop it.. . .” Mr. Borowski wrote in a recent letter.