Since the Supreme Court judgment of January 28, attention has turned to what kind of legislation the federal government might provide to regulate abortion. The judgment acknowledges that some form of protection for the preborn is warranted and the signs point towards legislation based on a “gestational age” approach. That is, a law based on the argument that a child in the later stages of gestation has a possible right to life not afforded to a child in the early stages of prenatal development.

Recent wor of the Law Reform Commission of Canada (LRC) is receiving careful attention from the government wrestling with the many political and social implications of forming a new abortion law. In December 1986, an LRC committee issued a consultation document, “Options for Abortion Policy Reform,” which they said was  “ a careful and objective gathering of all the major policy options along with an indication of the implications of each.”

The first of the six “options” presented by LRC, complete prohibition of abortion, is immediately rejected as not only “unacceptable but unenforceable,” an “unfair use of law in the pluralistic society.” All the usual pro-abortion arguments are employed to substantiate this rejection:

“Among the likely results of such a complete prohibition, if it could be enforced, would be an increase in the number of children born, and perhaps increases in the number of children available for adoption and/or number of unwanted children subject to child abuse. Pregnant women would also be exposed to the greater morbidity and health risks of child bearing; the number of illegal and high risk abortions would probably increase; and the policy would have a disproportionate effect on the poor and those less able to travel for legal and safe abortions in other jurisdictions.”

So much for objectivity! No studies or statistics are cited to prove the claims made in the paragraph quoted above.

The second option, legal abortion only if the women’s life were endangered, is noted as more restrictive than the 1969 law now abandoned. “A large proportion of the public and of physicians,” the paper states, “would seem to support the availability of therapeutic abortions for reasons of maternal health, at least physical health.”

Many people support the principle of abortion to save the mother’s life.  But what is usually forgotten is the fact that pregnancy today does not constitute a danger to a mother’s life (see remarks of Sir William Liley elsewhere in this issue).

Reasons for abortion

Option three, legal abortion for danger to the woman’s life or health, is essentially the recently struck down 1969 law.  The LRC attempts to present it as protective of the preborn.  “Some would maintain that this option is still consistent with the view that protectable human life begins at conception, although that protection will on occasion be qualified.”  But, they argue: “…since conflicts in health rights and interests between fetus and the pregnant woman can almost always be resolved in favour of the woman, it is more or less meaningless to see in this policy significant support for fetal status or its protectability.”

A fourth option would see the 1969 law widened to explicitly include rape and incest, “social health” and fetal abnormalities as reasons justifying abortion.  This could be justified, the LRC argues, because the law as it was had been widely interpreted to cover such reasons.

A right not to be born

In discussing the reasons for allowing abortion for fetal abnormalities, the LRC committee suggests that it is in the interest of the handicapped child not to be born, “to prevent the predictable suffering and burdens which some serious abnormalities and diseases will inflict on those affected.  The motive for this…would be implicitly supportive of fetal status, interest and health.”  It is also said to be in the interest of pregnant women “since they are the ones who bear most of the burden of coping with handicapped children.”

The paper acknowledges that “serious abnormalities” are often a subjective judgment depending on the individual perspective.  It says that, a missing finger, or the “wrong gender,” may be considered by some as justifying abortion.  In order to define a “serious” abnormality, the authors suggest a list of “particular fetal abnormalities or complications” could be appended to such a law.  However, they acknowledge that such a list would be continually changing as medical knowledge advances.  A possible test would be that “where it is possible to estimate severity, abortion would be permitted if the abnormality was serious enough to justify withholding treatment for a similarly affected newborn.”

Permitting abortion for rape or incest “could help to lessen the emotional trauma involved in these pregnancies,” the paper states. “Children born as a result of rape or incest would generally be unwanted and could be exposed to greater risks of abuse and neglect.” (There is no indication that the LRC researched any statistics or studies to back up this assertion.).  In addition, the committee says, “where the woman is a minor or mentally handicapped, there would be a diminished capability to provide appropriate care and protection.”

The committee warns that abortion on such grounds presupposes that claims of rape can be proved.  They also point out that “would permit the destruction of healthy fetuses on the non-medical grounds.”  (They do not bother to point out that healthy fetuses are frequently destroyed on non-medical grounds.)  Perhaps, they suggest, abortion for rape should only be allowed during the first twelve weeks of pregnancy.  The reason for this is that public sentiment is more approving of early abortion.

Justifying abortion for “social health” reasons could include: “insufficient resources for child rearing; maternal age; family size; poor relationship among the partners; no relationship; career interruption, etc.”

Allowing such reasons, would, the paper says, “Lessen the burdens of child bearing and could in appropriate instances enhance the quality of life of existing family members.  Such a policy would also permit women to exercise full control over reproduction and would accurately reflect the actual reasons behind some of the abortions performed in Canada.”

The LRC acknowledges that, this is abortion on demand, and suggest that more money for sex education, birth control and day care, would be justified.  Public opinion, they say, would be against an explicit abortion on demand policy.

Gestational age

The “option” given most weight by the LRC is that which allows abortion on demand for the first stage of pregnancy, followed by regulation of abortion in subsequent stages.  The LRC suggests that regulation should be based on “gestational age” rather than on viability (the point at which the preborn would have a chance of survival if born prematurely), or on gestational weight.  Age can be calculated more precisely, through ultrasound, than weight, which can only be estimated before the child is born.  Although babies of very low weight can be “salvaged” – to use the term the LRC uses – the paper suggests that there is a limit to chances of survival (which they peg at 22 weeks) until scientists develop an artificial placenta.

Abortion on demand is suggested from conception to either 10,12 or 14 weeks, if a “ three stage” system is implemented. To back up this suggestion, the LRC notes that most abortions take place during this period anyway and that by enacting such a law Canada would be following precedents set by other countries. From 14 to 20 or 24 weeks, abortion would be allowed if the women’s “life or health”, were threatened, with the addition of certain other reasons, such as fetal abnormalities or rape or incest. After 20 to 24 weeks to birth, abortion would still be allowed if the women’s life or health were in danger.

Little Justification

A “ two stage” system would allow abortion on demand up to 14 weeks, after that it would be regulated, allowing “life or health” and “ limited additional reasons” up until birth. “ Since many of the reasons leading up to abortion are known before 20 weeks,” the paper states, “ there seems little justification for allowing non- therapeutic abortions after that point except, perhaps, for late diagnosed fetal abnormalities.”

An even more radical alternative would be to allow abortion on request up to 20 to 24 weeks, with “ life or health” justification from then until birth. The authors note that this option would not be very popular: “ Public acceptability and the lack of precedents in other western jurisdictions for such a long on request period may be problematic for this option.”

Alarming proposals

The LRC offers two more alternatives: abortion on request from conception to birth; or on request up to 24 weeks and with “life or health” and “ limited additional reasons” up to birth. Again, they note that these are dubious options in terms of public opinion and precedent.

The implications of these proposals are truly alarming, particularly for those handicapped children who are deemed not worthy of protection at all. If the LRC guidelines are taken seriously, the only debate will focus on whether or not to explicitly record “social health” as grounds for abortion. Any law that attempts to regulate abortion by merely setting a series of time limits will be unacceptable to the pro-life movement and every pro-lifer should make sure that their MPs are well aware of this fact.