In 1988, the Jesuit journal Compass published some articles and editorial comments on abortion. In May 1988, it published Bela Somfai’s “A law against abortion is not enough.” In July it lent its pages to Marshall Hewitt, a feminist University teacher to set out the standard pro-abortion view. In October associate editor Leo Serroul meditated on language. In November, the magazine published “Life and Health: A Way out of the Dilemma,” by Colleen Kovacs. Finally, in January 1989, the magazine published the views of MP Don Boudria, (pro-life), and former MP Marion Dewar, (pro-choice).
In a future issue The Interim will print comments on the Somfai, Hewitt and Serroul contributions. But now that the Supreme Court has rendered judgment in the Borowski case, the Mulroney government is faced once more with the question what legislation to introduce. It may well follow the model it tried out lat July, the so-called Amendment A. This was offered as “pro-life” legislation.
Confronted with this prospect, the following article analysis Colleen Kovacs’ defense of this approach. It may also be noted that Law Reform Commissioner Joseph Maingot, who dissented from his colleagues’ recommendations, takes a stand similar to Kovacs (see LRC offers no protection for pre-born, by Sue Hierlihy in this issue). Colleen Kovacs is a lawyer living in B.C.
The author attempts to answer the question of the title: Is there a way out of the impasse?” The “impasse” refers to the fact that the parliament of July 1988 could not come to a decision what to do after the Supreme Court had struck down the existing legislation enacted in 1969.
The author makes a serious attempt to look at various legal possibilities. But she does not answer the question definitively. Rather she suggests that while we are waiting for a resolution, which will satisfy the pro-life movement, steps can be taken in the meantime to reduce the number of abortions. The first part of the title indicates her solution for ending the impasse, namely legislation which allows abortion for life and heath, but as health as strictly defined.
The article focuses on Amendment A – part of the Mulroney government’s attempt in June and July last year to find some consensus among Members of the House of Commons. The text of Amendment A follows:
Such legislation, giving preeminence to the protection of the fetus, should prohibit the performance of an abortion except when: two independent qualified medical practitioners have, in good faith and on reasonable grounds, stated that in their opinion the continuation of the pregnancy would, or would be likely to, endanger the health and there is no other commonly accepted medical procedure for effective treating the health risk; but grounds for such opinion are not to include:
(1) the effects of stress or anxiety which may accompany and unwanted pregnancy, or;
(2) social or economic considerations.
I will summarize Kovacs article under five headings:
The author states that at present, abortions “for any reason are not lawful.” She says that human life is the primary value in Canadian society. She then describes several government attempts at resolving the problem of abortions and concludes that the July 1988 attempt of the government to gag the sense of the House failed.
That being so, she recommends Amendment A as worthy of consideration. She describes this Amendment as “properly characterized as a ‘qualified’ pro-life position” and claims that the Amendment gives “pre-eminence to the protection of the unborn child.” The “aim of this proposal is to protect the unborn child starting at conception.”
The author then expresses reservations about the term “health” but believes that Amendment A is sufficiently clear to circumscribe the term in such a way that abortions will be few and far between.
“If this definition of health were enacted and lawfully enforced and administered, there would be very few cases indeed where abortion would be legal,” she argues.
The weight of the article then shifts to exploring ways of doing abortions “constitutionally.” The author believes that a reading of the Supreme Court judgment leaves “the clear implication” that the life or health of a pregnant woman takes precedence over the protection of the fetus.
Abortions, therefore, are “constitutionally legitimate.” This leads her to the conclusion that a pure pro-life position is unattainable.
Kovacs speculates what is to be done, granted the impossible dream of the “pure” pro-life position. Thus she speaks of working for a “a viable alternative” and this brings her back to endorsing Amendment A.
Finally, she warns pro-lifers about confusing moral principles and what is politically attainable. We must save lives. Kovacs ends by saying we must never abandon a truly just law.
The article is well written. Aside from a little confusion about what is fact and what is the author’s opinion at the very beginning, her line of thought appears convincing.
But the article contains four basic flaws:
- Flaw No. 1
Kovacs states that at present, abortions “for any reason are now lawful.” Following the Supreme Court decision of January 28, 1988, the author – and many others – concluded that because there no longer is any law today, abortions are legal. This argument is wrong. Cardinal Carter described the situation much more accurately when in February 1988 he charged that Canada is now in a state of lawlessness.
This point is of great importance in keeping a clear mind about what to do. Abortions were legal and lawful by Canadian law – though never by God’s law – from 1969 to 1988. The fact that Canada does not have a law at present does not make abortions “lawful.”
The small groups of pro-abortion hardliners do not want a new law because they say, it would “re-criminalize” abortions. This interpretation is correct. But by the same token, those who aim at passing so-called middle-of-the-road legislation are simply re-legalizing abortion.
The portray themselves as moderates – wanting to please both sides. But since their proposal is not acceptable to those who abhor all abortions, they end up pleasing only the pro-abortionists. If Parliament accepted this proposal, it would simply re-legalize abortion.
- Flaw No. 2
Kovacs describes Amendment A as “properly characterized as a pro-life motion.” But, in fact, there is nothing pro-life about Amendment A at all. This is the heart of the matter and I will return to this shortly.
- Flaw No. 3
To describe the January 1988 Supreme Court decision as affirming the constitutionality of abortions, and making it appear as if no change in that opinion is possible or likely, is a viewpoint not shared by others.
It is a legal opinion which, more than anything else, reflects contemporary pro-abortion legal interpretations. These take the current expression of rules and regulations in the judiciary as indisputable facts. But there are still lawyers who do not grant a constitutional right to abortion even within the existing Charter. (See the attached article by Thomas Campbell.)
This approach is also the wrong frame of mind for a pro-life strategy which believes that if the Charter does not fit the truth, it is the Charter, not the truth that should be changed.
- Flaw No. 4
Kovacs speaks of “a viable alternative” – Amendment A – without placing the choice of this alternative in a moral context. It has been said many a time, but it bears repeating, a Christian may never freely choose evil not even for an ostensibly good purpose. But let us quote the 1968 words of Pope Paul VI:
“Though it is true that sometimes it is lawful to tolerate a law of moral evil in order to avoid the greater evil or in order to promote a greater good, it is never lawful, even for the gravest treasons, to do evil that good may come of it – in other words, to intend positively something which intrinsically contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or a society in general.” (“On Human Life” emphasis added)
Now a law permitting abortion is an inherently evil law. Legislators, therefore, may not in good conscience vote for such a law.
The argument that is it necessary to legalize abortions to avoid back street bungling is morally unacceptable. Some people, including former Prime Minister Trudeau, thought that the principle of tolerating the lesser of two evils applied in the case of legalizing abortion. But it does not. Choosing between two evils is allowable only when there is no freedom to choose anything else, or when an individual is coerced to accept one of two courses of action without further choice. This is never the case with women who choose to abort, nor with lawmakers who contemplate legalizing abortion. Therefore, legislators may not, nor should they vote for an Amendment A type law. They may not vote for a law which will permit the killing of innocent human beings under certain conditions because it is an intrinsically evil law.
They should not vote for Amendment A because contrary to what Colleen Kovacs believes, it does not aim “to protect the unborn child starting at conception.”
Lawmakers should not vote for an Amendment A type law because it is not a viable alternative. IT is full of loopholes. While it may seem good on paper and in theory, in practice it will turn out very differently.
- An Amendment A type law would allow abortions to be committed in abortuaries or in a doctor’s office. Under the old law, abortions had to be performed in hospitals.
- Abortions would be approved by only two doctors. Under the old law, abortions had to be approved by a committee of three doctors selected by the hospital
- An Amendment A type law would place some restrictions on the meaning of the term “health,” but the restrictions would still be vague and would still allow abortions to be performed for such nebulous reasons as “depression.”
- An Amendment A type law would lack some of the safeguards of the old law. Thus, it would be worse than the already extremely bad 1969 abortion law under which over one million abortions have been committed.
With respect to medical loopholes in Amendment A, a group of Prince Edward Island doctors stated in a July 1988 letter to all MPs that “Amendment A is fraught with potential for abuse.” They raised four objections:
1) “The most pervasive error of this proposed legislation is the continued use of the term “health”…[it] has become very widely defined to include a state of physical, mental and social well being. However, the absence of such a state is not disease…many unhealthy states of human existence such as grief, suffering, boredom, apathy or bitterness, do not meet scientific medical criteria for disease….”
2) The ‘effects of stress’ is not a medically defined term and it is vulnerable to a liberal interpretation by physicians….”
3) “It is our belief that the word ‘procedure has in medical circles come to possess a technical orientation.’ This could allow…for interpretations which would eliminate other accepted therapies, including pharmacotherapy, psychotherapy and the milieu therapy of hospitalizations.”
4) “The phrase ‘effectively treating’ is not clearly defined…(various therapies could be excluded and) the case could be made then that the pregnant woman has a right to effective treatment to such a degree that only the total elimination of the fetus will suffice.”
Finally, there is the question of strategy.
Those people who argue that an Amendment A type law would only be a “necessary and practical step” towards better days are not facing facts.
In Great Britain, for example, after 21 years of legalized abortion – the law was passed in 1967 – an attempt was made in 1987 and 1988 to reduce the legislated period of 28 weeks for abortion to 18 or 24 weeks. After strenuous efforts the attempt failed, even though there was almost unanimous agreement that babies are “viable” at 20 weeks.
This ought to teach us a lesson. It is better to be without a law for the time being than to recklessly pass an Amendment A type law and lose the opportunity for years to ban abortion in Canada. This position is not the same, of course, as that of the feminists. These do not wish a law at all, in order to continue the present state of lawlessness indefinitely.
What I am getting at is that people can change their minds very quickly on political issues. It is better, therefore, to aim at and pursue what some call “the unattainable” – the prohibition of abortion, even if this may fail temporarily. Constant education and political activity will keep the issue alive and will bring eventual victory. Reason, science and goodwill are on the side of pro-life. Constant struggle is far preferable over accepting a law full of loopholes which gives the pro-abortionists what they want while paralyzing the political efforts of the pro-life movement.