The Law Reform Commission of Canada has issued a recently-completed paper on “Options for Abortion Policy Reform.” This study is the first step in a programme which will also include issues such as embryo experimentation, infanticide, genetic screening and in-vitro fertilization. It is expected that, by the winter of 1987, the Commission will issue “a report containing specific law reform proposals on abortion and the other issues referred to above.”
If our pre-born babies are not to be put into greater jeopardy, it is essential that people across Canada be told what options are being discussed. The following is a summary of some of the major topics with an added commentary.
The paper issued by The Working Group of the Law Reform Commission has a sub-heading “Fetal Status Working Group” with a sub-sub-heading “Protection of Life Project.” These titles might lead the reader to believe that the life to be protected is that of the fetus. Not so. It is true that the introduction mentions “legal protection of the fetus” but it soon becomes abundantly clear that this is purely lip-service. Disillusion soon follows; and from that point everything goes downhill. The unborn child, particularly in its earliest and most vulnerable stages, is patently of miniscule importance in this study.
One might reasonably expect, too, that a document from a Working Group of the Law Reform Commission would be free of legal errors. Incredibly, however, there are any number of obvious mistakes. Some of these will be discussed later in their proper context.
Two other errors involve well-known cases in which private individuals have attempted to gain legal protection for the unborn child. One case is that of Mr. Joseph Borowski who argued that in Section 7 of the Charter of Rights and Freedoms (which provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) the term “everyone” includes the fetus.
At this time of writing, judgment has not yet been handed down by the Court of Appeal of the Saskatchewan Supreme Court. Incredibly, however, the Commission’s study states: “Leave to appeal the Borowski decision to the Supreme Court of Canada was refused.” Leave to appeal has not been made and will not be made before the Saskatchewan Court’s decision. Indeed, until a judgment is made it is not clear which party involved will need to appeal.
A second error involves the Dehler case. The document states: “Messrs. Borowski, Dehler, and Carruthers argue that Section 7 contemplates and protects the fetus.” Mr. David Dehler, Q.C., went to court in 1977 to try to protect the lives of unborn children in Ottawa Civic Hospital, and Riverside Hospital. When his case was before the courts, the Charter of Rights and Freedoms was still in the future. Section 7, therefore, did not exist, and it was obviously impossible for Mr. Dehler to claim protection for a fetus under a Charter which would not even be discussed, much less passed, for some years.
One or two errors might be attributed to slipshod research and/or editing (though, in any event, such carelessness is surprising in a work of this importance) but the strange thing is that every error or half-truth is used to bolster the pro-abortion argument.
Option: definition of personhood
The report of this group of the Law Reform Commission puts forward and discusses a number of options regarding abortion. The simplest approach, they say, would be to grant “legal personhood” at some stage in the development of the fetus. After this critical point (still to be determined) the fetus would be protected by law. Prior to that point there would be no protection whatsoever, and as a result it is likely (though this is not stated) that any safeguards at present afforded by the Criminal Code would be gone. This approach would allow abortion on demand in the early stages of pregnancy, when it is freely admitted that most abortions are performed.
The study concedes that there is no likelihood of any social or professional agreement in establishing a point when humanity begins. (Indeed we know that opinions range from the moment of conception, on the one hand, to those on the other hand who favour infanticide of the handicapped babies, and who for that reason would deny “personhood” for days, weeks or even months after a baby is born.) Discounting the possibility of further scientific evidence on this question, the study proceeds to quote Sissela Bok:
“The different views as to when humanity begins are little dependent upon factual information. Rather, these views are representative of world views, often of a religious nature, involving deeply held commitments with moral consequences. There is no disagreement as to what we now know about life and its development before and after conception; differences arise only about the names and moral consequences we attach.”
Freely translated, what Bok is saying is that we all agree when a human life begins, but our opinions as to when a human life becomes “human” depends not on scientific fact but on our religious views.
One sentence from this part of the report reads: “It might be argued that women’s concerns are not treated seriously enough within that [the definition of personhood] approach, which focuses exclusively upon the fetus without regard for the pregnant woman’s own health and concerns.” (My emphasis) Surely one is entitled to ask how anyone can possibly claim that this approach is focused “exclusively on the fetus” and with no regard for the mother, when the fetus could be killed, without any questions asked, in its earliest and most vulnerable stage.
Other options discussed later in the study relate to two major criteria: the grounds for allowing legal abortions; the gestational stages at which abortion could be allowed.
Grounds for abortion: options
First Option: Complete prohibition of all abortions for any reason, including threats to the life of the mother.
Second Option: Abortion would be legal only if the mother’s life were in danger.
Third Option: Abortion would be legal on therapeutic grounds, that is, danger to the woman’s life, or to her physical and/or mental health. “The law would be silent as to the degree of seriousness of the maternal health threats required.”
Fourth Option: Abortion would be legal for therapeutic and limited additional reasons, e.g.:
- Serious fetal abnormalities. (but what is “serious” and which abnormalities? Would women be under pressure to abort a less-than-perfect baby?)
- Juridical reasons: – rape and incest. Difficulty of proof is admitted.
- Social Health. This encompasses a wide range of factors, e.g.: family size, substandard housing, interruption of career, insufficient resources, maternal age, poor or no relationship with the partner.
This study conceded that the fourth option provides abortion on demand and would be rejected by most people.
Gestational stage approach
It will be noted that every suggested option in this group allows abortion on demand for the first 10, 12 or 14 weeks. The reports states, “An advantage of a legally permitted on request period encompassing the majority of abortions which are presently performed (see Statistics Canada’s annual review of abortion – most take place between 10-14 weeks) would help to avoid the alleged conflict between women’s reproductive freedom and the abortion law.”
Five gestational – stage options are given: one three-stage system, three two-stage systems, and one at one stage only.
The three-stage gestational system would allow
- abortion on request up to 10-14 weeks
- abortion on therapeutic and limited additional grounds up to 20-24 weeks. (N.B. The study has already conceded that these grounds provide for abortion on demand.)
- legal abortion after 20-24 weeks only if a woman’s health or life were threatened.
The two-stage system: I
- abortion on request up to 10, 12 0r 14 weeks.
- abortion on therapeutic and limited additional grounds from 10-14 weeks until birth.
The two-stage system: II
- abortion on request up to 20-24 weeks.
- Abortion on therapeutic and limited additional reasons from 20-24 weeks until birth. However, the report says: “It is extremely doubtful that this policy would be acceptable to the Canadian public as a compromise since it virtually amounts to abortion on request.”
- abortion on request from conception to birth.
The study says that this last option is extremely unlikely to get widespread acceptance in Canada. It adds what must be the understatement of 1986: “This option at least reflects the view that the developing fetus merits respect and protection.” In fact, the fetus has virtually no protection in and of the options, whether three-, two- or one-stage.
It is clear from the outset that the gestational-stage policies are based on the trimester pattern of the United States, as laid down in 1973 by the Roe v Wade decision.
What is much less clear is why the group from the Canadian Law Reform Commission is trying to peddle policies which have long been under heavy attack in the United States, and which were condemned by Justice Sandra Day O’Conner, of the U.S. Supreme Court in 1983. Writing the dissent in the Akron case, she said, “The trimester approach is a completely unworkable model.” She further stated that the Roe decision was on “a collision course” with itself. Repudiating the Court’s declaration that “potential life” was of compelling interest only after viability she added: “Potential life is no less potential in the first weeks of pregnancy that it is at viability. At any stage in pregnancy there is potential for human life.”
Perhaps the dissenting judgment of Chief Justice Burger, in the Thornburgh case is even more significant, for in 1973 he was one of the seven members of the U.S. Supreme Court who agreed with the Roe decision. In June, 1986, he closed his dissent to the Thornburg decision with the words “I agree we should re-examine Roe” (See The Interim report on the Thornburg decision, July/Aug., 1986.)
As the Law Reform Commission is requesting comments on this study, perhaps they should be asked why Canadians are being presented with abortion options which are outmoded, unworkable, and secondhand.
Roe v Wade and Thornburg
There are other questions one might ask especially concerning the section of the report entitles “The Constitutionality of Section 251 if the Code.”
Why does this part of the report begin by dealing not, as Canadians have the right to expect, with Canadian law and Canadian Charter of Rights and Freedoms, but instead with two decisions of the U.S. Supreme Court concerning the Constitution of the United States and abortion? Does the constitutionality of our Canadian Criminal Code, Section 251, depend in some manner on the decisions of a foreign court of law? What, if any, are the special merits of these judgments that give them precedence before a study of the Canadian Constitution?
The first decision quoted is Roe v Wade which legalized abortion in the U.S. in 1973. By a seven-to-two majority the U.S. Supreme Court rendered invalid the legally enacted statues of virtually every State Legislature. In effect, five men overturned the laws which had been made by elected representatives throughout the country, and thus, in this regard at least, replaced a democracy with an oligarchy. (It is pertinent to note that the Globe and Mail, Jan. 8, 1987, quoted Ontario Chief Justice William Howland as reminding Canadians that “a democratic society is predicted on the majority expressing its will through the legislatures.”)
The Roe decision has been savagely attacked by American constitutional experts, regardless of their views on abortion. Professor John Hart Ely of Harvard Law School wrote: “It is, nevertheless, a very bad decision … It is bad because it is a bad constitutional law or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Dean Harvey Wellington of the Yale Law School said it was “the most outrageous decision ever handed down by the Court in its entire history.”
The eminent jurist Professor John Noonan’s criticism tears the decision into rags and tatters. He concludes his analysis of Roe:
“The liberty established has no foundation in The Constitution of the United States. It was established by an act of raw judicial power. Its establishment was illegitimate and unprincipled, the imposition of the personal beliefs of seven justices on the men and women of fifty States. The continuation of the liberty is a continuing affront to constitutional government in this country.”
Mathematics are obviously not a forté with the Law Reform Commission. They report that there were various attempts to control abortion in the “intervening fifteen years” between Roe (1973) and Thornburg (1986). Perhaps a calculator would help!
The Thornburg case (which gets its name from the Governor of Pennsylvania, The Pennsylvania Abortion Control Act of 1982. The Act provided that a woman be required to be informed of “the particular medical risks of the abortion procedure to be used and of carrying her child to term,” and of the possible physical and psychological effects; of agencies willing to help, etc. It is also provided that in the case of a post-viability abortion the physician would “exercise the degree of care required to preserve the life and health of any unborn child – and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significant danger to the pregnant woman’s life or health.” (my emphasis)
Two sentences of the Law Commission report reveal its bias. “Manipulation of the woman’s decision through the imposition of specific information as to fetal status, maternal risk and alternative services was ruled invalid. State manipulation of the method of abortion that implied increased risk to the pregnant woman in the interest of fetal survival was struck down.” In the view of the Law Reform Commission giving specific information as to the dangers of abortion is “manipulation.”
By way of contrast, this is what Chief Justice Burger said in his dissenting judgment about informed consent (conveniently ignored by the Law Commission report):
“Today the Court astonishingly goes so far as to say that the State may not even require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure she is about to undergo and the availability of state-funded alternatives if she elects not to run those risks? Can anyone doubt that doctors routinely give similar information in countless procedures having far less impact on life and health, both physical and emotional than an abortion, and risk a malpractice lawsuit if they fail to do so.”
Justice Sandra Day O’Conner in her dissent said: “In my view, today’s decision makes bad constitutional law and bad procedural law.”
The Thornburg judgment was five-to-four. One justice’s personal views rendered invalid and act passed by a legislature representing a population roughly equal to that of Ontario plus Quebec.
It is difficult to see why these decisions are deemed important to Canada – unless, of course, they are used to bolster a thrust for abortion on demand.
Abortion and the law
Following suggestions that abortion might be removed from the Criminal Code the study contains the following paragraph:
“It is interesting to note that historically abortion was not always viewed as a criminal offence. Indeed, prior to the Offenses Against the Person Act of 1981, subsequently adopted in Canada in 1969, procuring the abortion of a fetus prior to “quickening” was not a crime. Consequently, the decriminalization of abortion need not be construed as an anomalous occurrence flying in the face of the tradition of western society.”
This statement is patently untrue. It is a denial of the law and history, and – considering its source – it is astounding. The truth is that, in 1803, Lord Ellenborough’s Act declared that before “quickening “ abortion was a felony (though not a “capital” crime); after “quickening” the penalty for abortion was death. This statute merely codified long-standing common law, which ecclesiastical law dates back to early Christianity. As early as 374-5 AD St. basil the Great wrote: “A woman who deliberately destroys a fetus is answerable for murder. Any fine distinction as to its being completely formed or unformed is not admissible amongst us.”
Under common law, causing the death of a living fetus was considered homicide. However, until a baby was felt to move inside the mother there was no way of proving until relatively recently that the fetus was “quick,” or living. It was not possible to prove that a fetus had been killed unless you could prove that it had once been alive. For that reason the penalty before “quickening” was less severe. It has to be remembered that the mammalian ovum was not even identified until 1827, and it was only in the following quarter-century that advances in biological research revealed the scientific secrets of human reproduction and gestation. Today the term “quickening” is meaningless for we have visual and aural evidence that a baby is alive and moving weeks before a mother feels anything.
To decriminalize abortion would not only be to fly in the face of the tradition of western society but to fly in the face of scientific facts and common sense. In 1769 Blackstone, in his famous Commentaries on the Laws of England, wrote the following:
“Life is the immediate gift of God, a right inherent by nature in every individual, and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”
That was the common law from which our later laws were codified. That was the tradition of western culture.
One legal chestnut that the study mentions is to the effect that one of the major reasons against abortions in the past was because it was dangerous to the mother. Now that abortion is safer, that reason no longer applies, and therefore abortion should be allowed. This argument from Roe v Wade (and based on a discredited theory by Cyril Means) has been demolished in many legal-history studies. Abortionists still find it useful amongst the unwary.
Policy options: role of third parties
The report takes it for granted that two parties, the woman and her physician, ought to have a legal role in decision making, though why a doctor is needed when a woman decides a child will interfere with her career, is not explained. The real questions asked in this section concern the fathers and such third parties as committees.
Fathers appear to have no importance in this scenario. Indeed, fathers – and men who hope to be fathers – might like to cogitate on one sentence which comes in the section on constitutional rights.
“While there is a special nature to the relationship of the father of the fetus to that fetus, this relationship is perhaps one too subtle to regulate through a tool as blunt as that of the criminal law.”
The next sentence reads,
“It should also be noted that in no other procedure is the adult woman’s consent insufficient to determine health-care decisions concerning her own person.”
Note that this statement overlooks the fact that, in this very special procedure, a life other than the mother’s is involved. In truth, this decision does not just affect “her own person”; it affects a separate life jointly created by the father and mother.
However, a little hope for fathers is extended in the policy options: “In the absence of constitutional obstacles” (read here – in the Charter of Rights and Freedoms) “it would remain open to the legislature to grant to spouses/fathers certain rights reflecting their special role and interests.” In other words, Parliament just possibly might grant to fathers the “right” to protect their pre-born cons and daughters from being killed.
The study next deals at some length with Therapeutic Abortion Committees, and the options which might be considered:
Policy options: Role of third parties
- the elimination of such committees.
- Retain the present system – the arguments by pro-abortion and pro-life groups are given without any obvious bias.
- A reformed type of abortion committee, which would allow one or more of the following changes:
– inclusion of members other than physicians
– opportunities for appeal
– reduction of delay in decision making allowing
– Therapeutic Abortion Committees to be attached to free-standing abortion clinics
– making it obligatory for any hospital to have an abortion committee, thus ending some “delays and uneven access.”
One new system which is proposed is the establishing of a Consultation System whereby patients, doctors and fathers are referred to specialists, geneticists, social workers etc., before an abortion is performed. It is not clear how this system would work.
The final proposal is to establish a system of Regional Abortion Committees, with the possible power to license abortion clinics.
The pro-life task
It must be obvious to all who care for the unborn child that we have a major task on our hands, and that every last pro-lifer will be needed. The second stage of the Working Committee report, dealing with embryonic research etc., is still to come.
Meanwhile, in October, 1986, the Medical Research Council of Canada issued a Discussion Draft of Revised Guidelines on Research Involving Human Subjects. In the draft the committee stated that “for now” research should be limited to “using embryos up to a stage of development of no more than 14-17 days.” But they emphasize that in the “evolving area” of embryonic research this time limit may be extended. Can anyone doubt that this philosophy will be reflected in the recommendations of the Law Commission?
The Commission says in a letter that they would like input from concerned individuals. They state: “For the time being we are not seeking official positions or requesting briefs from groups of associations on the subject of abortion itself. Those more formal reactions will be invited at the next stage in response to the Commission’s proposals.” The many groups – church, legal, medical and pro-life – should be prepared well in advance. Copies of the Consultation Document are available from:
Edward W. Keyserlingk
Fetal Status Working Group
Law Reform Commission of Canada
130 Albert Street
Comments and submissions should go to the same address.