Three days of hearings on an application by former Manitoba Highways Minister Joe Borowski to declare Canada’s abortion law invalid, concluded in Regina on December 18, 1985. The hearings were before the Saskatchewan Court of Appeal, which reserved judgment until later. Although a full complement of seven judges was originally considered for the case, second thoughts led to a hearing by three judges.
The Appeal Court took up the Borowski challenge originally launched in a lower court in May 1983, and widely publicized at that time. (The delay was due apparently, to a spat between Ottawa and Saskatchewan about judicial appointments). The challenge is based on the premise that Section 7 of the Charter of Rights and Freedoms must be applied to the unborn. Section 7 states:
“Everyone has the right to life, liberty and security of person and the right not to be deprived thereof in accordance with the principles of fundamental justice.”
Mr. Borowski’s lawyer Morris Schumiatcher pointed out again, as he had two and a half years earlier that the rights of the unborn are violated in the most devastating way possibly by sections 4, 5 and 6 of Article 251 of the Criminal Code. There is nothing “therapeutic” about an abortion for the unborn, he maintained.” The unborn are systematically put to death.”
The law is more cavalier in its treatment of the unborn than of tenants who may be evicted from their homes, Schumiatcher said, drawing a comparison between a dwelling and a pregnant woman’s womb. Yet law books are full of rules to protect tenants, he said.
Moved the gallows
Morris Schumiatcher pointed out that only the unborn still face capital punishment in Canada. “We have moved the gallows,” he said, “it’s in the hospitals now.” Earlier, he had been given approval by the Court to show four videotapes. In one of them, a 16-week-old unborn child was shown sucking its thumb. The videotapes revealed unborn children 9 to 18 weeks old.
The May 1983 trial concluded with Mr. Justice Matheson ruling that the 1969 Criminal Code amendment does not violate the Charter because by Canadian law a fetus is not considered a person. He suggested, however, that the time may have come to take another look at the reality of human life before birth. Presently, law only recognizes a human being as a legal person at or after its birth.
In December 1985, the Federal Law Reform Commission in Ottawa announced that it intended to publish preliminary discussion papers in the spring of 1986 on various aspects of fetal life according to up-to-date medical knowledge.
According to Southham News columnist Peter Calamai (printed, for example, in the Vancouver Sun of December 16, 1985), legal experts believe it will be the prolonged Borowski challenge – and not a more recent case involving Henry Morgentaler – that will eventually produce a landmark abortion law decision from the Supreme Court. Borowski’s case if still focused clearly o Section 7, while the Morgentaler case has been sidetracked into questions about the proper role of the jury and the use of the defence of necessity.
Meanwhile, in the USA, Supreme Court Justice Sandra O’Connor, calling for the re-thinking of the 1973 Roe v Wade decision, has warned that “fetal viability, the point at which the state can prohibit abortions altogether, is approaching conception.” While this statement may be an exaggeration, there is no doubt that Morgentaler statements such as “up to five months or so, we don’t talk about a baby, we call it a project” (MacLeans, October 1976) is rubbish, by scientific standards.
The October 1984 Morgentaler trial presented evidence that Toronto abortion counselors have no qualms recommending an abortion for women 23-24 weeks pregnant. In England the legal permissible limit for abortions is still 28 weeks. Today these limits are clearly beyond viability.
The question is will the Canadian judiciary catch up with biological reality and define a legal person at viability rather than at birth. Perhaps politicians will then be ready to undo the 1969 legislation and extend protection to all human life from conception onwards.