The following brief address was delivered by Ottawa lawyer Teresa Ferri at a luncheon on Parliament Hill on June 29, 1988. The meeting was held to publicize the pro-life Bill S-16, sponsored by Senators Stanley Haidasz (Lib.) and John MacDonald (PC). See The Interim June 1988.
Honourable Senators, Honourable Members of Parliament, Ladies and Gentlemen.
I am grateful to Senator Haidsz for this opportunity to briefly address you on an issue which demands our mort ardent and urgent attention, an issue which Senator Haidasz has taken the leadership in addressing in his commendable Bill S-16.
Abortion is, without question, a pivotal issue in this respect: the test-case, as it were, which will be the harbinger of the outcome in a larger battle.
Rarely has an issue sustained the level of public controversy that the abortion issue has. Even more rarely has a controversy been as protracted and seemingly irreconcilable as this. Moreover, the controversy appears to be heightening rather than diminishing in public stature.
Abortion is surely an issue of the utmost importance in its own right. But its social impact has been intensified by the fact that it appears to have become a focal point for many other serious social issues. Abortion has become, it seems, the point around which two fundamentally irreconcilable sets of values have begun to crystallize in modern society. As the emerging right deepens, the ability to remain neutral dissolves.
Abortion, like few other issues, compels allegiances to be taken and to be squarely faced. Its implications about the nature and control of incipient human life, about the function of law, about the purpose of medicine, about the ethical responsibilities of public agencies and institutions, touch all of us deeply and personally. The process of aligning oneself, if sometimes painful, is nonetheless necessary. It requires that the difficult realities of abortion be honestly confronted and compassionately assessed with an acute awareness of the individual and social consequences.
What then is the significance of these divergent positions? What vision for the future of Canada does each alternative hold?
On January 28, 1988, the Supreme Court of Canada struck down S. 251 of the Criminal Code of Canada, leaving Canada without any law protecting the most helpless of human beings, the unborn child.
Parliament is now faced with the most pressing task of filling this void, of enacting a law which reasserts society’s vital duty to protect and promote all human life from its earliest fragile beginnings at the moment of conception.
Legislators are asking themselves what impact the Supreme Court of Canada’s decision in Morgentaler will have on their ability to make law in this very crucial area. A number with whom I have spoken appear to be under the misapprehension that the Supreme Court decision has dictated more liberal access to abortion and has implicitly required a “gestational” approach to the regulation of abortion.
I believe that this view of the Supreme Court decision is seriously in error. Quite apart from the personal views of certain Supreme Court Justices which are evident when one reads the decision – and in the case particularly of Chief Justice Dickson and Madam Justice Wilson – those positions are decidedly pro-abortion – one must analyze the case in terms, as always, of its strict legal effect.
First, all five of the majority Justices assert that legislation concerning abortion is a perfectly valid parliamentary function.
Chief Justice Dickson (Lamer concurring) acknowledges that “protection of fetal interest by Parliament is a valid governmental objective” (page 38).
Mr. Justice Beetz (Estey concurring) asserts that the primary objective of S.251 is protection of the fetus and that this “primary objective does relate to concerns which are pressing and substantial in a free and democratic society” and which pursuant to S.1 of the Charter, justify reasonable limits on a woman’s rights.
Even madam Justice Wilson acknowledges that “the primary objective of the impugned legislation is the protection of the fetus. This (she say) is a perfectly valid legislative objective.
Secondly, the issue of whether unborn children are covered by the word “everyone” in S.7 of the Charter and therefore have a fundamental right to life, liberty and security of person, has not yet been determined by the Supreme Court of Canada.
Mr. Justice Beetz (Estey concurring) states that this question need not be decided in the Morgentaler decision.
Madam Justice Wilson similarly states that this question was not dealt with in Morgentaler.
It is unthinkable that our Charter of Rights would not include under the mantle of its protection, the most vulnerable and innocent of human beings. It is imperative that those involved in the leadership of this country guard these rights and do not permit them to be perverted and exploited by those with vested interests.
To allow the Charter to be interpreted in a way that excludes a segment of humanity is to open the doors to its total degradation. For such an interpretation means that we will extend its protection only to those whom, in our particular circumstances and given our particular interests, we deem worthy. Nothing in principle, will prevent other categories of human being, the aged, the infirmed, the deficient, the poor, from being similarly excluded.
Let us be clear. Parliament has both the power and the duty to enact legislation which will protect the unborn. Senator Haidasz’s Bill S-16 fulfills this mandate. In my view, it overcomes the procedural difficulties for which S.251 was impugned. It provides for the protection of the unborn child from the moment of conception while permitting timely medical intervention for the treatment of women with serious problems in pregnancy, recognizing that such treatment may have the unavoidable, though unintended, consequence of causing the death of her unborn child in circumstances where, left untreated, both would die. Such intervention has always been considered morally acceptable and we have never called it abortion.
We are at a critical crossroads in the development of the law and the unfolding of our own history.
The significance of the abortion issue cannot be underestimated. It has become the focal point around which two fundamentally irreconcilable sets of values have begun to crystallize. The division it represents is more profound than any other. It implies opposing views about such fundamental issues as the function of law, the purpose of medicine and the very nature and value of human life.
One view offers a society caught in the web of its own narcissism, seeking after its own self-gratification at the expense of all who need nurturing and support. The other holds hope for a future society which is compassionate and rational, which protects its most vulnerable and has the fortitude to sacrifice immediate gratification for the sake of the values and principles that will ensure its long term survival and betterment. The choice is ours.