Although immediate media analysis of the Supreme Court judgment on the Morgentaler case claimed it a victory for women, ensuring abortion on demand, the judgment itself shows that the door has not been slammed shut on the pre-born. Indeed, the Justices write clearly that the state has an interest in prenatal life and that parliament has a right to enact legislation to protect the lives of pre-born children.
Those who analyzed the judgment immediately it was available concluded that the Supreme Court had found a “right” to abortion. In fact, only Madam Justice Bertha Wilson did so, and even she acknowledged that this “right” is not absolute and that Section 1 of the Charter “authorizes reasonable limited to be put upon the woman’s right having regard to the fact of the developing fetus within her body.”
Justice Wilson’s views may well be seen in the light of the fact that, in 1966, she was part of the United Church team that drafted that denomination’s pro-abortion policy. Her views are also indicative of the new role the Supreme Court feels it can take under the Charter, since she does not back up her comments with legal precedents.
As McLean’s editor, Kevin Doyle points out in a February 8 editorial, her reasoning was not supported by case law:
“Madam Justice Wilson wrote in supporting the abortion case: ‘Women’s needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.’ Wilson does not cite case law to support that position; she states it as a simple personal opinion.
The other four majority-opinion justices, Chief Justice Brian Dickson, Mr. Justice Antonio Lamar, Jr. Justice Jean Beetz, and Mr. Justice Willard Estey, each reiterated the right to life of the pre-born child, and the right of parliament to legislate, even though Section 251 did not conform with constitutional requirements. Following are three of the numerous references:
– “The principal objective of S.251 as a whole, is to protect the state interest in the foetus…I consider this a valid exercise of the criminal law power.” (Beetz)
– “I am of the view that the protection of the foetus is, and as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law…I think S.1 of the Charter authorizes reasonable limits to be put on a woman’s right having regard to the state interest in the protection of the foetus.” (Beetz)
– “Parliament could choose to infringe security of the person if it did so in a manner consistent with the principles of fundamental justice.” (Dickson)
The other two justices, Mr. Justice William McIntyre and Mr. Justice Gerard La Forest, disagreed with the other five (only seven of the nine justices heard this case) that Section 251 of the Criminal Code violates Section 7 of the Charter (the “life, liberty and security of the person” clause.)
“The proposition that women enjoy a constitutional right to have an abortion,” McIntrye wrote, “is devoid of support in either the language, structure or history of the constitutional text, in constitutional tradition, or in the history, traditions, or underlying philosophies of our society.”
“Historically, there has always been a clear recognition of a public interest in the protection of the unborn and there is no evidence or indication of general acceptance of the concept of abortion at will in our society.”
The purpose of Section 251, McIntyre wrote, was “not to provide unrestricted access to abortion…When, however, as the evidence would indicate, many more would seek abortions on a basis far wider than that contemplated by Parliament, any system would come under stress and possibly fail. It is not without significance that many of the appellant’s clients [Morgentaler, Scott and Smoling] did not meet the standard set or did not seek to invoke it and that is why their clinic took them in. What has confronted the scheme has been a flood of demands for abortions, some of which could meet the test of S.251 (4) and many which could not.”
It is clear that the majority-opinion justices based their opinions on the unfounded premise that abortion, as currently practiced, is only permitted when the life or health of the woman is threatened. Only McIntrye and La Forest, the dissenters, were able to see through the smokescreen thrown up by Morris Manning’s claim that procedural delays and “unequal access” endangered women’s lives.
Only McIntrye and La Forest objected to the assumption that the Supreme Court could wield unlimited judicial power. ‘The power of the judicial review of legislation, although given greater scope under the Charter,” observed McIntrye, “is not unlimited. The courts must confine themselves to such democratic values as are clearly expressed in the Charter and refrain from imposing or creating rights with no identifiable base in the Charter.”
The next Supreme Court case to deal with the abortion issue will be the Borowski case which, we understand, is scheduled to be heard this June. Borowski will argue that the term “everyone” in the Charter includes the pre-born child. If he succeeds, the pre-born child’s right to life will have to be protecte3d and the abortion battle will be won.
As we go to press, barely one week after the judgment was released, Canada is the only country in the world with no law to control abortion.
Pro-abortionists are now squabbling over how soon clinics will be opened and how much of the costs should be covered by medicare.
Grassroots pro-life activity is under way. Many MPs are reporting a flood of telephone calls, urging them to enact legislation. Many MPs will find themselves picketed in the upcoming weeks. Pro-life leaders are urging their supporters to monitor the media and to respond by letter or telephone every time they hear it asserted publicly that this judgment permits abortion on demand.
The first request from pro-life, that the federal government immediately invoke Section 33 of the Charter, was quickly turned down. This section would have allowed Section 251 to remain valid for up to five years, even though it conflicts with the Charter. This government it appears, is reluctant to take such a measure over what is considered a “politically sensitive issue.”
However, sources confirm that pro-life MPs are putting on the pressure and are not bowing to the political pragmatism of their colleagues. Pro-life leaders are meeting with MPs and insisting that legislation must be brought forward quickly for debate. They are making it clear that fence sitting at this time will not be tolerated.