An Ontario judge will determine the fate of the pro-life movement in this province as he decides whether to grant the government’s request for a temporary injunction prohibiting pro-life picketing and counseling.

At issue is whether citizens have the right to voice their pro-life views near where abortions are taking place as well as at the offices and homes of abortionists.

The three weeks of courtroom testimony, which ended January 28, followed months of cross-examination by lawyers representing the Attorney General, the abortion clinics and the 18 pro-life defendants.

The Attorney General has been preparing the province’s case for a year and has tried to convince the judge that women are being denied access to “health facilities” because of “harassment” by pro-lifers. Lawyers for the government argue a court order banning pro-lifers at 23 sites is justifiable and a legitimate restriction on freedoms of religion, expression and assembly.

Lawyer David Brown, representing eight of the pro-life defendants, argued against “government imposed orthodoxy.” He said a “pluralistic democracy” means “that the construction of a better policy rests upon the free expression of ideas, with protection afforded not only to mainstream ideas, but also to those not in favour at a certain time in history.”

He and the defence lawyers Peter Jervis and Peter Lauwers, presented testimony from dozens of people who say their pro-life activity stems from deeply-held convictions about the humanity of the unborn child and a desire to save women and children from abortion.

“The Attorney General says in response, go away, you’ve lost the war – abortion is legal and unrestricted,” Brown said in his opening statement to Justice George Adams. “Whether you are one or many, quiet or loud, holding a sign or praying to yourself, the public streets and sidewalks are no longer yours to use near hospitals, offices, clinics and physicians’ homes.”

In Brown’s eloquent address he compared the status of the unborn child to the position of blacks in the United States in 1857. In that year the Chief Justice of the U.S. Supreme Court wrote: “(they are) a subordinate and inferior class of beings, who…have no rights or privileges but such as those who hold the power and the government might choose to grant them.” In this infamous Dred Scott decision, “the persons referred to were the blacks in the United States,” Brown said. “Slavery was legal; would protest against slavery be unlawful?”

He pointed out the hypocrisy of abortion supporters trying to stifle protest.

“There is a certain irony in witnessing a government attempting to sweep away the opponents of abortion when the legalization of abortion was the product of two decades of public protest,” he said. “The law as it then was, was broken for the purpose of challenging and changing it. And it worked.”

Leah Price, lawyer for the government, said there will almost certainly be a full trial in the future to get a permanent injunction keeping pro-lifers off the streets. She built the government’s case for this temporary or interlocutory injunction by trying to discredit the pro-life activity which she said contravenes the public interest.

“This is an orchestrated and organized campaign to intimidate and harass,” she said. “There is no dispute of the fact the activities are orchestrated and the intention is to impede and stop the availability of abortion services in this province.”

However, the lawyers for the defence argued that the Crown never produced solid evidence that access to abortion has been restricted due to pro-life protest. But Price said the pro-lifers are having an effect on the abortion industry.

“One of the things that pervades the statements and affidavits is a real sense of personal fear,” she said.

Price said “ensuring abortion as a medical service continues” does not mean opposition to abortion has to be stopped. She suggested letters to the editor, picketing politicians and “sending out materials” are all viable options for pro-lifers.

She admitted that pro-lifers consider their conduct to be peaceful and quiet in spite of the government allegations.

“How they say it (the pro-life message) is important but what they say is more important,” she argued. She also read into the record a version of the Prayer to St. Michael the archangel, which some of the home picketers have used. She said the “use (of the prayer against Satan and his rebellious angels) is recommended whenever the action of the devil is suspected.”

“Calling this a peaceful prayer is a distortion of certainly my notion of peaceful prayer,” she said.

Peter Jervis, who represents nine pro-life defendants, defended their right to counsel women as they go into the clinics for abortions.

It’s a case essentially about words,” he said. “We’re not talking about blocking clinics, we’re talking about words.”

Jervis presented testimony from women who said their lives were changed and their babies saved because of the counseling by his clients outside the abortion clinics.

“If free speech doesn’t protect that, what does it protect,” he said. “If it protects hate propaganda, if it protects obscenity, surely it protects the right of women to stand on public streets and say, can I help you, we’re here for you.”

Morris Manning, representing the Scott and Cabbagetown Clinics, argued that “words can constitute an invasion of privacy.”

Manning argued against any kind of freedom of speech outside abortion clinics. He said “the defendants have no standing at law to speak for the fetus. To weigh the fetal interest grants to the fetus  a legitimacy which it does not have under the constitution.”

Manning, in an effort to discredit pro-lifers, referred to Joanne Dieleman, coordinator for the Aid to Women crisis pregnancy centre, as a “vicious woman.” Many pro-lifers reacted with shock to this unfair characterization by Manning of this woman who has cared for about 250 children as a foster parent and has adopted two disabled children.

Clayton Ruby, representing the Colondy Clinic, echoed the Attorney General saying the pro-lifers are better “out of sight and out of mind.”

Justice Adams is considered an expert on labour law and has ruled to many picketing cases. He actively questioned both sides during the testimony and made it clear he had worked his way through much of the mass of evidence presented by the government and the defence.

As well as the injunction, the government is seeking $500,000 damages from the 18 defendants. The pro-life movement has established a Legal Defence Fund, administered through the office of Campaign Life Coalition, to help pay the large costs incurred by the case.