Parliament has the power to pass a law protecting all unborn children. Believe it or not, that has become a contentious claim. Some people, including a small number of pro-lifers, have argued that the Supreme Court’s decision in the Morgentaler case prevents Parliament from passing a law which would stop all killing of the unborn.
It is most important to recognize that Parliament retains the power to pass a law protecting all unborn children which would not contravene the Charter of Rights. If we, as pro-lifers, do not realize this, there is little hope that Parliamentarians will acknowledge their ability to pass such a law. We are, in fact, in danger of jeopardizing pro-life legislation.
Those who believe that the Supreme Court has made a pro-life law impossible have failed to understand the full implications of the Court’s decision. Their mistake is understandable.
The judges who struck down the abortion law made some very pro-abortion statements which appear to present a major obstacle to pro-life legislation. Chief Justice Dickson wrote that, “forcing a woman by threat of criminal sanction to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person.”
That statement does not appear to leave much room for a pro-life law.
Similarly, the remarks of Justice Beetz appear to make pro-life legislation impossible. Beetz rejected the suggestion that those parts of Section 251 which outlawed abortion could stand by themselves without the 1969 amendments. To leave in place only those parts of the law which banned abortion, according to Beetz, would impose an even greater infringement of security of person than the complete section 251.
How, in light of these statements which represent the majority opinion of the Court, can one suggest that Parliament retains the power to outlaw all abortion? That requires a closer look at the Supreme Court judgment in the Morgentaler case.
The mere fact that a law abridges the right to security of the person does not by itself render a law invalid under the Charter of Rights. Consider that every law which imposes a jail term infringes the liberty and the security of person of those who are sent to jail. Yet our courts have no problem upholding such a law as valid under the Charter.
In order for a law to invalid it must not only abridge one’s security of person, it must also conflict with the principles of fundamental justice. Thus there is, in fact, a two-part test in determining the constitutionality of any abortion law. Justice Dickson explicitly acknowledges this when he states in the judgment that a finding that the law abridges security of person “does not end the section 7 enquiry.”
This indicates the way in which a law protecting all unborn children could be upheld as valid by the Supreme Court. It is in accordance with the principles of fundamental justice that the rights of others be restricted in order to protect the lives of other human beings. The Criminal Code outlaws murder. That law certainly restricts the liberty and security of certain persons – such as those how life with and care for inform relatives, and those whose lot would be improved if they could “do in Granny.” Yet, reason is simple. It is in accordance with the principles of fundamental justice to protect human life even when doing so imposes hardship on other individuals.
The Supreme Court can, in a similar way, uphold a complete prohibition of abortion. In the Morgentaler decision, the Supreme Court explicitly reserved the right to make a judgment on the legal status of the unborn child. Both Beetz and Dickson stated that they were not required to determine the legal status, or rights, of the unborn child.
Chief Justice Dickson wrote, “In my view, it is unnecessary for the purpose of deciding this appeal to evaluate or assess ‘fetal rights’ as an independent constitutional value.”
It may strike us as ridiculous that the Supreme Court would strike down the law protecting unborn children without considering the nature of life in the womb. Nevertheless, it does mean Parliament can act to provide full protection to unborn children from the moment of conception. The Supreme Court could uphold such a law as valid without contradicting anything it said in the Morgentaler case.
It could do so by acknowledging the scientifically established fact that life begins at conception. Having done so, the Court would be in a position to uphold the restrictions on abortion as a limitation which is in accordance with the principles of fundamental justice.
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Section 7 of the Charter of Rights and Freedoms reads: “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.”
Paul Dodds is legal counsel for Campaign Life Coalition.
