RSS FeedThe hidden side of the abortion issue
MDs face scrutiny over duty to unborn
Does an obstetrician have a duty of care to an unborn child?
A Guelph hospital, citing a 2008 court decision that found a doctor had no such obligation in the case of a girl born with birth defects because of an acne drug prescribed to her mother, says no.
But the family of another child says yes.
Fear of Global Warming Provides “Lawful Excuse”
Six Greenpeace activists were cleared of charges today for intentionally damaging a coal plant in the U.K.
The Independent reports,
The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.
Jurors accepted defence arguments that the six had a “lawful excuse” to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of “lawful excuse” under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire.
Greenpeace UK states,
During the trial, the world’s leading climate scientist came to court and challenged the government’s plans for new coal, calling for Gordon Brown to announce a moratorium on all new coal-fired power plants without carbon capture and storage. Cameron’s environmental policy adviser said there was “a staggering mismatch between what we’ve heard from government and what we’ve seen from government in terms of policy”. An expert on climate change impacts in the UK said some of the property in immediate need of protection from sea level rises included parts of Kent (Kingsnorth being “extremely vulnerable”) and that “it behoves us to act with urgency”. And an Inuit leader told of his first hand experiences of the impacts of climate change.
After hearing all of the evidence, the jurors (representatives of ordinary British people) supported the right to take direct action to protect the climate from the burning of coal.
Implications for “eco-terrorists” in the U.K. and abroad, who still constitute the largest global terrorist threat, could be significant.
Biggest Terrorists are Still the Elves
The FBI reported earlier this year that while America and the world were diverted by other political issues, eco-terrorism continues to be the biggest domestic threat.
Bron Taylor, a professor of religion and nature at the University of Florida describes the Earth Liberation Front (ELF or Elves), who are considered the largest of these groups,
Generally speaking, the Earth Liberation folks are motivated by a deep kind of affective connection to nature that many of them would characterize as spiritual or religious. They believe that the human species is perpetrating a war on nature and that those who are connected to nature and belong to it have a right to defend themselves.
Their success is attributed to their large and diversely spread membership, but their exact numbers or full capabilities continue to be unknown
Bob Holland, a retired arson investigator said,
Every time a fire breaks out and somebody takes a spray ocan and writes ‘ELF’ or ‘ALF’ on there, then everybody gets all excited that ‘Oh this movement has started back up. The movement never really left.
However, fighting environmentalists at home is not nearly as an attractive political agenda in Canada or the U.S.
And there are little oil revenues to be obtained from it either.
Recent Syncrude Case
On July 24, 2008, protesters entered a Syncrude mine in Alberta and put up signs.
Syncrude issued a lawsuit on Aug. 15, 2008 for $120,000 and an injunction to keep Greenpeace members off its property. No property damage or disruption of operations were alleged.
Prof. Moin Yahya of the University of Alberta Faculty of Law said in the Calgary Herald,
It’s a strategic lawsuit.
This is very common in the United States where you have all the anti-abortion protesters who stand outside clinics saying ’save lives.’ They’ve been sued in the past under a similar type (of suit).
Telling the protesters to stop coming on the property is even more powerful than seeking money.
If the court grants the injunction and the group defies it, they’re no longer at war with Syncrude — now they’re at war with the judge and in contempt of court.
“My views on the abortion issue are complex. I don’t fall into any of the…polar extremes on this issue”
This statement summarizes the personal attitude that Prime Minister Stephen Harper takes on “the abortion issue.” This was during the 2006 election campaign, at a time when the Liberals raised alarm over the Conservatives’ position on abortion. Again, in 2008, with a minority government reportedly at the brink of dissolution, Canadians are witnessing the same limited and polarized discussion (see the recent Dion challenge to Harper here).
An event that enlivened the debate on abortion was the recent appointment of Dr. Henry Morgentaler to the order of Canada. This created so much controversy that Chief Justice Beverly McLachlin was subject to a complaint for chairing the Advisory Council, which recommended Morgentaler to the order. The current discourse on abortion in Canada can be summarized as confrontational rhetoric between pro-life and pro-choice, that is, the right to life of a fetus and the individual right of women to their bodies. While this discussion would have been relevant in 1988; the year Morgentaler and fellow doctors won their case that struck down section 251 of the Criminal Code, today, we might as well contemplate Mr. Harper’s ambiguous statement for what it could mean, not in relation to Mr. Harper or Mr. Dion’s political scores but to the interested persons (used loosely) involved.
The reaction to the Morgentaler affair today is also about how we make law. Canada still has no laws regulating the practice of abortion. This is an outlook that not even the Supreme Court intended in R. v. Morgentaler, [1988] 1 S.C.R. 30. In a 5-2 decision with four separate judgments, the majority merely agreed to strike down section 251 of the Criminal Code. The 1969 Abortion Law required the assent of three members of a therapeutic committee in an accredited hospital to deem the abortion necessary if it would likely endanger the woman’s health or life. Morgentaler’s defense suggested this law infringes on women’s right to freedom of conscious and religion, 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, not to be subjected to any cruel and unusual treatment or punishment, to be equal before and under the law and to equal protection and benefit of the law without discrimination. The constitutional questions before the Supreme Court were the following:
1. Does section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If section 251 of the Criminal Code infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
3. Is section 251 of the Criminal Code ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code violate s. 96 of the Constitution Act, 1867?
5. Does section 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Charter?
7. If sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Charter, are ss. 605 and 610(3) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
Indeed, Dickson C.J. and Lamer J found the impugned law in violation of the right to security of the person and that it cannot be saved by meeting the procedural standards of fundamental justice. The procedural requirements to section 251 of the Criminal Code were also found to put women’s health at risk because of delays in obtaining the assent of the therapeutic committee, lack of guidelines and availability of accredited hospitals. Beetz and Estey JJ. found that the means to protecting the foetus did more harm than was proportional to the good and thus failed the “reasonable limit clause” test under the Charter. The five judges, including Bertha Wilson – who provided the most comprehensive defense to women’s physical autonomy – did not provide a right to abortion, nor was there a suggestion that another regulatory law cannot necessarily meet constitutional standards.
Three attempts were made by the government of the day to respond to the Supreme Court reasoning, but failed. Our political representative did not go beyond the Supreme Court’s ruling that abortion was not unlawful. And that summarizes the state of the law today and how we got there. The disquiet, outrage and complaints over the law surrounding abortion when no legislation exists in Canada is not surprising. The surprising aspect however, is the oversimplification of the issue that is reduced to the question of to abort or not to abort and summarized in the person of Dr. Morgentaler. Meanwhile, other relevant and broader debates on child rearing responsibility, welfare, health care, affordable housing, shelters, mental health, access to higher education, job parity and minimum wage – all of which deal with structural reforms that may reduce the number of abortions without robbing women the right to choose, are not tackled.
Criminal law can do so much to create a good society and the courts can go only so far in shaping social practices and norms based on a single case. Nearly two decades after the Supreme Court ruling, that single case continues to dominate and limit the discussion. Maybe the ambiguity in Mr. Harper’s statement is not to divert but to point out that the complexity of the issues involved in the act of abortion does not just fit in the current debate on abortion; and that is worth contemplating.
Cross-posted from The Court.
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