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.
I enjoyed reading this.
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.
This is something the opposition parties should repeat over and over again. Anti-abortion groups do not care about such structural reforms and are obsessed with giving the zygote/embryo/fetus “personhood” status.
I also disagree with Harper suggesting that Pro-choice activists are the polar extreme of anti-abortion activists. Extreme is bombing clinics, calling birth control “abortificants”, using false correlations between abortion and disease (e.g. breast cancer), and creating the myth of late term, “partial birth” abortion crisis.
What on earth have pro-choice activists done that can ever come close to being described as extreme? We are not advocating forced abortions or denying any one the choice to carry a pregnancy to full term. We are not demanding that pregnant women be treated poorly and subjected to violence. We are not creating fake counseling clinics that only provide abortion as an option. We are not lobbying governments to force schools to teach youth that they should have sex 24/7 and not worry about birth control because abortion is the best option. We are not telling women to give pregnancy a try and see how it fits because you can alway terminate in the final months if you don’t like it.
Beijing York:
The problem with their line of reasoning is really a lot of, dare I say it, faulty Biblical scholarship.
The Bible is largely silent on the issue of abortion, and detractors instead try to demonstrate that an embryo is considered as an alive human being from the time of conception.
There are a number of problems with this line of reasoning.
First, there are different laws in the Tanakh (OT) for the murder of an adult and a fetus,
Next, the only place in the OT to describe a fetus in detail is in Psalms 139,
However, the word for fetus used here is “golem.” The word literally means an unformed flesh before the “Ruach” or spirit is breathed into it.
Now contrast that to this verse in the New Testament,
Makes for a tough argument for life at the time of conception.
Sept.2.2008
Joe McMurtry:
You are right that the scripture [Exodus 21] about miscarriage makes it clear that if the “baby comes out and doesn’t die, i.e. “no mischief”, then a fine will suffice. As we all know, women can miscarry and the baby lives. Not all miscarriages result in death.
Young’s Literal Translation: Exodus 21: 22 `And when men strive, and have smitten a pregnant woman, and her children have come out, and there is no mischief, he is certainly fined, as the husband of the woman doth lay upon him, and he hath given through the judges;
But Joe, you stopped reading Exodus too soon. You no doubt are aware that the rest of that clause deals with “mischief”, meaning death or dismemberment.
In that case, “eye for an eye, tooth for a tooth, life for a life” comes into effect:
YLT Exodus 21: 23 and if there is mischief, then thou hast given life for life,
24 eye for eye, tooth for tooth, hand for hand, foot for foot,
25 burning for burning, wound for wound, stripe for stripe.
I show a second translation for clarity:
New Century Version [NCV] Exodus 21:
22 Suppose two men are fighting and hit a pregnant woman, causing the baby to come out. If there is no further injury, the man who caused the accident must pay money—whatever amount the woman’s husband says and the court allows.
23 But if there is further injury, then the punishment that must be paid is life for life,
24 eye for eye, tooth for tooth, hand for hand, foot for foot,
25 burn for burn, wound for wound, and bruise for bruise.
Diana Younes,
I agree that structural reforms that may reduce the number of abortions are needed.
You have written a well researched insightful piece, possibly the most concise explanation of the decision that I have read since July 1st. Thank you.
Joe McMurtry, I’d like to use scripture in the spirit, not just the letter of the law, by asking:
What was God’s intent or goal when making the “golem”(Ps.139)or “fruit”(Ex.21:22) that became King David? Wasn’t it to create a complete living human being with a purpose?
When God created the first golem, Adam, His intention was for that body to receive the breath of life, live that life and fulfill a purpose.
Then there’s what God said to Jeremiah 1:5 (NCV) “Before I made you in your mother’s womb, I chose you. Before you were born, I set you apart for a special work. I appointed you as a prophet to the nations.”
The implication is that life was God’s intention for all mankind, not just Adam or Jeremiah or David…
It is apparent from the books of His law that God recognized and provided for the complexities surrounding the issue of ending life and the motives involved.
He provided consequences and, in some cases, mercy or places of refuge, in cases of outside interference with His intention of life. Canadian laws are not complete in this area yet.
Could Canadians ever get unpolarized enough to actually communicate and agree on those structural reforms? I hope so.
Joe McMurtry: “faulty Biblical scholarship”
I checked your references with 2001 Strongest Strong’s Concordance, Hebrew and Greek definitions.
You said:
“the word for fetus used here [Ps.139:16] is “golem.â€The word literally means an unformed flesh before the “Ruach†or spirit is breathed into it.”
I think you made a literal assumption that life and breathing air are the same thing when you expanded on its definition…
Look closer at the definition of “golem”, and also “spirit”, both Hebrew and Greek.
UNPERFECT [Psalm 139:16] – Strong’s #1564: Hebrew “golem”: unformed body, embryo:- substance yet being unperfect”
SPIRIT [James 2:26] – Strong’s #4151: Greek “pneuma”: wind, breath, things which are commonly perceived as having no material substance, by extension: spirit, heart, mind, the immaterial part of the inner person that can respond to God, spirit being.
SPIRIT: – Strong’s #7307: Hebrew “ruah”: breath, wind; by extension: spirit, mind, heart, as the immaterial part of a person that can respond to God, the seat of life, spirit being, especially the Spirit of God:
Then refer to Luke 1:39-44, where preborn John the Baptist lept for joy in his mother Elizabeth’s womb when pregnant Mary spoke in their proximity…
Apparently, foetus John recognized golem Jesus… demonstrating a responsive spirit, consciousness and emotion. Therefore, his imperfected flesh at that point already had the ruah of life in it.
Are not a beating heart and brainwaves also evidences of life?