Parliament should debate conditions on abortion

Finding for the appellants in Regina v. Morgentaler, Justice Bertha Wilson nevertheless found herself in agreement with the Crown, that “the situation respecting a woman’s right to control her own person becomes more complex when she becomes pregnant, and some statutory control may be appropriate.”

A woman had a constitutional right to terminate a pregnancy, she held, but like any other right it was not absolute. “I think s.1 of the Charter authorizes reasonable limits to be put upon the woman’s right,” she wrote, “having regard to the fact of the developing fetus within her body. The question is: at what point in the pregnancy does the protection of the fetus become such a pressing and substantial concern as to outweigh the fundamental right of the woman to decide whether or not to carry the fetus to term?”

This did not require the court to pronounce on when human life begins. Rather, following the example of the U.S. Supreme Court in Roe v. Wade, she suggested the fetus be viewed as a “potential life,” whose interests acquire greater legal weight the more fully it has developed. This view, she wrote, “supports a permissive approach to abortion in the early stages of pregnancy and a restrictive approach in the later stages. In the early stages, the woman’s autonomy would be

Every other democratic country imposes some conditions on the right to abortion.

absolute ... Her reasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state’s compelling interest in the protection of the fetus would justify it in prescribing conditions.” Just when such conditions could be imposed she left “to the informed judgment of the legislature.”

Yes, that Bertha Wilson: first woman on the Supreme Court, fearless advocate for women’s rights, feminist icon. Though she ruled with the majority of her colleagues that the 1969 abortion law was unconstitutional, it is as clear from her ruling as it is from the others’ that they never intended this to be the last word on the subject. Indeed, they practically begged Parliament to have another go at it.

The law in question, they wrote, may have been overbroad, but “it is possible that a future enactment by Parliament that would require a higher degree of danger to health in the latter months of pregnancy, as opposed to the early months” would pass muster. Hint, hint.

That is what the court actually ruled, as opposed to the mythology that has built up around it. It was an invitation to further democratic debate on a complex moral and legal question, not an absolute edict.

There are lessons in this for both sides of the debate, if I can call it that, over Conservative MP Stephen Woodworth’s private member’s motion, M-312, which would strike a special committee to study the section of the Criminal Code defining when “a child becomes a human being.” On the one hand, so far as abortion is concerned, the bill is a distraction. It asks for precision on a matter – when does human life begin – that does not lend itself to precise answers, or at any rate none that is likely to achieve public consensus. And, as Wilson suggested, it is a question that need not be answered.

But Morgentaler, for those who bother to read it, is even more a rebuke to the other side: those who argue not only that there should be no abortion law, but that the issue may not even be debated – and who, in support of this position, cite the wisdom of the Supreme Court. That is not what any member of the court said.

It is true that, since that historic 1988 decision, Canada has had no legal restrictions on abortion of any kind. But it is dishonest to pretend this means the matter has been settled, now and forever, or that dissenters from the status quo are, by definition, extremists. Any honest defence of the status quo must concede:

that whatever its merits, the status quo – abortion on demand at any stage of the pregnancy – is at one end of the possible legal regimens surrounding abortion, with absolute prohibition at the other. That is, it is objectively extreme.

that it is the result neither of any judgment of the Supreme Court nor the decision of any elected legislature. In fact, the House of Commons accepted the court’s invitation to redraft the law and, after two years of debate, passed one. It died by a tie vote of the Senate.

that the legal vacuum that pre- vails in Canada is unique in the democratic world. Every other democratic country imposes some conditions on the right to abortion, with greater restrictions in the later stages of pregnancy.

that polls have consistently shown the Canadian public is divided over the question, with the largest proportion somewhere between the two extremes.

Woodworth’s approach, while wide of the mark, is at least an attempt to break through the taboo on debating abortion. It is further indication – the furor over sex-selective abortion is another – that the issue is far from settled in the public mind.

The pretence that it is, like the contradictory but often simultaneously advanced claim that it is too “divisive,” is unworthy of a democratic country.

Possibly, after a full and open debate, we might decide we wished to continue to have no abortion law – by policy, rather than by default. That is how a democracy decides such questions. It does not leave them to a tie vote of the Senate.