"You're obviously talking about limiting, if not outlawing, abortion, are you not?" was the first question Don Martin, host of the CTV's PowerPlay, asked M.P. Stephen Woodworth on the show in January, shortly after Woodworth had written about the need to give legal recognition to the unborn, specifically in the Criminal Code, and shortly before the introduction of Woodworth's Motion 312.
Many have written the motion off as just another roundabout way to introduce anti-abortion laws, but it deserves more credit. Our chattering classes and our nation's leaders would do well to give careful thought to the precise legal questions to which Woodworth has drawn our attention.
Woodworth acknowledges there are a variety of perspectives on when a human being should receive legal recognition. "And that's a good thing in democracy and it shouldn't worry anybody," he says. "In fact, it should encourage us to talk about it." The message from his Party's leadership, in contrast, is simply this: In Morgentaler, 1988, the Supreme Court held that the prohibition of abortion was unconstitutional and struck it down and that the Government of Canada will not reopen the debate.
The majority decision in Morgentaler has been rightly criticized for a number of reasons, including its failure to address the question of the rights of the unborn. Nevertheless, the Morgentaler decision, which today's government relies on to evade the issue, actually reopened, rather than closed, the abortion debate, particularly in Parliament (as a public debate, of course, it was never closed).
The majority in Morgentaler determined that the administrative system and the procedural requirements for obtaining abortions under the law were "unfair" and "arbitrary". Having concluded thus, the Court referred the matter to Parliament for reworking. In the following years there were several attempts to enact new abortion legislation, demonstrating the government's understanding that the ruling dropped a contentious issue right into its lap, rather than shut the door on the debate.
As Ian Hunter points out in Three Faces of the Law: A Christian Perspective, the Court's failure to address the rights of the unborn in Morgentaler was partly due to the way the Crown argued its case, and partly because the Court had already agreed to hear the appeal in Borowski , which dealt directly with the question of the constitutional right to life of the unborn under s. 7 of the Charter.
Borowski involved a constitutional challenge to the very same law being challenged in Morgentaler, but it was based on a claim for the right to life of the unborn. It was, "by the vagaries of court scheduling", in Hunter's words, heard after Morgentaler. Consequently, Borowski was rendered moot because the challenged provision of the Code had been struck down in Morgentaler, and the Supreme Court refused to address the issue of right to life for the unborn in the abstract.
To this day, neither our highest court nor Parliament has given due consideration to the question of the rights of the unborn. The conventional understanding today of Canadian law is expressed in the majority opinion by the Saskatchewan Court of Appeal in Borowski—namely, that a fetus is not and has never been recognized as a legal person and that there is no indication that the term "everyone" in s. 7 of the Charter was intended to include the unborn.
Historically, and still today, our common law has indeed treated the unborn differently. For example, an unborn child has rights of inheritance and rights to sue for injuries caused in utero. However, these rights are not given full effect until the child is born. Similarly, s. 223(1) of the Criminal Code defines human beings in a certain way when referring to homicide, but the Code used to include along with it a separate provision prohibiting "procur[ing] a miscarriage". These peculiarities resulted from practical and evidentiary concerns rather than solid legal or moral principles.
Why not make legal rights of the unborn more concrete? As acknowledged by Justice Major in his dissenting opinion in Winnipeg Child, 1997, primitive medical knowledge necessitated the use of the "born alive" rule. Up until the 19th century, while it was known that many children came into the world dead, medical practitioners could not tell for certain if a woman was pregnant before quickening, or if the child in utero was actually alive. To avoid false accusation, the law evolved as it did.
Justice Major in Winnipeg Child believed it was time to re-examine the common law in light of medical advances, whereas the majority argued that doing so had complex policy implications and was therefore best left to Parliament. To quote the majority opinion: "If Parliament or the legislatures wish to legislate legal rights for unborn children or other protective measures, that is open to them, subject to [constitutional limitations]." Which brings us back to where we started.
The Supreme Court has repeatedly stated that it is up to Parliament to protect the unborn, though its own judgements have doubtless set significant obstacles before those who would try it. That it is difficult is no excuse, however, for a government to shirk its duty to protect the unborn.
Woodworth believes that the historical legal treatment—and present treatment—of the unborn cannot be justified in light of modern medical evidence. I agree, although I think this may concede too much from the outset. The unborn, in truth, never were regarded as anything other than human in our society, even before the medical advances, to which Motion 312 refers, were achieved.