By Dave Andrusko
As misunderstood as what the 1973 Roe v. Wade decision gave us, a close rival may be what the Supreme Court of Canada actually did in 1988 when it voided Canada’s existing abortion law.
We know that Justice Harry Blackmun and six of his colleagues unleashed a regime of essentially abortion on demand throughout pregnancy. To this day, many people (conditioned by inane news accounts) believe abortion is legal only in the first trimester.
In a sense, Canadians have the opposite situation. They think their High Court went further than it actually did. They believe the Morgentaler case= a constitutional right to abortion on demand which stripped Parliament of any power to do anything.
It is true that the judges invalidated the criminal code as it related to abortion. So when pro-lifers say there is no abortion law in Canada, and hasn’t since January 28, 1988, they are absolutely correct.
But that does not mean, in fact, that the Supreme Court of Canada absolutized the “right” to abortion or said Parliament was powerless.
Gerald Mitchell, who was a member of Prince Edward Island Supreme Court from 1981 to 2008, recently wrote a commentary which clarified what the Supreme Court of Canada had actually done in Her Majesty The Queen v. Henry Morgentaler.
#1. “The case was heard by a panel of seven judges. Five of the seven ruled to strike the law down. Four of the five majority judges ruled that the law violated a woman’s right to security of the person under s. 7 of the Charter of Rights and Freedoms. The other majority judge, Madam Justice Wilson, ruled the section violated a woman’s rights to security of the person and liberty under s. 7 as well as her freedom of conscience under s.2(a). All five majority judges found the provisions were too restrictive to be saved by s. 1 of the Charter. The two minority judges held the section did not violate the Charter in any way.”
#2. “None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn. Even Madam Justice Wilson, who rendered the most liberal opinion in favour of a woman’s rights, advocated an approach to abortion that would balance those rights with the state’s interest in protecting the unborn.”
As for Parliamentary prerogatives
#3. “The Morgentaler decision did not strip Parliament of power to make laws restricting abortion provided they meet constitutional standards. However, although it came close in 1991, Parliament has not succeeded in replacing the law rendered ineffective by the Supreme Court.”
#4. “Canada since 1988 has been without any criminal law restricting abortion. Presently none of the federal political parties seem disposed to alter that situation.”
Click here to read the May issue of
National Right to Life News,
the “pro-life newspaper of record.”
The key and the irony is contained in that last sentence. Because pro-abortionists are who they are—for them there are never enough abortions and never enough taxpayer money paying for them—they are more than eager to “alter the situation.” For example see http://nrlc.cc/1nHfwwQ where we wrote about how pro-abortionists are demanding that the province of New Brunswick make abortion a “publicly funded medical procedure.”)
And, perhaps unknowingly, Justin Trudeau, the leader of the Liberal Party of Canada, unleashed a torrent of controversy when he brazenly announced a few weeks ago, “The Liberal Party is a pro-choice party and going forward, all new members and all new candidates are pro-choice.” Period.
Plenty of publications—and politicians—who are “pro-choice” criticized Trudeau for going way too far.
To the outsider (in this case, me), it appears clear that there may not be as yet a massive groundswell to enact legislation to provide wide-spread protection to the unborn.
But at the same time, public opinion polls make clear that Canadians want limitations on how late in pregnancy an abortion can be performed and that they are deeply unsettled by sex-selection abortion, to name just two areas.
Add to that the anger caused by pro-abortionists pushing the envelope ever further and we can hope that there will be movement forward to enact protective legislation in Canada.