OTTAWA, Canada—The Canadian Supreme Court's most recent decision regarding the legal status of unborn children, handed down late last month, was disappointing to pro-life advocates. But it wasn't surprising—Canadian defenders of the right to life have come to expect disappointments from their Supreme Court.
Over the past decade, the Canadian courts have produced a series of decisions that have not only entrenched an expansive abortion license, but betray a hostility to the rights of the child in utero that has led to some bizarre and grisly rulings. Combined with the unwillingness of the federal Parliament to touch the abortion issue, the Canadian court judgments have produced the most permissive abortion-on-demand policy in the world.
Abortion is legal for any reason at any time, without a restriction or regulation, and is covered by the universal government health insurance plan. The partial-birth abortions banned by the U.S. Congress (but protected by President Clinton's veto) are readily available in Canada, with taxpayers picking up the bill.
The Recent Ruling
The most recent decision will do nothing to change that. It centered on a 21-year-old unwed mother of three, expecting her fourth child in the fall of 1996. Deborah Gregory (a pseudonym used to protect the identity of her other children) was addicted to sniffing glue and other solvents. As a result of her addiction, two of her children, whom she was unable to care for, had been born with permanent disabilities and were eventually made wards of the state.
Now pregnant again and still sniffing solvents, the local child welfare agency, Winnipeg Child Services, obtained a court order to confine Gregory, against her will, in a treatment facility in order to protect the health of the child in her womb. Only two days after the court order was granted, it was overturned on appeal. Winnipeg Child Services then appealed to the Supreme Court of Canada, which was asked to decide whether a court had the power to confine an expectant mother in order to protect her unborn child.
The Supreme Court decision was emphatic. “The only law recognized is that of the born person,” said the court in a 7-2 decision. “Any right or interest the fetus may have remains inchoate and incomplete until the birth of the child.”
An unborn child is a legal non-entity, and so therefore cannot be the object of a court's protection.
“A pregnant woman and her unborn child are one,” wrote Justice Beverly McLachlin for the majority. Her choice of words was illuminating. Her own sentence has two subjects—the woman and the child—so to say that they are one is a logical non sequitur, unless one of the two subjects is simply declared not to exist for the purposes at hand.
The Supreme Court applied the common law “born alive” rule, wherein only a child born alive has standing before the court. The dissenting justices pointed out that the “born alive” rule is a precedent harkening from days when it was not clearly known whether a child in utero was alive or not. The law sought to avoid fixing anyone with the blame of injuring a child in utero if in fact, as a result of some independent cause, the child was not alive at birth. Today, when medical science makes it clear that not only is the child alive, but can be severely injured from the solvent-sniffing of his mother, applying the “born alive” rule seems almost obtuse.
Justice Jack Major, writing for the minority, said, “Someone must speak for those who cannot speak for themselves.”
Then, asking the central question asked by right-to-life advocates all along, Major wrote, “Society does not simply sit by and allow a mother to abuse her child after birth. How then should serious abuse be allowed to occur before the child is born?”
The answer is clear. The Court has decided that it will not write any decision that may restrict, however mildly, the abortion license. The Centre for Renewal in Public Policy, an Ottawa-based think tank, blasted the Court in its legal review, LexView, for the Gregory decision: “Our law is in disarray with respect to the unborn. Since every move in the direction of recognition [of the unborn child] further strengthens the arguments against abortion, courts contort the law [to avoid] imposing duties to the fetus in utero because that might cause us to question the unbridled ‘choice’ that can destroy the unborn child that we supposedly value.”
Fiat justitia ruat carlum is an ancient legal maxim: Let justice be done no matter how terrible the consequences— or literally, though the heavens may fail. Fearing neither heaven nor fallibility, the Canadian courts are unsurpassed in their devotion to the principle of the unborn child as a non-person before the law. There have been several cases in which Canadian courts have applied with vicious force the principle that the fetus is a legal non-entity.
More Bizarre Cases
Last year, in the Drummond case, a newborn baby was discovered to have a pellet from a pellet gun lodged in its brain. The mother was subsequently charged with attempted murder, she had inserted the gun into the birth canal and fired upon her own child in utero just days before the birth in the hopes of killing it. The baby was born alive, and an Ontario criminal court cleared the mother of all charges because, at the time of the shooting, the child was a legal non-entity.
In 1992, the Supreme Court of Canada ruled 9-0 that two midwives whose negligence had caused the death of a baby haIf-born could not be sued for negligence causing death, because the baby, not fully born, was not yet a legal person. They suggested that the mother could sue the midwives for damage to herself, but not for the death of the child.
And perhaps the most bizarre decision of all was handed down by the British Columbia Court of Appeal, when they held that a physician performing an abortion has a duty of care to the fetus—not to leave it injured if the abortion is unsuccessful and the child lives.
Shades of this contorted thinking were reflected even in the minority opinion in Gregory. The dissenting justices wrote that while some interference with the rights of the mother to protect the fetus is legitimate, in practice, “this interference is always subject to the mother's right to end it by deciding to have an abortion.” The dissenting justices in Gregory were prepared to allow for state action to protect the child from harm, but not from being destroyed by abortion.
An Historical Overview
This string of decisions has been occasioned by the legal vacuum left by three key Supreme Court decisions in 1988 and 1989, undoing the abortion law of 1969.
In 1969, Canada liberalized its abortion law. The new law made any abortion a criminal act, unless it was approved by a hospital “therapeutic abortion committee” that judged the abortion to be necessary to protect the life or health of the mother. In practice, the law allowed for ready access to abortion, but reflected in principle that abortion was a criminal act.
In 1988, the Supreme Court declared that law unconstitutional in the Morgentaler decision, named for a Canadian abortion provider. One justice discovered at that time a “right to an abortion” in the Constitution, but the majority decision relied upon procedural unfairness in the application of the law to strike it down. While the Court had not declared a right to an abortion as was done in Roe v. Wade in the United States, the upshot was the same: Canada was without an abortion law.
At the time the Morgentaler was decided, the Supreme Court also had the Borowski case on its docket. The plaintiff, a former provincial politician, was asking the Court to decide that the “right to life” guaranteed in the Canadian Constitution included the unborn. But having struck down the abortion law in Morgentaler, the Court, in 1989, dismissed the case as moot, there being no abortion law left to challenge.
Later, in the summer of '89, the Court did not let the mootness of a case stop it from proceeding. Faced with the case of a woman, Chantal Daigle, whose boyfriend had obtained an injunction to prevent her from having an abortion, the Court overturned the injunction, even though Daigle had already had an illegal abortion, and so the case was moot. Not stopping there, the Court went on to decide that the fetus was not a “human being” as the law currently stood. Again, no right to abortion was declared, but if the fetus does not exist in law, then the right to abortion exists de facto.
Invitation to Legislation
In Gregory, as it had done in Morgentaler and Daigle, the Court invited Parliament to legislate. Justice McLachlin wrote that the declaration of the fetus as a person was such a major step that it could only come from Parliament, not the Court. An attempt at an abortion law that would have resurrected the essence of the 1960 law failed in Parliament in 1988, and since then no further attempts have been made. But even if there was a willingness in Parliament to restrict abortion, it would be difficult to see how Parliament could act. If the Supreme Court is willing to rule unanimously that a baby half-born is not a person, what grounds remain for action? Short of amending the Constitution, there are none.
Raymond de Souza is a seminarian for the Archdiocese of Kingston, Ontario.