Abortion discussion, continued.

In our Jan/Feb 1996 edition we printed an exchange of views between Mr. David Klassen of Vancouver and the editor of Catholic Insight ("Looking back on the recent past", pp. 7-10) on the subject of "Imperfect legislation." Recently Mr. Klassen submitted a second lengthy letter, the abbreviated form of which appears below, together with a new reply.

Thank you for your consideration of my letter of November, 1995, which was reproduced in your January/February 1996 issue. I have read your response and agree with what you have to say on matters of principle and about "what ought to be" according to Divine Law. I support you in your goal of having abortions forbidden by Canadian law. I am still concerned about your use of language, and about your understanding of "what is" according to Canadian law ....

The fact is that abortion is now completely "lawful" under Canadian law, which has allowed and supported abortion on demand since 1988. Abortion is not and will never be "lawful" under the law of God, and in that sense there is nothing Brian Mulroney or any politician could have done or can do to "re-legalize abortion." In terms of the Law of God it is nonsense to speak of "re-legalizing" something that never was and never will be lawful. The Law of God exists regardless of what governments and courts have to say, and does not permit "a state of lawlessness." ...

The difference between partial and complete legalization 

What has happened since 1988 ... graphically demonstrates the difference between the partial legalization of 1969 and the complete legalization of 1988. The total number of abortions performed on Canadian women peaked in the early 1980s and had plateaued prior to 1988 at about 72,000 to 75,000 per year including abortions performed in the United States. The total number of abortions began a sharp upward trend following the Supreme Court decision of January 28, 1988. By 1993 more than 104,000 abortions were performed in Canada ....

There is therefore a huge difference between the partial legalization of 1969 and the complete legalization of 1988: 30,000 more Canadian lives lost to abortion each year. This terrible additional loss of human life illustrates to me why it is better to have an imperfect law that is, in the words of John Paul II, aimed at "limiting the harm," than to have no law at all.

... I think you have failed to acknowledge the extent to which communities could and did prevent abortions under the law that existed from 1969 to 1988 .... Where the pro-life movement was strong, as I understood the case to be in Prince Edward Island, abortions were not performed, or rarely performed. In other locales the therapeutic abortion committees were no more than rubber stamps, and effectively did permit abortion on demand, but it was still open to concerned citizens to apply political pressure and change the composition and policies of those commitees.

The significance of the 1988 Supreme Court Decision

At the time of (this) ruling ..., I heard about sincere and committed pro-lifers claiming victory on the ground that a "bad law" was struck down. In my opinion, what was wishful thinking .... Little did they realize that the decision of the Supreme Court was a legal disaster of the first magnitude, and that eight years later there would still be abortion on demand, with no prospect of a new law any time soon. Morgentaler and his cohorts were acquitted. Worse, five of the seven judges (Dickson, Lamer, Beetz, Estey, and Wilson) agreed in their varous reasons for judgment on one thing: that there was a constitutional right to an abortion (euphemistically called "medical treatment" by Mr. Justice Beetz) guaranteed by Section 7 of the Charter, which they said was based on the right to "security of the person." The unborn child had effectively been declared a nonperson by a five to two majority of the highest court in the land.

It is true that the justices, even Madam Justice Wilson, conceded that Parliament may validly enact legislation to protect the foetus, but that ability .. was severely limited and restricted by the majority's interpretation of Section 7 of the Charter. Even the minority justices, McIntyre and LaForest, while not recognizing a constitutional right to abortion, were not prepared to adopt a strong pro-life position. Mr. Justice McIntyre upheld the law as it existed with the 1969 amendments. He acknowledged that there were those who called for the repeal of the 1969 Turner/Trudeau amendment, which would have left an absolute ban on abortions, but his judgment cited public opinion surveys as a reason for leaving the 1969 law in place.

I am afraid that the understandable desire of many in the pro-life movement to look for a positive interpretation of a disastrous decision of the Supreme Court, and a confusion of minds and language, have helped result in eight years of abortion on demand completely sanctioned by the law of the land.... After the 1988 decision of the Supreme Court in R. v. Morgentaler, there were no remaining restrictions on abortion under Canadian law. The Supreme Court left the door open for a new law restricting abortions, but on a very limited basis.

I would summarize and paraphrase the Supreme Court's decision as follows: "Parliament has a legitimate interest in the protection of the foetus. But Parliament's ability to legislate protection for the foetus is subject to a pregnant woman's right to have an abortion as guaranteed by Section 7 of the Charter, based on her right to `security of the person.' We have decided that section 251 of the Criminal Code, even as amended by the 1969 law, was too restrictive and that it violated the pregnant woman's right to have an abortion under Section 7 of the Charter. Therefore, when and if Parliament brings forth a new abortion law, we will strike it down unless it is even less restrictive than the 1969 law."

The potential effect of Bill C-43

At the time of Bill C-43, it was impossible to make Canadian abortion law more permissive, because there was already abortion on demand. On the other hand, the decision of the Supreme Court left very little room to introduce legal restrictions on abortion. Parliament had three choices: introduce a new law that would be struck down by the Supreme Court, introduce a very watered-down law that would comply with the Supreme Court's decision, or introduce no law at all.

It may be helpful to consider the words of Notre Dame law professor Charles E. Rice in his book No Exceptions: A Pro-Life Imperative:

It would be unjust to reproach those who do their best to achieve total legal protection for the unborn child and then reluctantly support or vote for legislation that provides exceptions to that protection. There is a difference, however, between the pro-life advocate who fights the good fight, is beaten down, and then, under protest, takes what he can get, and the one who himself takes the initiative in promoting laws that allow abortion.

In my view, by the time Bill C-43 reached the floor of the Senate, there could have been no doubt that pro-lifers had been beaten down and were in no political position to bargain for any more. It must be remembered that none of the proposals for a new abortion law brought before the House of Commons in 1988 obtained enough votes to be adopted.

Bill C-43 was introduced on November 3, 1989, and soon after that it was referred to a Legislative Committee, which heard from numerous witnesses. One of the submissions ... was by the Canadian Medical Association (CMA) which argued that private individuals should not be allowed to initiate prosecutions under Bill C-43 without the consent of the Attorney General of the province. It was submitted by the CMA that Bill C-43 "opened the door to legal harassment by pro-life groups or individuals." In my view it is very significant that an amendment based on the argument of the CMA, which would have forbidden private prosecutions without official consent, did not pass.

I have not seen the ten-page letter, referred to in your article, that was sent by Kim Campbell to medical doctors, and which you say explained that no abortionist would ever be prosecuted in Canada under Bill C-43.... Whatever the contents of Ms. Campbell's letter, she was in no position to give any assurances .... Even if she were Prime Minister today, I do not think Ms. Campbell would be in a position to dictate to provincial Attorneys General, let alone to those seeking private prosecutions .... If Bill C-43 had passed the Senate I have little doubt that pro-life organizations would today be in a much stronger position by virtue of being able to bring private prosecutions of abortionists in certain situations such as, for instance, where the health of the mother was damaged by an abortion. Even the threat of such prosecutions would be enough to deter many doctors from performing abortions.

If only ten per cent of abortions had been prevented by Bill C-43 we would now be saving 10,000 lives a year. Each of those lives is of infinite value.

Where do we go from here?

... At the time of the defeat of Bill C-43, many pro-lifers anticipated that a better, stronger law would inevitably follow in short order .... We have been waiting a long time for that new law.

The void still exists, and cries out to be filled, but in this country there is no political will to do anything about it. We are in for a long hard battle. In the long run we are on the winning side and will prevail. Communism in Russia, which looked as if it would be there forever, is now gone.

In the countries of the West, including Canada, we may be waiting a generation or more before a new abortion law will be introduced. Before that happens, there will have to be a new evangelization. The courts and the government will not do anything until public opinion changes. We are fighting hostile news and entertainment media, and there is fear, apathy, and indifference within the Church....

Few have strong convictions, and even fewer have the courage of their convictions. The Church in this country has been hit with a powerful onslaught of confusion and doubt. In the words of W. B. Yeats in the poem, "The Second Coming" published in 1921:

The best lack all conviction, while the worst

Are filled with passionate intensity.

The confusion and the doubt must be dispelled, and others must be convinced of the rightness of our cause before there is going to be hope of significantly changing the laws of the land.

Were we wrong about Bill C-43?

Response by Dr. David Dooley and Fr. Al de Valk

You have made a case for Bill C-43, arguing that the pro-life side made a serious mistake in not supporting it. You have some Catholics on your side, including some Canadian bishops. Still we hope to show that the Bill should not, and could not, have been supported by Catholics. So we have the following comments to make on your argument.

No victory here

1. We know of no pro-life persons who thought that the Morgentaler decision of 1988 was a victory for the right-to-life side.

Judicial activism 

2. The question with the 1988 ruling, as with Roe v. Wade in the U.S. in 1973, is "How can it be got around?" Supreme Court Justice Madam Wilson quoted Roe with approval, and wanted Canada to conform to its trimester approach, something which U.S. Chief Justice Rehnquist says has no justification in law or logic. Wilson even cited U.S. Justice Blackmun's opinion that at this stage we cannot say when life begins--even though its beginning point has been clearly shown in petri dishes and in photographs over the last 30 years.

The Supreme Court's Morgentaler decision has been severely criticised, and ought to be criticised more frequently, instead of being regarded as a final and irrevocable decision. In his article "The Triumph of the Will," the late philosopher George Grant, referring to the case, wrote, "Another long article would be required to spell out the causes in legal and general education which lead to the jurisprudential shallowness among the judges."

In their book Charter Politics, Rainer Knopff and F. L. Morton say that this case "dramatizes just how much the Charter has changed Canadian politics"; it is an extreme example of judicial activism.

Mr. Justice McIntyre noted that the case turned on the respective rights of women and the unborn, none of whom were present; the appellants were all doctors charged with violating the Criminal Code, and none of them had been denied a "therapeutic" abortion. In his opinion, therefore, the Section 15 issues came in on a purely hypothetical basis, and should have been avoided.

Summing up the implications of the case, Knopff and Morton arrive at a different conclusion from your own. Only one justice out of seven declared a constitutional basis for abortion. The other four on the majority side found only procedural violations of the Charter, and were divided about their seriousness. Four of the justices (Beetz, Estey, McIntyre, LaForest) seemed willing to accept a reformed version of the current law. All seven explicitly recognized the legitimate interest of the state in protecting the life of the unborn child.

In other words, the judicial situation does not seem to be quite as hopeless as you consider it to be. It is quite possible for Parliament to pass a law protecting the unborn child. Anyway, this muddled and controversial 1988 decision does not settle the legality of abortion once and for all.

Bill C-43

3. Once again we must reject the idea that Prime Minister Brian Mulroney's Bill C-43, defeated in the Senate in a tie-vote of 43 to 43 in 1991, would have saved babies. Every abortion done this year would have been approved under the law's specifications. Moreover, this law would have permitted abortion not only in hospitals and abortion clinics, as is the case today, but also in doctors' offices. Furthermore, perhaps most important of all, the ranks of abortionists would have been expanded beyond physicians to include other health personnel. Almost certainly this would have enlarged the number of abortions, perhaps to something like the rate of abortions in the U.S., which is almost twice as high as our own.

Intrinsic evil

4. As far as Catholics are concerned, the matter of approving or disapproving Bill C-43 seems clear-cut. The Holy Father writes in No. 73 of The Gospel of Life:

In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, or vote for it."

This has been the traditional view all along. The Pope goes on to say that support could be given to "a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on." This also is not new. But it doesn't apply to Bill C-43, which was not a permissive law being made more restrictive--far from it.

Several years ago, a measure was presented to the British House of Commons by M.P. David Alton which did fit the conditions the Holy Father laid down. The law on the books allowed abortion up to 24 weeks of pregnancy. Alton's bill sought to limit the damage by reducing the allowable time to 18 weeks. He was not conceding that abortion was right, or that it should be permitted under certain circumstances, but he was trying to reduce the number of abortions by making the law less permissive that it was. In the event, he failed, but his was a legitimate attempt to limit the holocaust, and it was completely in accordance with the stipulations the Holy Father laid down.

When you argue that the bill should have been supported because it would have saved many deaths, you are bringing a utilitarian argument into the discussion. In other words, you are saying that the bill should have been accepted because the amount of good which it would have produced would have out-weighed the evil. But Christian morality does not use such calculations. It says that lying is wrong, cheating is wrong, killing of unborn babies is wrong. To declare that it would be legitimate to kill some of the unborn, even if not all, is an intrinsically evil act. As Jeanie Deans says in Scott's Heart of Midlothian, when she is urged to tell a lie which will save her sister's life, "(God) has given us a law for the lamp of our path; if we stray from it we err against knowledge--I may not do evil, even that good may come of it."

When you quoted Notre Dame law professor Charles Rice, pages 84-85, you should have gone on to the very next sentence:

Sometimes, pro-life advocates and legislators convince themselves that an authentically pro-life law cannot be enacted; they themselves then become proponents of compromise measures that validate the anti-life position by implicitly defining the lives of some unborn children as negotiable.

They can never be regarded as negotiable. The first sentence of Rice's book says, "To gain its objectives, the pro-life movement must demand that the law fulfill, without exception, its duty to protect innocent life."