Looking back on the past: part I: abortion.

The November editorial "Imperfect abortion legislation" has drawn two letters to the editor. The longest one, followed by my reflections, is printed below; the second one will be printed in March.

There is no subject more important. Nothing debilitates Western countries more than the continued slaughter of babies in the womb. It is as if we are willingly committing genocide. Most of all, it is our era's defiance of God Himself, and nothing can possibly be more foolish (and dangerous) than that. Words no longer suffice to describe what we are doing to ourselves.

Differences

Still we must carry on. Because of the familiarity of the subject many people think that the issue has been talked to death. We use these cliches so easily, `talked to death,' as if abortion were on the same level as a movie or theatre play. But I believe that we haven't talked enough, and I am specifically referring to the lack of discussion within the group of people described as pro-lifers.

Forget for now the arguments with pro-abortion people; or with those who pretend they can be "pro-choice" without being pro-abortion; or with politicians who, together with their coats, check in their moral standards at the cloakroom before entering the legislative chambers.

Instead, let us discuss the differences among committed pro-lifers about abortion as a political issue. To be even more specific and really go to the heart of the matter, let's examine the divergent philosophies on this subject between a large number of Catholic pro-life activists on the one hand, and the staff of the institution known as the Canadian Conference of Catholic Bishops (CCCB) on the other. Their views have diverged for almost 30 years.

Reasons

There are three reasons why an examination of this sort is opportune: --the recent statement of Pope John Paul II regarding "imperfect" abortion legislation has revived the argument that the CCCB was correct in supporting Brian Mulroney's 1990 Bill C-43 and pro-lifers wrong in opposing it;

--Mr. Bernard Daly, a former CCCB staff member, has published his 50-year history of the CCCB, Remembering for Tomorrow, which he presents as "setting the record straight" about a much "misunderstood" institution;

--and, most importantly of all, Pope John Paul's request in his encyclical The Coming Third Millennium that Catholics everywhere examine their collective history and conscience. The Pope had in mind first of all an examination with respect to non-Catholics, but he certainly implies that if there are internal divisions these should be examined first.

Such an examination, as noted, requires a look back over the past thirty years. Some people may object to `getting into historical dog fights'. This brings us at once to a fourth reason which simply demands that the issue be broached and resolved, namely the continued killing of over 100,000 babies in the womb year after year. The silence must be broken. Pro-lifers must unite and force the government to act. It is as simple as that.

As a first instalment of this necessary discussion I present the following letter from Mr. David Klassen, a member of the Vancouver law firm Wirick & Klassen, dated November 16, 1995. Instead of printing it in the "Letters to the Editor" column I am going to use it to start off what I hope will be a first instalment of a broader examination of the Church in Canada.

From David Klassen re "Imperfect Abortion Legislation," editorial, Nov.'95

(numeration of paragraphs added)

1. Let me begin by expressing my support for your fine and informative publication. I am afraid, however, that you have fallen into a legal and semantic quagmire in your discussion of abortion legislation. It may be helpful to begin by defining the terms. Something is "lawful" or "legal" if it is permitted or not forbidden by the law. It is "illegal" if it is forbidden by law. When the laws making a certain activity illegal are repealed or struck down, we commonly say that the activity has been "legalized." According to The Canadian Law Dictionary, "Although there is a similarity between the words `lawful' and `legal' the principal distinction between the two is that the former contemplates the substance of law, the latter the form of law."

2. The Turner/Trudeau amendments to the Criminal Code in 1969 were a partial legalization of abortion. Those amendments continued to recognize that abortions were illegal where not approved by a hospital's therapeutic abortion committee. In some communities, especially where pro-lifers were active on hospital boards, abortions were prevented by the law. The Turner/Trudeau law was a retrograde step from the law that had existed previously, and I do not suggest that Messrs. Turner and Trudeau were justified in introducing their amendments. The law that remained was, however, better than no law at all.

3. It is now nearly eight years since January, 1988, when the Supreme Court of Canada struck down the Turner/Trudeau law. In your editorial you say that the 1988 decision of the Supreme Court "left a state of lawlessness." That is not quite the case. Although it is true that Canada became "lawless" in the sense of having no law restricting abortions, the effect of the Supreme Court decision of 1988 was to make all abortions entirely lawful under the laws of this country. The process of legalization that had been commenced by Turner and Trudeau in 1969 was completed by the Supreme Court in 1988. In Canada, we now have explicit laws that not only permit abortion, but which recognize a legal right to abortion, such as the "bubble zone" legislation in British Columbia. The lawfulness of abortion is also recognized across Canada by legislation that permits and provides for public funding of abortion.

4. In our system, it is not necessary to have an explicit law permitting an activity for that activity to be lawful. Anything that is not specifically forbidden is permitted by law. For example, the absence of any law governing the consumption of licorice does not mean that it is somehow illegal or unlawful to eat licorice. Therefore, I cannot agree with your statement that "In 1989, Prime Minister Mulroney attempted to re-legalize abortion . . ." That statement betrays a fundamental misunderstanding of the situation. By 1989, abortion had already been completely legalized in Canada, for there were absolutely no legal restrictions on it. Although your editorial states that Bill C-43 "proposed to remove any and all restrictions" on abortion, no such restrictions have existed in Canada since 1988.

5. I agree with the goal stated in your editorial that we must always aim for the abolition of all abortions, without exceptions. However, I believe a grave error was made by those in the pro-life movement who opposed Bill C-43. At the time Bill C-43 was before Parliament, I read newspaper articles about abortionists who said they would stop once the law was proclaimed for fear of legal actions, including the possibility of prosecution under the Criminal Code. The most militant pro-abortion organizations opposed Bill C-43, because they knew very well that it would re-introduce restrictions on abortion. I am convinced that many lives would have been saved if Bill C-43 had passed. I was astounded and dismayed that pro-lifers played into the hands of the abortionists by lobbying for the defeat of Bill C-43. The effect of their "victory" in defeating Bill C-43 has undoubtedly been the loss of many innocent lives.

6. I do not deny that Bill C-43 was woefully inadequate, and I fervently hope and pray that our country will some day enact legislation prohibiting abortions. In 1989, however, and continuing to the present day, there was and is no realistic prospect of such a law being passed. As we approach the fifth anniversary of the defeat of Bill C-43 in January 1991, there is no movement by any major political party to introduce any restrictions at all on abortion. After pressing as hard as possible for a better law, pro-lifers should have recognized the political realities and supported Bill C-43 as a stopgap measure aimed, in the words of Pope John Paul II, "at limiting the harm," until the time is ripe, as it one day will be, for introduction of more acceptable legislation.

7. I hope that in the future all Catholics will take to heart the words of the Holy Father in part 73 of Evangelium Vitae, and learn to recognize the situations where the best we can do is to limit the harm, without ever giving up our goal of eliminating it altogether.

Editor replies

I thank Mr. Klassen for his letter. As indicated above, it provides the opportunity to examine more deeply important aspects of the abortion debate in Canada. I would like to begin with the phenomenon of deceptive language as well as recalling some forgotten history. I hope this will do all of us some good.

Deceptive language: whose quagmire?

Deceptive language leads to confusion of minds. This is the case here. In casting about in my mind what could have caused the difference of opinion between us it occurred to me that lawyers see everything from the point of view of Canadian law, while we pro-lifers see it from the historical/theological perspective. They speak from "what is," according to Canadian law; we write and act from "what ought to be," according to natural moral law. In other words, we are running along different tracks. Why is that?

The key to this riddle is to be found in what happened in 1969 when Canadian law took its most radical, revolutionary step ever: it separated itself from the law of God on an issue of life and death, thereby perverting Canadian law in its very essence. Yet the legal apparatus--i.e., the legislators, judiciary and lawyers--continued to use the same terminology of "lawful," "legal," "law" as if nothing had happened. Indeed, they themselves have come to believe that actually nothing of importance did happen.

But pro-lifers, especially Catholic pro-lifers, know better. Law, says St. Thomas Aquinas, in order to be "law," must be in harmony with Reason, which, in turn, must reflect natural moral law and Divine Law. Legislation on matters of life and death--such as deliberate abortion--which contradicts the Divine Will, is null and void. It doesn't even deserve the title "law." And it should certainly not be obeyed. As Pope John Paul II puts it, "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" (Gospel for Life, #73).

We are not here concerned with the question of cooperation and its difficulties in case of unjust laws. We are discussing language. Notice the Pope's use of "intrinsically unjust law." That's what Canada's May 1969 amendment to the Criminal code, Section 251, was: an intrinsically unjust law, an evil law, a vile act of immoral legislation. Evil law corrupts. One of its many deleterious consequences was turning the entire Canadian judiciary--prosecutors, judges, magistrates--into servile agents of evil. With the exception of the very first pro-life act of defiance, in Toronto in the fall of 1985--which led to a judge resorting to a technicality--all other court charges, dozens and dozens of them across the country, have gone against pro-lifers because Canadian "law" unlawfully says that abortion is "lawful." The killers are protected; their opponents have gone to jail--over 2,000 since 1985.

Medicine's deceptions

The abuse of language is not restricted to law; medicine is equally if not more involved. Take the term therapeutic abortion. As Dr. Harley Smythe pointed out years ago, an abortion can never fill the "therapeutic" criteria: "it treats no disease, cures no symptom and removes, in the vast majority of cases, no abnormal tissue" (Motive and meaning in medical morals, 1977, 12 pp). Yet Section 251 used the term "therapeutic abortion committee."

Medicine developed a whole new vocabulary in order to deceive and falsify. Abortion never kills a baby: it merely "terminates a pregnancy." The expression "a woman with child" was replaced with a woman and her foetus. For twenty years the "reason" for abortion was given as "reactive depression in pregnancy," a blatant lie.

In order to maintain some reference to truth, pro-lifers have been forced to create new words and new phrases. We speak about "abortionists," and we call their clinics (a word which conveys healing) "abortuaries," a term which rhymes with mortuaries and conveys death and therefore the true reality of these places. Instead of "performing procedures," we speak about "committing abortions," as in committing a crime. We never use the term "pro-choice," because there is no choice, only death.

We are criticized for doing this, needless to say. In the 1985 court case in Toronto, the judge forbade one of three accused to use the term "abortuary" as inflammatory and not in the dictionary. Some years later another judge forbade picketers in Cambridge, ON, the use of the word "killing," as in killing babies.

The current provincial "legislation" in British Columbia (Bubble zone law) and in Ontario (injunctions and the trial of 18 pro-lifers) should be seen in the same light: this is not "law"; rather, it is an attack on the freedom of citizens to protest evil being done; it is legal harassment, that is, political willfulness which uses authority for its own devious purposes.

Let me give one more example of the predicament we are in.

The case of the midwives

In March 1991 the Supreme Court of Canada ruled in the famous Midwives Case which had its origins in British Columbia in 1985. Two midwives were held responsible during delivery for the death of a baby in the mother's birth canal with his head out already. Was the baby a human being or not? Anyone in his right mind answered that, of course, it was a human being, what else could it possibly be? But, no, said Chief Justice Antonio Lamer, by Canadian law this is not a human being; Section 206 of the Criminal Code says a child becomes a human being when it has completely proceeded, in a living state, from its mother.

Feminists were jubilant that the midwives were acquitted. But Canada has an insane law which says a baby is not a baby even seconds before its birth. We have a law divorced from the facts and the truth. Justice Lamer didn't even bother suggesting to the government that they consider changing it, even though he and his fellow judges across the country are continually ordering the government to change this or that, such as halting "homophobia" and "discrimination" against "sexual orientation" (three other words used fraudulently).

I apologize for taking so long to make my point. But speaking of quagmires, I think the term applies to lawyers and doctors, not pro-lifers.

Let us now turn to recent history. Let us forget about Divine law, study the practice of Canadian positive law and the legal newspeak it employs, and see what happens to the above arguments when placed in this context.

Re 2: was 1969 only a "partial legalization"?

Does 1969 represents only a "partial legalization" of abortion? There is not a knowledgeable pro-lifer who can accept such an interpretation.

Turner's myth

The idea that the 1969 amendment to the Criminal code was only a minor, limited, action originated with Mr. Turner. He and Mr. Trudeau told that to everyone. They were only providing front-street sanitary hospital facilities in order to remove the blot of illegal "back-street" abortions, they said. There was nothing to worry about; there would be few abortions; "I trust the doctors," Mr. Turner said (see Letters to editor in this issue).

These views were supported by the Globe & Mail, then the leading pro-abortion daily; by almost but not quite everyone in the governing Liberal Party, with its overwhelming parliamentary majority; and by all the leading professional organizations, medical, legal, and political. For details, see my Morality and Law in Canadian Politics: the abortion controversy (1974). Those who believed Mr. Turner included personnel of the CCCB.

Opposition mocked

But two groups did not accept the Trudeau-Turner thesis: the newly organized pro-lifers outside Parliament and the groups of Creditistes within. The Creditistes repeatedly requested Mr. Turner to define the word health (as, indeed, did some Conservatives and Liberals). They introduced half a dozen proposed amendments. They were mocked in the media, their requests contemptuously rejected.

The government's amendment passed unchanged, permitting an abortion when continuation of a pregnancy "would endanger, or would be likely to endanger, the life or the health of the mother." This, prophesied Creditistes and pro-lifers alike, would mean in fact the legalization of any and all abortions. History has proven them right.

What happened? Public funding by provincial Health Insurance Funds using taxpayers' money began at once. Within months the number of abortions began to rise, with doctors on so-called Therapeutic Abortion Committees (TAC's) stoutly denying they were rubber-stamping the applications, accusing their pro-life critics of lying. It wasn't until ten, fifteen years later that the truth came out: some TAC's admitted seeing the applications but not the "patients"; others vetted the applications on the golf course, calling out names in order to comply with the letter of the law; most of them, yes, "rubber-stamped" them, approving every applicant without fail: after all it was now a woman's "right." There even was a case of a woman who died of an abortion after which the local TAC approved it. All this happened before the Supreme Court ruling of 1988.

Conclusion:

In 1969 Mr. Turner may have intended to allow for few abortions; but in reality, and through his own fault, he provided for abortion on demand. In other words, the 1969 amendment to the Criminal Code legalized abortion in Canada, not partially but fully, despite the letter of the law. Therefore the statement above that "the law that remained was, however, better than no law at all" is relative only. As time went by, more and more people became aware of the loopholes.

Yes, it is correct to say that here and there some hospital boards with pro-lifers among them were able to prevent their hospitals from permitting abortions. But this didn't last long. British Columbia, for example, in retaliation for their opposition simply replaced elected hospital boards with appointed ones. This was another unexpected consequence of Mr. Turner's bill, one of many.

Re 3: Did the Supreme Court ruling make abortion "lawful"?

The letter above leaves the impression that abortion is now lawful because a lengthy legal process made it so. As we saw, by January 1988 Canada, had abortion on demand, in consequence of illegal, or unintended or unwanted interpretations and actions. What about the Supreme Court ruling of that date?

In January 1988 the Supreme Court of Canada disallowed the 1969 legislation on a technicality, condemning the "unequal" treatment of women supposedly caused by the TAC's, under the so-called equality Section 15 of the Charter of Rights and Freedoms.

Chief Justice Brian Dickson, writing for the majority gave as chief reason for their judgment the following:

"Forcing a woman, by way of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person." (Morgentaler judgment, p. 16).

This sentence is balderdash. As has been pointed out, Dickson made abortion seem a necessary part of a woman's security of person. "The normal expectation through the centuries has been that pregnancy is followed by childbirth, and here was the Chief Justice of Canada making it seem that childbirth was not a necessary consequence at all." (David Dooley, Supreme Court and Morgentaler against biology, 1992, 20 pp). The whole argument is flawed.

Dissenting Justice McIntyre made clear that the justices on the majority side were bending principles to "create" a non-existing right. "There has never been a general right to abortion in Canada," he wrote. "There has always been a clear recognition of a public interest in the protection of the unborn." (Ibid, p.15, Dooley, p. 8)

Let us add that there is no "right" to abortion anywhere in the world. It is another philosophical falsification.

It is important, therefore, not to fall into the trap of saying "Abortion is lawful." As we have shown, the very words used in the 1969 and 1988 decisions were false, misleading and fraudulent.

The actual effect of the S.C. ruling, was minor, as things go: it gave a free hand--or so it seemed--to abortuaries outside hospitals and formally abolished the corrupt TAC's inside hospitals. But Quebec had had provincially approved, abortuaries illegal by federal law, since 1976 when Rene Levesque funded them. And Morgentaler had been operating illegally in Toronto since his acquittal by a (pre-selected) jury in November 1984.

Re 4-6: Did Mulroney attempt to relegalize abortion?

As we have seen, in 1988 there was already abortion on demand, but surreptitiously as it were. With the Supreme Court ruling, the feminists and abortionists proclaimed that abortion was now officially a matter between a woman and her doctor. But try finding it in the judgement. It's not there.

There is the one-woman minority opinion of Bertha Wilson, the wellknown feminist Justice on the Court who from the early sixties onwards guided the United Church to adopt a pro-abortion position. She declared that abortion is a private matter between a doctor and a woman. She said it, but no one else did.

The majority, as noted above, dismissed 1969 on a technicality, stating that it was illegal for some women to have to wait longer to have their applications approved than others. Thus they played to the pro-abortion gallery. But they also went on to say that parliament has the right to protect the unborn. This is something hardly anyone ever mentions.

Well, one may say, this is ridiculous; and, yes, the whole judgement is ridiculous, because contradictory. The Court tried to reconcile two irreconcilables: a woman should have the freedom to an abortion, but the baby in her womb has a right to life which parliament may protect!

It is precisely this dilemma which Brian Mulroney faced when he went through the motions of exercising parliament's power with respect to this issue. How do you do it and come out smelling like a rose? You put abortion back in the Criminal Code (pleasing pro-life) and then legislate that it can be done for any reason at all (pleasing the feminists). And that's what he did.

He searched for an answer, trying first one proposal, then another. By 1990 his feminist Justice Minister, Kim Campbell, had no intention of ceding anything to "anti-abortionists." Thus Bill C-43 became exactly as described in our November editorial. It was, perhaps, the greatest piece of intellectual and moral fraud in Canadian parliamentary history: appearing to say one thing and legislating the exact opposite.

In October 1990 Mrs. Campbell put the worries of the abortionists to rest. Yes, these doctors did think that the Bill contained restrictions, putting abortion back in the Criminal Code and all. But in a ten-page letter mailed to medical doctors across Canada, Campbell explained the real purpose of Bill C-43: to ensure that no abortionist would ever be prosecuted in Canada.

Conclusion:

Bill C-43 was not a "stopgap" as described in the letter above; it was not "woefully inadequate;" it was an attempt to pass formal legislation once more, as in 1969, but this time approving abortion without restrictions of any kind. In fact, it even allowed for a license-to-kill for medical personnel other than doctors. That some pro-lifers and some pro-abortionists were misled is due mainly to the media with kept describing it "as moderate" legislation and a "compromise."

Bill C-43 was stopped in the Senate, miraculously in my opinion, by a tie vote of 43 to 43. Pro-lifers, myself included, went to the Senate to plead for its defeat. As the Holy Father points out in the Gospel of Life, no Catholic may support such legislation. On the contrary, we must resist it with all our might.

How then did staff at the CCCB come to suggest that Bill C-43 was worthy of support? That's material for another article. Suffice it to say for now that they were wrong. Thank God Bill C-43 failed; otherwise the reputation of the Catholic Church in Canada would have been besmirched for all time.

Instead of "limiting harm," Bill C-43 confirmed it and explained how it could be done without ever running the risk of going to jail. Bill C-43 meant to protect abortionists; it never meant to save a single unborn baby, nor would it have done so. Instead of having to take two, three or four years as they did after 1969, pro-abortionists would have discovered after two or three months that Bill C-43 was everything they ever wanted.

Summary

In 1968 abortion was forbidden, in harmony with the law of God. In 1969, Parliament, contrary to Divine Law, declared abortions could be done. Some, clinging to legal contrivances, pretended they were approving only a little bit of abortion but others, knowing that a great principle such as the sacredness of life cannot be divided into parts, knew that the principle itself had been overthrown. The experience of successive years proved them right.

Twenty years later, in 1988, the Supreme Court, once more contrary to Divine Law, confirmed the previous process of approved murder, doing so under its own false and illogical pretensions, stripping away the remaining facade of Section 251, while hinting that Parliament could still redeem itself by extending protection.

A Conservative Prime Minister was forced to act through public clamour, but he wanted to be popular with the ruling classes at all cost. He, too, decided to ignore natural moral law or, as he put it, "pour a little water in the wine" of his conviction that abortion was wrong.

There's an old Italian legend dating back to the Middle Ages that tells of a young lady who danced passionately throughout the evening with a tall and strong man at the town's annual masked ball.

Throughout the evening, this couple was the centre of attention. At the end of the last dance, she who danced with the mysterious man tore her companion's mask off at midnight, and everyone shrieked as they beheld a frightful leper.

That legend, said Bishop Fabian Bruskewitz, of Lincoln, Nebraska, recently, is a parable for our culture, which is dancing with the leprosy of evil and sin. "When we confront our society with the natural law, we are tearing its mask off." (Wanderer, Nov. 9, 1995)

Re 6 and 7: What does it mean being "politically realistic"?

The advice is to be "realistic." Some people mean by it that we should surrender before starting the battle. You can't win anyway! they say. Don't ask for the maximum, you'll never get it! they argue. But why all this pessimism?

Yes, it is true that the culture of death, as the Holy Father calls it, seems unshakable at this moment. Nevertheless, look beneath the surface and you'll wonder why it is not being overthrown this very day.

Recent surveys show that Canadians oppose abortion funding two to one; three out of four reject its use as birth-control. The feminist defence of abortion is defunct and so is the politician's. Every day more people recognize the insanity of killing one's own offspring. This is not the time to talk about abortion as "a complex and difficult problem." It's nothing of the kind. Abortion is a simple issue: it is murder of the young. Let prolife lawyers organize a Natural Law section in the Canadian Bar Association; let Physicians for Life fire up their members to stop euthanasia and end abortions in hospitals. Let all of us act upon the words of Pope John Paul that it is our duty to resist and oppose the existing situation. The time has come to light a new fire under the politicians.

Father Alphonse de Valk is a priest of the Congregation St. Basil (C.S.B.). He is publisher and editor of Catholic Insight.