Reply to Martin Cauchon, Minister of Justice.

In a letter dated July 10, 2002, Minister of Justice Martin Cauchon responded to questions which Campaign Life Coalition President Jim Hughes has raised concerning the Criminal Code provision that a child does not become a human being until it has completely proceeded from its mother's body. He wrote:

"Any change in the definition of a human being in the Criminal Code could have the effect of criminalizing abortion. ...It is the Government's position that it will not introduce legislation to criminalize abortion."

The absence of a criminal law on abortion, he claimed, does not mean that a legislative or legal vacuum exists. The delivery of abortion services is currently regulated through provincial governments' responsibility for the delivery of health care service, as well as through the standards set by the medical profession itself. In his opinion,

"The majority of Canadians are satisfied with this division of regulatory responsibilities and the fact that abortion is regulated as a health and medical matter, rather than a criminal matter."

There are two things wrong with this last sentence:

1. The Minister has no proof that Canadians are satisfied with this arrangement. It is simply a guess on his part.

2. The fact is that abortion is not a health matter. The Morgentaler ruling in January 1988, removed even the pretence that there had to be a medical justification.

The Borowski trial in Regina

A parade of expert witnesses in the Borowski trial in Regina in 1983 showed that abortion was not done for health reasons:

a) Sir William Liley said that he was unaware of any medical complication or condition that would be regarded as absolute grounds for termination of a pregnancy if the mother wanted her baby.

b) Dr. Patrick Beirne stated that "there is virtually no situation today where you must abort or the mother will die."

c) Dr. A.E. Eistetter said that he could not think of any psychiatric, sociological, economic, or health level which really jeopardized a mother's health in 1983.

d) Dr. Harley Smyth called "therapeutic abortion" mass elective feticide for non-medical reasons.

e) Dr. Heather Morris (who had delivered 5,000 babies) stated that supporters of abortion rights "are misguided because, despite claiming to be pro-choice, they are not willing to allow the unborn to have the choice for life."

In other words, the government is not supporting the facts, but defending a myth. There is no valid reason for abortions to be paid for out of provincial health plans, because they are not performed for medical reasons and actually no reason has to be given at all.

The Minister's letter offers a good example of the knots which responsible officials tie themselves in when they try to deny the humanity of the fetus. He claims that he is establishing a balance between the interest of the mother and the interest of the unborn child; but in his discussion, he values the interest of the child at precisely zero. He cannot concede that it has rights because, as he says, that might place limits on abortion.

Morgentaler judgement, January 1988

In his part of the 1988 Morgentaler judgment, Mr. Justice McIntyre warned his colleagues, "You cannot fashion a right out of whole cloth." Madam Justice Bertha Wilson went farthest in the direction of establishing a woman's right to an abortion, but even she said that protection of the fetus was a valid legislative objective. Mr. Cauchon says, "This government strongly supports the fundamental rights of women to sexual and reproductive health guaranteed in the Canadian Charter of Rights and Freedoms." What that means is not clear. There is no unqualified right to abortion in Canada, and the Supreme Court ruling certainly did not establish one. It couldn't.

Both before and since that time, the Supreme Court has been entangled in absurdities, and the government is obviously not going to put an end to them. In the B.C. Midwives' case, Jewel Voth's baby died after only its head had emerged from its mother's body. Anyone seeing it would probably have said that it was a dead baby. Because of the legal fiction the judges use, it could not be called a baby, and therefore the midwives could not be accused of manslaughter.

As journalist Peter Stockland asked, "What did they think it was? A dolphin? Anyone vote for a cocker spaniel?" In the more recent case involving a pellet gun, a woman could not be tried for attempted manslaughter even though she had inserted a gun into her vagina and lodged a pellet in her baby's brain. In the end, she was found guilty of a complete absurdity--failing to provide her child with the necessities of life. The necessities of life did not really come into the picture; she did not try to deprive her child of any of these, but of life itself.

The Minister writes that the views of Canadians diverge significantly on the rights of the fetus, and that the question raises a whole host of issues with moral, social, economic, health, and legal implications. Obviously, it does, but justice demands that we face them. We must begin by asking, "What is a fetus?" The answer must be that it is a human being at an early stage of its life. It is not a potential human being, but a human being with potential.

The Minister says that his government supports the fundamental rights of women to sexual and reproductive health. In all honesty, must it not face the fundamental fact that, as it stands, the Criminal Code does not tell the truth about fetal life, but conceals the truth with a lie!

Now Morgentaler is at it again--contending that five provinces are contravening the Canada Health Act by refusing to pay for abortions done in clinics. But Campaign Life Coalition NB's Peter Ryan said that his province's policy does not contravene the Canada Health Act. "The Act is about paying for medically necessary procedures. Ending an unwanted pregnancy is a personal choice, not a medical necessity." Ryan holds that the Canada Health Act is not about abortion at all: "It's about health care, and abortion is not health care, because pregnancy is not a disease."

David Dooley is professor emeritus St. Michael's College, University of Toronto and associate editor of Catholic Insight.