Margaret Somerville: how to address Canada's lack of legal protection for unborn children

Some common sense from Margaret Somerville on Canada's abortion laws.

"An email made me ponder what the labels “pro-choice” and “pro-life” really mean, in particular regarding people’s stance on using law to govern abortion...

"...My [email] correspondent, [an articulate, politically engaged, professional woman] wrote: “I spoke to a very successful and intelligent entrepreneur at an event on Saturday, who described himself as pro-choice, who explained, ‘I just have come to the conclusion that abortion is a woman’s choice.’ So I asked two questions: “How would you feel if she was six months along in her pregnancy and the physician would make sure the baby was not born alive?” And, ‘What if the mother wanted an abortion because the baby was a girl and not a boy?’ To both questions, he answered quite adamantly, ‘No, I would never agree.’ And he concluded, ‘I just have never thought about it in those terms.’”

Is he pro-choice? He clearly doesn’t agree with the 28 percent of pro-choice Canadians, who, one survey showed, reject any legal protection for human life prior to birth.

The same survey found only 6 percent of Canadians would legally prohibit all abortions, while 60 percent believe there should be some law protecting unborn children, at the latest at viability (20 weeks gestation). Are only the 6 percent pro-life? 

The 28 percent and 6 percent are the two poles in our abortion debate, but their disputes dominate in the public square. Two-thirds of Canadians fall somewhere on a spectrum between them – they are not absolutists, in either direction, about using law to govern abortion. For them, abortion law (in comparison with abortion, itself, for pro-life people) is not a black and white issue, many are uncertain where to stand, and their voices are rarely heard. 

Adding two new positions to the survey, “modified pro-choice” and “modified pro-life”, to test public opinion more accurately, could remedy that. These terms would indicate basic presumptions, rather than absolutist positions. 

People who accepted a “modified pro-choice” position would allow women to choose abortion, although legal restrictions would apply in certain situations. People who accepted a “modified pro-life” stance would favour legally restricting abortion, but with some exceptions to comply with the Charter and to avoid unenforceable law. 

This modified approach might also allow us, although we start from different bases, to identify where in fact we agree, or are closer to agreement than we’ve recognized, about what the law on abortion should be.

Sixty percent of Canadians agree abortion-on-demand should be legally limited after 20 weeks gestation. Their moral intuitions warn them unborn children capable of living outside the womb should have some legal protection. They also find it horrendous to think of inflicting excruciating pain on the fetus in dismembering it, in utero, to ensure it’s born dead to avoid legal liability for killing it. 

So should abortion-on-demand be legally limited before 20 weeks? I propose applying law at 13 weeks gestation. 

This is not to approve first trimester abortion. Abortion is always a very serious ethical issue, but from a practical and even an ethical point of view in reducing abortions to the minimum number achievable, I believe that in Canada, where, presently, we have no law, it should not be a legal issue until after 13 weeks gestation...

...We need some law on abortion in Canada in order to recognize publicly and as a society that abortion is always a very serious ethical decision and that, as all the judges of the Supreme Court of Canada ruled in the Morgentaler case, the lives of unborn children, at least at a certain point in pregnancy, merit legal protection. The court also explained that it’s the role of Parliament to decide and legally establish what that point of the protection of unborn children is. 

To the contrary, Justin Trudeau, the leader of the federal Liberal Party, recently took a very public and highly controversial position that all politicians in his party must vote “pro-choice” on abortion or they were not welcome in the party, that is, they would have to vote against enacting any law on abortion. 

Here’s Trudeau’s edict: “The policy going forward is that every single Liberal MP will be expected to stand up for a woman’s right to choose”. Let’s complete it: “The policy going forward is that every single Liberal MP will be expected to stand up for a woman’s right to choose to kill her unborn child, even if, were it delivered, it would have a chance of surviving or she seeks an abortion only because of the sex of the fetus”. 

Choice, itself, is neither moral nor immoral; rather, as these examples show, it’s what we choose that determines that. Moreover, Trudeau and his MPs should note that facilitating immoral choices is complicity in the immorality involved. 

And I haven’t yet even mentioned the contravention of rights to freedom of conscience, freedom of religion, politicians’ obligations in a democracy to those they represent and so on, this edict represents. The vast majority of religious people are excluded from running for elected office in the Liberal Party – for instance, all Catholics and Muslims (or at least those who follow their conscience), most other Christians and many Jews - and even as members of the Liberal Party, as Trudeau initially extended his edict not just to MPs, but also to members. 

As a woman, whose prestigious Catholic family had been active Liberal supporters for generations, expressed it in her signature on an email to me the day after the edict: “Card-carrying Liberal until yesterday”. 

Canada continues to be a living laboratory on social values issues, with some consequences which, I predict, it will probably one day seriously regret. To close, however, on a more optimistic note: there are signs that more and more young Canadians are realizing that possibility, especially in relation to abortion, and working very effectively to help change the current situation."