ColbyCosh.com

20th Anniversary of Morgentaler Decision

Twenty years ago this month, the Supreme Court of Canada ruled in R. v. Morgentaler that Canada's criminal abortion law violated the Canadian Charter of Rights and Freedoms. Specifically, a majority of the court held that certain procedural requirements of the old law violated the Charter, including aspects of the therapeutic abortion committees and the requirement that all abortions be procured in hospitals, not clinics.

A majority of the court also considered the substance of the former abortion legislation, and arrived at these conclusions:

(a) protection of unborn human beings from abortion is a valid legislative objective;

(b) Parliament is within its constitutional jurisdiction to enact a Criminal Code abortion law;

(c) the Charter of Rights does not prohibit Parliament from passing a procedurally fair abortion law that restricts abortion to cases where the pregnancy seriously threatens maternal life or health, with "health" defined as relating solely to therapeutic grounds, ie., grounds related to physical and psychiatric health but not including matters of a socio-economic nature; and

(d) federal abortion legislation may validly require independent medical confirmation of the genuine threat to maternal life or health before permitting an abortion, given society's compelling interest in the protection of the fetus.

Unfortunately, the Morgentaler case has left an abhorrent vacuity in the law. In the two decades that have followed, unrestricted abortion in our country has resulted in the deaths of over two million unborn Canadians. Enough is enough: it is time for the federal government to address this national tragedy by introducing legislation in the House of Commons to protect unborn babies by recriminalizing non-therapeutic, elective abortions.

K. Mark McCourt
Edmonton, Alberta, Canada
http://www.lifesite.net/ldn/2008/jan/08011608.html

Hi Cosh. That's why I like you. A journalist who says he's out to get angry mail, and means it. But then, when I read the piece, I felt no anger at at all. I agreed. Entirely.

By the way, you are still the best damned writer in Canada today. It's not even close. This is not ballyhoo. I've believed it for years. I show your stuff to friends down here regularly, usually with a comment like, God I wish I could write like this guy. Just amazingly good material.

Be well.

Great column this morning. It's interesting that Canada's Supreme Court decision on abortion has provided a lot more finality on the issue than Roe vs. Wade in the US. Perhaps it's because there was more of a political consensus for abortion beforehand, but the issue doesn't arouse the mass passion here that it does south of the border.

Another 20 years' perspective also shows that abortion is a poor method of birth control. As a surgery, it creates physical risks to the woman, and there's some evidence to suggest that there are also psychological risks (don't know how credible it is, but anecdotally it does seem to fit.) Since there are so many more effective means of birth control available, I think a worthy objective for both sides of the debate would be to make abortion comparatively rare. I think all pro-choice advocates could concede that this would be better for women's health, and pro-life advocates could use this as a legal and effective avenue of action rather than railing against a long-standing supreme court decision. Of course, this would require a lot of religious moralists to abandon their ideal of no sex outside of marriage and pragmatically deal with the world as it is...

As a surgery, it creates physical risks to the woman, and there's some evidence to suggest that there are also psychological risks (don't know how credible it is, but anecdotally it does seem to fit.) Since there are so many more effective means of birth control available, I think a worthy objective for both sides of the debate would be to make abortion comparatively rare. I think all pro-choice advocates could concede that this would be better for women's health...

Yeah, sorry, I don't. The maternal mortality rate is still about 25 times higher than overall mortality from abortion by the U.S. numbers, the rate of complications requiring hospitalization is much higher for childbirth, and good luck showing that "post-abortion syndrome" is worse or more prevalent than post-partum depression. Also, childbirth pretty much inevitably involves enormous amounts of pain and tissue damage. And you're overlooking the social costs of raising the unwanted or ill-supported children whose creation you propose to encourage. The attempt to recommend an ideal rate of therapeutic abortion is basically just ridiculous, unless you take the slightly more tenable position that the rate should be zero because abortion is always wrong.

I think George was trying to point out that other methods of birth control are safer than abortion. Not that abortion is safer than pregnancy.

The attempt to recommend an ideal rate of therapeutic abortion is basically just ridiculous, unless you take the slightly more tenable position that the rate should be zero because abortion is always wrong.

Not if one takes the position that people should be engaging in more birth control. The US statistics show that a great deal of women have repeated abortions, and do use it as a form of birth control. Surely, as George said, other methods are more safe. One can recommend an ideal rate of therapeutic abortion quite easily, if one recommends a level commensurate with attempted birth control methods failing (and the various rape, etc. exceptions).

Abortion safer than childbirth? Definitely. Pregnancy is a pretty nasty health problem, as I've been witnessing close-hand with my wife.

However, as Rob points out, I meant that abortion poses a greater risk than other forms of birth control such as oral contraceptives. I maintain that abortion as a primary method of birth control is fundamentally stupid,but I don't favour banning it.

OK, I'm with you then, although I would caution against perceiving all abortions as either preventable carelessness or failures of some birth-control method.

Do you know of any numbers Colby?

BTW, I was on the fence until I read the first comment which had a real effect on me.

Great column. Every time some of the other columnists at the Post infuriate me, you and Karen Selick more than make up for it.

I don't think ther's anything like a social consensus in favour of abortion. I think the very substantial number of Canadians who oppose abortion have simply concluded that Canada is not a democracy and that there is nothing they can do. As far as I can see, they're right about that.

Ceasescu seemed to have social consensus behind him, too, you'll recall.

Wow, for a second there I thought you might be comparing Canada to Ceaucescu's Romania. But that can't be right—absolutely nobody acts on such a belief.

There is one point where I think Barbara is closer to reality than Mr. Cosh. The Pro Life zealots are portrayed in most media as, well, unhinged zealots. Pro choice zealots are generally portrayed as thinking, caring 'progressives'. The 2 sides are not given equal voice, and that is why even todays conservative government lacks the courage, (and a majority mandate) to tackle the issue. Please don't tell me you believe that even an attempt to ban partial birth abortions would not be met with a fire storm of editorials in the TO Star, decrying the fascist Harper forcing hordes of woman into the alleys to kill their partially born babies with broken bottles.

What's wrong with comparing modern Canada with Ceausescu's Rumania? A comparison is not an identity. Obviously the two are very different in many respects. But if they are alike in a relevant respect, how is it objectionable to notice that?

The point is that social consensus can be an illusion or indeed a fraud. Do you have some substantial objection to that point?

I have a substantial objection to the word "relevant", m'lud, which may or may not come as a surprise to this honourable court. People in Canada are allowed to protest, to petition the government, to vote, to leave the country on the next flight if they're not comfortable abetting what they believe to be murder, and to publish opinions and news on the topic at hand. They're also allowed not to obtain abortions, but 100,000 or so women get one every year. Henry Morgentaler has a popular product; it's cost-subsidized, but none of the customers are there in the waiting rooms for laughs, and it's not advertised on TV. All the same, it has made him rich and celebrated.

I worked for a pro-life newsmagazine for many years, the biggest and best-known one in the country. I did honest reporting and editing on abortion issues myself. None of us got rich and celebrated from it. The magazine didn't have 100,000 subscribers. It shut down because it couldn't hang onto 30,000 of them. A hundred bucks a year was just too much to ask of the "the very substantial number of Canadians who oppose abortion". And of the three or four hundred Canadians who had the financial clout to keep such a magazine going without blinking at the expense, nobody stepped up.

Maybe it was the Securitate that stopped them?

To respond to George Skinner: I don't know why Roe and not Morgentaler, either, but one difference (besides the different political temperament north of the border) might be that Morgentaler simply threw out the existing abortion law, and left it to Parliament to write a new one should they so desire. Roe actually forbade most restrictions on abortion outright, as a Constitutional right equal to (say) the right to bear arms. It's a big difference philosophically; I doubt that the right to an abortion could have made it into the Charter, for instance, even were it written today.

I don't think ther's anything like a social consensus in favour of abortion.
The social consensus isn't in favour of abortion, it was best put by Stephen Harper (I paraphrase): Abortion is here, it's going to be here, it's regrettable, but it's part of modern society.

Thanks for a serious answer, Mr. Cosh. I think that what stopped them was the conviction that they would be wasting their money, because our government simply will not respond to any social pressure that it doesn't itself buy and pay for.

our government simply will not respond to any social pressure that it doesn't itself buy and pay for.

I think Canadian political history over the last two years shows that, if there is a significant chunk of the population in favour of a thing, that thing can become a major factor on the national stage.

Look at the success of the Reform Party and the Bloc/Parti Quebecois in the 1980s and 1990s: yeah, the Mulroneys and the Chretiens of the world obviously had no interest in putting Quebec separatism on the table no matter how many people favoured it, but the [B/P]Q got it there anyway. Because people cared.

If there was really a large pro-life population in Canada, this would have become an issue even if none of the major parties wanted to touch it. Instead, all that we get is the occasional bite on the back pages of newspapers, comments on blogs every time an anniversary rolls around, and advertisements on bus shelters next to the ones from PETA saying milk gives you cancer. Even the Marijuana Party can get on ballots, for crying out loud, and yet nothing from either side of the abortion lobby.

I'm willing to believe that Canadians want some sort of legislation in place. I just doubt that they care that much.

I neglected to sign the previous anonymous comment. Permit me to de-anonymise it.

This is about your piece of afrocentric schools. I thought you were a wee bit too blase. Traditionally kids were forced to go to school to learn reading, writing and arithmetic. What part of '21 divided by 3 is 7' is afrocentric? Or Eurocentric or Sinocentric for that matter. It's just a simple fact. The time that used to be devoted to teaching kids cold hard facts about reality are now devoted to improving their self-esteem, and I think that's wrong. Check out US election coverage at top of www.darrellepp.com

> "I worked for a pro-life newsmagazine for many years, the biggest and best-known one in the country."

Colby, now I'm really curious. Did you need money that badly? Or have your views on abortion become more laissez-faire over time? Or did you disagree back then too, but liked their views on other issues (guns, taxes, free speech, whatever) enough to outweigh your disagreement over abortion?

My views were the same then and everybody at the shop was aware of them. It didn't really impinge on my ability to write or edit on abortion-related topics. For instance, I was (and am) always prepared to stick up for the civil liberties of pro-lifers.

Good on you. I admire the consistency of you and other libertarians like you (eg, Volokh). (No, that's not being sarcastic).

I note the complete absence of life or God in this discussion...oh the arrogance.