Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

ABORTION: Where do we draw the line?

The Globe and Mail, 21 June, 2005
Reproduced with permission

Margaret Somerville *

The conferral of an honorary degree on Dr. Henry Morgentaler provided a flashpoint for yet another explosion in the long-standing, deeply acrimonious war as to the values that should govern abortion. The two polar positions are well defined, but I want to speak for those, like me, who regard all abortion as raising serious ethical issues, but who would not legally prohibit early abortion.

To allow abortion with sadness and regret is one matter; to celebrate it and see abortion on demand throughout pregnancy as the litmus test of respect for women and their rights, is another. The conferral of this degree on Dr. Morgentaler is being taken as an affirmation of the latter position. Those who oppose any restrictions on abortion and believe that society must fully fund and support all abortions are celebrating Dr. Morgentaler's being honoured; those not of that view deplore it.

Ironically, however, even Dr. Morgentaler, himself, may not implement in practice the pro-choice, totally unfettered right-to-abortion rhetoric. Recently, I debated him on Discovery TV. I asked him whether he would perform an abortion on a woman who was 28 weeks pregnant, did not need the abortion for health reasons, but had just changed her mind about having a child. To my surprise, his answer was "no." So, we agree that a line should be drawn, we just disagree about where to draw it.

In Canada, abortion can be legally performed until just before giving birth, a situation that many pro-choice advocates have vociferously defended. That situation resulted from the Morgentaler case in 1988, but came about more indirectly than directly.

In that case, the Supreme Court of Canada struck down as unconstitutional the Criminal Code's requirement that, in order to obtain an abortion, a woman must have a therapeutic abortion committee's certification that abortion was needed to protect her life or health. A
plurality of five judges in the majority, with two in dissent, ruled that requirement infringed a woman's Charter right to security of the person because she might need an abortion to protect her life or health, that is, be in "urgent need of medical care," and not have access to a therapeutic abortion committee, without which, legal approval could not be forthcoming and abortion would be a crime and unavailable. The court made clear that Parliament could pass legislation to govern abortion, provided it complied with the Supreme Court's ruling. Parliament unsuccessfully attempted to do so, leaving Canada in the unique position, among comparable countries, of having no legislation governing abortion.

So that leads to the following question: Leaving aside the moral, ethical and legal arguments for and against abortion itself, and assuming that abortion will be available, on what terms and conditions must abortion be made available? Must it always be made available on demand, or only when medically necessary? And if made available when not medically necessary, must it be covered under our medicare system? Andre Picard, The Globe's health columnist, is the latest to argue that all women wanting an abortion are in urgent need of medical care (which, according to the Chaouilli case, must be provided).

But what constitutes such a need in the context of abortion? Is "medical care" simply a procedure carried out by a medical practitioner (which is true of all abortions), or is it a procedure required to protect a person's health (which is untrue of most abortions in the usual sense of the word health when used in relation to medical procedures)? What constitutes medically necessary treatment within the Canada Health Act so that abortion must be funded under that act? Normally, "medically necessary treatment" under the act is a procedure required by a person's state of health, but not even all such procedures are covered. So cosmetic surgery as a lifestyle choice is not covered, and certain infertility treatments, even though regarded as medically necessary (the courts have recognized infertility as a health problem), are not covered. Is abortion on demand a lifestyle choice like cosmetic surgery? Or is it medically necessary treatment (just because some institutions choose to characterize it as the latter, does not mean that position must be universally adopted)? In upholding the constitutional validity of the Nova Scotia government's refusal to fund certain medically necessary infertility treatments, the Court of Appeal held that the province had a right to exercise its discretion as to how limited health-care resources should be allocated taking into account who were the people in most urgent need. So provinces that place some limits on access to abortion on demand (as compared with that needed to protect a woman's life or health) are not flouting the law, as Mr. Picard, for one, claims.

Did the Supreme Court rule that the Charter guarantees access to abortion? No, it ruled that only reasonable limits on access, consistent with the Charter's guarantee of the rights to life and security of the person, were allowed. So, for example, access to late-term abortion on demand could be refused through the setting of gestation limits.

Has the Supreme Court decriminalized abortion? Not from a technical legal point of view. It held simply that the abortion provision, as it stood, was unconstitutional, but clearly stated that Parliament could craft a criminal provision that would be constitutional. In short, limits can be placed on access to abortion, including through the use of criminal law, without contravening the Charter.