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You Can Be a Little Bit Pro-life
Most Canadians fall in between the absolute pro-choice and anti-abortion positions; our laws should reflect that reality.

Once again in the last federal election campaign the media thrust microphones in front of politicians and asked, "Are you pro-life or pro-choice?" Paul Martin responded that it's a simple question, "Are you pro-choice, yes or no?" Stephen Harper said, "It's a complex issue."

Many Canadians are surprised and shocked to learn that a woman can legally have an abortion until just before she gives birth.

The media's question assumes

(a) that everyone is either pro-life or pro-choice—there are no other possibilities;

(b) that accepting any restrictions on abortion is pro-life and all pro-lifers believe all abortion should be prohibited;

(c) that being pro-life—advocating any restriction on abortion—is incompatible with respecting women and their rights;

(d) that all pro-choicers agree there should no restrictions on abortion; and

(e) that all social conservatives believe all abortions should be prohibited by law and all social liberals believe there should be no restrictions.

All of these assumptions are wrong.

The four basic positions on abortion and the law that should govern it are: "No;" "Yes;" "No, unless … ;" and "Yes, but … ." The question "Are you pro-life?" or "Are you pro-choice?" assumes there are only "no" and "yes" positions.

"No, abortion is always wrong and must be prohibited as murder" cannot be enacted as law because it would contravene a woman's Charter right to security of the person. That position has never been the law in countries like Canada because a defence of necessity has always applied when abortion was required to protect a woman's life or health. Abortion is always an ethical issue and women may always reject abortion for themselves, but that stance may not be imposed by law.

"Yes, abortion should always be available with no strings attached" encapsulates the polar opposite view. Some feminists see unrestricted access to abortion as the litmus test of respect for women and their rights. They believe abortion is of no ethical or moral concern and certainly not beyond the personal, private sphere; it is simply not society's business, even if an abortion involves a viable fetus (one that might survive outside the womb).

Many Canadians are surprised and shocked to learn that a woman can legally have an abortion until just before she gives birth. When I say that, many think they have misunderstood.

Statistics Canada deliberately does not request gestational age when collecting statistics on abortion, but about 50 percent of reporting hospitals include it. These numbers show around 500 post-viability abortions were performed in 2002. According to newspaper reports, Quebec just sent a gynaecologist to the United States to learn to perform post-viability abortion, which is usually by way of a lethal injection of potassium chloride into the fetus's heart.

Recently, I was consulted on two cases in which healthy women (whose identities were not disclosed) were post-32-weeks pregnant with viable fetuses and wanted abortion. One, a 28-year-old graduate student from the Middle East, had concealed her pregnancy and said her family would disown her if they found out. The other, a 33-year-old married woman, had been told the fetus had a cleft palate (a relatively minor, correctable, congenital abnormality) and she and her husband did not want "a defective child." Legally, both could have abortions. The physicians who called me believed that was unethical, but were unsure how to handle the situation.

Provided the fetus is born dead, abortion does not entail any legal liability in Canada. If the same fetus were born alive and then killed, the charge would be murder.

Princeton philosopher Peter Singer, a strong pro-choice advocate, has long argued this is an inconsistent position and that parents should have the right for a certain time after the birth of a child with disabilities to have it euthanized. I disagree with his stance about both abortion and infanticide, but he is correct about the inconsistency. His advocacy of this position was described by Newsweek as "the pro-choice advocates' worst nightmare come true."

A question that is not addressed is whether a viable fetus should be delivered without first intentionally killing it. Is a woman's right to abortion at any time during pregnancy just a right to evacuate her uterus, or also a right to demand that a viable fetus be killed when that is avoidable? Ironically, some pro-choice supporters are anti-elective (non-medically necessary) Caesarian sections. Surely if at a given time a woman could choose to have an abortion, she has a right to choose a C-section.

"No, abortion raises serious ethical issues and should not be undertaken unless it can be justified" was Canadian law's position prior to the Supreme Court of Canada's ruling in the Morgentaler case in 1988. The court struck down the Criminal Code's requirement that a "therapeutic abortion committee" certify abortion was needed to protect the life or health of the woman as infringing her Charter right to security of the person, because not all women who needed an abortion for health reasons might have access to such a committee. It made clear abortion could be legally regulated by an amended law, but Parliament was unsuccessful in passing one, leaving Canada, uniquely among comparable countries, with no abortion law.

"Yes, abortion is available, but not if certain conditions are present"—for example, the fetus is viable and there is no health reason for abortion—is the law in the United States as a result of the United States Supreme Court ruling in Roe v. Wade in 1973. A similar situation exists in France, where up to a certain early point in pregnancy abortion-on-demand is allowed in practice, but abortion is legally restricted beyond that point.

The "No, unless" and "Yes, but" positions differ on where to draw the line restricting abortion and in their basic messages. The "No, unless" allows abortion as an exception to the norm and carries much stronger values messages that abortion is always a serious matter. But both are non-absolute positions in comparison with the "No" and "Yes" positions, which are both absolutes, but of opposite content.

These non-absolute positions are on a spectrum between the "No" and "Yes" poles. A stance against abortion unless a woman's life or health is in danger is closer to the "No" pole, one that abortion should be freely available except, for example, for sex selection, is closer to the "Yes" pole.

My anecdotal experience is that most Canadians fall somewhere in the middle of this spectrum and struggle to decide exactly where. As Stephen Harper rightly said, making that decision and implementing it through law is a complex matter, but it is one that we still need to address as a Canadian society and one that, sooner or later, Parliament is likely to face.

Margaret Somerville is founding director of the McGill Centre for Medicine, Ethics and Law.

Originally published in The Ottawa Citizen, Wednesday, February 1, 2006.




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