The Supreme Court of Canada decriminalized abortion in 1988. One of the Justices in that case, Justice Wilson, explained her decision in terms of rights and freedoms. In an important sentence, Wilson explained, “The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state.”[1]
In Canada and in Western society as a whole, the question of abortion often centres on questions of freedoms and rights. Yet are our assumptions about freedoms and rights justified? In this article, I want to explain how Canadians correlate freedoms and rights to abortion because understanding these dynamics explains why Canadian culture at large accepts abortion as normal today.
Whose Rights? Whose Freedoms?
The key Canadian moment for abortion occurred in a Supreme Court case called R. v. Morgentaler (1988). The Justices decriminalized abortion. In the course of giving her legal opinion, Justice Wilson noted, “The question whether a foetus is covered by the word ‘everyone’ in [Section 7 of the Charter] so as to have an independent right to life under that section was not dealt with.”
What an admission to make! As George Grant with his wife Sheila Grant wrote presciently two years prior in 1986: “The right of a women to have an abortion can only be made law by denying to another member of our species the right to exist. The right of women to freedom, privacy, and other good things is put higher than the right of the foetus to continued existence.”[2] In the case of R. v. Morgentaler, it was worse. The rights of the fetus were not even considered.
To not consider the fetus’s rights seems to imply the fetus does not exist. But few would dare to say so. Most agree that a fetus has biological life, and this life necessarily means that the fetus unimpeded by abortion would grow into a human infant, toddler, child, adult, and elder. A fetus does not become an acorn or a dog. The DNA of a fetus undeniably is human. At a minimum, we should be able to say that a mother and a fetus share membership in the same species.
Yet as the R. v. Morgentaler (1988) has shown, the right of a woman to choose an abortion is fundamental to her freedom. Justice Wilson speaks of “the right to ‘liberty’” in connection to abortion and a woman’s choice. Criminalizing abortion, avers Justice Wilson, “takes a personal and private decision away from the woman and gives it to a committee”[3]
Further, Wilson states, “The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state.”[4] Leaving the question of the fetus’s freedom aside for a moment, we need to ask a prior question: does a mother’s right to abort follow from her essential liberty in a free and democratic society?
What are Rights?
George Grant recounts Canadian how Canadian institutions and Common Law developed the notion of rights to protect individuals against “abuses of arbitrary power.”[5] For this reason, extending rights to a mother’s right to choose an abortion does not easily map onto prior legal tradition.
Justices McIntyre and La Forest in their dissent from the majority opinion of R. v. Morgentaler (1988) similarly wrote:
“Save for the provisions of the Criminal Code permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom or tradition and the Charter, including s. 7, does not create such a right. Section 251 of the Criminal Code accordingly does not violate s. 7 of the Charter.”[6]
Their point narrowly speaks to the specific right to abort, while Grant speaks more broadly about rights as a means to protect individuals against abuses of power. But one might argue that ignoring the rights of the unborn (in the case of Wilson) enfeebles our tradition of rights in Canada.
Grant explains, “Those who advocate easy abortion in the name of rights are at the same time unwittingly undermining the very basis of rights. Their complete disregard for the rights of the unborn weakens the very idea of rights itself.”[7] And this would be especially true given the premise that a fetus shares the same species as a mother. The unborn has no rights—or at least no right discussed in the Supreme Court or in the court of modern Canadian public opinion.[8]
Sixty years ago, that would not have been the case. For example, in 1959 the UN adopted the Declaration of the Rights of the Child which all 78 members of the UN affirmed: “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”[9] Note that a child requires special safeguards and care “before … birth.” Abortion terminates a child before birth.
This same statement again appeared in the preamble to the Convention on the Rights of the Child which was signed in 1989. So far, 196 countries have become party to this treaty (as of 2022). And all members of the UN are party to the treaty except the United States of America. This means that in the year that Canada decriminalized abortion, nations across the world affirmed the right of an unborn child to be safeguarded and cared for.
Despite this broad support for language that supports the rights of the unborn, it is obvious that nations have found ways to think of unborn rights that still allow for abortion. The question of rights also has a foundational problem that we must admit. We have lost our traditional foundation for rights in the modern state today.
For example, The Declaration of Independence stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life … That to secure these rights, Governments are instituted among Men.”[10] What should be self-evident today is that not everyone agrees that the Creator endows us with rights and that are created equal.
In the case of abortion, the right of the child “before … birth” no longer can find its justification in the United States or Canada for that matter in a Creator who created all humans equal and endowed them with the right to life.
However nations view rights today, North American society has a rights problem that further complicates the whole question. Even so, we know ending life is somehow wrong. And what is a fetus if not a life of some kind? And if, as briefly argued above, a fetus shares the same species as its mother, then wouldn’t a fetus be a human life?
What is a human being?
Justice Wilson noted in her legal opinion that the justices did not deal with the question of whether “a foetus is covered by the word ‘everyone’” in Section 7 of the Charter. Most Canadians do not think about this question at all, unless they have some religious impetus or a crisis of conscience over getting an abortion. But a fetus is a human being. A fetus never becomes a dog because it has the DNA of a human being. That biological code, among other things, marks it as a human being.
To say that fetus shares a species with a mother is a step toward asserting that a fetus is a human being. It would also give conceptual clarity to what a fetus is legally and socially. Justice Wilson and the other Justices did not consider that question legally.
Societal opinion often flows downstream from law. In this case, that seems to be true. We do not think of a fetus as protected person under the Charter. Despite Canada being party to the 1989 Convention on the Rights of the Child, we lack the moral awareness to see that we ought to consider the unborn as having the same rights as other Canadians.
Dealing with that question matters. If a fetus is a human being, an unborn baby’s right to existence should match the same right as a baby’s mother. I suspect advocates of abortion know this—or something of it anyway—because medical messaging strategically calls a fetus a baby when a mother wants the child but some other term when speaking generically about birth or when the mother does not want the child.
For example, the Cleveland Clinic describes generic fetal development in this way: “Within 24 hours after fertilization, the egg that will become your baby rapidly divides into many cells. By the eighth week of pregnancy, the embryo develops into a fetus.”[11] The language of egg and fetus draw us away from the statement, “the egg that will become your baby.” When?
The whole article continues to describe the development of a heartbeat, arms, legs—it describes a kicking something. What is that something? What is a fetus?
Canada Public Health, on the other hand, tells us all about how a baby develops over 40 weeks in its article, “Your Guide to a Healthy Pregnancy.” Before it charts the development, it says, “Learn more about how your baby is growing and developing.”[12] At 17–20 weeks, the chart tells us, “If the hand floats to the mouth, the baby may suck their thumb.” Yet when the same agency speaks about abortion services, the word “baby” completely disappears.[13]
The point is when the conversation is about mothers who want to keep their baby, the baby is a baby. Elsewise, it is a fetus, or a clump of cells, or part of the mother’s body, or whatever else—just not a baby.
The language we use changes how we feel about an act. Does one terminate a pregnancy, abort a fetus, or end a baby’s life? When someone is pregnant, they almost always refer to their child as a baby. And they would be aghast if I said, do you plan to abort your baby since they would feel horrified that I wanted to know if they would kill their child.
Others who do not want to carry a child will avoid such language. They want to prevent full fertilization of an egg, abort a fetus, and so on. Yet every year, there are also late term abortions. Women abort babies at 17 weeks when Health Canada says “the baby may suck their thumb.”
But it is not just medical messaging that obscures the clear. Dictionaries have fallen prey to incoherence. The word human in the Oxford Advanced Learner’s Dictionary lacks any helpful definition since it defines a human as “a person rather than an animal or a machine.” The same dictionary omits any generic definition of the word person! The effect is to make the definition of a human lacks any explanatory power.
While we may struggle to give a crisp definition, we can intuit what a human is. We can distinguish an acorn from a human or a dog from a child. Bringing an acorn into a doctor’s office because it has been unresponsive would result in a denial of service. The doctor would not treat an acorn. Were I to bring in a dog, the doctor would tell me to go a vet.
We know what a human being is, even if we cannot put it into words. We know that a fetus will become a human adolescent, shares the same DNA as any human, and therefore is a human being. The child does not become a human the moment it leaves its mother’s body as if those few moments could change a clump of cells into a baby. It was a baby the night before delivery too.
As a society, many appear to admit that a fetus is a human being. Fewer will admit that a fetus is, however, a person.
What is a Person?
Roe v. Wade (1973) concluded that a fetus is not a person until it is viable, [14] that is, able to live outside of the womb.[15] Justice Harry Blackmun wrote that a fetus does not have the protections that a person does under the Fourth Amendment. In other words, a fetus does not share in “The right of the people to be secure in their persons.”[16]
This judgment that a fetus does not become a person until viable—able to live outside the womb—seems common today. Again, a public’s conscience flows downstream from legal judgments, at least judgments on important matters like abortion.
Roe v. Wade has an important cultural precedent for defining personhood on the basis of physical characteristics in the person of Joseph Fletcher. In 1972, Fletcher wrote an influential work in which he defined personhood with fifteen markers.[17] One mark included neo-cortical function. Basically, one’s brain ability makes one a person. Another mark focused on IQ. Someone with the IQ of 40 might be a person but no one under an IQ of 20 is a person, argued Fletcher.
Fletcher, who also was an Anglican Theologian, argued specifically that someone with Down Syndrome was not a person, and therefore it was morally justifiable to terminate the life a person born with Down’s. In his own words, Fletcher says:
“True guilt arises only from an offense against a person, and a Down’s is not a person. There is no cause for remorse, even though, certainly, there is for regret. Guilt over a decision to end an idiocy would be a false guilt, and probably unconsciously a form of psychic masochism.”[18] If a Down’s baby lacks personhood due to lack of brain function, he says we are guiltless if we “put away” the child lethally or into a sanitarium.
This same logic seems to match the viability of the fetus argument. A fetus lacks certain developmental features and thus is not viable. In this case, terminating the fetus has no legal consequence, since that fetus does not gain the rights of personhood in the Fourth Amendment. Or so Justice Harry Blackmun opined in 1973.
Even though Roe v. Wade was overturned, the logic and consensus of our public conscience has been shaped by this legal consensus and the practice of abortion in North America.
In Canada, our Charter speaks of “anyone” (Section 7), not of “persons,” but the same kind of logic seems to apply. Remember that Justice Wilson (and others) did not even consider whether Section 7 applied to a fetus. The implication being that there is some question of whether or not the fetus is a person or a human being or “anyone.”
Lastly, although in a different context, a Quebec Supreme Case called Tremblay v. Daigle concluded, “A foetus is not included within the term ‘human being’ in the Quebec Charter and, therefore, does not enjoy the right to life conferred by s. 1.”[19] Although Provincial, Tremblay v. Daigle’s legal conclusion seems to have become the common consensus among Canadians.
Conclusion
Does a mother’s right to choose to abort override a baby’s right to life? That’s the basic contention, at least for pregnancies that do not threaten the health of the mother. By avoiding the question of whether not the unborn have rights comparable to their mothers, we have privileged individual freedom to the point that have ignored the basic fact that we regularly terminate human life in the womb. This gap in our cultural mindset helps to explain how we live in a Canada that so readily accepts abortion as normative.
Further, by divesting human fetuses of their personhood, we have decided to grant personhood only to those with a particular development. This logic leads people like Joseph Fletcher to call those with intellectual disabilities non-persons in order to justify ending the life a Down Syndrome baby.
It is not hard to see how similar reasoning could lead Canadians to agree that a fetus is a human being but not a person. Of course, any mother who wants their child will call her baby a baby in the womb, and nobody would dare to or even think to gainsay that.
Our selective logic on what makes a person a person seems to flow out of our particular views of liberty and individualism. If the rights of the individual trump any societal rights or even the rights of the unborn, then our public conscience will barely think about the problem. If we are primarily free individuals with full autonomy over our bodies and choices, the choice to abort seems obvious. We do not even think about whether or not that choice terminates a human being or a human person, that is, whether or not abortion terminates a baby’s life. We assume a fetus has no individual rights and no right to life since it only becomes a person with rights when it becomes viable.
Readers might wonder why I have not cited the Bible. The answer is because this is a second of three articles on abortion in Canada. The first article provided a brief history of abortion in Canada. This article discusses the basic questions of rights and freedoms as well as what constitutes a human being to explain why abortion seems normal to us today. The last article will focus on a Scriptural and theological view of abortion.
[1] R. v. Morgentaler (1988), 37. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do. Accessed Oct 29 2022.
[2] Technology & Justice, 117.
[3] R. v. Morgentaler (1988), 37. In context, the specifical criminalization or abortion is that which was defined in Section 251 of the Criminal Code. Hence, not all criminal legislation would fall afoul of Justice Wilson’s opinion above.
[4] R. v. Morgentaler (1988), 37.
[5] Technology & Justice, 118.
[6] [6] R. v. Morgentaler (1988), 38–39. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do.
[7] Technology & Justice, 119.
[8] Tremblay v Daigle (1989) confirmed the Canadian Supreme Court’s assumption that a fetus has no right to life under Quebec law, and the Justices found no Charter reason to gainsay that judgment. In other words, Section 7 of the Charter does not guarantee a right to life to the unborn.
[9] Cited in “Convention on the Rights of the Child,” 20 November 1989, ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child. Accessed Oct 29 2022.
[10] Cited in National Archives, https://www.archives.gov/founding-docs/declaration-transcript#:~:text=We%20hold%20these%20truths%20to,their%20just%20powers%20from%20the. Accessed Oct 29 2022.
[11] “Fetal Development: Stages of Growth,” Cleveland Clinic, April 14 2020, https://my.clevelandclinic.org/health/articles/7247-fetal-development-stages-of-growth. Accessed Oct 29 2022.
[12] “Your Guide to a Healthy Pregnancy,” https://www.canada.ca/en/public-health/services/health-promotion/healthy-pregnancy/healthy-pregnancy-guide.html. Accessed Oct 29 2022.
[13] On May, 2022, Health Canada provided a release called, “Government of Canada Strengthens Access to Abortion Services,” https://www.canada.ca/en/health-canada/news/2022/05/government-of-canada-strengthens-access-to-abortion-services.html. Accessed Oct 29 2022.
[14] On this, see Madeleine Carlisle, “Fetal Personhood Laws Are a New Frontier in the Battle Over Reproductive Rights,” Time (June 28, 2022), accessed Oct 30, 2022.
[15] Roe v. Wade, 410 U.S. 113 (1973), https://supreme.justia.com/cases/federal/us/410/113/, accessed Oct 30, 2022.
[16] https://constitution.congress.gov/constitution/amendment-4/#:~:text=The%20right%20of%20the%20people,and%20the%20persons%20or%20things. Accessed Oct 30, 2022.
[17] The Eugenics Archive provides a well-formatted summary here https://eugenicsarchive.ca/discover/connections/535eed4e7095aa0000000247, accessed Oct 30, 2022.
[18] Joseph Fletcher, “A Theologian Comments,” Time (1968), https://www.theatlantic.com/magazine/archive/1968/04/a-theologian-comments/660127/, accessed Oct 30, 2022.
[19] Tremblay v Daigle (1989), https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/515/index.do, accessed Oct 31, 2022.
