Abortion raises emotional temperatures as does virtually no other moral problem. Its opponents are appalled at the wholesale slaughter of organisms that they think have a full right to life. Its proponents are outraged at denying women the right to control their bodies.
The proposed abortion legislation is apparently designed to mediate between between these warring groups by both criminalizing abortion on demand and yet allowing, at a doctor’s discretion, ample opportunity for it. No side gets everything it wants, but every side gets something. Discontent is thus minimized by at once widening its extend and reducing its intensity.
It the object of the legislation is to strike a balance between the opinions of Canadians, the legislation may be the best we can expect. But that aim is an unworthy one, as a moment’s thought reveals. If opinions are founded on conceptual confusions, or logical or factual errors, or encapsulate superstitions or prejudices, it is surely improper to make legislation responsive to them. It would be irresponsible for legislation to be simply the resolution of the vector of social forces, whatever the quality of the opinions backing these forces may be. Legislators should not be led by just any opinions, but only by those that have rational support. We must thus ask not how satisfied how many are with the proposed abortion legislation, but whether it is supported by good arguments.
One symptom that all is not well is the proposed penalty. If the fetus has a serious right to life, wrongfully killing it constitutes murder or something closely akin to murder, and imprisonment for up to two years must, on any standard, be judged insufficient. On the other hand, if the fetus lacks a serious right to life, abortion on demand should not be criminalized at all. For a woman clearly has a right to control her body, and nothing short of a serious right to life on the part of the fetus can override that. The moral is that, at any stage of fetal development, either abortion on demand should not be a crime at all, or it should be a very serious crime. To make it a relatively minor crime is muddled.
Having thus recognized that the stakes are high, we must now ask whether abortion on demand should be criminalized from the point of implantation onwards, as the proposed legislation has it. If anything is clear in the abortion debate, it is that women have a serious right to control their bodies. This right is, in ways described below, protected by the Charter of Rights and Freedoms, and places an obstacle in the path of the state interfering with women’s reproductive choices. But it does not render interference unjustifiable, for the right is not absolute under this legislation: it can be set aside in accordance with the principles of natural justice. Only a serious right on the part of the fetus, however, would justify so overriding that right. Whether the proposed (or indeed, any other) restrictions on abortion are justifiable depends exactly on whether a fetus has a right to life. If it does, restrictions are appropriate. If it does not, they are not. Let us, then, examine the proposed legislation, and ask whether there is any reason to think that the fetus gains a right to life at the point of implantation.
If the fetus is to be ascribed a serious right to life at implantation, it must be in virtue of its potential. If it were never to develop further, but be expelled as a multi-celled zygote and live in an unaltered state for three score and ten, we would not ascribe it a right to life. Thus if we are to ascribe it such a right, it must be because of its potential to become a full-fledged human being. Those who think it wrong to destroy a fetal organism at that point must, therefore, think it so because we thereby cancel a particular full-fledged human being from coming into existence.
But one holds that this is what makes it wrong to kill an implanted zygote is saddled with repugnant consequences. Specifically, it must be deemed wrong to use any form of contraception (whether it prevents the zygote from implanting or the egg and sperm from uniting) or to practice celibacy, for these equally prevent a human being from coming into existence. If we are unprepared to criminalize conception and celibacy on the basis of this principle, we cannot use it to criminalize abortion either. Principles cannot be treated as taxi cabs, and dismissed once they take us to our destination.
It may be objected that there is a difference between celibacy and contraception, on the one hand, and abortion, on the other. In the case of the latter, there is a single organism with a complete genetic code, whereas in the former, there is not. But it is hard to see the moral relevance. All of the acts equally prevent a full-fledged human being from coming into existence, and it could not matter to that being whether it is prevented by deliberately refraining from sex, or having sex but preventing the fertilization of an egg, or allowing conception and preventing implantation of a the fertilized egg, or allowing implantation and then removing the egg from the uterine wall. But if it could not matter to that being which way it is prevented, we must in consistency refuse to criminalize abortion on demand as well.
But if this reductio were not available, there is another crushing problem facing one who ascribes a serious right to life to the fetus on the basis of its potential to become a human being. Potential lawyers, pilots or prime ministers do not, just by virtue of having that potential, have the rights of actual lawyers, pilots or prime ministers. In general, being a potential x does not give someone the rights of an actual x. But if not, one cannot argue that a potential full-fledged human being has, simply on that account, the same right to life as an actual full-fledged human being.
But if we cannot find grounds to ascribe a serious right to life to the fetus at the point of implantation in any properties the fetus actually possesses, or in its potential for properties it will develop in the fullness of time (other things being equal), it does not have such a right, and hence we must allow abortion on demand at that time. For exactly the same reasons, we must also allow abortion on demand at all stages of fetal development.
The fetus is, potentially apart, a rudimentary organism at all stages of its development: it does not possess any property that nonhuman organisms fairly low on the evolutionary scale lack. Thus, unless we are prepared to radically revise our attitudes toward these organisms, it is implausible to hold up any property that the fetus possesses at any developmental stage as in itself sufficient to give it a right to life. And we cannot pick out any potentiality the fetus acquires during its development as sufficient to mark its transition to being a bearer of a right to life, for any potential the fetus has at any stage of its development it also has at the point of conception.
But if the fetus has no right to life at any stage of its development, sections seven and 15 of the Charter entirely control the legislative field. Specifically, the liberty rights of section seven entail that a woman must be granted absolute power over her reproductive choices; and the equality rights of section 15 entail that a woman’s right to control her body must be as free of restrictions as any man’s. The upshot is that abortion on demand should remain exactly as it currently is, where there is no law on abortion at all.
It does not follow from this, however, that the fetus can be killed at any stage of its development. Foeticide—the killing of the fetus—must be kept separate from abortion—the termination of a pregnancy. Until the time of viability, there is no reason to distinguish between these. But at that time, there is, and we can insist that while a woman has a right to abortion when the fetus is viable, she does not to foeticide. The foetus may still have a right to life at that time, but its death is not required for a woman to regain control of her body, or to be otherwise relieved of any further obligations to it. We can thus start giving greater weight to the possible brutalizing affects of killing such organisms, along with the damage of depriving prospective parents of something they badly want, with the upshot that there is no compelling reason to think that a woman has a right to foeticide.
One may agree with all of this however, and still defend the proposed legislation, claiming that it empowers doctors to do exactly that. But this defence would be misguided.
To begin with, we can expect the legislation to be tested in the courts, and they make take us a view of what constitutes a danger to the woman’s physical, psychological or mental (whatever this latter difference may be) health that would prevent doctors from performing abortions just because women ask for them.
But even if the courts give the most liberal interpretation of what constitutes danger to a woman, we know that doctors will vary enormously in their judgments of what will actually constitute it. Some will take it to be present whenever a woman is forced to carry to term whereas others will be more demanding. We can also anticipate many being more reluctant to perform late term abortions than early, even though the effect of refusal on a woman’s physical, psychological or mental health may be the same. The result will be that women will sometimes experience the frustration of being refused abortions because their reasons are judged insufficient.
Moreover, even if a woman is granted an abortion, it is demeaning for her to have to provide reasons for wanting it, or to know that she could be asked to do so. The proper answer to the question “Why do you want an abortion?” is “None of your business”, and any law that would allow for a woman to be denied an abortion for giving it is not right. Women should not have to approach their doctors with cap in hand, but making abortion a therapeutic procedure encourages exactly that.
However, even if matters eventually sorted themselves out in such a way that everything worked exactly as if the law allowed abortion on demand at any stage of fetal development, there would still be an objection to it. For insofar as it is not abortion on demand, but works just like it, there is a divergence between the law on the books and the law in action, and this is not a situation that legislators who want laws taken seriously should allow to develop, let alone actively promote. If legislators do not always say what they mean, the public may be excused if it does not always take them to mean what they say. There is also the fact that there is no rational backing for that legislation. And we must not underestimate the disrespect for the law, let alone cynicism about government in general, that will be engendered by legislation that is motivated by sheer political expediency or produced by otherwise confused thinking.
For all these reasons, the proposed legislation should not pass into law.
Board of Directors
Minutes of November 20, 1989
New Abortion Law
John Dixon reported that the executive committee was split on whether to actively oppose the proposed amendments to section 287 and 288 of the Criminal Code, the government’s new abortion bill. Some members of the executive believe the bill is a good one for women, and feared that if the bill is not passed, subsequent legislation could well be more restrictive. Others believed that since we have a principled objection to the criminalization of abortion, we should oppose the abortion bill. After a lengthy discussion, the Board approved a motion to actively oppose the abortion bill. Alister Brown agreed to write a short brief outlining our reasons for opposing the bill.
Board of Directors Minutes
February 12, 1990
The Board discussed various issues raised by Alister’s brief to the Committee on Bill C-43, which was distributed at the meeting, and in general by our position on abortion. Alister agreed to produce a new position paper for the Board on Abortion.