Red-Taping Abortion
A spirit of optimism has long characterised the attitudes of Canadians regarding the rights and freedoms of people in their country. The words strong, glorious, and free in the national anthem are no less an indication of this desire for fair governance. Despite this, Canada has not been an independent force of national prosperity but has instead relied on the institutional foundations of its former British imperial power as well as the social and economic fabric of the United States. The Charter of Rights and Freedoms became Canada’s most aggressive attempt at national agenda setting in 1982. Yet, the policy coming out of its protections have not departed considerably from those of other Western nations and have not provided a clear understanding of the values maintained by Canadian citizens. With the exception of policies following from Section 27 of the Charter and its promotion of multicultural heritage, policy in Canada on social issues has seldom represented a departure from the “Western status quo”.
Almost unsurprisingly, Canadian legislation on abortion has been completely silent since the decision in R v Morgentaler, in which the Supreme Court of Canada ruled that a provision in the Criminal Code restricting the practice of abortions to certified institutions was unconstitutional on the grounds that it undermined the individual rights of the mothers. More concerning yet, the Conservative Party of Canada has treated abortion as an issue of conscience wherein Conservative Caucus members are free to vote in which ever way they please. This laissez-faire approach seems consistent only with the individualism and budget balancing policies that have informed the electoral position of the Conservative Party of Canada in the decades since the Criminal Code was amended to remove the red tape, so to speak, on the issue of abortion.
Appealing to rights on this issue has invalidated any attempt by legislators in Canada to participate in meaningful debate on the issue. Despite various private members’ bills having been presented in the Harper years, the front bench had no such aspirations to promote the issue. For the traditional conservative therefore, any semblance of political representation is limited to Conservative leadership contests. With half of this year’s four candidates supporting legislation on abortion, the prospect of a pro-life Canada seems within closer reach than it did in the last leadership bid when Brad Trost was the sole defender of life on a stage of fourteen. Nevertheless, any likelihood of a social conservative victory under the party’s current direction seems rather far-fetched.
The rights movement in Canada has not been absent of these discussions, however. The annual March for Life rally and the annual Women’s March demonstrate the sustained interest of the issue in the public square. That being said, although both movements are reflections of their larger American counterparts, the former have achieved results that would be unprecedented and are currently unfathomable in Canada. Thankfully, Canadian attention on this issue has been gradual and, for the most part, unopposed. This, I suggest, is reason for optimism.
To suggest that life begins anywhere other than at conception is legally dangerous, and it is convenient for only two people: the woman who receives an abortion as a lifestyle choice ... and the politician facing re-election.
As I have previously mentioned, the issue’s core is concerned with the legal rights claims that are presented by both sides of the debate. The pro-choice narrative has alienated conversation on abortion by asserting that the right lies with the individual and their bodily autonomy. This claim completely undermines any ability to legally define life. Section 7 of the Canadian Charter of Rights and Freedoms affords Canadians the right to life, liberty, and security of the person, all the while maintaining no consistent legal definition of life itself. The Morgentaler case was decided in response to a claim regarding the right to the security of the person which itself is reflected in the provision of Section 7. Since the 1988 decision, the definition of life has simply been assumed to begin at birth, an assumption that is at odds within the pro-choice movement itself.
To suggest that life begins anywhere other than at conception is legally dangerous, and it is convenient for only two people: the woman who receives an abortion as a lifestyle choice, as in over ninety-nine percent of cases, and the politician facing re-election. To suggest that life begins at some alternative time is to be willing to define life contextually. If consensus on the beginning of life were birth, life would be akin to advanced medical technology. Would the pro-choice advocate change their position if in the next century preborn life could be sustained outside of the womb shortly after conception? Typically, the liberal who has considered the issue in some depth will re-define their position using the term ‘viability’—the ability to survive outside of the womb—and will often place the mark at the pregnancy’s third trimester. Unfortunately, this definition is legally problematic for a number of reasons. If viability were the benchmark of life’s beginning, would an unborn child be more viable in Toronto where there is easy access to world-class healthcare than a baby born in the far northern reaches with limited medical resources? What if a child is born requiring breathing assistance from artificial medical equipment—is that child considered viable? If not, surely the same case could not be made for adults and seniors requiring such medical aid. Many have proposed that the heartbeat or the feeling of pain may serve as a better marker. Again, these propositions are inconsistent because they differ for each child and because they disregard any scientific basis on which to claim life to exist.
If the conversation has progressed this far, then the pro-life advocate may be presented with the final case. Surely, the pro-life conservative would find sympathy for the woman who was raped, or the child conceived by incestual relations. Only ignoring every prior rebuttal could the pro-choice advocate truly present this case. A moral wrong should never be a response for another moral wrong. Even without the assumption that the pro-life argument is the moral one, the questions of rape and incest have no ground to stand on. If the pro-choice advocate is not willing to kill a child that has been born, yet was conceived in rape, than the issue is one of defining life, not justifying murder through the moral abhorrence that preceded it.
The consequences of failing to define life at conception have already been evidenced in Canada today. Between 2007 and 2017, over 90,000 aborted children each year were reported in Canada accounting for approximately 90% of the expected total. To put these statistics into perspective, more than one million killings of unborn children occurred in the span of a single decade: or an estimated 3% of the Canadian population over the course of 11 years. The failure of conservative governments to enact any abortion legislation has been harmful to Canada’s fertility rate, not only through direct deaths, but also insofar as it perpetuates inaction in encouraging the strong social foundation of the nuclear family. The federal government needs to consider, as some Western nations have done, positive policy proposals to encourage and incentivise marriage and child bearing. The existing child benefit and tax benefit programs are not sufficient for this purpose. While child tax credits provide positive short term incentives, they are limiting in that they do not distinguish between children of married and unmarried parents. Marriage and fertility rates in Hungary have recently benefited from pro-natal and pro-marriage policy proposals. These proposals include a lifetime income tax exemption for women raising four or more children, and nearly $40,000 in loans for women marrying under 40, with full debt forgiveness for women who have at least three children. Additionally, housing credits regarding a couple’s expected number of children have been introduced to incentivise the marginal benefit of an additional child. The first two of the three proposals mentioned would be best suited for Canada as their benefit to couples are direct than those relating to housing. Moreover, policy in Canada should reflect actual births rather than expected births and should avoid contributing to an already inflated housing market. Therefore, a personal income tax scheme that recognizes the costs of having multiple children would be of greatest value in Canada, due to the disincentivizing effects of Canada's high tax rates. The absence of policies that directly support marriage and value childbirth is concerning in that it overlooks the social foundation of responsible family planning. The added absence of pro-natal policy has contributed to a society that values transactional sexual relationships and, by consequence, the degradation of women, the alienation of motherhood, and the diminution of paternal responsibility.
The moral challenges resulting from the absence of a definition on life regard the inability of the state to appreciate the intrinsic value that unborn children possess and how this value influences the Canadian identity. Just a few short months ago, Canada experienced the most horrific mass shooting in the nation’s history. The victims were beautifully commemorated in community vigils and through the sharing of their stories on the news and in citizen-led fundraisers. Absent from the commemorations, however, was the unborn child who passed away with the killing of his mother. The death tolls never included a life that would have otherwise been a part of the Canadian family. Under current law, an unborn child could be the target of murder, and still, the killer would only be liable to the harm they committed to the mother. The mens rea and the actus reus could both be present, and yet, no crime would be thought to have taken place. There is simply no justification for this perverted understanding of life in a country that claims such a sanctifying approach to the protecting of human rights.
Rights to bodily autonomy encompass the conscious choices women make about their sexual activity, but do not extend to absolving their culpability in the taking of an innocent life.
Selective abortions are the other grave cause for concern given Canada’s neglect for defining life at conception. Sex-selective abortions and those meant to eradicate certain birth abnormalities are becoming commonplace in many countries. Iceland has almost entirely rid itself of children born with down syndrome by providing screening tests to expectant mothers and allowing them to end the life of their unborn child where there is any chance of down syndrome birth. It is easy to see how the use of such tests, or tests that may be developed to discover other ailments, could be implemented here in Canada, putting new segments of our unborn population at risk.
The Canadian legal and political cultures clearly lack a useful definition of human life. Pro-life positions are vilified and there is little concern shown for the decay of Canada’s social fabric, exhibited by the deterioration of the nuclear family. Worse yet, the Conservative Party of Canada has been silent on this issue and the consequences stemming from it. This silence is incapable of preserving the institution of marriage and protecting the rights of the most vulnerable members of our society: the unborn. We need not look far to witness the worrying patterns that have begun to characterise abortion rights in countries like Iceland which serve to define life with an arbitrary standard of “human perfection”. Moral positions on these issues ought not be abandoned in favour of political expediency on the part of the Conservative Party of Canada. Rights to bodily autonomy encompass the conscious choices women make about their sexual activity, but do not extend to absolving their culpability in the taking of an innocent life. Consequently, pro-family policy must recognize a legal definition of life that encourages the nuclear family, that supports pregnant women, and that avoids at all cost the grave consequences incurred by the assumption that pro-life legislation in Canada would be too radical.