20 years of Morgentaler in Canada

More than two million babies have been killed in utero since the Supreme Court of Canada threw out Canada’s scant restrictions on abortions in the infamous Morgentaler decision on January 28, 1988. There is a great deal of misinformation about what that decision did and did not do and it has coloured Canada’s abortion debate ever since.

In 1988, the Supreme Court threw out the limited restrictions on abortion established in Pierre Trudeau’s and John Turner’s 1969 Omnibus Bill. That bill technically kept abortion in the Criminal Code but permitted abortion in hospitals, if approved by therapeutic abortion committees. These committees typically rubber stamped physicians’ requests for abortions for their pregnant patients.

However, by definition, these committees did not exist in free-standing abortuaries and Henry Morgentaler, who opened his first private abortion facility in Montreal in the 1960s, challenged the limits on abortion as unnecessary and as federal overstretch. In 1976 – seven years before the Charter of Rights and Freedoms was enacted - in Morgentaler v. the Queen – the Supreme Court ruled unanimously it did not have the authority to tell Parliament whether it could restrict abortion.

Meanwhile, the number of abortions in Canada crept steadily upward throughout the 1970s from 10,000 to nearly 100,000 by the end of the decade. Morgentaler served time in jail for flaunting the therapeutic committee requirement of the Criminal Code.

Morgentaler and two other abortionists, Leslie Frank Smoling and Robert Scott, founded a Toronto abortuary, with the intention of again challenging the constitutionality of abortion limits. In 1983, Morgentaler was charged for committing illegal abortions; he was initially acquitted by a jury but the verdict was reversed by the Ontario Court of Appeal, leading to a Supreme Court battle (Morgentaler et al. v. Her Majesty the Queen) which was decided in 1988. The Court acquitted Morgentaler, declaring the law he was convicted under to be unconstitutional because, the justices said, seeking the approval of the therapeutic abortion committees was an undue burden on women and thus allegedly violated their Section 7 Charter rights (‘security of the person’). The Court effectively ended all statutory restrictions on abortion in Canada.

The Court did not find a ‘right to abortion’ – it struck down Section 251 of the Criminal Code as a matter of procedural fairness, not fundamental rights – and it did urge Parliament to draft a new abortion law.

There were three majority and one minority opinions in Morgentaler and not one of them found an unregulated right to abortion, although Justice Bertha Wilson did claim that women had a right to abortion.

Twice the Mulroney Government attempted to pass an abortion law; the first died when an election was called in November 1988 and the other, far weaker than the previous weak law and opposed by all the major Canadian pro-life groups, was defeated in 1993 on a tied vote in the Senate. Abortion in Canada still operates in a legal void and our country is the only Western democracy to have no abortion law or federal restrictions on the procedure.

Over the past 15 years, Parliament has abrogated its duty by letting abortion operate in a legal void. Former Prime Minister Jean Chretien infamously said Canada has social peace on abortion, but he chose to consider  the silence on the issue espoused by the political and media elite to mean that no one cares about the issue, while deliberately ignoring the voices of millions of Canadians across the country who speak up and witness for unborn children.

Millions of Canadians do care about the plight of the unborn and millions who do not count themselves as pro-life strongly oppose the status quo of abortion being allowed and committed for any reason, at any time, until the moment of birth, and at taxpayers’ expense. Unfortunately, politicians have been too cowardly to address the subject. But they must. Twenty years ago the Supreme Court urged them, at the very least, to regulate abortion with a new abortion law; twenty years later, the number of unborn murdered indiscriminately in the womb has reached three million– children with DNA distinct from their mothers’ DNA, proving that they are indeed separate human beings and deserving of recognition as distinct persons.

On December 5, the Subcommittee on Private Members Business, deemed as votable, the Unborn Victims of Crime Act, a Private Member’s Bill by Ken Epp (Conservative, Edmonton-Sherwood Park). The Bill was debated on December 13. Unless an election is called, Second Reading is expected in February; however, if an election is called, the Bill will die on the House floor. 

In 2005, a similar bill, introduced by Leon Benoit (Conservative, Vegreville-Wainwright), was deemed not votable by both the Subcommittee and the Committee for House Rules and Procedures. At that time, the official line was that the Justice Department had deemed the bill unconstitutional because it allegedly violated a woman’s right to abortion - never mind that Canada has never established such a right, or that the intended law was to punish anyone who injures or kills an unborn child while committing or attempting to commit an offence against the mother.

The unborn victims of violence issue has been resurrected by several recent tragic cases of pregnant women being killed; the families have gone public with their disgust with the current law which does not permit justice for both the mother and child. According to an Environics Poll released in October, 72% of Canadians, including 75% of women and 55% of those who support abortion, want an unborn victims of crime law to recognize the tiny victims that Canadian law currently ignores.

Ken Epps’s bill, if passed, will allow criminal charges to be laid in the death or injury of an unborn child when the child’s mother is the victim of a crime, and who the person knows or ought to know is pregnant.

The families of the pregnant mothers who were killed along with their unborn children, were pleased with the outcome of the Subcommittee deliberations. “We commend the members of the Subcommittee on Private Members Business for the step forward they took today in allowing the Unborn Victims of Crimes Bill (Bill C-484) to be debated in the House,” two of the families said in a joint statement. Mary Talbot, whose daughter Olivia and grandson Lane were killed in 2005, said, “I firmly believe that the Canadian Criminal Code should be amended so that perpetrators of such horrible crimes can be tried for the deaths of the two people they killed.”

Aydin Cocelli, brother-in-law of crime victim Aysun Sesen and uncle of her deceased daughter Gurl (meaning Rose), said, “Our family has been extremely affected by these dramatic events. No one can tell us that we only lost one loved one.”

Women for Women’s Health has been working with several of the victims’ families. Campaign Life Coalition recognizes that this Private Member’s legislation, which, although not a pro-life bill to restrict abortion (it will not), is plainly a common sense recognition of the right of mothers to safely carry their unborn children to term, and to also recognize the unborn child as a victim in the event of deliberate harm to the mother and child. Everyone knows that when a pregnant woman is murdered or assaulted and her unborn child is killed or injured, too, there are two victims.

Action Item: Support C-484. Contact your MPs and encourage them to support the right of mothers to safely carry their unborn children to term and, in the event of deliberate harm to the mother and unborn child, that the child is also recognized as a victim of the crime. Write to your MP - postage free - at House of Commons Parliament Buildings, Ottawa, Ontario Canada K1A 0A6. Better yet, during the Christmas break, book an appointment to visit your MP at the constituency office.

Robert Latimer, the Saskatchewan man who killed his 12-year-old disabled daughter Tracy in 1993, was denied day parole by the National Parole Board. He was sentenced to a minimum of ten years and began serving his sentence in 2001. Tracy had cerebral palsy and Latimer claimed in both his trials and his parole hearing that he deserved mercy (to not be found guilty, to be granted clemency, to be paroled) because he had acted compassionately in killing his daughter to end her suffering.

However, he told the Parole Board that he felt no regret for his actions and despite a report that found him a low risk to commit murder again unless presented with a similar circumstance, the board was unimpressed by his lack of remorse. “Folks were left with the feeling you have not developed the kind of sufficient understanding of your actions,” said Kelly-Ann Speck, one of the three-member board panel.

Robert Latimer killed his daughter on October 24, 1993, when he left her in the family pickup truck with the motor running and a hose from the tail pipe extended into the cab. Disability rights groups applauded the parole board decision saying that granting him early release would send the signal that people with disabilities were second-class citizens unworthy of the full protection of the law.

In November media reports trumpeted the revelations of a new technique of coaxing ‘ethical’ embryo-like stem cells (IPS cells) from skin cells. It appears that, unlike umpteen other reports of ethical alternatives to embryonic stem cells, this discovery seems to be morally permissible with the same pluripotency (plasticity) of embryonic stem cells without the destruction of tiny human beings. The procedure ‘deprograms’ skin cells to act like embryonic stem cells. There is a concern that such cells could be manipulated in an unethical manner, but the creation of IPS cells is not, in itself, immoral and does not require the destruction of human life.

Just weeks after the initial announcement, a major breakthrough in stem cell research using IPS cells in mice was accomplished to treat sickle cell anemia, a common blood disease. The journal Science reported that a pair of research teams under Prof. Rudolf Jaenisch at the Whitehead Institute for Biomedical Research and Prof. Tim Townes of the University of Alabama at Birmingham, successfully treated mice with human sickle cell genes, using a variant of the new deprogramming method. “This demonstrates that IPS cells have the same potential for therapy as embryonic stem cells, without the ethical and practical issues raised in creating embryonic stem cells,” said Prof. Jaenisch.

While the research is nowhere near human clinical trials, it is a very promising and ethical way to find cures for many diseases if properly regulated. We encourage the Canadian Institutes of Health Research to give priority to both IPS cell research and somatic (adult) stem cell research and cease any funding of destructive embryonic stem cell research.

When the Canadian Taxpayers Federation (CTF) released a list of 100 questionable uses of taxpayers’ money, one of the items caught the attention of pro-lifers. The CTF reported that the Canadian International Development Agency (CIDA) gave an $18 million grant to the International Planned Parenthood Federation (IPPF). CIDA’s funding of abortion is nothing new – for years it has given tens of millions of dollars for abortions and family planning in the developing world. But some pro-lifers, including those in the Tory caucus, had hoped that the Conservative Government would end abortion funding. But the $18 million of taxpayers’ money given to IPPF is for a new, five-year project.

We encourage you to write to Bev Oda, the Minister of International Cooperation, the Government department that is responsible for CIDA. Respectfully but forcefully request that the Government stop funding abortion overseas and review its funding for the International Planned Parenthood Federation. It is unfair to provide federal funds for abortion, when a significant number of Canadians across the country are opposed to it and don’t want their tax dollars paying for it. Also contact your Member of Parliament about this.

Action Item: Write to Bev Oda, Minister for International Development to encourage her to stop funding IPPF. You can contact the Minister at: House of Commons, Ottawa, Ontario K1A 0A6 Phone: (613) 992-2792Fax: (613) 992-2794 Email: Oda.B@parl.gc.ca

For nearly two decades, Tom Wappel has been the Liberal MP for what is now Scarborough Southwest. Since being elected in 1988, he has representing his east Toronto constituents but also the unborn, giving them a voice in Parliament when few others had the courage to speak up. His courageous defense of the sanctity of human life and the traditional family has sadly placed him at the margins of the party and he was unjustly overlooked for cabinet posts. He was nominated in 1988 after the hard work of rank and file pro-life Liberals and was re-elected, in part, due to the faithful commitment of these same people over 20 years. He has decided not to seek re-election and Liberal leader Stephane Dion has parachuted Michelle Simson, a pro-abortion Liberal, as the party’s candidate in the riding.

Jimmy Barnes, vice president of Liberals for Life and a former president of the Scarborough Southwest Federal Liberal Riding Association, wrote to Dion urging him to allow a contested nomination; if Michelle Simson wants to run for the nomination, let her face the party’s members. Barnes wrote that “It is not too late to reverse this affront to Liberals in Scarborough Southwest and allow a democratic nomination.”

Barnes said that given the history of the riding, the best hope of keeping Scarborough Southwest in the Liberal fold “would necessitate a candidate who shared Mr. Wappel’s beliefs regarding life and family issues.” He warned that letting Simson’s nomination stand uncontested risks a large number of pro-life Liberal defections. Barnes informed Dion that “I will not vote for an appointed candidate, especially one that is pro-abortion, and we will strongly encourage others to do likewise.”

When the UN Third Committee of the General Assembly discussed a European-led resolution condemning the death penalty, several Muslim states (Egypt, Bahrain, Iran, Libya, Kuwait, Mauritania and Sudan) attempted to raise the issue of abortion with several amendments. The EU sponsors said that right to life amendments were not in keeping with the focus of the abolitionist text, but the Egyptian representative said that if the anti-death penalty resolution’s aim was to respect life, it was appropriate to include protection of innocent human life.

Their first amendment calling for a new operative paragraph to be included in the draft text read, “Urges Member States to take all necessary measures to protect the lives of unborn children.” It was rejected in a recorded vote of 28 for, 83 against with 47 abstentions. Egypt’s second amendment called for the inclusion of another paragraph; “Reaffirms that every human being has the inherent right to life and stresses that abortion should only be admissible in necessary cases and only when the life of the mother or child is at serious risk.” It, too, was defeated (26 for, 84 against with 46 abstentions). Unfortunately, the Philippines, San Marino, Costa Rica, Guatemala, Gabon, Honduras, Haiti, Colombia, Chile, Ecuador and Panama all stated that they agreed with the substance of the amendments, but as co-sponsors to the death penalty resolution they still did not agree that the amendments were germane to the draft text.

Many delegations agreed that the right to life issue, as presented in the amendments, deserved more time for deliberation and consideration and several delegations called for a separate right to life resolution to be brought up at next year’s General Assembly. Meanwhile, 99 countries voted in favour of the non-binding resolution condemning capital punishment and calling for its abolition.

Last month, the Euthanasia Prevention Coalition co-hosted, with a half-dozen other groups from North America and England, the largest euthanasia symposium ever. More than 300 participants from around the world heard speakers from Canada, England, the Netherlands and the United States, with key experts in law, medicine, political activism and disability rights.

A broad range of issues was discussed, including how attempts to legalize euthanasia were thwarted in England, Vermont and California, and how to create successful, broad-based coalitions to battle the pro-death forces. We were warned that pro-euthanasia forces have evolved as they learn from their failures. Conference participants were urged to remain vigilant and look for new tactics. The death lobby also is now focusing its efforts more in the direction of political elites, effecting stealth changes in law, the medical profession and hospital practices that often take place with little public awareness or debate.

Alison Davis of No Less Human, a group for people with disabilities, from the United Kingdom, gave a compelling account of her struggles to overcome her disabling condition. She related how, numerous times, she wanted to kill herself and probably would have if the UK had legal euthanasia or doctor-assisted suicide.

Bobby Schindler, the brother of Terri Schiavo, Henk Reitsma from the Netherlands, and Mrs Barbara Farlow, a resident of Mississauga, Ontario, also shared their real life experiences of having to deal with the deaths of relatives that were hastened as a consequence of medical practices determined by current dangerous attitudes towards the elderly, disabled and terminally ill.
Speakers such as lawyer and author Wesley Smith and McGill University ethicist Margaret Somerville covered the philosophical underpinnings that have led to the attitudes and policies that undermine respect for human life.

It was a wonderful, well-attended and informative event. Congratulations to the EPC and Alex Schadenberg and the other co-sponsors for putting together this very important conference. A package of DVDs of all the conference talks can be obtained from the Euthanasia Prevention Coalition for $50. Orders may be placed by calling 1-877-439-3348.

Mark your calendars for two important pro-life events. In March, The Interim will celebrate its 25th anniversary and it will mark the occasion with a dinner on April 10 in Toronto. Details will be available in next month’s news. And the annual National March for Life (May 8), candlelight vigil and youth conference will be held in Ottawa May 7th -9th. Teachers should be making plans now to bring their classes, pro-life clubs or other interested students to Ottawa. We will have more information about speakers in future issues of the CLC National News.

Yours for life and family
Jim Hughes
CLC National President