‘The law should stay the hell away from abortion’

Colby Cosh on why Justin Trudeau made the right choice

Chris Wattie/Reuters

Chris Wattie/Reuters

Who will speak for Justin Trudeau? His announcement that as Liberal leader he will apply the whip to his caucus, if and when abortion ever comes to the floor of the House of Commons, seems to have left him all but friendless. Conservatives itching to have some abortions criminalized have leapt on the opportunity, denouncing him for thought policing and hypocrisy. Pro-choice Liberals who have doubts about Justin are grumbling. Even some non-partisans object to his identification of an abortion right in his father’s Charter.

Trudeau is acting to defend an awkward legal truce on abortion that has few conscious supporters. Canada, almost alone among the nations of the world, leaves regulation of therapeutic abortion up to its medical profession. Conservative opportunists, borrowing a liberal variety of argument, subject us to ridicule for this distinctiveness. Outsiders! Out of step! Something’s wrong with us!

I put it to you that everyone else is wrong, and Canada right: the law should stay the hell away from abortion. There is no ethical consensus about the relative legal entitlements of the fetus and the mother, although in practice almost everybody puts the mother first, and any legal rule that might be made would run into hard cases and have unanticipated effects. If you don’t believe this, you can ask the gaseous conservative bioethicist Margaret Somerville, who vilified Trudeau on the grounds that “abortion law is not a black-and-white issue.” That seems like an excellent reason for refraining from black-and-white legal rules on abortion, to say nothing of enforcing such rules with violence and imprisonment.

The liberal line on abortion is that it is between a woman, her doctor and God. Liberals approve of most other flavours of state intervention, so it takes a libertarian to add: “So leave the women, the doctors and God alone. And the rest of us, while you’re at it.” It is certainly time we let go of the prissy pretense that abortion is a special issue in a way that bike-helmet laws, wind-turbine subsidies, or criminal sentences are not. This is no more than the preservation of a special status for faith among other varieties of personal conviction—a privilege of sanctity permitted only to the faithful.

Trudeau has been called “hypocritical” because he talked about having fewer whipped votes as leader and “doing politics” in a new, transparent way. The actual promise he made when running for the Liberal leadership reserved the right to wield the whip on bills “that speak to the shared values embodied in the Charter.” That’s a mighty wide, blurry category, and he left the definition of it for himself, too. Whatever else this is, it is not hypocrisy.

The word “abortion” is not in the Charter, but “rubber hose” and “truncheon” aren’t either. No one thinks this means the police are allowed to use them on suspects. The Supreme Court’s Morgentaler decision of 1988, as closet pro-lifers have been pointing out for a while, left room for Parliament to potentially make law on late-term abortions. But such a law would explicitly infringe on Charter rights; the point of the decision was that Parliament can only do so proportionally and minimally, to serve a pressing objective. That last requirement is a problem, since medical self-regulation already discourages purely elective late-term abortions; an appellate court would demand a factual demonstration that the status quo wasn’t working.

Many of Trudeau’s critics are thus plain wrong. They’re also disingenuous, for they won’t remind you that, in 1988, Brian Dickson’s Supreme Court was careful not to endorse any hypothetical abortion law in advance. Most of the justices completely refused to discuss the legal entitlements of the fetus. Any abortion law passed now would necessarily be tested according to its potential administrative consequences for access to permitted abortions. This would involve scrutinizing evidence from American states under Roe v. Wade, many of which have been strangling abortion access inch by inch.

So good luck creating an actual legal regime for abortion that would pass muster in 2014. Some pundits are very eager to have you concentrate on the Dickson court’s individual musings about trimesters, but try focusing on the stuff at the top of the Morgentaler ruling—i.e., the law. It says: “Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.” Full stop.




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‘The law should stay the hell away from abortion’

  1. Totally agree. Thank you for this.

    • I agree fully that an abortion law is not a good idea however, I don’t believe we are in danger of getting one imposed in the foreseeable future. I am not sure I understand the need to strong-arm potential candidates on the issue, especially if you are allowing a grandfather clause for those who have been long-time MP’s. If the Conservatives didn’t push for abortion laws with a majority, who is going to do it in the future?

      • I believe that all Lib MPs also have to agree to a monarchy….so even if they’re republicans…or BQ…they have to show public support for her maj.

        If you want to be a member of something….and get their help in a campaign….you have to follow the rules.

      • People said that about abortion in the US. Now watch what individual states there are doing.

        • Their constitution won’t allow it, and they know it. It just takes time to work it’s way through the gomers and the system.

          They are doing the same thing with gay marriage….keeps everybody busy.

  2. Absolutely. It’s about time someone published this.

  3. At last, a coherent, no-holds-barred dissection of the issue.

    Thanks Colby!

  4. Silent from the discussion, however, is the unborn child who has a great stake in this and yet is voiceless. Who speaks for him/her?

    • No more word games Paul….move on with your life, and stay out of mine.

      • As you are unlikely to have a child at your age, how is he in yours?

        • Now you’re just being silly.

        • Too true Keith. A 67 year old female should not be using the term ‘my body’ when discussing the issue of abortion in so far as she will likely never need one in the present nor future.

          • Two guys shouldn’t be discussing it at all.

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        • And yes, I was being silly – but with a point. If the only ones allowed to comment are those with a direct stake in the game, a woman who can’t get pregnant has no more interest in the discussion than a man.

          • Not true.

            This is about a woman’s autonomy over her own body. That affects all women.

            It does not affect men, whose autonomy over their body has never been in question.

          • Very true Gayle….it assumes women don’t think of any wider world….all other women on the planet for example….or their own children and grandchildren.

            Bram says we can’t have an adult conversation about it….and then goes on to prove it.

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  5. And why don’t we hear more of this clear logical thinking from our pundits? There seems to be a universal anti Trudeau bias built into the chattering classes; they can’t think straight.

  6. Exactly. Lawless abortion works. Progressives around the world are envious of Canada’s enlightened practice.

    • How does PEI manage to shut it down?

  7. Great piece, I remember a women some years back in the 60s, she was married and had 7 kids, and wanted to stop making babies and she was a devote Catholic, it was about the same time ” The Pill ” first came out in the 60s. She felt so strong about her faith, she felt it her honor to go to the church and ask if she was to take ” The Pill “, would the church disown her. Well as it turned out the Priest told her, If you decide to take ” The Pill “, our church will disown you, and that person who ask for the churches permission never went back to the church ever again for the rest of her life. That’s why I support a womens right to choose and keep faith where it always has been, in a church and not in peoples bedrooms.

    • You pretty much made that up didn’t you. There’s demagoguery and then there’s cheap demagoguery.

      • No I didn’t, it was my mother.

  8. I am shocked and incredibly impressed that somebody is making these points in a major Canadian publication. Thank you.

  9. “There is no ethical consensus about the relative legal entitlements of the fetus and the mother, although in practice almost everybody puts the mother first, and any legal rule that might be made would run into hard cases and have unanticipated effects.”

    There’s no absolute ethical consensus on cannibalism, pedophilia or infanticide either. One can always find dissenters. So following Colby’s ghoulish argument to it’s natural conclusion we shouldn’t have any laws or restrictions on those behaviors either.

    And don’t bother even starting Emilyone, I find all your views beyond monstrous and won’t indulge you with an argument.

    • By all means, lobby your MP to propose a bill that allows for cannibalization, pedophilia and/or infanticide – or better yet, runs as an MP and make it a central plank in your platform.

      • Not to put too fine of a point on it but we do have laws against infanticide, pedophilia and improper disposal of a human corpse. There is also laws for those who might have caused the demise of said corpse…..

        • We have election “laws” but no ethical consensus on them.

    • Good….you never have one.

    • But those all involve conflicting rights of two people.

  10. “This is no more than the preservation of a special status for faith among other varieties of personal conviction—a privilege of sanctity permitted only to the faithful.”

    Not so, Colby – it is quite easy to have ethical concerns around abortions even if you don’t believe in a God or gods. You yourself more or less recognized this when you pointed out “There is no ethical consensus about the relative legal entitlements of the fetus and the mother…” Anyone who understands basic biology knows there are two lives directly impacted by the decision and it is therefore quite possible for someone without any religious ties to conclude that the new life should be protected.

    Aside from your assumptions around religion – good article. I think we do need some changes in the law to give limited rights and protections to late term fetuses (in particular, s. 223(1) of the Criminal Code should be amended to give the same protections regardless of which side of the uterine wall one is on, once the fetus reaches the stage of development where it would be viable outside the womb) but this could be done while still explicitly allowing for late-term abortions.

    As for discussing creating laws around abortion itself – I quite frankly don’t think we are mature enough as a society to have that discussion.

    • I agree with you that abortion is not necessarily a closed subject in Canada. I don’t agree that future discussions will likely stem from our lack of protection for fetuses that are viable outside the womb (while still in the uterus) however. I believe we might find ourselves increasingly facing issues whereby a women is being forced by threat to have an abortion by a man she is related to vs. being forced to carry a fetus to term by a Canadian law. I wonder how we as a country concerned with a women’s rights to decide what she does with her body will deal with this issue.

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    • Can you offer scientific or medical proof that having a baby does not harm a woman?

      But, really, in all the sanctimoniousness of the anti-abortion crowd, just who do you think will look after unwanted children? You? How many do you want? The state? Condemning a child to life in an orphanage or a long cast of foster parents! I find that more cruel, frankly.

      I agree with Trudeau and will donate even more to him. A woman has a right to her body. Good article, Colby.

      • Many of those damaged children end up in care, in jail and/or on the streets. I work with children and youth at risk, including many teenaged girls who get pregnant. Many of these girls are already brain damaged, have been abused, struggle with addictions and prostitution. That does not magically end when they become pregnant, and it is not as if there are hundreds of treatment programs, or happy little homes who are ready and willing to take them in while they are pregnant. So those girls end up without proper nutrition, and continue to be slaves to their addictions all the way through pregnancy.

        What kind of life do you think that child has? If the baby is apprehended and put into foster care, eventually all the foster placements or adoptions will beak down, because that baby will grow up to be a brain damaged teenager, whose behaviours will be difficult if not impossible to manage, and of course there will be no resources to assist in managing them.

        And you know why? Because many of those same sanctimonious people whining about abortions also do not believe they should be responsible for these children. Child welfare departments throughout the country are woefully underfunded. All those people who claim to care so much for children are certainly NOT walking around protesting the poor care the state provides to those children. No, at that point it is “where are the parents…”.

        And so the cycle begins again.

    • So what do you suggest. Impose a law on women, or increase financial support for them?

  12. I’m pro choice but I wish against, and act to prevent, abortion, as many pro-choice women do. But no matter how much you wish and work to prevent abortion, you can’t force a woman to carry a foetus to term in a free society. So stop trying to make laws against it (especially you small-government conservatives) and do something practical to prevent it if you’re against it, like raising support levels for poor mothers.

    I think there are fewer women who want abortions than there are people who want to murder.

  13. There is no ethical consensus about the relative legal entitlements of the fetus and the mother…

    Which does not excuse us from trying to reach one, which is what almost every other civilized country has done. In the UK for example, the cut-off is 24 weeks. Want an abortion? Get it before week 24, or you don’t get one. Exceptions are made when only in circumstances where it is deemed medically necessary to save the woman’s life, or when the fetus is so obviously deformed it has no chance of survival outside the womb anyway. Most European countries – all much more liberal than Canada – have similar laws and they aren’t even considered controversial.

    A few years ago the UK had a one-day debate in the House of Commons, spurred by a group of obstetricians who felt that the scientific evidence now indicates that fetuses start showing signs of human awareness and consciousness as early as 22 weeks. After a spirited debate, MPs decided for the time being to leave the cut-off at 24 weeks. This is the type of thing that happens in democracies. But not here apparently.

    If you read Bertha Wilson’s 1989 summary of the majority ruling of the Surpreme Court that struck down our previous abortion law, the court sent the issue back to Parliament, explicitly stating that it is the responsibility of legislators to come up with a reasonable compromise between the rights of mother and fetus. Over the years, this has been twisted by various extremists into ‘The Charter guarantees abortion rights.” It does no such thing.

    I’m not anti-abortion. I’m pro-abortion. (Yes, pro-abortion. Only cowards hide behind weasel words like “pro-choice” or “a woman’s right to chose”.) However, as a humane and compassionate human being, I feel that some legal restrictions on late term abortions are reasonable and justified, because there now exists considerable scientific evidence of the inherent “human-ness” of late term fetuses. Only the most brain-dead social scientists would still attempt to argue that we are born blank slates, and only become human beings once outside the womb. Since those human qualities start to develop much earlier, human rights and protections must also start earlier. Exactly where they kick in should be the debate.

    • The scientists (doctors) in this country impose their own limits. If the UK did the same that debate would not have happened – the cut off would have moved to 22 weeks.

      • All these men that assume they know more than women do about it makes me laugh.

        Their man-splanations would fill a book.