Dr. Henry Morgentaler was recently awarded the Order of Canada, which is the highest honour that the Canadian government can award to those who "desire a better country." It was a warranted, if controversial, choice - Morgentaler is largely credited with the decriminalization of abortion in Canada, given that it was his legal battles as an abortion doctor that eventually led to the prohibition ending. (The law was deemed to be in violation of the Charter of Rights and Freedoms, and so was removed from the books but never replaced.)
Naturally, there's been some resistance to his selection - some other members of the Order have returned their metals, and critics are also getting an inordinate amount of airtime. They argue, as one site puts it, that "his years of advocacy for legalizing abortion and for the thousands of abortions that he personally has performed" are not grounds for the award. Of course, it's not that simple - but you wouldn't know it, to watch Canadian TV.
Morgentaler himself, speaking of the day the Supreme Court deemed the law unconstitutional, provides the actual justification for the recognition: "For the first time, it gave women the status of full human beings able to make decisions about their own lives." Too bad that this angle, which seems rather key, gets so little mention. How sadly ironic that these discussions are silencing living women and removing them for the debate all over again.
8 comments:
Not all of Canada's abortion laws have been declared unconstitutional. Canada still has an abortion law.
Within the meaning of the Canadian Criminal Code, a “child becomes a human being” “during its birth” as a human being. The Criminal Code recognizes a “child” in “a living state” in the “body of its mother” “before” its birth as a human being.
A child, in the body of its mother, within the meaning of the Criminal Code, is that which could completely proceed, in a living state, from the body of its human mother, whether or not (a) it could ever breathe; (b) it could ever have an independent circulation; or (c) the navel string is severed.
Section 218 of the Criminal Code states:
“Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.”.
It is unlawful in Canada to abandon or expose a child so that its life is endangered. Aborting a child involves abandoning or exposing a child so that its life is endangered. Thus, an artificially induced abortion of a child is unlawful in Canada.
People should have the “right to choose” to enforce Section 218 of the Canadian Criminal Code.
David - Thanks for the visit. Respectfully, though, your interpretation of the law is wrong.
Canada doesn't have an abortion law, (if anything resembling one still existed, it would have also been struck down) and what you've tried to cobble together to construct an implied law doesn't hold up. The recognition of a legal "child" in the context that you give can only be applied when harm is done to the fetus that results in post-birth death - that is, after the baby has attained legal personhood. In practice, though, even this interpretation is never enforced - or else Brenda Drummond and Aysun Sesen's husband would be in jail right now - and as we know an unenforced law or interpretation, like certain Canadian prohibitions against blasphemy, is effectively a non-existent law. And since the rest of your text is premised on that argument, it all falls apart.
Incidentally, I agree that the law should recognize the special circumstances involved when someone assaults a pregnant woman. But I don't think that such recognition should come at the expense of a woman's right to self-determination.
It's also ironic, of course, that your argument reproduces the exact same problem that my original post was addressing - namely, it completely ignores women and their actual and existing legal rights. I would admire the devotion that anti-abortionists show to the lives of fetuses if it didn't come at the expense of women's own lives.
Re: “The recognition of a legal ‘child’ in the context that you give can only be applied when harm is done to the fetus that results in post-birth death - that is, after the baby has attained legal personhood.”
Injury to a child, before or during its birth as a human being, which results in the child dying after its birth as a human being, is considered to be homicide by the Criminal Code. Section 218 instead discusses abandoning or exposing a child so that its life is endangered, which is different than homicide.
David: "Injury to a child, before or during its birth as a human being, which results in the child dying after its birth as a human being, is considered to be homicide by the Criminal Code."
As I noted in that last comment, this interpretation of the law has never resulted in a criminal conviction in a murder case. So given that a precedent has been set and upheld by the court, no, it isn't considered homicide.
David: "Section 218 instead discusses abandoning or exposing a child so that its life is endangered, which is different than homicide."
And, again as I noted before, given that your definition of child isn't actually used in legal practice, it's irrelevant to the discussion at hand.
Re: “... given that your definition of child isn't actually used in legal practice, ...”
Section 223 of the Criminal Code refers to “a child before or during its birth” as a human being. Section 223 also refers to a “child” in “a living state” in the “body of its mother”. Section 243 indicates that it is possible for a “child" to have “died before, during or after birth”.
Re: “So given that a precedent has been set and upheld by the court, no, it isn't considered homicide.”
Section 223(2) states: “A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.”.
The Brenda Drummond case was decided by a judge who stated allegiance to Elizabeth the Second.
Elizabeth the Second is not Queen of the United Kingdom of Great Britain and Ireland, contrary to the requirement in this Fifth Schedule, which states:
“Oath of Allegiance
I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.
Note. The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.”.
The provinces of Canada, Nova Scotia and New Brunswick expressed their desire to be federally united into one Dominion under the Crown of the “United Kingdom of Great Britain and Ireland”, not the Crown of the “United Kingdom of Great Britain and Northern Ireland”, according to the British North America Act, 1867.
Your resolve is impressive, David, but ultimately misplaced. I didn't want this to devolve into a discussion of legal rhetoric - it's a game of semantics that ultimately alienates us from the people that the discussion is meant to pertain to - but you're making at least two basic errors in your reasoning.
One, you're failing to recognize that precedent is 9/10s of the law. A precedent has been set that 223(2) should not be applied as you have described it, and so the interpretation of 223(2) that has been applied in actual court cases - which disagrees with your own but which has been ratified by the highest levels of our legal system - is the standard. You can wish it were different, but your interpretation is not actually applied in legal practice, so it is effectively invalid. (Additionally, it has absolutely no place in discussions of abortion, since an aborted fetus is dead before it leaves the uterus.)
And two, quoting the BNA is a hopelessly irrelevant gesture, since it was officially replaced by the Constitution Act of 1982.
Re: “... the BNA ... was officially replaced by the Constitution Act of 1982.”
The first footnote of the so-called “Constitution Act, 1982” states “Enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11, ...”. The “United Kingdom” referred to in the so-called “Canada Act, 1982” refers to the "United Kingdom of Great Britain and Northern Ireland”, not to the “United Kingdom of Great Britain and Ireland”.
The provinces of Canada, Nova Scotia and New Brunswick expressed their desire to be federally united into one Dominion under the Crown of the “United Kingdom of Great Britain and Ireland”, not the Crown of the “United Kingdom of Great Britain and Northern Ireland”, according to the British North America Act, 1867.
David, this is getting ridiculous - this is perhaps the most appropriate instance in which I have ever been able to use the cliché 'you're missing the forest for the trees'.
No constituted legal body has ever recognized the difference that you're drawing out as a meaningful one - that constitutes precedent, and as I've already noted precedent trumps arcane and obscure language, as well as language that is clearly a mistake. Besides which, the language can only possibly refer to one country in the world, and no reasonable person could suggest that it refers to another existing political state. We can only assume that the UK of GB and NI is the same as the UK of GB and I, because no other assumption makes practical sense.
I'm not really interested in discussing this further because I really don't know what you're trying to accomplish or prove. Besides, this has strayed far from the original topic - if you have any more points to make about Morgentaler or abortion, I'd probably find those much more interesting.
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