When the Supreme Court in the U.S. legalized abortion in Roe v. Wade (1973) they extended a woman’s privacy rights under the Due Process Clause of the 14th Amendment to her decision to have an abortion. This legal reality changed somewhat in Planned Parenthood v. Casey (1992) when the court affirmed that a woman has a right to abortion, but only until fetal viability.

In Canada women have no such right. Certainly, abortion was decriminalized in Canada when our Supreme Court ruled in the R. v. Morgentaler decision (1988), but the judges did not give women a “constitutional right” to abortion.

Yet, in the 43 years since Roe v. Wade pro-lifers in the U.S. have advanced many protections for pre-born children, while in Canada we are closing in on three decades of failure to enact any such legislation. In the past six years alone the US has passed more than 300 pro-life laws!

The Casey decision opened the door to state legislation that regulated the procedure and also protected pre-born children in the latter stages of pregnancy. According to National Right to Life, the oldest and largest pro-life organization in the U.S., 14 states have what are called “Pain-Capable Unborn Child Protection” laws in place. Such laws protect from abortion pre-born children who are capable of feeling pain. Medical evidence demonstrates with certainty that pre-born children are capable of experiencing pain by 20 weeks after fertilization; these laws ban abortion after 20 weeks gestation.

Why has Canada not passed fetal pain legislation? In a 2014 letter to The Guardian, Gerard Mitchell, former provincial court judge (1975-77), P.E.I. Supreme Court Justice (1981-1987) and Chief Justice from 1987 until 2008 wrote the following about the Morgentaler decision: “None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn. Even Madam Justice Wilson, who rendered the most liberal opinion in favour of a right to abortion, advocated an approach to abortion that would balance that right with the state’s interest in protecting the unborn.” [Emphasis added]

The answer to the question, “Why has Canada not passed fetal pain legislation” (or any legislation that regulates abortion) is not because the science isn’t on our side. And it’s certainly not because our highest court has given Canadian women a right to abortion. Rather, a significant reason why the status quo remains is because of the inertia and fear of politicians to support such legislation in the face of a virtually unchallenged liberal media.

Fetal pain legislation similar to what we’ve seen passed in the U.S. would ban abortion after twenty weeks gestation. While statistics on abortion are difficult to ascertain in Canada, the Abortion Rights Coalition of Canada estimates there were 104,158 abortions in 2014. According to the Canadian Institute for Health Information, approximately 2.4% of abortions are procured after 20 weeks gestation. Based on these estimates, we can safely say that 2,500 abortions occur post-twenty weeks gestation every year in Canada. But the reality is we don’t really know.

Fetal pain legislation would not only save lives, it is supported by a majority of Canadians. You don’t need to call yourself pro-life to understand that inflicting pain on a human being is unjust.

In other pages of this issue of Reflections Magazine you will read about the substantive medical evidence that pre-born children experience pain by twenty weeks gestation.

The status quo can be improved on and fetal pain legislation can become a reality in Canada.

The role of the state is to pass laws that restrict evil. Fetal pain legislation could limit the evil of abortion and save the lives of pre-born children. Fetal pain legislation would also raise the cultural awareness of the human rights of the pre-born child. It would put abortion restrictions back into the Criminal Code, thereby sending the message that something is wrong with abortion.

Progressive improvement is better than deferred protection.
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This article was written by Mike Schouten, the director for WeNeedaLAW.ca, a public awareness campaign that mobilizes Canadians for the purpose of passing laws that protect pre-born children. It first appeared in Life Canada’s Reflections Magazine and is reprinted here with permission. 

Sources:
Guttmacher Institute (2016, January 4) 2015 Year-End State Policy Roundup. Retrieved from: https://www.guttmacher.org/article/2016/01/2015-year-end-state-policy-roundup
The 1988 Morgentaler Decision – What the Supreme Court decided. Retrieved from: http://www.morgentalerdecision.ca/what-the-court-decided/
Planned Parenthood (2014, January) Roe v. Wade: Its History and Impact. Retrieved from: https://www.plannedparenthood.org/files/3013/9611/5870/Abortion_Roe_History.pdf
National Right to Life (2016, May 31) Pain-Capable Unborn Child Protection Act. Retrieved from: http://www.nrlc.org/uploads/stateleg/PCUCPAfactsheet.pdf
We Need a Law – Direction Matters. Retrieved from: https://test.weneedalaw.ca/wp-content/uploads/2016/11/Postition-Paper-on-Gestational-Laws.pdf

Except, there is an inconsistency in when science matters and when it doesn’t. When discussing human life, and the genesis of each human being, science is completely ignored and that includes the possible experience of pain a fetus may feel during the abortion procedure.

In Europe, restrictions on abortion after 12 weeks’ gestation are common and accepted, and, as such, fetal pain is addressed much differently than in Canada or the United States. In North America, many people come from a perspective of fear, where any consideration given to a fetus is viewed as an attack on women’s rights.

Studies from India and the United Kingdom refer to the rising demand for fetal surgery, and the “considerable evidence that the fetus may experience pain” leads to the uncomplicated conclusion that the right types and doses of anesthetic need to be determined for various procedures. It is clear that anesthesiologists require specialized training to address the needs of pregnant women and their pre-born children.

Multiple studies have shown that even babies who are not yet viable (before 20-24 weeks) exhibit consistent, measurable stress responses to pain. While many still debate the brain science behind this, a study out of the UK says these reactions themselves are enough to result in “a moral obligation to provide fetal anaesthesia and analgesia.”  It has also been shown and attested to by multiple doctors specializing in the field of fetal surgery that “pain and stress may affect fetal survival and neurodevelopment.”

A study from Belgium admits that providing anesthesia prenatally presents a challenge, both from the perspective of its questionable necessity as well as dosage considerations. Still, recognizing the delicate balance when both mother and child need to be taken into account is fundamentally different from the Canadian question of whether both need to be taken into account.

Kirti Saxena, published in the Indian Journal of Anesthesia, states, “After surgery there are two patients to be cared for, and a second operating room should be available in case further surgery is needed in the neonate.”

As science and medicine continue to advance, fetal surgeries will become more common. Increased prenatal testing and diagnosis may lead to increased abortions, but seem just as likely to lead to increased demand for reliable fetal surgeries to give children their best chance at life.

In Canada, we need to follow the lead of our European counterparts, where fetal surgery and fetal anesthetic are inextricably linked, and where the humanity of the second patient is assumed, not demonized. This will allow fetal surgery as a field to improve and develop to become another support system for women.  Our laws need to reflect the humanity of the second patient in fetal surgeries, honouring the mothers who choose to give their babies a chance as well as the doctors who pour their talents into such tiny, fragile patients.

This article was written by Anna Nienhuis, Research and Communications Coordinator for WeNeedaLAW.ca. It first appeared in LifeCanada’s Reflections Magazine and is reprinted with permission.

This initially seems well-intentioned, as the required information on fetal pain would force mothers to seriously consider the fact that they are ending a life, and, for those who choose to go ahead, it aims to prevent suffering for the tiny victim. The law quickly falls apart, however, in the small print. It is unclear to doctors what will be considered adequate pain relief for the pre-born child. Some suggest Motrin for mom will suffice, to be minimally absorbed by the soon-to-be-aborted child, while others think the intention is an injection through the mother’s abdomen directly to her child.

In addition to this lack of clarity is the odd exemption of this requirement in cases of rape, incest, or serious risk to the mother’s health. So it seems they only care whether the pre-born child feels pain as long as it is a healthy child who is simply an inconvenience or mistake. Either we care about the pain a pre-born child feels during abortion, or we don’t. This exemption says the pre-born child’s life is still not as valuable as the life of the mother, and their rights end where difficult circumstances are involved.

A law that recognizes the ability of a pre-born child to feel pain would be a step in the right direction. This would not only show an ability to care about those much weaker than ourselves, it would also be a law reflective of scientific advances. Such a law, however, needs to recognize pain equally regardless of what the mother’s circumstance may be. Just as we would not make exceptions for which mothers deserve pain medication during an abortion, or which born babies should receive pain medication before surgery, so we should strive for a law that makes no exceptions for the pre-born baby either.