Somerset, a Black slave, was brought from Virginia to England in 1769, by his master, Charles Stewart.  Two years later he escaped.  He was then captured and put on a ship to be transported to Jamaica, there to be sold.  Somerset’s Christian godparents applied to the court for Somerset’s release.

The case attracted a great deal of attention in the press.  Somerset’s lawyers argued that while colonial laws might permit slavery, neither the common law of England nor any law of Parliament recognized the existence of slavery, and slavery was therefore unlawful.  Stewart’s lawyers argued that property was paramount, and that it would be dangerous to free all Blacks in England.  Members of the public donated monies to support the lawyers for both sides of the argument.

Guided in part by the maxim fiat justitia, ruat coelum (“Let justice be done though the heavens fall”), Lord Mansfield ruled that since England’s written laws did not clearly permit or establish slavery, Stewart had no legal right to force Somerset to go to Jamaica: “… no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever.”

Lord Mansfield’s narrow and technical ruling merely stated that British slave owners in England could not force their slaves to be forcibly taken to the colonies.  But this judgment was actually silent about the status of slaves in England.

Lord Mansfield’s judgment had a profound effect on slaves. Many of them misunderstood the ruling to mean that slaves were emancipated in Britain.  Despite Lord Mansfield’s best efforts, the case was reported in the press, and internationally, as ending slavery in England.

After the ruling, numerous newspaper advertisements of the time show that Black slaves continued to be bought and sold in England.  Nevertheless, this court ruling proved to be a boon for the anti-slavery movement.  The perception of there being an “anti-slavery” court ruling, while inaccurate, helped turn public opinion against slavery.  In 1807 Parliament abolished the slave trade, and by 1838 slavery in British colonies was also abolished.

In 21st Century Canada, there is much public confusion about the 1988 Supreme Court of Canada ruling in R. v. Morgentaler, rendered 29 years ago this January 28.  In Morgentaler, five of seven Justices struck down section 251 of the Criminal Code, which allowed abortions only if approved by a Therapeutic Abortion Committee.

Justices Dickson and Lamer held that section 251 was arbitrary and unfair, and did not provide a clear exemption from the criminal law.  Nowhere do they state that there is a constitutional right to abortion.

Justices Beetz and Estey recognized society’s interest in the protection of the unborn child, ruling that Parliament is justified in requiring a reliable, independent and medically sound opinion as to the “life or health” of the pregnant woman in order to protect the state interest in a foetus.

Justice Wilson held that protecting an unborn child is a “perfectly valid legislative objective,” especially during the latter stages of pregnancy, but not in the early stages of pregnancy.

Justices McIntyre and La Forest ruled that “no right of abortion can be found in Canadian law, custom or tradition” or in “the language, structure or history of the constitutional text …or in the history, traditions or underlying philosophies of our society.”  These two Justices also recognized the public interest in the protection of the unborn, and stated that courts must refrain from imposing or creating rights with no identifiable base in the Charter.

In short, the Supreme Court in Morgentaler recognized expressly that Parliament has the right to pass legislation to protect the unborn, with five of seven Justices striking down Section 251 as the wrong way to achieve that legitimate goal.  This muddled and incoherent decision was not a victory for pro-lifers.  However, with the Court inviting Parliament to draft different legislation, this ruling is certainly no victory for pro-choicers.

Nevertheless, abortion supporters have sometimes characterized the Morgentaler ruling as a Canadian version of Roe v. Wade, by which the U.S. Supreme Court did, in fact, create a constitutional right to abortion.  For example, some student unions have claimed that pro-life speech should be banned at universities “because abortion is a constitutional right.”  Leaving aside the fact that a free society allows its citizens to criticize and disagree with the constitution, this claim completely mischaracterizes the Morgentaler decision.

The false notion that R. v. Morgentaler established a constitutional right to abortion can have a very powerful and negative impact in shaping public policy.  If the Canadian public perceives the Morgentaler ruling as a pro-choice victory, this will influence public opinion in favour of abortion being legal.

Those who want to see Parliament pass a law to protect the unborn should not mourn the Morgentaler decision as a victory for their pro-choice opponents.  Doing so helps the pro-choice side.

Instead, pro-lifers should point out that in Morgentaler, the Supreme Court invited Parliament to pass legislation to protect the unborn.

Calgary lawyer John Carpay practices constitutional law.

An email made me ponder what the labels “pro-choice” and “pro-life” really mean, in particular regarding people’s stance on using law to govern abortion.

This is very much a live debate in Canada because, in contrast to all other Western democracies and all but two other countries in the world (China and North Korea) we have no law at all governing abortion. If a physician is willing to perform an abortion just before birth, he would not be legally prohibited from doing so, although most physicians refuse to carry out most abortions when the unborn child is post-viability.

My correspondent wrote: “I spoke to a very successful and intelligent entrepreneur at an event on Saturday, who described himself as pro-choice, who explained, ‘I just have come to the conclusion that abortion is a woman’s choice.’ So I asked two questions: “How would you feel if she was six months along in her pregnancy and the physician would make sure the baby was not born alive?” And, ‘What if the mother wanted an abortion because the baby was a girl and not a boy?’ To both questions, he answered quite adamantly, ‘No, I would never agree.’ And he concluded, ‘I just have never thought about it in those terms.’”.

Is he pro-choice? He clearly doesn’t agree with the 28 percent of pro-choice Canadians, who, one survey showed, reject any legal protection for human life prior to birth.

The same survey found only 6 percent of Canadians would legally prohibit all abortions, while 60 percent believe there should be some law protecting unborn children, at the latest at viability (20 weeks gestation). Are only the 6 percent pro-life?

The 28 percent and 6 percent are the two poles in our abortion debate, but their disputes dominate in the public square. Two-thirds of Canadians fall somewhere on a spectrum between them – they are not absolutists, in either direction, about using law to govern abortion. For them, abortion law (in comparison with abortion, itself, for pro-life people) is not a black and white issue, many are uncertain where to stand, and their voices are rarely heard.

Adding two new positions to the survey, “modified pro-choice” and “modified pro-life”, to test public opinion more accurately, could remedy that. These terms would indicate basic presumptions, rather than absolutist positions.

People who accepted a “modified pro-choice” position would allow women to choose abortion, although legal restrictions would apply in certain situations. People who accepted a “modified pro-life” stance would favour legally restricting abortion, but with some exceptions to comply with the Charter and to avoid unenforceable law.

This modified approach might also allow us, although we start from different bases, to identify where in fact we agree, or are closer to agreement than we’ve recognized, about what the law on abortion should be.

Sixty percent of Canadians agree abortion-on-demand should be legally limited after 20 weeks gestation. Their moral intuitions warn them unborn children capable of living outside the womb should have some legal protection. They also find it horrendous to think of inflicting excruciating pain on the fetus in dismembering it, in utero, to ensure it’s born dead to avoid legal liability for killing it.

So should abortion-on-demand be legally limited before 20 weeks? I propose applying law at 13 weeks gestation.

This is not to approve first trimester abortion. Abortion is always a very serious ethical issue, but from a practical and even an ethical point of view in reducing abortions to the minimum number achievable, I believe that in Canada, where, presently, we have no law, it should not be a legal issue until after 13 weeks gestation.

I reject the pro-choice dogma that the embryo or fetus is “just a bunch of cells” with no intrinsic value, or respect for human life is not involved, or that early abortion is not a major ethical issue. Rather, my reasons for proposing this first trimester cut-off include that, as a practical reality, Canadian legislators will not legally restrict early abortion. Moreover, the law won’t prevent abortions in the first trimester, especially in light of chemical abortifacients. Having a law which is ineffective and ignored could do more harm than good, as it brings the law into disrepute and could send a message that all law on abortion can be ignored. It could also do more harm than good in reducing the number of abortions, overall. Let me explain.

If early abortion is not illegal, women with a crisis pregnancy are more likely to seek counselling and learn of its risks and harms, and its alternatives, and perhaps change their minds, especially women who would keep their child, if fully adequate support were available.

The relevant analogy is the decriminalization of suicide to try to prevent suicide, because suicidal people and their families are more likely to seek help if not threatened with criminal prosecution. That means we need abortion prevention programs, with counselling and other support systems, just as we have suicide prevention programs. Moreover, this would give women the widest possible range of choices, which, apart from other considerations, is a necessary prerequisite for obtaining informed consent to abortion, if that is the woman’s decision.

Helping a woman to feel that she will not lose control of her life by going through with an unplanned pregnancy can help her to decide against abortion. Likewise, that requires readily available facilities for crisis pregnancy counselling that are not abortion clinics, not least because they’re in conflict of interest as they profit financially from carrying out abortions.

We need some law on abortion in Canada in order to recognize publicly and as a society that abortion is always a very serious ethical decision and that, as all the judges of the Supreme Court of Canada ruled in the Morgentaler case, the lives of unborn children, at least at a certain point in pregnancy, merit legal protection. The court also explained that it’s the role of Parliament to decide and legally establish what that point of the protection of unborn children is.

To the contrary, Justin Trudeau, the leader of the federal Liberal Party, recently took a very public and highly controversial position that all politicians in his party must vote “pro-choice” on abortion or they were not welcome in the party, that is, they would have to vote against enacting any law on abortion.

Here’s Trudeau’s edict: “The policy going forward is that every single Liberal MP will be expected to stand up for a woman’s right to choose”. Let’s complete it: “The policy going forward is that every single Liberal MP will be expected to stand up for a woman’s right to choose to kill her unborn child, even if, were it delivered, it would have a chance of surviving or she seeks an abortion only because of the sex of the fetus”.

Choice, itself, is neither moral nor immoral; rather, as these examples show, it’s what we choose that determines that. Moreover, Trudeau and his MPs should note that facilitating immoral choices is complicity in the immorality involved.

And I haven’t yet even mentioned the contravention of rights to freedom of conscience, freedom of religion, politicians’ obligations in a democracy to those they represent and so on, this edict represents. The vast majority of religious people are excluded from running for elected office in the Liberal Party – for instance, all Catholics and Muslims (or at least those who follow their conscience), most other Christians and many Jews – and even as members of the Liberal Party, as Trudeau initially extended his edict not just to MPs, but also to members.

As a woman, whose prestigious Catholic family had been active Liberal supporters for generations, expressed it in her signature on an email to me the day after the edict: “Card-carrying Liberal until yesterday”.

Canada continues to be a living laboratory on social values issues, with some consequences which, I predict, it will probably one day seriously regret. To close, however, on a more optimistic note: there are signs that more and more young Canadians are realizing that possibility, especially in relation to abortion, and working very effectively to help change the current situation.

Margaret Somerville is the Founding Director of the Centre for Medicine, Ethics and Law, at McGill University, Montreal

In Monday’s Sudbury Star, Ruth Farquhar, an Ontario freelance writer, wrote that it was a sad day for women as New Brunswick’s only private abortion clinic announced that it would be closing its doors due to lack of government funding of private centres. She expressed her disbelief that the province required the opinion of two physicians prior to an abortion procedure being performed. And since abortion was obviously a “medically necessary” procedure, she declared that the province was “clearly, from a legal standpoint, in violation of the Canada Health Act.”

Unfortunately Farquhar and others who argue that clinic procedures must be government funded don’t quite have the law on their side. Neither do they seem to be in favour of rigorous medical standards to protect women’s health.

If women want to undergo any surgical procedure, it is cautious and in fact ‘pro-woman’ to require that they consult a physician, and more so to require the opinion of more than one. No medical procedure is without risk.

Last weekend I had to undergo a Dilation and curettage (D&C) procedure due to a complication following the birth of my son. Now a D&C and an abortion aren’t unrelated procedures. A D&C is a surgical procedure where the lining of the uterus or some contents found in the uterus are removed. The same procedure is used for early abortions. In that case, it is the developing child in the womb who is removed.
Even though I was a fairly non-urgent case for Ottawa’s busiest hospital, no fewer than three doctors were involved in the decisions surrounding my D&C. Then four other physicians attended my surgery. I thought it was overkill, but clearly those with medical expertise thought otherwise. In fact, they thought it medically necessary.

Given my experience of undergoing a fairly simple and straightforward D&C, is it that unreasonable that the New Brunswick government requires two medical opinions stating that an abortion is necessary prior to a citizen undergoing surgery?

Farquhar also claims that abortions are “medically necessary.” What she is referring to is a term that provinces and territories may assign to certain medical procedures under the Canada Health Act. If a province determines that a procedure is “medically necessary”, it must fund that procedure with tax dollars through its public health insurance plan. But what is “medically necessary”?

I’ve had the painful experience of reading through the Canada Health Act as well as consulting all available court decisions which address the question of “medical necessity.” The reality is that the Act is vague and no court in Canada has provided a clear list of criteria help provinces, or Canadian citizens for that matter, determine on a case by case basis whether or not a medical procedure should be classified as medically necessary. This isn’t some clear and established legal term or test.

Farquhar is brazen in claiming that the New Brunswick government is in clear violation of the Act. I can’t imagine any lawyer worth their salt making that kind of legal assessment. In fact, Health Canada even states that it’s up to each province to determine for itself which procedures are considered medically necessary.

Even the Abortion Rights Coalition of Canada states that the determination of whether a procedure should be deemed “medically necessary” is “a matter of professional medical judgment, based on the patient’s particular circumstances and needs.” Heck, that almost sounds like New Brunswick’s policy – two physicians assessing each patient individually, on a case by case basis, in accordance with their professional judgment.

Those who lament the closing of this abortion clinic call themselves “pro-choice.” Indeed, “choice” is the governing principle of their movement. “My body, my choice” is the best known slogan. Perhaps they do not realize the conundrum. For if abortion is truly a personal choice, how on earth can it also be medically necessary?

Faye Sonier is a human rights lawyer practicing in Ottawa. She’s also a regular contributor to the ProWomanProLife.org project.

I have dedicated my working life to the cause of life since 1977. I got involved because my only two siblings miscarried. I am the lone unborn survivor. I know I might not be here.

If I supported a woman’s “right to choose,” I’d be saying it’s okay if my mother had aborted me. I can’t say that. Who can? I have a right to life! So does everyone. It began before birth.

I am father of seven, grandfather of fifteen including two about to be born. When our pregnant daughter emailed us an ultrasound photo, we did not react, “Our grandfetus!” Who does? It’s a baby.

The Canadian Medical Association says the life of “a baby” begins at conception. Calling it a baby is no religious statement. It’s fact.

It’s wrong to play word games when the baby is unwanted. Terms like “clump of cells” are dishonest when the intent is to dehumanize. To differentiate the unwanted from the wanted is to travel the same road that leads to genocide.

Express your concerns by using this Simple Mail to government officials!

10,000 babies have died at the Morgentaler Clinic since it opened. That’s no religious statement. It’s undeniable truth.

Please note I have not even touched upon the issue of abortion’s morality. I have merely stated an important fact.

Surely that fact is relevant to the public discussion about using tax funds for the clinic. Arguments about “abortion access” that fail to note what the access is to – killing thousands of children – are at best superficial, at worst disingenuous.

In both life and public policy, truth matters. History is too full of examples where evil flourished when truth was suppressed or succumbed to word games like apartheid and “the final solution.” In public policy and life, integrity means facing up to the truth. Putting blinders on is unworthy of us.

Some will retort, “But abortion is legal.” As if that settles the argument. It does not, for three reasons.

First, the argument is a non sequitur. It is legal for me to build a rocket ship and fly to the moon. It does not follow the government has to pay for it.

Second, there is no Canadian legislation defining abortion’s legality. The 1988 Morgentaler decision by the Supreme Court addressed the criminality of abortion, not public funding. No Canadian court has ruled the Charters of Rights requires a province to fund unrestricted abortion at a private clinic. It is an open issue.

Third, it is dishonorable to hide behind the law. Slavery was once legal. It was legal for Nazis to kill Jews. That did not make those activities just. Those who argue “abortion is legal” must explain why that is just, and cannot skirt the truth that abortion kills a child.

Again, some clinic supporters protest, “But the Canada Health Act has decided the matter. New Brunswick is in violation.” That is less than truthful. The Act is silent on abortion. The Act defers to the provincial constitutional power over health care, allowing each province to decide what it funds under the Act’s insurance provisions.

New Brunswick is within its legal right to not fund unrestricted abortion at private clinics. The fact most other provinces fund clinics does not mean they alone follow the Act. Critics who try to shame New Brunswick for standing apart act like bullies.

To be pro-life is not to point a finger at women who abort. Such women are in a panic over pregnancy; they often act under duress.

Our government and community should partner to better support women with relevant resources when they feel pressured to have abortions, as so many do. Our Women’s Care Center provides no-pressure, resource-based (including early ultrasound) support. A social environment where women are empowered to freely choose life is a desirable, achievable public policy goal.

Peter Ryan is the Executive Director of the New Brunswick Right to Life Association and this article is published here with his permission.

5 Things the Youth of Canada Should Know About R.v.Morgentaler

Take a moment to read it. Even if you don’t count yourself among Canada’s youth.