Ever since the Supreme Court of Canada struck down the Criminal Code provisions on abortion 14 months ago, Canada has been almost without law in one of society’s most sensitive and controversial areas. As a result, anti-abortion activists expressed hope that another Supreme Court ruling last week would, in effect, lay the groundwork for a new law. But, in a 25-page statement, the nation’s highest court said that, in the absence of an abortion law, it would not rule on the issue of whether an unborn human fetus has constitutional rights. In a unanimous 7-to-0 ruling on the case brought by Joseph Borowski, a veteran Winnipeg anti-abortion campaigner, Mr. Justice John Sopinka wrote that such a decision “is not in the public interest due to the potential uncertainty that could result” from the absence of an existing law.
The court’s refusal to rule on the issue meant that Prime Minister Brian Mulroney’s Conservative government will almost certainly be forced to attempt the politically difficult task of framing new abortion legislation—a process that Ottawa has clearly sought to avoid. In its statement, the Supreme Court criticized the government for not dismissing Borowski’s appeal after the court’s abortion ruling last year. The court also ordered Ottawa to pay part of Borowski’s court costs. Despite that, Borowski—a former Manitoba New Democratic Party cabinet minister—said that he was “shocked and disgusted and dis-mayed” by the court’s decision. But the ruling pleased prochoice spokesmen. Said Helena Orton, litigation director of the Toronto-based Women’s Legal Education and Action Fund: “The court has recognized that important constitutional issues should not be decided in a legal and factual vacuum.”
The ruling came at a time when emotions were already running high on the issue. In Vancouver last week, Mr. Justice Josiah Wood of the B.C. Supreme Court found 102 antiabortion protesters guilty of criminal contempt of court after they ignored an injunction last month and blocked access to Vancouver’s Everywoman’s Health Centre, the province’s only freestanding abortion clinic. Declaring that the protesters may not have understood the gravity of their actions, Wood imposed suspended three-month sentences. The next day, when three of the activists once again defied the court by blocking the entrance, Wood ordered them jailed for three months. In a similar case, 21 demonstrators were charged with public mischief in Calgary after they staged a protest outside the city’s Peter Lougheed Centre, where abortions are performed. If convicted, the demonstrators would face fines of up to $2,000 or six months in jail.
The struggle between prochoice and antiabortion supporters has intensified since the January, 1988, Supreme Court ruling that struck down the country’s 19-year-old abortion law. Ruling on a Manitoba court’s conviction of abortionist Dr. Henry Morgentaler, the court declared the existing law unconstitutional because it violated a woman’s right to “life, liberty and security of the person.” The ruling effectively abolished the restrictions governing abortions. Under Section 251 of the Criminal Code, the operation could only be performed in accredited hospitals when the majority of members on the hospital’s therapeutic abortion committee agreed that pregnancy constituted a danger to the woman’s life or health.
In the wake of that decision, the Mulroney government attempted to frame a law by offering Parliament a choice of legislative formulas. A motion put to the House of Commons last May outlined three possible approaches to abortion law, ranging from a highly restrictive proposal that would have made abortions difficult to obtain to a relatively liberal proposal that anti-abortion campaigners bitterly attacked as amounting to abortion on demand. Following an emotional debate, a July 28 House of Commons vote failed to produce strong support for any of the proposals. Unable to find a consensus, government officials said that they would wait for the Supreme Court ruling on the Borowski case.
Now, because of the court’s refusal to rule on fetal rights, members of anti-abortion lobby groups say that it is time for Ottawa to make a decision. “We want Parliament to come out and give full protection for the unborn child from the moment of conception,” said Frances Selig, vice-president of Nova Scotians United for Life. “We will continue to work for this.” But prochoice advocates argue that new abortion legislation is not needed. “There has been no chaos without a law,” said Norma Scarborough, president > of the Canadian Abortion Rights Action League. “We see absolutely no need to bring in new legislation.” For his part, Justice Minister Douglas Lewis declined to say what the government planned to do next. Said Lewis: “I think we would not be serving the country if we were to rush to judgment.” Still, with Canada’s anti-abortion movement in an increasingly militant mood, Ottawa may not be able to ignore the painful and divisive issue of abortion much longer.
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