By Dr. Des Colohan (guest opinion)
In a recent letter to the editor entitled “Abortion is not a legal right in Canada,” the author made several convincing arguments and backed them up with quotes from some highly credible sources. While I would agree that there is no current Canadian law making therapeutic abortion either legal or illegal, I have problems with some of his other points.
According to my research, the Supreme Court decision in R. vs Morgentaler actually rendered three majority judgments. All three found the abortion provisions of the Criminal Code to be unconstitutional, but they found so for different reasons. They all found that the procedural requirements of section 251 violated a woman’s Charter 7 right to “security of the person.”
Only Justice Wilson found that the abortion law also violated a woman’s Charter 7 right to “liberty.” She alone found the abortion law to be a violation of “freedom of conscience” guaranteed by the Charter. She concluded that at some point in gestation, Parliament is justified in restricting abortion in order to protect the foetus, which she considered “potential life.” All the judges concluded that the federal government has a legitimate interest in protecting the unborn child which would justify the use of the state’s criminal law powers but that this interest had to be balanced against the rights of women.
There is nothing in the wording of the Canadian Charter of Rights and Freedoms to indicate a constitutional right to abortion.
There is no Supreme Court decision nor is there any federal legislation that requires provincial governments to pay for abortions. The Supreme Court struck down the abortion law, not because the court found a “right to abortion,” but because, essentially, the law was being unequally applied and a defense to a criminal charge would not necessarily be available to women who would qualify for an abortion.
The court left it up to Parliament to come up with a new law that would not have the problems inherent in section 251/287. The Supreme Court did not resolve the abortion issue and left it up to Parliament to come up with a new law. Parliament, for 27 years, has assiduously avoiding the drafting, introduction and passage of a new abortion law.
For provinces to receive funding from the federally-administered Canadian Health and Social Transfers, they must follow the guidelines of the Canada Health Act (CHA) which requires provinces to fund “medically necessary” services, but does not define what those services are, and there is no list of specific services.
The Hippocratic Oath has evolved over the centuries to reflect the cultural mores in which physicians practice and has been largely supplanted by the World Medical Association’s Declaration of Geneva (1948), which, in its most recent iteration (2006), says:
“I solemnly pledge to consecrate my life to the service of humanity; I will give to my teachers the respect and gratitude that is their due; I will practice my profession with conscience and dignity; The health of my patient will be my first consideration; I will respect the secrets that are confided in me, even after the patient has died; I will maintain by all the means in my power, the honour and the noble traditions of the medical profession; My colleagues will be my sisters and brothers; I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient; I will maintain the utmost respect for human life; I will not use my medical knowledge to violate human rights and civil liberties, even under threat; I make these promises solemnly, freely and upon my honour.”
While Canadian Physicians for Life would argue that there is no scientific evidence for medical necessary therapeutic abortions, many other physicians, provincial governments, third party insurers and women would argue otherwise.
Medical conditions which cause a pregnancy to pose substantial risk to maternal health are proffered by many as justification; such as certain diagnosis of chromosomal abnormalities inconsistent with normal life for the unborn child; major structural defects; severe cardiac abnormalities; major metabolic abnormalities; major biochemical abnormalities; or pregnancy which is the result of rape or incest.
Let’s face it folks, you either support a woman’s right of access to therapeutic abortion or you don’t. We can argue until the cows come home, but all the zealous rhetoric in the world is unlikely to change anyone else’s opinion on what is essentially an issue of moral conviction.
Desmond Colohan is a P.E.I. physician with a keen interest in responsible public policy.