Ditch Doc

Here’s a set of three posts on Canadian abortion legislation. Long, perhaps, but worth knowing about.

The Burning Question

Just thought you might be interested in the following exerpts from the Criminal Code of Canada. If you haven’t read this before, it’ll blow your mind. To consider while reading: How does the medical establishment get away with it? Under “Killing a Child”:

(2) 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 explanation of how a foetus can be a child without being a human being is a paragraph before, under, fittingly enough, “When child becomes human being”:

(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

Here’s the next one. I thought I must have been reading a much earlier version of the Code, but this one was current on February 15th. Do read the whole thing. The punchline’s at the end.

Procuring miscarriage

287. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.

Woman procuring her own miscarriage(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Definition of “means”(3) In this section, “means” includes

(a) the administration of a drug or other noxious thing;

(b) the use of an instrument; and

(c) manipulation of any kind.

Exceptions(4) Subsections (1) and (2) do not apply to

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or

(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,

if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and

(d) has caused a copy of that certificate to be given to the qualified medical practitioner.

If anyone can give me a legal explanation of how the Canadian medical establishment gets by in a state of complete disregard for the Criminal Code, I’d love to hear it.

The Answer

OK, answered my own question. Apparently, it was the decision of the Supreme Court in the case of R. v. Morgentaler [1988] 1 S.C.R. 30. The Court ruled 5 to 2 that section 251 of the Criminal Code was an infringement of Section 7 of the Canadian Charter of Rights and Freedoms, which states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

I am an infant in such matters. I don’t know if any of the justices relied on the Criminal Code’s definition of human beings in order to exempt certain children (the Code’s word, not mine) from section 7 of the Charter.

 The Sticking Point that Wasn’t

So what definition was used? None at all. I haven’t read the whole 185 page decision, but it seems that of five judges ruling to grant the appeal, four decided not to consider the child’s humanity or lack thereof, and one didn’t even mention the question. I must admit that I’m new at reading these things, but it seems that each judge’s opinion is listed under his name. Here goes:

Per Wilson J.:

…The question whether a foetus is covered by the word “everyone” in s. 7 so as to have an independent right to life under that section was not dealt with.

Per Beetz and Estey JJ.:

… Given the conclusion that s. 251 contains rules unnecessary to the protection of the foetus, the question as to whether a foetus is included in the word “everyone” in s. 7, so as to have a right to “life, liberty and security of the person” under the Charter, need not be decided. …

The judgment of Dickson C.J. and Lamer J. was delivered by

R. v. MORGENTALER The Chief Justice

THE CHIEF JUSTICE –

… In my view, it is unnecessary for the purpose of deciding this appeal to evaluate or assess “foetal rights” as an independent constitutional value…

…State protection of foetal interests may well be deserving of constitutional recognition under s. 1. Still, there can be no escape from the fact that Parliament has failed to establish either a standard or a procedure whereby any such interests might prevail over those of the woman in a fair and non-arbitrary fashion…

Come up with your own snappy conclusion, if you can.