Laity Square

If you hold progressive views, you may ask yourself: why won’t the abortion debate go away? Why is this topic still discussed 33 years after R v Morgentaler? Why won’t social conservatives give up on this? Here’s why I think that’s the case.

Abortion in Canada is legal at all stages of pregnancy since 1988’s landmark Supreme Court of Canada ruling on the R versus Morgentaler case. But in April 2021, Canada debates Bill C-233 in Parliament, and the federal budget conditions an increase in provincial health transfers to wider access to abortion. The debate never seems to end.

I think there are two fundamental reasons why. The first one is that from a legal perspective, abortion isn’t a closed matter. Despite what some think, there is no constitutional right to abortion. This is something that even high profile politicians and intellectuals get wrong from time to time. There is no Charter right to abortion. What R v Morgentaler found was that restrictions over abortion were unconstitutional – deemed a violation of women’s liberty rights enshrined in Section 7 of the Canadian Charter of Rights and Freedoms.

Justice Bertha Wilson, the first woman appointed to the Supreme Court of Canada, and the only female justice at the time of R vs Morgentaler, supported this finding. At the time, she stated that the individual’s conscience in the decision of abortion ranked higher than the state’s; but also, that the state had an interest in protecting the new life in the womb, rooted in Section 1 of the Charter. However, the ruling didn’t specify at what stage of development the latter weighed more than the former.

You and I may hold different personal opinions on this. But the statement above reflects the legal state of abortion in this country at the moment. And as you see, it’s not as clearly cut as an inalienable constitutional right. In this article I use euthanasia and Bill C-7 to illustrate the process by which existing rights are re-interpreted and expanded to cover modern concerns. This process applies equally to abortion.

The second – and probaly more meaningful – reason why this topic won’t go away, is that abortion is in a morally grey area. In her R v Morgentaler opinion, Justice Wilson wrote: “the decision whether or not to terminate a pregnancy is essentially a moral decision.” And it has to be that way, because in a public policy and social setting, there’s nothing else to appeal to. We could think of science, but this is just another example showcasing that science can shed light in its area of expertise, but cannot answer moral questions. Scientifically, there’s no doubt that the unborn is, from inception, a human being. Distinct from the mother, with unique DNA, and potentially different gender and blood type. Fully capable of sustaining life – of consuming nutrients and oxygen to drive self-growth into subsequent stages of development; attributes that no arbitrary clump of cells possesses.

Therefore, the only remaining question is intrinsically moral. Under what circumstances is it right to deny a human being the fundamental right to live based on arbitrary conditions, like size, age, location, or stage of development, for the sake of protecting someone else’s rights? Absolute answers to this question are polar opposites: abortion is either always right (women’s rights have precedence), or it never is (the unborn’s right to live has precedence). Any conditional answer (and even these absolutes, really, at social scale) implies a tradeoff, a compromise. It’s not black and white, or a “done deal”.

Progressive intellectuals understand this, and it’s why they fight hard and sometimes angrily about this. It’s why they keep asking politicians not even to allow these debates to come up in Parliament. It’s precisely because this is not a settled matter. Public sentiment around it will inevitably fluctuate over time. It’s easy to ascribe this to religious conservatism or misogyny, but the issue is fundamentally a legal and philosophical one.

Hence, if you lean progressive on these ideas, and keep wondering how come the debate goes on, I would humbly suggest reflecting on these reasons. I think they entail that this discussion will drag on for quite a few years to come. I look forward to it.

This article is an edited extract of the mid-April news round-up podcast episode transcript.

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