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GUEST COMMENTARY: Parliament has a legal duty to protect unborn children

No right to abortion enshrined in the Canadian Charter of Rights and Freedoms.
No right to abortion enshrined in the Canadian Charter of Rights and Freedoms. - The Guardian

Joyce Arthur, Executive Director of the Abortion Rights Coalition of Canada, claims that I'm wrong to say there's no constitutional right to abortion (Journal Pioneer, Feb 8). She argues that the 1988 Morgantaler case decided “ can't restrict abortion rights without violating the Charter.” That's simply not true. Hopefully this article will clarify, once and for all, how Parliament has both the right and duty to restrict abortion. Let's start with three statements taken directly from the Morgantaler ruling:

“Section 1 of the Charter authorizes reasonable limits to be put on a woman’s right [to abortion] having regard to the state interest in the protection of the foetus.” (p.124)

“Protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.” (p.75)

“The interpretive approach to the Charter adopted by this Court affords no support for the entrenchment of a constitutional right of abortion.” (p.39)

Gerard Mitchell (former Chief Justice of the P.E.I. Supreme Court) explained how “None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn.” (Guardian, May-22, 2014)

The Supreme Court struck down the abortion law primarily because of administrative and process flaws. Women had to appear before a three-doctor committee, which many hospitals didn't have, forcing women to travel to other hospitals with backlogs and long waits. As a result, the law failed to ensure equal and timely access where continuation of the pregnancy might endanger a woman’s life or health, thereby violating the “security of person” provision in the Charter. The Justices rightly struck down that law and suggested Parliament come up with a better one. In 1990, under Mulroney, Bill C-43 addressed those administrative problems by requiring just one doctor's approval. It passed the House, but was defeated in the Senate by one vote. We're still waiting for a new law.

Ms. Arthur is correct that unborn children are currently not recognized by Parliament as having legal rights; however, Parliament still has a legal duty to protect them. That was decided when Canada signed the 1990 UN Convention on the Rights of the Child, which states: “The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” So Parliament not only has a legal “right” to restrict abortion (according to the Supreme Court 1988 ruling) Parliament also has a legal “duty” to protect unborn children (as a signatory to the UN Convention) which means enacting a law preventing unnecessary abortions.

For 30 years, abortion advocates like Joyce Arthur have mislead Canadians by continually repeating the lie that there is a constitutional right to abortion enshrined in the Charter. As more people come to realize the truth, they will hopefully decide to join the growing movement demanding Parliament act on it's legal and moral duty to protect innocent, unborn children from being unnecessarily destroyed.

- Kevin J Arsenault lives in Ft. Augustus. He obtained his PhD in ethics from McGill University.

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