Canada’s Abortion Laws Shameful
By Rory Leishman

In a landmark, five-to-four ruling in Gonzalez vs. Carhart on April 18, the United States Supreme
Court upheld the Partial Birth Abortion Ban Act, which the Congress enacted and President George W. Bush signed into law in 2003. In reasons for the majority in Carhart, Justice Anthony
Kennedy described partial-birth abortion (also known as intact dilation and evacuation) as a procedure in which an abortion doctor typically delivers all but the head of a living baby from the womb, before piercing or crushing the baby’s skull so the head can pass through the cervix.

Kennedy agreed with the finding of the U.S. Congress that: “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.”

On this basis, he upheld the Partial-Birth Abortion Ban Act, which makes it a criminal off ence punishable by up to two years imprisonment for an abortion doctor to perform a partial-birth abortion, unless the procedure is “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.”

The Parliament of Canada should take note: Th anks to the judgment of the Supreme Court of Canada in Regina vs. Morgentaler, 1988, Canada is the only democracy in the world that has no law governing abortion. If a mother decides, for whatever reason, she no longer wants her baby, it is lawful in Canada for an abortion doctor to kill that baby at any time during the pregnancy.

Granted, late-term abortions are rare in Canada. But so is infanticide. It makes no sense for the Criminal Code to condemn the killing of a newborn infant, while doing nothing to curtail late-term abortions. Carhart represents a small step back from the 1973 ruling of the U.S. Supreme Court in Roe vs. Wade that initiated abortion on demand. In a torturous attempt to justify this ruling, the majority of the court in Roe argued women have a right to abortion by virtue of the “right to privacy” contained in “penumbras formed by emanations” of the due process clause of the 14th amendment to the U.S. Constitution.

Justices Antonin Scalia and Clarence Thomas have repudiated Roe. In a concurring opinion in Carhart, they reiterated their view “that the court’s abortion jurisprudence, including Roe vs. Wade, has no basis in the constitution.”

In a future case that deals directly with Roe, Chief Justice John Roberts and Justice Samuel Alito Jr. -- both appointees of President Bush – are likely also to agree Roe was wrongly decided because there is nothing in the plain language or the history of 14th amendment to the U.S. Constitution that prohibits the legislatures of the states from constricting abortion.

There is nothing in the plain language or the history of the Canadian Charter of Rights and Freedoms that authorized the Supreme Court of Canada to strike down Canada’s abortion law. In a dissenting opinion in Morgentaler, Justice William McIntyre argued it is not for the courts, but “for Parliament to pronounce on, and to direct, social policy.”

McIntyre explained: “Parliament . . . has the facilities -- the exposure to public opinion and information -- as well as the political power to make effective its decisions.”

In Morgentaler, McIntyre exercised judicial restraint: He fulfilled his duty as a judge to uphold the law and the Constitution, while leaving legislating to legislators.

There is no judge on the Supreme Court of Canada who can be counted upon to uphold the separation of legislative and judicial powers.

While our judicial rulers profess to be enlightened and compassionate, none shows any disposition to agree with judgment of the U.S. Supreme Court on the need to curtail at least the horrors of partial-birth abortion.

What a shame.

Rory Leishman is a national affairs columnist for The London Free Press and Catholic Insight magazine. First published in The London Free Press. Reprinted with permission of the author.