On onus

Sunday is coming, and up here in the frostbitten and hypothermic North, it will be the thirtieth anniversary of a Supreme Court decision that made all abortions legal. The Crown versus the abortionist Henry Morgentaler was an odd decision in multiple respects. I often hear that it was not understood; that the court merely demanded that our Parliament rewrite the Pierre-Trudeau abortion law in a way more consistent with our later Pierre-Trudeau Charter of Rights. But the politicians of that day and since (both Conservative and Liberal) have not found the courage. They will not revisit an issue that is, shall we say, divisive.

It was like taking the roof off one’s house and then, to avoid a family squabble over the design of a new one, not replacing it.

The analogy is not exact, however. It was less rational than that. To start, the majority decision (a 5–2 ruling) was Hydra-headed. Three unrelated sets of “reasoning” were published, each batty but unique. One could not be satisfied, without ignoring the other two; so that whatever Parliament did, it would be right back in court.

(In such circumstances I’m inclined to recall the old adage, “As well be hanged for a sheep as a lamb.”)

For instance, the 1988 ruling acknowledged that the State has “some” responsibility to defend the “potential life” of the “foetus,” by restricting abortion “in some way.” The assumption of Justice Bertha Wilson was that it would do this by retricting abortions to early term, the way various European jurisdictions were doing. But she was just one of the progressive voices. You can’t negotiate with the Lernaean Hydra.

My own view, back then, was that Parliament should agree to toss out the Pierre-Trudeau law, with its strangely arbitrary cosmetic restrictions (such as a requirement that three doctors rubberstamp each abortion on fanciful health grounds). Then, restore the status quo ante, in which all abortions were illegal, and declare that it would remain in force until there was consensus on how it should be changed; blaming the Supreme Court for forcing your hand.

In other words, turn the tables on them. And to the howls of progressive execration that would follow, the then-prime minister (one Brian Mulroney) could have responded with a Trudeau-like shrug. Mulroney had a huge majority in the Commons at the time, with plenty of reliable upcountry backbenchers. He could surely have powered this restoration through, on a three-line whip.

Granted, this might have cost him the Dominion election, later that year. But so what? Who could wish to win an election at the cost of his own soul? Mr Mulroney was a Catholic, after all. I’d like to think he was a serious one.

Today, we live in the alternative world where this did not happen. Thirty years have passed, and there is no foreseeable way to “overturn” laws that no longer exist.

But there ought to be laws, against any form of murder. And the onus ought to be the reverse of what it has become. An argument should be needed to justify the killing of what remains — no matter what euphemism is attempted — a human baby. No argument should be needed for not killing it.