Sunday, February 08, 2009

State has an interest in protecting the fetus

This is a response to Joyce Arthur's article that said that the abortion debate is over. I received it by email. It was published on page A11 in the Winnipeg Free Press:

State has an interest in protecting the fetus -


Margaret Somerville

Joyce Arthur claims that "facts have never stopped the anti-choice movement from spreading misinformation." Yet her "anti-life" (to adopt her terminology) article (The abortion debate is over and done, Free Press, Feb 4) is full of factual errors and distortions.

I will take just the examples where she is wrong on the law or about people's perception of the law on abortion.

First, she is wrong that "medical procedures... are governed by policy, not criminal law." The law, both criminal and civil, governs all medical procedures and would prohibit some.

Traditionally, any surgical intervention that was not therapeutically necessary was a criminal assault. A therapeutic intent was necessary to justify the wounding involved, but, even then, only provided the hoped-for benefit outweighed the likely harm.

Today, the law allows some non-therapeutic procedures, such as cosmetic surgery and live organ and tissue donation, provided the intervention is not contrary to public policy and is performed with informed consent.

But if, for instance, a person wanted her right leg amputated simply because she'd like to be a one-legged person, a physician could not legally carry out the operation -- it would be contrary to public policy and a criminal assault, despite the patient's consent.

One issue raised by Arthur's claims that post-viability abortions only occur for serious medical reasons, is whether post-viability abortions not in this category are contrary to public policy and, therefore, would be prohibited under the general law, without needing an express legal prohibition.

In this regard, I would be interested to see the research evidence on which Arthur relies in saying that abortions after 20-weeks gestation are "all for compelling reasons such as serious fetal anomalies or life-threatening maternal health problems." My personal experience, having been consulted about such abortions, is that that is not correct. Moreover, we don't even know how many post-viability abortions occur because Statistics Canada intentionally does not seek data on gestational age at abortion.

Arthur also writes that "an anti-choice group called Signal Hill recently released the results of their own Angus-Reid poll, which found that 92 per cent of respondents did not know that "abortion is permitted at any time from conception up to the moment of birth.

Of course, it's not possible to 'know' something that's not true, so this poll is a classic case of garbage in, garbage out." Again she is wrong: Abortion is not legally prohibited at any time during pregnancy.

My anecdotal experience confirms the poll's finding. I am frequently approached by audience members saying that they think they must have misheard what I said in a speech, when I have remarked that there is no law in Canada prohibiting abortion at any time during pregnancy. They are shocked when I confirm that they heard correctly.

We have a new "Ethics and Religion" curriculum in Quebec public schools and two weeks ago I addressed a class of around 60 educators training to teach this. Likewise, not one of them knew there was no legal prohibition on abortion and were shocked to realize that.

Finally, Arthur writes: "We're well past debating whether pregnant women are entitled to the same human rights as the rest of us. The Supreme Court has ruled several times that they are, which is why fetuses cannot hold competing rights." It seems that she means by this that fetuses cannot be protected by law.

In fact, all the Supreme Court justices in the Morgentaler case agreed that the state had a valid interest in protecting the fetus, at least after a certain point in pregnancy, and that Parliament had the power to enact law on abortion provided the law was consistent with the Charter of Human Rights and Freedoms.

We all need to keep in mind that good facts are essential for good ethics, and good ethics are essential for good law, and nowhere is that more important than in relation to abortion.

And contrary to Arthur's and other pro-choice advocates' constantly repeated claim, the debate about what the ethics and law that govern abortion should be is very far from "over and done."

Margaret Somerville is the Founding Director of the McGill Centre for Medicine, Ethics and Law and the author of The Ethical Imagination: Journeys of the Human Spirit.