What, first, did the Court decide? Did it establish a constitutional right to abortion? Did it find that any legal restriction on abortion was a violation of women's rights? It did not. It's difficult, indeed, to say what the Court wanted with any precision: the 5-2 decision is split into no fewer than four separate judgments. But what is clear is that no member of the Court intended theirs to be the last word on the subject. It was only the law in front of them they found unconstitutional — Section 251 of the Criminal Code, the 1969 abortion law that, liberally for its time, first set out the conditions for a lawful abortion.Yes, the Parliament did have a legitimate interest in protecting the fetus, and they tried to do just that; Unfortunately, they gave up one bill C-43 was defeated in the Senate, leaving Canada with a legal vacuum on abortion.
What the court objected to most was the provision requiring that women obtain the assent of a three-member "therapeutic abortion committee" in an "accredited" hospital that "continuation of the pregnancyâ€¦ would or would be likely to endanger her life or health." As a practical matter, the court found, this often put an abortion out of reach, even where a women's life or health was in danger. Many hospitals did not have a therapeutic abortion committee. Many more were not accredited for the purpose. Committees often took their time deciding, and operated without clear guidelines, notably as to how "health" was to be interpreted.
Parliament had a legitimate interest, they wrote, in protecting the fetus, and was "justified in requiring a reliable, independent and medically sound opinion as to the 'life or health' of the pregnant woman." The present law was overbroad, but "it is possible that a future enactment by Parliament that would require a higher degree of danger to health in the latter months of pregnancy, as opposed to the early months" would achieve a more acceptable balancing of interests.
Now, when the pro-life groups are trying to raise awareness of the lack of legal protection for the unborn, their ads are rejected as "misleading" or "political". Hopefully, in light of the recent Supreme Court ruling, advertisers will have fewer means to reject an ad that highlights those two simple facts:
- The human heart begins to beat 22 days after conception.
- Currently in Canada, that heartbeat can be stopped up until birth. No medical reason needed.