Abortion Law and it's Issues Term Paper

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Abortion Law

and its


Chris Stone

ID. Number : 97107692

October 10, 1997

Philosophy 1100A97

Prof. N. Brett

In 1988, the Supreme Court of Canada ruled in the case of Dr. Henry

Morgentaler vs. Her Majesty the Queen, that section 251 of the Criminal Code of

Canada, the law regarding abortion, was in fact contrary to several sections of the

Canadian Charter of Rights and Freedoms. The most notable of these was section 7,

which states "Everyone has the right to life, liberty and security of the person. . . . "

This was one of the key elements in Madam Justice Wilson's decision to overturn the

abortion law, as it infringed on the right of the woman to decide whether or not she

wished to continue the pregnancy.

Effective as of the date of this decision, there has not been one single piece of

Parliamentary legislation regarding abortion. It is now permitted in Canada for a

woman to have an abortion for any reason which she so desires. It is also no longer

necessary for her to have to go through the lengthy process of appearing before a

committee who would decide if the woman meets the criteria to have an abortion,

those criteria being whether or not the continuation of the pregnancy would prove to

be detrimental to the health or life of the woman. It was this aspect of the committee,

which Madam Justice Wilson found to be wrong. It prevented the woman from

deciding for herself what she wanted to do with her own body. Many argue this is

rightly so, as no single government agency should have the right to remove the right of

autonomy from anyone and dictate what may or may not be done with their bodies.

Those in the pro-life movement feel that this decision effectively dismissed the

fetus as a human being with any of the rights as guaranteed under the Charter. They

feel that even though the fetus has yet to be born, it should still be protected by the

Charter and be regarded as a potential person, as in, a being with some degree of

sentience (i.e., conscience of itself and its surroundings, etc. . . . ), not unlike you or

me. It is believed by the right to life movement that because this fetus would, if left to

completely develop, eventually turn into a fully developed human being that abortion

infringes on the section 7 right of the fetus, as guaranteed under the Charter. The fact

that the fetus is human is not the issue. It is whether or not a person is being murdered

which is the central argument behind this debate.

At the time which the fetus is aborted, it is not a being with personality. Anyone

would agree to the fact that it is alive and human, however, it is also true that it is no

more a person than a tree would be. Though the fetus may be a large grouping of

human cells, with the potential to become more than that, at the state of development

which the fetus has reached at the time of abortion, it is not a person and therefore

should not be looked at as such.

Enter the problem of a "sorties' fallacy"; when does the fetus become a person?

Though the legal moment at which the fetus is looked at for the first time as a human

being is deemed to be at the instant that it is born, the difference between an eight-

week premature infant and a 24-week-old fetus is virtually nonexistent. So should the

fetus be regarded as a person, or should the premature baby still be regarded as a

fetus? Thus arises the statement by the pro-life side of the argument that should not

the fact that we are unable to pinpoint with absolute certainty the precise moment

when a fetus suddenly develops a personality mean that we ought to do away with the

process until such a time that we are able to ascertain that persons are not being

murdered? This argument will go on for quite some time, and is but one in a list of

reasons why the pro-life supporters take the standpoint that they do.

The principle that every human being has the right to life is another key issue in

this heated debate. The pro-life movement also firmly holds to the belief that

regardless of whether or not the fetus is a person, as already defined in this paper, the

simple fact that it is a human being is reason enough to allow it to keep living. They

argue that the severely mentally handicapped do not meet the aforementioned

definition of a person in extreme cases, and yet we would not see them exterminated as

they become a burden to society. This argument is a truly difficult one to combat.

Though the fetus may be a member of the human species, is it always better to bring a

child into the world, even if it is unwanted, unloved, etc. . . . ? What if the birth of the

child would result in the death of the mother, or would severely endanger her health?

Is it still more important that the child be born? What if the child was the product of a

sexual assault? Should the mother who, through no fault of her own, is now carrying

this child be forced to give birth to it? The simple fact that the fetus is alive does not,

and should not, give it precedence over the mother. The mother will be the person who

must carry it for nine months, and who must give birth to it. She is also the one who

will have to care for it after it is born, so should her desires not take priority over a

being that is not much more than a mass of cells, which more closely resembles a

tadpole than a human?

The right of the woman to choose whether or not she wishes to continue the

pregnancy should be precisely that, the choice of the woman. If she deems it necessary

to abort the fetus because of her economic standing, then so be it. If, contrary to the

warnings of her obstetrician, she wishes to carry the child to term, then that is her

decision. It should not be tested by pressures from any other outside influences or

factors, aside from the medical advice of her physician. It should not be the place of

government or society to impose and enforce individual moral decision. It should be

left up to those who are directly involved and responsible, and not to those who have

the option of walking away at any given point.

The Supreme Court made the correct decision in concluding that section 251

infringed on the rights of women to life, liberty, and security of the person. The fact

that women were unable to decide for themselves whether or not they wished to have

an abortion for reasons aside from issues regarding their health is truly unfair, and

unjust. Individuals should be able to decide for themselves what they want to do with

their bodies, and it is not the place of government to interfere in such decisions.

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