Abortion in Canadian law - Essay Example

Abortion Canadian Law Yohan Ko May 19, 2006 This essay will trace the development of abortion law in Canada. This law has originated from a variety of sources, philosophical, moral, religious and has resulted in current law that is framed by social values. Abortion law has basics of all of these but some are more clear and enduring than others are. Before this I will provide a shot history of general law and its relationship to social contract theory and moral philosophy. The influence of Dr. Henry Morgentaler on the evolution of abortion law will also be explored, as he is responsible for much of the progress made in the area. The conclusion is a brief summary, which shows that all law has a philosophical background but abortion law in Canada appears to have had an historical evolution. Influenced initially by a philosophical basis, religion and morality and more recently by societal values and expectations. Abortion law in Canada appears to have a philosophical origin. This can be located within social contract theory and moral philosophy. Social contract theory is the assumption that people must have entered into some kind of binding contract with other members of society. The idea being that people had sacrificed their personal independence that was guaranteed in the State of Nature in order to secure freedom of will devise for the greater good. Collective freedom was believed to ensure principles of liberty, justice and equality- democracy. Voluntary (and in Hobbesian theory, forced) submission to democratic principles was a superior moral decision to put the will of the collective ahead of oneself, thereby creating a moral basis of law (Browning, 1997). Whilst it is clearly possible to locate the primary source of the law itself, it is considerably more difficult to trace that origin in accord with specific legislation such as abortion law. The historical development of abortion law in Canada has endured many phases from its start in the late 1800's through to contemporary times. In early societies women had been excluded from civic engagement on the grounds that they were emotionally incapable of making reasonable decisions and as such were best suited to family life. This assumption along with religious and moral insult and possibly the desire of the state to control the reproductive rights of women and to regulate their sexual behavior have provided the basis of abortion law in Canada. Canadian abortion law can be traced to around 1869 when abortion first became illegal after the Canadian Parliament passed a complete ban on the procedure (Arthur, 1999). 1892 law reform saw these guidelines tightened when Canada's first Criminal Code was introduced. This Code prohibited abortion as an acceptable medical procedure and legislated against the inducement of miscarriage, ensuring that it would be seen as a criminal offense (History of Abortion Law in Canada, 2003). The confusion surrounding abortion law continued throughout the 1800's and into the 1900's until the situation became so desperate that further modification of abortion law was necessary. Between 1926 and 1947 an estimated 4000 to 6000 women died during botched illegal abortions and by the 1960's it was estimated that anywhere between 35,000 and 120,000 abortions were being performed every year (Arthur, 1999). Shocked at learning of such high statistics and horrified by being legally required to turn away women, many doctors and legal practitioners began to take up the challenge of securing women's right. The 1960's form a group to aim to solve the problem. The foundations for more progressive abortion law in Canada was set in 1967 when Trudeau authorized a bill that would permit women to have legal abortions in special circumstances if they were approved by a medical committee contain of three medical professionals. This bill became law in 1969 under section 287 of the Criminal Code, women could seek legal abortions if doctors ruled that it was in the best interest of the woman's physical or mental health not to continue the pregnancy (Abortion Law in Canada, 2004). This however, 'did little to address a women's right to use control of reproduction and made her concerns secondary to the opinion of doctors and the needs of the fetus.' Given that pro life advocates continually harassed women and doctors for abandoning their moral and religious obligations to preserve the 'right to life' of the fetus, women were still denied the right to secure not only medically necessary abortions but also to have elective abortions. This sparked a new wave of debate, which saw Dr. Henry Morgentaler (a seasoned advocate of a womens rights), together with the organization that he worked for, take up the challenge of securing unconditional abortion rights for Canadian women. Morgentaler, who had previously admitted to performing illegal abortions and was actually in prison for doing so, took the challenge to the Supreme Court. He argued that Section 287 of the Criminal Code was in direct opposition of a later bill the 1982 Charter of the Rights of Freedom. 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice' (Abortion Law in Canada, 2004). Morgentaler made his case, women were denied the principles set out in the Charter because they were subject to Section 287, the Court found in his favor and resolved that abortion should be allowed. The efforts of Dr. Morgentaler are almost single handedly responsible for the freedom which Canadian women enjoy in regards to abortion. Canda currently has some of the most advanced abortion laws in the world and this is largely due to the efforts of Dr. Morgentaler. There are currently no restrictions on abortion within Criminal law in Canada. A change in social attitudes towards the female 'right to choose' means that abortion laws are now supported by 80% of the Canadian population (Arthur, 1999). Indicating that abortion law is so widely accepted in Canada that it has managed to resist religious and moral outrage to truly represent the will of the people. Also to ensure a level of democracy and gender equality not present in other Western countries. It is more worthy when considering that as of 1999 the yearly legal abortion rate was 100,000 per year (Arthur, 1999), this is significantly reduced from the illegal statistic cited earlier and indicates that legalize abortion does not necessarily support an increase in abortion. Abortion rights in many other Western countries are conditional and restricted but in Canada women can easily identify a valid and legal alternative if they do not wish to continue their pregnency. In summary, abortion law in Canada emerged from several primary sources; it was a combination of philosophical and historical evolution and a change in social values and expectations. Initially formed from a philosophical basis of law and then evolving to reflect the moral values in the late 1800's. This continued virtually unopposed through to the 1960's when anti abortion law faced heavy criticism from doctors, lawyers and feminist movements. The tireless work of Dr. Henry Morgentaler to secure abortion rights for women was finally recognized when he won a Supreme Court decision to overturn the existing law. Abortion law in modern-day Canada has developed from these principles and currently reflects the social values of Canadians, which is evident from the high percentage of support among the public. The law change to pro choice has enhanced the female experience of both unwanted and unviable pregnancy. Providing women with not just an alternative in a sometimes-impossible situation but also a chance to further their position in society. BIBLIOGRAPHY 'Abortion Law in Canada' Duhaime's Canadian Family Law Centre. 2004. 18 May.2006. Arthur, Joyce. 'History Law and Access' Abortion in Canada. Oct 1999. 18 May. 2006. Browning, G.K. 'Political Thought' Politics: An Introduction. Eds. B. Axford, G. Browning, R. Huggins, B. Rosamond, J. Turner and A. Grant. Routledge, London, 1997. Pp 195-224. 'The History of Abortion Law in Canada' Family Facts. Oct 2003. 18 May. 2006. Read More