INTRODUCTION

I. PHILOSOPHY, FEMINISM AND POLITICS

The Triumph of the Will by George Grant

Freedom: Choice or Life? by Suzanne Scorsone

What's Wrong with "Choice" by Iain T. Benson

The Liberal Crisis Feminists on Abortion by Samuel Ajzenstat

II. THE MEDICAL AND SOCIAL CONSEQUENCES OF ABORTION

The Patient Before Birth by Heather Morris

Physicsl Complications of Abortion by Heather Morris, Lorraine Williams

Abortion and Bereavement by L. L. de Veber, Mary Parthun, Dorothy Chisholrn, Anne Kiss

Social Sevice and Abortion Policy by Chris Bagley

Abortion Law and Human Behaviour by Ian Gentles, Denyse O'Leary

The Human Face of a Woman's Agony by Diane Marshall, Martha Crean

III. PARLIAMENT THE COURTS AND THE UNBORN CHILD

The Unborn Child in Civil and Criminal Law by Ian Gentles

Trial by Jury: R. v. Morgentaler by Ian Hunter

The Meaning of Morgentaler: A Political Analysis by F.L. Morton

The Anatomy of Evasion: A Critique of Daigle by Robert Nadeau

Justifying Destruction: Parliament and the Court by Janet Ajzenstat

NOTES

CONTRIBUTORS

The Triumph of the Will

by GEORGE GRANT

THE DECISIONS OF THE Supreme Court concerning abortion could be seen as comedy - if they did not involve the slaughter of the young. Any laughter is quelled by a sense of desolation for our country. Yet the comedy must be looked at, too, if we are to understand our political institutions. It arises from the fad that the majority of the judges used the language of North American liberalism to say yes to the very core of fascist thought - the triumph of the will. Their decisions are good illustrations of Huey Long's wise dictum: "when fascism comes to America it will come in the name of democracy." The court says yes to those who claim the right to mastery over their own bodies, even if that mastery includes the killing of other human beings.(1)

Indeed, the advocates of abortion have shown since the Supreme Court's 1988 decision how much they are believers in the triumph of the 'viii when they "demand" that the government "must" immediately guarantee access and payment for all abortions That is, the state must pay for these processes even when they are not medically necessary. The triumph of the will is realized when its advocates understand that the individual will is liberated to its full power only when it can dominate the state.

The imputation of fascism to those with whom one disagrees is indeed a dangerous game. People of the left call Mrs. Thatcher a fascist when, whatever she may be, she is not that. People of the right call Castro a "fascist" when, whatever he may be, he is not that. To speak of incipient fascism in the present case requires that one discuss what fascism's. That is a useful public task, because fascism is a growing possibility in advanced industrial countries, and if one does not look clearly at such phenomena, one cannot think how to deal with them.

The English-speaking liberals quite correctly saw the European examples of fascism as despicable tyrannies. What they could not express was the difference between such totalitarian tyranny and most of the tyrannies of the past. The Marxists saw clearly the partial truth that fascism was made possible by a late state of a decaying capitalism. They had no explanation for the fact that certain fascists spoke so violently against Western capitalism. The Americans and the Russians united to defeat National Socialism in battle. As Stalin so rightly put it: "The Americans gave money, the British gave time, the Russians gave blood." But the defeat of fascism in battle has not enabled us to understand what fascism was. Its core was the triumph of the will. The result is that when the triumph of the will manifests itself politically in our societies, we just cannot know it or what it is.

What is meant by the seemingly simple word "will"? In the pre-modern world it had a certain meaning which was particularly emphasized in Christianity, because the words which were spoken in Gethsemane - "Yet not My will but thine be done" were paradigmatic for Christians. It meant appropriate choosing by rational souls. With the arrival of modernity, it has come to mean something different. When "will" is thought of in modern terms, it means the resolute mastery of ourselves and the world. To understand this modern illumination of the word "will," it is necessary to put aside entirely that old faculty, psychology, in which will was understood as a power of the soul, having to do with free choices. Rather, will is now considered to be the center of our aiming or seeking, the holding together of what we want. That greatest modern definer of will, Nietzsche, said that everything was "will to power." This has often been misinterpreted by traditionalists to mean that the substitution of power for happiness or pleasure was worth aiming at. But in the phrase "will to power," Nietzsche is not describing what we aim at -something outside the will. Rather, he is saying that will is power itself, not something external to power. What makes Nietzsche such a pivotal thinker in the West is that he redefined "will" to make it consonant with modern science. "Will" comes to mean in modernity that power over ourselves and everything else which is itself the very enhancement of life, or, call it if you will, "quality of life." Truth, beauty and goodness have simply become subservient to it.

How did this new conception of "will" come to be central in Western civilization? Obviously, first as science. Modern science is a particular form of science - that which issues in the conquest of human and non-human nature. This is why it is right to call Western science "technological science." Technology produces "quality of life."

This science also understands nature as being outside the idea of purpose, as being a product of necessity and chance. That is, modern science laid nature before us as raw material to be used as we dispose. How then should we dispose? In the early years of our science, Christian purposes were still operative, and later, the purposes of various kinds of secularized Christianity continued to prevail. These secularized Protestant purposes were above all expressed in the English-speaking world as the greatest happiness of the greatest number through capitalist technology. In the Marxist world these purposes were expressed as the building of the classless (and therefore egalitarian) society, through the communal ownership of the means of production. But both these ethical systems depended on something outside "will" itself. Why should I aim for the greatest happiness of the greatest number? Why should I "will" the classless society? These aims were outside will and therefore inhibited enhancement of life, by imposing on will aims from outside will itself. Therefore the deepest movement of modern thought was to take the great step that our aim was the power of will itself. That's what is meant by "the triumph of the will."

The Triumph of the Will is, of course, the title of Leni Riefanstahl's documentary about the National Socialist Party's convention at Nuremberg - a brilliant title for a brilliant documentary. Is it not absurd, therefore to relate the apotheosis of such an occasion to the freedom of women to have abortions as they deem it desirable? Is it not particularly absurd when the height of the Nazi occasion is essentially masculine, and women are represented in the documentary by a woman in the stance of adulation? Several points, however, need to be made about fascism (call it, perhaps more accurately, national socialism).

In the film Hitler is seen, not as the liberator of his own will, as the man who, through his own liberation, can make possible the liberation of each individual will in his nation. From the moment that he descends from the skies in his airplane and walks hesitantly forward, he is the ordinary German who through his own liberation apotheosizes the liberation of all Germans.

It must be remembered that rational socialist doctrine despised the submergence of the individual will in the rationalized collectivism of communism, as much as it did the impotence of the individual in capitalist democracies. The doctrine was that each individual will would find its liberation in unity within the National Socialist Party. Anything that was "given" in a situation, so that it could not be changed, was seen as an unacceptable limitation on the triumph of the will. The Jewish community was strong in German-speaking lands, and the Jews were thought of as internationalists and cosmopolitans. Therefore, according to the national socialists, they stood in the way of the triumph of German will. And therefore they thought they had to get rid of these masses of human beings, this given part of Germany who stood in the way of what they considered to be the quality of German life. Of course when the national socialists gathered that they were being beaten in war, this terrible extermination was speeded up in the name of their will's revenge. Nothing given could stand in its way - even the givenness of other human beings.

Is it not true, however, that national socialism is a thing of the past and therefore pointless to bring into a debate about today's issues? It was a revolting regression from the modern age of reason, a finished nightmare to be put aside. This argument is sure to be made, but I am saying something very different.

When one strips away the particularities of the German situation after the intense defeat of 1918, one finds that that situation was a particular possibility for the manifestation of the triumph of the will. That doctrine expresses very closely what human beings think to be true in modernity, when they seek to express their search for meaning in a universe which is known as purposeless. This doctrine has therefore continued to be present in the English-speaking world, which has been dominant since 1945. It has expressed itself particularly in the dealings of the United States with its empire abroad. It was evident in the determination of the American leaders to have their will through airpower on the opposite side of the world, in Vietnam. It can now be seen at home in, for example, the work of medical researchers to find means of mastery over the reproduction of the species.

It is not surprising that leaders of the women's movement, seeking to overcome the injustices of a longstanding patriarchal tradition, should express themselves in the modern language of the triumph of the will. As the presentation of modernity to itself, it is in all of us at some level explicit. It is to be expected that this language should become dominant among the leaders of the women's movement, because they are so aware of what it is to live in modernity.

Of course, ever since patriarchal society began all women have had to face the fact that the enjoyment of sexuality left them with the prodigious possibility of pregnancy, while men could go forth free from that enjoyment. Perhaps this was even resented by some women in matriarchal times, in which the whole society turned on the recognition of the centrality of birth. In earlier patriarchal societies, religious control had some effect sometimes, in forcing men to assume some responsibility for pregnancy. Where land was the essential source of wealth, owner families had a great interest in forcing men to bear responsibility.

In modern technological society, most bourgeois women, and those who wish to become bourgeois, find themselves in a position where at one and the same time the emancipation of sexual desire is advocated from earliest age, and yet where, if they are to be anything socially, they must go out to work in the world where what matters is the emancipation of greed. This is achieved under corporate capitalism through mastery over oneself and other people. How can such modern women put up with unexpected pregnancies (whether within marriage or without), which can demolish their place in the corporate market and push back their ambitions in relation to the ambitions of other people at the same level? Abortion on demand, then, appears to be a necessity under the conditions of corporate capitalism, as it presumably also appears to be under corporate communism. Indeed, women's position as potential mothers becomes particularly pressing in all advanced industrial societies, because their skilled or unskilled labor, their low or high ambitions are wanted in the marketplace. This happens at a time when it seems at last possible for them to overcome the unfairness of their sexual position.

It is no wonder, then, that the leaders of the women's movement take on the language of the triumph of the will when they are seeking to get the state to fulfill their purposes and when they are opposed by those who must be against abortion on demand for the clearest reasons. The ambiguity is that the famous feminist phrase "biology is not destiny" must also be true for all Christians, because we have been told that in Christ there is neither male nor female. At the highest reaches of human life and love, gender is simply unimportant. The question is, at what levels of life and love is gender important, and how should that difference manifest itself?

It is not that the leaders of the women's movement say that to be truly free, women must get rid of their gender. They do not seem to want to build an entirely androgynous society. It seems rather that, in their desire for liberation, they want not only to keep their gender but also to use it as they will. But their ability to use their gender and not to be controlled by it, requires their life and death control over beings other than themselves. For the "given" which their wills need to control is those individual members of their own species within their bodies. "Otherness" which must be dominated has always been that thing in terms of which the language of the triumph of the will arises. In this case, the need for liberation arises not against the absence of the vote or against inequality in the marketplace, but against developing infants. This is the terrible pain which leads certain women to the language of the triumph of the will. They feel trapped by their gender, but the means of liberating themselves from this entrapment must often include killing. The language of the triumph of the will is a means of escaping from that trap, because it frees one from the traditional restraints against killing.

What is saddest for the modern future is that belief in the triumph of the will seems to bring with it an intensity of propaganda, by which the general public is prepared for the killing which is to ensue. For a decade the national socialists had been saying that the Jews were not truly human, that they were parasites living off a healthy society. The absurdity of this lie did not prevent its dissemination and influence, and those who disseminated it believed it indeed, the most effective dissemination of lies is done by those who believe them. So, with the coining of mass abortion in our society, untruths have been spread by those who do not know they are untruths. Current scientific knowledge tells us that a separate human life is present from conception, with its own unique genetic pattern, with all the chromosomes and genes that make it human. (2) It is the very heart of fascism to think that what matters is not what is true, but what one holds to be true. What one holds to be true is important because it can produce that resolute will, tuned to its own triumph

However, it must be said that where the clarity about truth which belongs to modern science has allowed us to know what the fetus is in a matter-of-fact way, more difficult implications arise when modern science is used as if it provided the whole truth about life. This has sometimes led to a belittling of human life and to the arising of the doctrine of the triumph of the will. It has been said by advocates of abortion on demand that the fetus is a few cells attached to a woman' body that can be easily clipped away. It has been said that it is simply a parasite that has attached itself to a woman's body. Lies have been told or truths neglected to prepare people to accept the mass feticide which now characterizes our society.

Post-Darwinian biology has set before us the account that all animals can be essentially understood as matter in motion, driven by the necessities of the struggle for existence. To say the least, such an account of life makes it difficult to know whether there is something about human beings that should make us hesitant to kill them. National Socialist ideology was impregnated with this thinking. In terms of such an account of life, why should we care about the life of a fetus when it conflicts with the will of a fully developed woman? And then, of course, we are led inexorably to the next stage. Why should we care about the lives of human beings outside the womb if they are only an accidental conglomeration of cells and if they stand in our way? The science which explains everything in terms of necessity and chance has been the basis of our obvious progresses, but at the same time its intellectual victory overall other kinds of thought has left Western human beings questioning whether their own lives have meaning except in terms of the triumph of the will.

After the 1988 Supreme Court decision, the victorious advocates of abortion on demand paraded with signs, on some of which was written the slogan "Abort God."(3) They were right to do so. What they meant was "abort the idea of God because it has held human beings back from liberation - from the triumph of the will." But what is given us in the word "God" is the fact that goodness and purpose are the source and completion of all that is. Only in terms of that affirmation can we dimly understand why our lives and others' partake in a meaning which we should not hinder but enhance. It is in the name of the fact that the human fetus is a member of our species, called to partake in meaning, that in the past we have turned away from abortion, except in extreme cases. All this was affirmed not only in the teachings of Christians, but also in the Hindu Vedanta - that greatest Eastern teaching Those who see life simply as a product of necessity and chance are inevitably more open to feticide, because they do not see the destiny of meaning to which human beings are called. This is the prodigious predicament that the intellectual triumph of modern science has cast upon us human beings.

To say all this is not to imply that North American society is yet close to fascism as a form of government. There are many influences in our society which hold us back from that. Obviously, all sane people hope that these influences will continue to prevail. What I am implying is that these influences are fragile in the face of the doctrine of the triumph of the will. Nor am I saying that North American fascism would be, in outward appearance, much like the national socialism of Europe. The trappings of romanticism in North American fascism would be quite different from the trappings of German romanticism.

It is interesting that, alone among Western countries, West Germany has a law which gives the fetus a legal right to life, with some conditions. The Constitutional Court says that this is to make plain the German historical experience and "the present spiritual-moral confrontation with the previous system of National Socialism." In 1988 West Germany forbade surrogate motherhood and the production of human embryos for research. The Germans have a great advantage over us in that they have already faced the political incarnation of the triumph of the will.

I am, however, saying two things: The triumph of the will as an individual view of life passes over into politics, and even into government, in advanced industrial societies when those societies see themselves as threatened or fading or even at the point of defeat. It was certainly the smashing of Germany by the Allied powers in 1918 and the ruthlessness of the defeat imposed upon them which led to fascism in Germany. The unequivocal victory of American capitalism in 1945 meant that we had no need of fascisrn. But if in some unpredictable future the power of American capitalism appears to fade before the power of Japan and China, and if the economic powers in America recognize the consequences of that threat, then very different forms of government might arise within the bounds of their democratic constitution.

Secondly, the living forth of the triumph of the will among the strongest advocates of complete liberty for abortion does not imply that such advocates are in any sense a core for fascist politics. They simply give us a taste now of what politics will be like when influential groups in society think meaning is found in getting what they want most deeply, at all costs. They illustrate what pressure this puts on a legal system rooted in liberalism, whose leaders have not been educated in what that rootedness comprises. Even in its highest ranks the legal system in its unthinking liberalism simply flounders in the face of those who find meaning in the triumph of the will. This has been shown in both of the liberally appointed American and Canadian judiciaries. When society puts power into the hands of the courts, they had better be educated.(3) Fast technological change is always accompanied by fast moral and religious change. It is good, therefore, to look clearly at what the advocates of abortion on demand portend in the way of unrestrained politics. The politics of the triumph of the will are controlled less and less by any considerations of reason, let alone by tired liberal reason which expresses itself only in terms of a contract. However important these questions about politics, the more immediate, burning question is the massive slaughter of innocents, which goes on and on.

WHAT'S WRONG WITH "CHOICE"

Iain T. Benson

ON JANUARY 28, 1988, the Supreme Court of Canada struck down the abortion section of the Criminal Code in the Morgentaler decision. In so doing, the Court effectively brought to an end a long period during which the stated purpose of the law was continually contradicted in practice. In some areas of Canada abortions could be obtained for the asking, while in others they were rarely performed. Few people were pleased with this. Those who have been seeking change, either to do away with any laws restricting abortion or to afford greater protection for the unborn, now wait expectantly to see what the politicians will do.

Careful review of the Supreme Court decision reveals that, far from vesting Canadian women with an untrammeled right to abortion, the Court left Parliament leeway to change the law in ways that are significantly more favorable to the preservation of fetal life than the law which the court struck down. All of the majority judges, while expressly leaving open the content and extent of fetal rights, suggested that the state will, at some point, have an interest in balancing the rights of the woman and the fetus. How this should happen the court did not say. This was left up to the country's legislators.(1)

What follows is an examination of certain arguments used by proponents of the "prochoice" position in the abortion debate. In the course of this examination, I shall challenge the use of such expressions as freedom of choice," "potential life," "pluralism," " the life or health of the woman," "compromise," "the woman's right to 'control her own body'" and the term "coercion." I shall argue that "choice" itself should not be determinative in moral debates and that several other terms frequently relied upon by "pro-choice" advocates are unacceptable.

The Place of "Choice" in Moral Debate

What is meant by the phrase "pro-choice"? Those who have followed the abortion debate from its inception will remember that this phrase replaced an earlier slogan, "pro-abortion," which was dropped because it indicated approval of abortion itself. This was considered inappropriate because proponents of "freedom of choice" were beginning to argue that they were not really in favor of abortion per se but only desired "the right to choose." Once this term came into common usage, it was then logical to say that those who opposed abortion were "antichoice". What is behind all this terminology?

It should be noted that choice itself is morally neutral and can be evaluated as right or wrong only in terms of the framework of rights in which it's exercised Thus, to ask the question "Should I have the freedom of choice to fire my pistol?" can be evaluated morally only in terms of what you intend to shoot and in what setting. In a similar fashion, it is sometimes said that those who are against abortion are "seeking to force their moral views on other people." This statement implies that moral views may be held personally but have no applicability between individuals. This, in turn, suggests that morals are purely subjective and that no person should attempt to force their views of what is "right" or "wrong" on other people.

Yet most of our criminal law is based on moral notions of what is "right" and "wrong," on the effects of one person's behavior on others in society and on the principle that such rules of right and wrong should apply regardless of the views of individual citizens. Furthermore, it is worth asking whether people who say that "no one should attempt to force their views of what is 'right' or 'wrong' on others" really function in accordance with this principle themselves. A moments reflection would show that they do not.

Advocates of particular moral positions on a whole host of issues expect the law to restrict behavior of certain types or to force compliance with certain rules. Here, one might list legal restrictions governing sexual abuse, discrimination of various sorts, the production of pornography and requirements that the provinces fund medical procedures and social services deemed necessary. When moral advocates support such laws, they are seeking to enforce through law their notions of what should or should not be done in society. In the pornography debate, for example, those who oppose the pornographer's freedom of choice to produce pornography do, in fact, attempt to impose their moral views on those who want the freedom of choice to produce or consume pornography. It is particularly interesting to examine the reasons why some feminists, for example, are against pornography. They take this stance for reasons that have to do with a moral evaluation and not because they value "choice" itself. The issue for them turns on the "victimization" or "degradation" of women. These terms are clearly moral evaluations. They turn on standards of, for example, "right" views of women, the "correct" way of portraying and treating women, etc. The conclusion is clear: no person who holds a moral position on the issue of pornography can view the abortion issue solely in terms of choice without undermining their own method of moral evaluation in the pornography debate. A person who holds a "pro-choice" view of abortion but an "anti-choice" view of pornography is unlikely to respond favorably to the suggestion that pornography is not a moral issue but is, rather, an issue of choice between a pornographer, a distributor and the purchasing public.

In all areas of moral debate one must evaluate the rights that are at issue. In the abortion debate, this necessarily involves an evaluation of what a woman's life is about as it relates to the fetus within her. One must also discern what the fetus is and whether it has an interest to be taken into account. Since human rights are the property of those who are living individuals whose membership in the human species begins at conception, the question as to whether the fetus is deemed to have moral and legal rights is a matter of critical concern which ought not to be avoided by an unsound use of the term "choice."

One of the central questions in the abortion debate is this: "When and on what basis do we recognize the right to have rights?" In answering, it is important to remember that the onus is on those who would remove rights to indicate why the rights in question should be removed. Another fundamental issue arises from the questions "What is the morally relevant distinction between the fetus before birth and the child after birth such that we say one has a right to life and the other doesn't?" Various attempts, some of them exceedingly ingenious have been made to devise a morally significant distinction.(2) Until a satisfactory answer to this question is found, it is my considered opinion that one must support the "presumption in favour of life".(3) That is, until it can be shown that there exists a morally relevant distinction between a fetus and an infant, one must assume that the rights of the living fetus and those of the living infant are the same.

In summary, an appeal to freedom of "choice" cannot, by itself, provide a satisfactory resolution to the abortion debate for the abortion debate concerns the most central of all "rights." The importance of discovering a better resolution cannot be understated. The right to life is, after all, the one right which is the precondition for the exercise of any other right. The appeal to "choice" in this debate, as in any other moral debate, simply will not do.

The "Pro-Choice" Movement and the Fetus

In the abortion debate, where the "pro-life" side is continually talking about the fetus's "right to life"(4) and the fact that abortion pits the life of the fetus against the life or will of the woman, one of the techniques used by the "pro-choice" side is not to mention the fetus at all.(5)This failure to address the issue of the status of the developing fetus becomes even more striking in the recent arguments of certain groups to the effect that the fetus ought to have no rights at all until birth. This approach effectively denies any rights to the fetus despite the fact that, when a late-term case is concerned the "fetus" is in all respects except location, identical to a newborn child.(6)

A second strategy employed by "pro-choice" advocates is to deny that the fetus has rights, because it lacks some quality necessary to the holding of rights. The most common manner in which this is done is to say that the fetus does not have standing in the matter of "life-rights" because it is not yet a person and does not have moral personhood. Another similar argument says that the fetus is not "human." Yet another, referred to by a justice of the Supreme Court of Canada, says that the fetus is merely "potential life" and therefore has a lesser interest or no interest at all, its "right" to protection accruing, somehow, at a later stage of its development.(7)

Attempts have been made to suggest that the fetus's rights should exist only from a certain point, whether it he development of the central nervous system, viability outside the womb, birth itself or some version of the trimesteral approach formerly accepted by the U.S. Supreme Court.(8) All of these arguments turn on two conceptual errors: confusion regarding "potential" of the fetus and failure to take into account the fact that the genetic individuality of the fetus remains unchanged from the moment of conception.

A good example of the way in which commentators confuse the "potentiality argument" may be seen in an article by Jane Fortin. (9)In discussing this argument, which she says "has great popular appeal," Fortin suggests that the fact that sperm and eggs have equal "potential for life" is "persuasive criticism" of the potentiality argument. On the contrary, Fortin and others have failed to recognize that it is not "the potential for human life" that "pro-lifers" argue for protecting, it is the unique developing human life itself. This developing life is already from the moment of conception, unique and needs only time and nutrition to be fully developed.

Some commentators, including certain judges in the supreme Courts of both Canada and the United States, have failed to note all ambiguity in the use of the term "potential." The error is a failure to distinguish between a thing that has the present capability for something (needing only time for it to occur naturally and necessarily) and the possible future achievement of a thing, in which case the thing itself may never become anything else. It is not true of the sperm or the egg to say that they are potentially a unique individual in the same way that it is true of the fetus to say that it is potentially a fully developed adult.

A failure to recognize this improper use of "potential" is what leads some writers into a failure to differentiate between contraception (in reference to which it is possible to speak of a particular sperm and egg as containing the constituent elements of life and therefore being "potential life" in the "possible future achievement" sense) and abortion (in reference to which we speak of that particular unique genetic entity which exists after conception - in other words "a human life," "a developing human life" or "a human life with potential" in the "present capability" sense). Fortin falls into this confusion further when she comments that the Warnock Committee's minority opinion opposed the use of human embryo for research purposes "since this would obviously deprive them of their potential for life."(10) An embryo that is only potential life cannot be deprived, in a way that is morally offensive, of what it only has potentially (in the "possible future achievement" sense). If the minority of the Committee objected to research on human embryos it must have been because, "having accepted the potentiality argument," they recognized that research on a human embryo would deprive that embryo of its developing life, not its "potential life." An individual human being has no potential life unless it is already alive.

The developing fetus is not "potential life"; it is life with potential (in the "present capability" sense). It is, without argument, "a developing life." All the changes after conception are changes of degree, not of kind; the fetus is merely the beginning stage of all of us at the start of the continuum of life. As unique individuals we remain, as far as our individuality is concerned, the same from conception onwards. To hold otherwise is bad science which depends on a questionable manifestation of terms like "personhood"(11) The fact that the common law tradition has said that life begins as far as murder is concerned, only after the child has proceeded in a living form outside the mother, does not mean that it is or ought to be unworthy of consideration prior to this point. The law has historically criminalized abortion precisely because of its realization that the fetus prior to birth is in need of protection.(12)

"Life or Health"

It is important to recognize, that in its Morgentaler decision, the Supreme Court did not define either what it meant by the life and health of the pregnant woman or the content or extent of fetal rights. This is central, since the Court also said in its decision that Parliament would likely want to recognize a balancing between the rights of the fetus and the rights of the woman. This requires that there be a definition of the rights involved and this, in turn, requires a delineation of the interests of the respective "parties." Then, if the fetus is considered to be an interested party, its interest must be allowed to develop. The interest o the woman will vary from wanting to avoid degrees of emotional and physical trauma to, in some cases, avoiding death itself. The fetus's interest is in continuing its developing life.

Although the Supreme Court has recognized that the fetus has some interests and that the protection of the fetus has always been and continues to be a valid legislative objective, in the legal sense one cannot say much more than that the fetus has "some interests" because the Court expressly did not address the extent of these rights. Rather it addressed itself to evaluating and then striking down section 251 of the Criminal Code, largely on grounds relating to the manner in which the section was operating procedurally. Parliament must, therefore, decide the extent of any limitation on the fetus's right to life taking into account, one hopes, principles that would set out clearly what circumstances will allow the termination of that life.

The term "health" contained in section 251 of the Criminal Code is not actually defined in the Code, but obviously, if abortions are going to be allowable in certain "life and health" situations, some substance must be given to these terms. The definitions of "health" that were used by therapeutic abortion committees functioning under section 251 of the Criminal Code varied considerably where abortions were liberally available, the "working definition" of "health" was often that of the World Health Organization: "a state of complete physical, mental, emotional and social well-being, not simply the absence of illness and disease."(13) This is a definition of almost complete elasticity and impracticality. While it may be a positive statement of objectives in the area of health, it is useless as a working definition for purposes of abortion. Daniel Callahan has commented:

Its attractiveness as an ideal is vitiated by its practical impossibility of realization. Worse than that, it positively misleads, for health becomes a goal of such all-consuming importance that it simply begs to be thwarted in its realization. The demands which the word "complete" entail set the stage for the worst false consciousness of all: the demand that life deliver perfection.(14)

The Law Reform Commission of Canada has also voiced concern over the WHO "definition":

Those general terms of wide public use have ethical, social and political implications and their reach extends to every element of human happiness. The concept of "social well-being" far exceeds the meaning presently contemplated in Canadian criminal law for it includes political injustice, economic scarcity, food shortages and unfavorable physical environments. All human misfortunes and disorders are not forms of illness from which one must be saved under the rubric of health in criminal law... [A] state of well-being, in law, ought first to be notionally sufficient to cope with the ordinary living in modern society, but does not carry a guarantee of stress-free, non-responsible life-style, because stress as well as responsibility for one's behaviour are incidents of living in society.(15)

Indeed, it is disappointing that Canada's proposed new abortion law is no clearer on this issue. While it effectively makes the decision to have an abortion a medical one, it lets the individual doctor decide what sorts of considerations are medically relevant.

In its most principled form, abortion is permissible to prevent a woman's death, on the well-recognized grounds that individuals have the right to "self-defence." If allowances are made for "life" threats or on the more morally problematic "health" ground then, at the least, the danger to life or health ought to be grave and potentially permanent and should expressly exclude social health reasons such as familial, social or economic well-being - all of which were used under the World Health Organization's statement of health and led to abortion on request in most parts of Canada.

Particular care should be taken to avoid the use of definitions which would allow abortions for "psychiatric" reasons where the "threat" is not related to some meaningful criterion of health. Quite apart from the lack of a meaningful definition of health, evidence exists which suggests that most of the vast medical literature available on abortion is seriously deficient in various areas. This makes it impossible to speak without doubt about any situations in which abortion is psychiatrically indicated. In a study prepared for the scientific council of the Canadian Psychiatric Association and published in the Canadian Medical Association Journal, R K. Doane and B. G. Quigley, after reviewing approximately 250 journal articles and books on the psychiatric and related aspects of therapeutic abortion, commented:

...both the antagonists and the protagonists of therapeutic abortion should be aware that no scientific evidence exists to show that emotional risks vary in accordance with legislative restrictions on abortion... [and that] despite the large number of articles and studies in the literature, there are insufficient data on which to base planning of medical and social programs for the management of undesired pregnancies.(16)

In a more recent article in the same journal, following a review of all the available literature on the incidence of complications of pregnancy in women who had been denied abortion, an editorial writer raised some important points:

Few medical interventions are accepted without systematic evaluation. Drugs shown to be effective in the laboratory are evaluated in clinical trials, and surgical procedures are constantly criticized and revised. Even diagnostic tests must be shown to be safe, to cause only minor side effects and to have adequate test validity. Therapeutic abortions appear to be a major exception; they apparently have been "privileged" to bypass evaluation. Why are they being done without clinical validation, even in the face of mounting evidence that they are not necessary for the prevention of maternal disease or the birth of unwanted children? ... Physicians must take a more scientific approach to unwanted pregnancies and realize that abortion is not the answer to social ills. Legislators should base their decisions on clinical reviews rather than succumb to public pressures.(17)

One final point: given that the initial response of some provincial governments to the striking down of the Criminal Code provisions appears to involve issues related to the funding of abortions, it is essential to distinguish between the primary issue (the morality of abortion itself, the assessment of the health of the mother against the life of the fetus) and those issues which are secondary (funding and access to abortion). A failure to distinguish between these two types of questions can result in an ongoing failure to address the primary issue and a disproportionate expenditure of time and energy on secondary aspects. Many authorities suggest that abortion is not, in fact, a necessary medical procedure except in rare circumstances where the woman's life is threatened. If the medical profession cannot provide meaningful guidance as to which abortions are necessary within a substantive definition of "health," then there is no reason why such abortions should be considered therapeutic and even less reason that citizens should be required to "foot the bill" for them.

Canada as a Pluralistic Country

The statement is sometimes made that Canada is a pluralistic country and that, therefore, one must acknowledge each person's differing beliefs. As a recognition of Canada's multi-cultural makeup, this statement is impeccable. However, this valid recognition of cultural diversity should not be confused with moral pluralism. In fact, the basic notion that underlies many people's use of appeals to pluralism is not fairness to different cultural groups, but moral relativism.

Throughout the centuries many of the greatest thinkers have discussed the importance of learning and preserving the central truths which define society. These truths are not relative or subjective but transcendent. Nobel laureate Michael Polany has written that

...the adherents of a great tradition are largely unaware of their own premises, which lie deeply embedded in the unconscious foundations of practice... [I]f the citizens are dedicated to certain transcendent obligations and particularly to such general ideals as truth, justice, charity, and these are embodied in the tradition of the community to which allegiance is maintained, a great many issues between citizens and all to some extent, can be left -- and are necessarily left -- for the individual consciences to decide. The moment, however, a community ceases to be dedicated through its members to transcendent ideals, it can continue to exist undisrupted only by submission to a single centre of unlimited secular power. (18)

That many people in our society "are largely unaware of their own [moral and ethical] premises" is a fact. That it should be the unction of all who believe in transcendent moral truths to try to change this state of affairs is also the case.

What I mean by "transcendent truths" can best be illustrated by a brief consideration of C.. S. Lewis's brilliant work The Abolition of Man.(19) In this work, Lewis provides a framework within which one may argue that "fundamental truths" should be recognized and used as a basis for legislation and that this can be done without offending current notions of pluralism.

Lewis's analysis of the central tenets of world civilizations shows that, contrary to popular belief, the religions and ethical codes of the world share a core of objective truths. He terms this set of truths the "Tao" or "way"(not to be confused with the religion Taoism).

What is common to [all accounts of the Tao] is something we cannot neglect. It is the doctrine of objective value, the belief that certain attitudes are really true, and others really false, to the kind of thing the universe is and the kind of things we are.

He goes onto say, "Only the Tao provides a common human law of action which can over-arch rulers and ruled alike. A dogmatic belief in objective value is necessary to the very idea of a rule which is not tyranny or an obedience which is not slavery."(20)

Lewis further argues that an understanding of the Tao is fundamental to any modification:

Those who understand the spirit of the Tao and who have been led by that spirit can modify it in directions which that spirit itself demand. Only they can know what those directions are. The outsider knows nothing about the matter. His attempts at alteration as we have seen, contradict themselves. So far from being able to harmonize discrepancies in its letter by penetration to its spirit: he merely snatches at some one precept, on which the accidents of time and place happen to riveted his attention, and then rides it to death - for no reason that he can give From within the Tao itself comes the only authority to modify the Tao. (21)

It will be clear from the discussion of the way certain people use the notion of "choice" in the abortion debate this usage is just an impermissible "snatching" of one precept and "riding it to death - for no [acceptable] reason."

Alasdair MacIntyre, like Lewis is concerned that once the Tao, which MacIntyre refers to as "some version of the Aristotelian notion of virtue," is abandoned, one is at the mercy of power divorced from principle.(22) The same concern is also expressed by one of Canada's leading philosophers, the late George Grant. Grant explores a number of the contradictions which underlie current liberal thought and points out that remnants of the Tao (he does not use this word for it) are used by liberals. He writes:

When contractual liberals hold within their thought remnants of secularised Christianity or Judaism, these remnants, if made conscious, must be known as unthinkable in terms of what is given in the modern. How, in modern thought, can we find positive answers to the questions: (i) what is it about human beings that makes liberty and equality their due? (ii) why is justice what we are fitted for, when it is not convenient? Why is it our good? The inability of contractual liberals (or indeed Marxists) to answer these questions is the terrifying darkness which has fallen upon modern justice. (23)

In any society concerned with justice it is imperative that all citizens be concerned, as individuals with justice. To be knowledgeable about what is just and unjust, one must first believe there are "rights" and "wrongs." (24) One frequently encounters people who deny that things can be "right" or "wrong," yet who promptly complain of an injustice done to others or to them personally. It is this type of contradiction which shows just how far from the Tao we have come. And it is a very real question whether judges, lawyers, law professors and parliamentarians can coherently discuss the "fundamental rights and freedoms" set out in the Charter of Rights and Freedoms unless they have some workable idea of why certain things are "fundamental" and where "fundamentals" come from. It is now suggested by some that liberalism itself may provide neither a basis for, nor an understanding of the very rights it deems central and tries to administer.(25)

If we believe that there are "rights" and "wrongs" which underpin our society and our laws, then any appeal to pluralism as a justification for abortion is unacceptable because there is no evidence that the core principles of world religions and ethical codes support abortion.(26) More importantly, a review of laws must be done within the context of moral evaluation and must not simply be a catalogue of "the world's increasingly liberalized abortion laws" in, for example, the commonwealth countries.(27) It is self-evident that doing a thing does not make it morally correct. Therefore, the fact that many countries may have enacted permissive laws in an area does not serve as a moral justification for the practice.

The Idea of Compromise

In addition to notions of "pluralism," one occasionally hears people argue that in a country which has such divided views on a moral issue, "compromise" is the only way to "resolve" the social debate. What is missed in such an approach is that it erroneously assumes that either both approaches are morally acceptable prior to the compromise or that what results from the compromise will be morally acceptable. Thus, where fundamental presuppositions are not shared, the attempt at resolution may be morally impossible because what one side deems moral is to the other side immoral. In such a situation, "compromise" is without moral basis and potentially dangerous. This may be easily demonstrated by example.

If one opposes the murder of people and is told by others that due to debate and a lack of consensus on the issue, the only workable compromise is to make a law which allows the killing of small people, one could be excused for concluding that the law fails to make moral sense. Similarly, to those who view abortion as the killing of the innocent or at least arguably the killing of the innocent allowing abortions until some arbitrary point is arrived at cannot be an acceptable "compromise." To allow wife beating on Saturdays but not on other days would be similarly unacceptable to those who think it wrong in all circumstances, and to allow some people to be slaves over the objections of those who believe there should be no slavery at all would not be a satisfactory "compromise."

A gestational approach which would allow abortion until some point is reached during the pregnancy is not a "compromise" in the abortion issue. Assuming that one decides there must be compromise on the abortion issue, an accurate compromise would be based on the question "what grounds are sufficient to allow abortion?" not the question "when will we restrict abortion on demand/request?" Any attempt to answer the latter by way of legislation would be based on the logical error of including the conclusion in the premise. It is not clear that there should ever be a period of unrestricted access to abortion. As with arguments based on notions of "choice," arguments for unrestricted access to abortion at some time fail to note that a "compromise" like this is only useful once one has established whether or not the subject is one that admits o compromise at all. A failure to recognize that there are various forms of compromise, some of which vitiate one of the positions at issue, is akin to the failure to see the limitations of "choice" in moral debates. Lawmakers must base laws on responsible and morally coherent positions.(28)

The Woman's "Right to Control Her Own Body"

It is sometimes asserted that the fact that the fetus is inside a woman means that it cannot have any rights separate from the wishes of the woman. These arguments all turn on notions of "power" or "control." However, ignoring the fetus because another being has power over it is eerily reminiscent of arguments used to deny the personhood of women on the basis of the husband's right to control his own wife - the two being "one flesh." Even this control did not allow the right to terminate life. There is something counter-intuitive about attempts to square this kind of control over life with notions of "nurturing life."

Such arguments also amount to weighing any reason (or no reason at all) for destroying the fetus against what is, undeniably, a life right. The emphasis on control rather than life is more clearly seen as the fetus develops and will be most difficult to justify in late-term abortions or situations like the Baby R case. Where power or control is seen as the significant issue, concern for the fetus, predictably, is not expressed This thinking underlies the approach taken by those who view abortion merely as another means of contraception. (29)

Obviously the separate assertions of the "right to terminate a pregnancy" and the "right to decide what to do with one's own body" must be evaluated in terms of the moral claims that are in conflict. Just as the statement "We should not criminalize abortion because women are not criminals" is erroneous because it contains the answer in the question, so is the bald statement, "A woman has the right to control her own body." Compare the statement "We ought not to criminalize wife battering because men are not criminals." Both statements are equally fallacious. Both can be evaluated only by determining whether the conduct in question ought to be criminalized and this can be done only through a moral evaluation of the issues involved.

The extent to which certain feminist arguments are selective and confused can readily be seen when these feminists want to argue as follows: All abortions are a matter of a woman's personal choice and ought not to be interfered with by the state; the decision to have or not have an abortion is the moral issue; abortions for reasons of sex-selection are wrong and ought to be restricted by law. This type of argument is illuminating because it shows that, for certain feminists, the gender issues are the only morality that they either understand or will acknowledge. They say, in effect, "Any reason, or no reason at all, is sufficient to allow you the right to choose an abortion unless your choice is motivated by what sex you want your baby to be."(30)

What cannot be ignored is the fact that there are two bodies involved in the abortion issue; one is inside the other. Those who argue that there is only one body contradict the premises of medical science, according to which physicians treat a pregnancy as two patients. We must be wary of any position that refuses to discuss the morality of its claim in the light of all the available facts.

The State and the "Coercion" of Women's Bodies

R. Allan Borovoy has expressed the above position with admirable clarity: "Even if it is conceded that life indeed begins at conception, it does not follow that such life should have a right of sanctuary in the body of a person who doesn't want it there. The mother is also a person whose welfare is worthy of protection ..." (31) Having made this point, Borovoy recites the fact that several juries refused to find Henry Morgentaler guilty of breaking the laws against abortion despite clear evidence of his guilt. He then suggests that Parliament ought not to enact a law that would force a woman to carry a pregnancy to term in all cases except where her "life and health" are at risk, because any other law would be "unworkable."

Since when does the validity of a law that seeks to protect life turn on its "workability"? While it may be very difficult to enforce all sorts of laws (e.g., laws governing incest, child abuse, discrimination, etc.), who would reasonably suggest that this difficulty casts doubt on the importance or validity of the law itself? In fact, the pragmatic is only one of the two important functions which criminal law serves: the other is symbolic.

Borovoy suggests that the juries' failure to convict was based on the fact that their members had been "... exposed to the norms of the democratic system which accords a high priority to the autonomy of people over their own bodies."(32) But this statement has two erroneous implications: first, that controlling one's own body through abortion is a democratic phenomenon and, second, that such conduct is moral. Surely the juries' failure to convict reflected not so much the morality of the conduct being judged as the moral views of the jury. And in a society composed of evil or morally confused people, one would expect that juries would come to evil or confused conclusions. The moral realities remain. What happens to Borovoy's argument if we assume that juries someday do convict Henry Morgentaler?

According to Borovoy, this would still be wrong because the key point is that "... we don't have to embrace the moral merit of an abortion in order to rule out state coercion as an appropriate remedy."(33) So much, therefore, for Borovoy's argument based on the "workability" of law. All along he was really arguing that the state is never justified in "coercing" a woman to do what she does not want to do with her body whether or not the law "works" in the state.

This, however, avoids the issue of whether there are two life issues at stake. Since civil liberties are usually concerned with the margins, why is no real attention paid to them here, particularly when life is the most basic of rights? It appears as if the usual discourse of civil libertarians, rushing to the barricades to ensure that no breach of civil liberties occurs no matter how unpopular the issue in the general public's mind, has been completely abandoned in this case. (34)

Furthermore, why does Borovoy select a "liberty" right in preference to a "life" right? As he (correctly) notes, "most anti-abortionists would readily grant the woman a right to have an abortion in order to save her life."(35) Philosophers used to recognize that rights were ranked-ordered and that, for example, "life, liberty and the pursuit of happiness" were not only inter-related, but were rank-ordered with happiness depending on liberty and liberty in turn depending on life. Here, however, liberty has been yanked out of context and elevated to preeminence, with no explanation. This is puzzling when seen alongside the fact that the infringement of the woman's liberty is, after all, time-limited, whereas the termination of the fetus's life is permanent.

In fact there are a lot of situations in which the liberty of one is not greater than the life of another. I cannot terminate the life of my crying baby at 3:00 A.M because it interferes (significantly) with my psychological or physical health no matter how serious an interference it represents. Nor am I justified in killing and eating my baby even though it is the only thing around to eat and I would die if I did not kill and eat it. Assume that the stress caused by my children is so great that I am going to have a nervous breakdown or commit suicide. Wouldn't I be justified in killing my children, in the most humane possible way of course?

These questions cannot be adequately answered by saying that "the fetus is different from the child because it is inside the woman," "the fetus is not as fully developed as a child outside" or "birth is the time at which we start protecting human life." These statements are in the nature of conclusions, not reasons, and provide no basis on which to answer the questions "How does the location of the fetus give a person a 'right' to kill it? "or "what is relevant about birth that negates the right of a fetus to live up until the minute it is born?"

The argument from coercion in fact begs the question of whether or not the state has a right to "coerce" (that is, forbid particular conduct). We cannot decide this until we know the rights that are involved. By the nature of the process of life (with the present stage of technology), one life is located inside another and is dependent upon it. It is far from clear, however, that such a location or dependency relationship allows for the termination of a life right and it is even less clear that location or dependency confer upon a woman a "right" so to terminate. Such "privileging" of the woman's control over the life within her is strikingly like arguments used to defend wife battering on the grounds that it occurs "in the borne" and "what goes on in the home should be privileged from the scrutiny of the state."

How much weight can plausibly be given to the woman's liberty when weighed against the life of the fetus? Let us suppose that a technique is developed which would allow, with minimal infringement on the woman's autonomy and insignificant risk to her health, the separation of the fetus from the woman. Let us also assume that the fetus could then be raised outside her body until it is viable. Is her liberty so great that it still trumps the life of the fetus? Liberty starts to look increasingly fraudulent when it trumps life to such an extent as this; but then, Borovoy has said that he is not concerned with the morality of abortion. If we are not concerned with the morality of abortion, why should we be concerned with coercion? Isn't our concern regarding state coercion merely another way of saying we think that autonomy/liberty ought (note: "ought" is a moral term) to be protected by restricting or eradicating state coercion?

Borovoy cannot give any reason morally why liberty is a greater moral good to protect than life, yet he depends on our acceptance of the moral good of autonomy and liberty in order to make an argument at all. Seen in this way, one ascertains clearly what George Grant meant by the liberals' use of "shreds of the Judeo-Christian morality" and what C. S. Lewis meant by the "snatching" of one moral principle out of context.

It is not surprising to note that Borovoy cites Judith Jarvis Thomson's argument that the fetus has no right to the use of the woman's body.(36) But it is curious that he did not make reference to, or was not aware of the refutation of Thomson's argument offered by Baruch Brody. Brody points out that when we grant that a fetus has no right to the continued use of a woman's body,

...all that we [mean is] that he does not have this right merely because the continued use saves his life. But, of course, there may be other reasons why he has this right. One would be that the only way to take the use of the woman's body away from the fetus is by killing him, and that is something that neither she nor we have the right to do ... I conclude therefore that Professor Thomson has not established the truth of her claims about abortion, primarily because she has not sufficiently attended to the distinction between our duty to save [the fetus's] life and our duty not to take it. Once one attends to that distinction, it would seem that the mother, in order to regain control over her body, has no right to abort the fetus from the point at which it becomes a human being.(37)

If Professor Thomson has not "sufficiently attended to the distinction, Allan Borovoy has not attended to it at all, and neither, for that matter, have many who use the "control," "coercion" or "good Samaritan" arguments.

The Fetus and Experimentation

If the fetus is merely "tissue," as some would have it, then why should we have any scruples about using, not to say farming, such "tissue" for the good of society? What reasons can there be (apart from a sentimental feeling or a sense of "taste" for restricting such research on the unborn? The Medical Research council, in its recently released guidelines, states that it is unwise and unjustified to ban embryo research but that such research should not be allowed on embryos older than seventeen days One must ask, "Why the hesitation after seventeen days?" Surely, if fetuses would otherwise be disposed of, they should be used "for the good of society." Yet, given that viability is somewhere between five and six months of gestation, or that we may be able to abort up until nine months, seventeen days seems rather frugal, not to say, arbitrary. (38)

Lest anyone think that they can refute such arguments by simply stating that they are of the "slippery-slope" variety, it should be pointed out that categorizing a concern is not the same thing as answering one. Several years ago, many would have considered it inconceivable that abortions could be obtained without any criminal sanctions for the full nine months of gestation. Yet that is precisely the situation in Canada today.

The argument that after some point beyond twenty-two weeks of gestation what is being aborted is a human being that would be viable but for the violence of the methodology or the neglect of medical staff, is met with statements as to the rarity of the event or the fact that "responsible women will not wait so late to have it done," etc. No concern is expressed for the horror of what is occurring, the cheapening effect it will have on our respect for human life or the complete lack of difference there is between a viable human in utero and one ex utero. In the area of life issues, where medical technology is increasingly allowing us to do what we have never done before, the realization that technology is not its own moral guide must inform all our steps. (39)

Conclusion

Where human life is concerned, even where there are doubts about the nature of that human life, all who claim to be civilized and interested in human rights or civil liberties must make principled arguments to support their positions. I have attempted to show that a number of the arguments often used to justify the "pro-choice" position are unacceptable. Those vested with the responsibility of legislating for the social good must formulate laws based on correct moral approaches, not on erroneous philosophy. Those who have torn down the philosophical walls which historically protected the unborn and seek now to protect that life at some other point with walls of sentiment can have no moral basis for complaint when sentiment changes.

Given developments over past decades, it is likely that technology will sooner or later provide a way in which the whole human generational process can be accomplished "artificially" (outside the womb). Once this occurs and the issue of fetal development is separated, on one level, from issues of "control by the woman over her own body," what is and has been said about the nature of the fetus and how and why we do (or do not) respect it, will inevitably color future developments. However, if arguments based on "control" have vitiated certain of our traditional moral principles, it is hard to see on what basis any future protection can be afforded. If "control" has, as suggested, a limited time frame given the advances of technology and if it does not provide a consistent ethic of protection of life, then it is foolhardy to embrace "control" arguments until such an ethic is established (if it ever could be). Where there is doubt, we must err on the side of life and presume, if at all, in favor of it.