Monday, January 28, 2013

Twenty-five years after R v. Morgentaler

Today is the 25th anniversary of Canada's Supreme Court decision to strike down its abortion law, which had prevented a woman from obtaining an abortion until after a panel of medical experts agreed the mother's life was at risk. Thanks to Dr. Morgentaler's long efforts, for a quarter-century most Canadians (though only few in New Brunswick and none on Prince Edward Island) have had ready access to safe, professional, confidential procedures to terminate unwanted pregnancies. Canada has largely avoided the ongoing embarrassing spectacle still seen in the United States to overturn the 40 year old Roe v. Wade decision that granted women there the right to an abortion. The most recent American attempt to restrict access is only one week old - in New Mexico, a Republican lawmaker proposed a measure that would "legally require victims of rape to carry their pregnancies to term in order to use the fetus as evidence for a sexual assault trial."

This brought to mind Canadian federal Conservative Member of Parliament Stephen Woodworth's proposed Motion 312, which last fall would have created a special committee to examine whether "a child is or is not a human being before the moment of complete birth". 

I was appalled at the motion, and relieved when it was soundly defeated in the House of Commons in September 2012. But as someone who treasures scientific discovery and the pursuit of knowledge for its own sake, why was I against a government committee whose stated purpose is the advancement of human knowledge? I found my reaction to be somewhat inconsistent.

My stance is not an absolute one. I recognize that sometimes placing a moratorium on certain aspects of research is justified while ethical, environmental, and other implications of potential discoveries can be considered and appropriate codes of conduct, safety protocols, and other procedures developed and implemented. The foremost example of this is from early 1975, when most leading biologists endorsed a self-imposed pause on genetic engineering research until the US National Institute of Health released guidelines in 1976 (these have been regularly updated). More recently, a debate rages within political and scientific circles about the wisdom of research into the H5N1 influenza virus.

But my response was not based on any variant of the precautionary principle. There were other issues that disturbed me. Why would this government, hardly known for its commitment to scientific inquiry, suddenly be interested in discovering a scientific definition for a human being? Is a government panel the right body to investigate this question? Could Mr. Woodworth, as many claimed, have had a hidden agenda, and use the findings of the committee (whatever they were) to restrict abortions in Canada to the maximum possible extent?

Furthermore, I was fundamentally uncomfortable with how the motion was phrased.

The development of life is a continuum. There is no distinct threshold before which there is only a collection of dividing cells, and after which there is a fully formed human being. It is ridiculous to argue that the few cells of a just-fertilized embryo are a complete person with full rights and protections, just as it is to say we have no moral responsibility to care for a healthy nine-month gestated unborn fetus. (This is implicitly recognized by the medical profession, as virtually no one performs an abortion after the first trimester or so unless the mother's life is at significant risk.)

Any answers such a commission would have come up with would crucially depend on how "human being" is defined. The following have all been proposed for the definition of a human being:
  • The point of development at which the fetus can survive outside the womb; 
  • When the first heartbeat, brain activity, or some other physiological trait can be first detected;
  • As soon as the fetus displays a detectable personality or identifiable set of behaviours such as pain avoidance.
All of the above are highly dependent on the current state of technology. As our knowledge of fetal development increases and detection equipment gains greater resolution, any of these definitions could in principle push back when we classify the fetus as a human being earlier and earlier in the embryonic development process.

As a scientific endeavour, such an investigation is legitimate. The problem arises, in my view, with public policy. Anti-abortion activists are not renowned for accurately reflecting the subtleties of scientific knowledge. If, for example, a paper is published claiming that a fetus displays an aversion reaction (or "pain") as early as 2.5 months, it won't matter how provisional the conclusion is, what the disclaimers are, or what caveats are attached - it will be used by religiously motivated activists (such as Stephen Woodworth) to argue that no abortions can be performed past that point. That, fundamentally, was why there was such a strong reaction from myself and many other Canadians to Mr. Woodworth's motion in the House of Commons in September. It was not based on a belief that the question is taboo or that science should not inform public policy. Instead, there is a well-founded concern that any discussion based on these premises will not be undertaken in good faith. The motion, as phrased, could not be answered in a reasonable fashion and would likely be used for purposes that stray far from scientific inquiry.

Which leads me to an observation that I hope to substantiate. I find that, in practice, the label "pro-life" is misleading. Anti-abortion activists do not seem to be generally pro-life - only very specifically pro-fetus. I do not hear of any anti-abortion protesters taking any practical steps to ensure the children resulting from pregnancies carried to term are cared for (which reminds me of my favourite bumper sticker: "If you cannot trust me with a choice, how can you trust me with a child?"). I have not noticed any support from "pro-life" groups for the elimination of capital punishment (which unambiguously kills a human being). National and global vaccination programs would be a natural fit for those that believed longer, healthier human life is a good thing. It seems to me genuine pro-life activists should support stricter gun control laws, as gun violence takes innocent lives every day in the United States. School food programs in poor neighbourhoods significantly improve the well-being of children's lives, and have large effects even into adulthood. Yet the only correlation I am aware of between being anti-abortion and supporting initiatives that are genuinely pro-life is a negative one. 

In the interest of accuracy, perhaps we should refer to those on opposite sides of the abortion debate as "pro-choice" and "pro-fetus".


  1. [Part 1]
    I think it is important to state that the reason for Woodworth's motion, as he defended it in the media, was not simply a redeliberation upon the abortion issue, as widely speculated. Rather, the matter of the legal definition of human life needs to be reconsidered because the existing law rests on 17th-century British case law (established before the creation of the Canadian Parliament), which identifies the moment of birth as the beginning of human life. That law was the basis of the R. v. Daigle decision, in which the Supreme Court affirmed that a fetus does not have rights under the current law, but also stated that the choice to revise the definition was the prerogative of Parliament.

    Your own comments here suggest that you also disagree with the current definition, since "it is ridiculous to argue that . . . we have no moral responsibility to care for a healthy nine-month gestated unborn fetus." Given what you say, you ought to support the investigation proposed by Woodworth.

    Now, about reopening the abortion debate: I don't understand the force behind the accusation that Woodworth has a "hidden agenda" of surreptitiously implementing restrictions on abortion. Clearly there would be implications for Canada's abortion law (or lack thereof) if such an investigative committee were to find scientific evidence that contradicts the current definition. So the agenda isn't hidden, and if there were no agenda there would be no point in asking the question in the first place. The better question is: why are so many "pro-choice" Canadians opposed to the idea of an evidence-based argument if they're so sure that they're right?

  2. [Part 2]
    Furthermore, the abortion debate in Canada was never closed by R. v. Morgentaler, which, contrary to popular belief, did not ban restrictions of abortion or declare such restrictions unconstitutional. The Supreme Court struck down a *specific" law concerning abortion, which required women to appeal for an abortion to a therapeutic abortion committee. Such panels were unavailable to many Canadian women, meaning that a woman with a genuine reason for an abortion, such as an ectopic pregnancy, would be forced to choose between breaking the law and endangering her life if she could not travel to a hospital with a TAC. According to the judges, this violated her guaranteed security of the person. So the Court did not declare abortion laws unconstitutional, but only the *specific abortion laws that we had*. In fact, the judges in Morgentaler, and in all subsequent cases related to abortion, have remained deferent to Parliament's authority to pass restrictions, provided that they are consistent with the Charter and the precedents resulting therefrom. And there is no precedent establishing a right to abortion, meaning that unless a new legal mechanism is devised, a law restricting abortion would have to be upheld.

    I don't see the basis for your calling the American abortion debate (ensuing from Roe v. Wade) "embarrassing". What is embarrassing, exactly? Abortion remains a divisive social issue, yet you portray the millions of people in the United States who happen to disagree with you as "religiously-motivated" loons, even though you admit that there is room for argument! The truly embarrassing thing is that the mere mention of the word abortion in Canada triggers a visceral and hysterical reaction from supporters of abortion-on-demand, who are unscrupulous about labeling their opponents as misogynistic and theocratic, even though half of all abortion opponents are women and the pro-life movement is littered with non-believers. For example, the most widely-cited philosophical essay against abortion, Don Marquis's "Why Abortion is Immoral", is entirely secular; atheists have participated in the March for Life rally in Washington, D.C. for decades; and even Christopher Hitchens was against abortion (and no one mistook him for a religious person).

    As for labels, I agree with you about the term pro-life. It opens its adherents to your criticism of inconsistently invoking "life" as an ethical imperative, even if that imperative is real. This is why I prefer the more precise "anti-abortion". As for the other side, I think there is not a single more euphemistic expression in English than "pro-choice". (Just imagine being approached by someone on the street who says, "I'm in favour of choice!" "Choice of what?" would be my response.) I've made a habit of calling my opponents "pro-abortion", but they tend to object that this label connotes support for state-mandated terminations instead of individually-elected ones. So I'd agree to some compromise like "pro-choice-in-abortion" and would be open to other suggestions.

    Otherwise, good essay!


    1. Jackson,

      You raise several interesting points, though I do not agree with all of them.

      You accurately summarize the history of abortion in Canada. The Supreme Court did not grant women the right to an abortion; it struck down the law that regulated when a women could obtain one. Parliament is free to restrict, regulate, or even ban abortions, within the limits of the Charter. I think most Canadians are aware of Parliament's power, which is why many that support a woman's choice to terminate a pregnancy get upset when MPs bring up the topic. Why they might do so is not clear to me, as I do not see any need to change the status quo.

      I am not sure how to characterize the debate in the United States as anything other than "embarrassing". See the first paragraph of this entry for one example; or laws in several states that allow doctors to *lie to their patients*, if they think providing accurate medical diagnoses might possibly lead to a patient choosing to have an abortion. Senator Jon Kyl defended his lie (on the Senate floor!) that "well over 90% of what Planned Parenthood does" is perform abortions by stating that his "remark was not intended to be a factual statement." Embarrassing. And that is without factoring in how the issue is addressed in the media.

      I am not "opposed to the idea of an evidence-based argument" on this (or any other) topic, and explicitly said so above. I am "someone who treasures scientific discovery and the pursuit of knowledge for its own sake". "As a scientific endeavour, such an investigation is legitimate." My objections are "not based on a belief that the question is taboo". In fact, the majority of this post addresses precisely this point.

      I have not read Why Abortion is Immoral; I will do so. I have not even heard of it until now, and it will be the first time I encounter a secular argument against abortion. It has never been mentioned in any conversation I have ever had on the topic, nor have I ever heard any politician, pundit, columnist, or media outlet refer to it. The *only* objections to abortion that I have ever heard are religious in nature (much like the objections to same-sex marriage).

  3. I still fail to see how you can reconcile your commitment to scientific, factual inquiry with opposition to Woodworth's motion. The centuries-old case law upon which the current legal definition of life is based is, evidently, rooted in the scientific knowledge of the 1600s, at the heart of when Europeans were fighting wars over being the wrong kind of Christian. The science has doubtless improved since then, and if it hasn't, surely the multipartisan committee would inform Parliament as such. Likewise, how can you concede that opposition to *some* abortion is legitimate while also saying that there is no reason to change the status quo? Perhaps you would say that no one performs late-term abortions, therefore no revisiting of the issue is necessary; but about 7,000 abortions are performed after 20 weeks every year in Canada, so if you are really committed to your earlier view, opening the discussion would be imperative.

    I agree that many Canadians are aware of Parliament's power in this regard, but they also seem to believe that the Supreme Court has "spoken" on this issue, rendering further discussion unnecessary or even contrary to the Charter. This is a powerful rhetorical point that is based in complete falsehood. And how could any person committed to democracy really believe that there is something damaging about having an open discussion about an issue, especially when he considers himself to hold the correct view?

    The legislation of public morality is an iterative process. What makes our system different and superior is that we can go back to decisions of the past and review mistakes that we may have made. And those discussions will inevitably include those who disagreed entirely with decisions of that past, allowing them to argue for their differing conception of a just law. To support this further, a law was actually passed in the House of Commons in 1990, two years after R. v. Morgentaler, that restricted abortions except in cases of rape, incest, and health of the mother, without the bureaucracy of therapeutic abortion committees. The bill achieved bipartisan support and was only defeated in the Senate, an appointed legislative body, where there was a voting tie. It cannot be maintained that Canadians have had a real opportunity to decide this matter for themselves, as there has never really been an abortion debate in this country.

    About the American abortion debate: I would simply say that in a country of 315 million people where abortion is the most controversial social issue, there are going to be people who say stupid things, and they should be held to account for what they say. But to paint well over 100 million people with that broad of a brush is quite misleading. I don't reply in kind, and never accused you of reacting hysterically. What I did say was that *many* "pro-choice" Canadians respond in such a way, of which there is ample evidence. When Woodworth introduced his private-member's motion in Parliament, he was shouted down by opposition members intent on stunting debate. Numerous abortion debates on university campuses have been borked by pro-abortionists who blockade the stage, claiming that no one has a right to even discuss their sacrosanct belief, lest it be shown to be without merit. And when I was organizing a campus debate at UPEI last spring, both the main "reproductive rights" lobby group and every feminist professor approached on campus refused to participate, and I was only a 20-year-old undergraduate.

    So my challenge, then, is that if you are indeed committed to debate and inquiry, and to drawing conclusions from the facts, the target of your polemic should scarcely be the people who want this issue to be brought to the fore of public discourse, where it can be discussed openly.

    1. The problem is not with inquiry, as I have stated. My issues with motion 312 are: the people conducting it (politicians, not biologists); the agenda being pursued (knowledge vs. a justification for a predetermined conclusion); and the specific terms of reference (demanding a demarcation point where none exists).

      According to the Canadian Institute for Health Information, only 537 hospital abortions were performed after 20 weeks in Canada (see page six), or less than two percent of the total. This is an order of magnitude less than you claim. There is no data to determine how many were due to nonviable fetuses or significant health risks to the mother. Observing that a system is working very well for most, and at worst is being abused by a tiny minority, is a perfectly legitimate reason for maintaining the status quo.

      People say stupid things everywhere, and the United States is no exception (even I am not immune to ill-considered outbursts). But my examples are not cherry-picked quotations spoken in the heat of the moment and taken out of context; these are laws passed by state legislatures or prepared remarks made on the federal Senate floor.

      If there are cogent, secular, rational reasons to consider introducing a law about abortion in Canada, I welcome the discussion (I have not yet read the essay by Don Marquis). But given the lack of any such arguments over decades of public and political discourse, I understand why people are frustrated and do not want to spend any time on the issue when there are so many others that need our attention. I feel similarly about the relentless efforts of creationists (particularly in the United States, but elsewhere as well, including Canada) to ignore all evidence and expertise and indoctrinate students that evolution is false.

  4. [Part 1/2]
    Your figure may be more recent than mine, though note that it only includes hospital and not clinic abortions. I've read that in the United States, late-term abortions are easier to obtain through clinics than in hospitals, though I don't have anything empirical on that point about Canada. My 7,000 figure comes from Statistics Canada back in 2003, which found that 0.8% of abortions performed in clinics AND hospitals were after 20 weeks of gestation. Over the last decade, the total number of abortions in Canada has fluxuated from 90,000 to 100,000 per year.

    But suppose that your figure is correct, and suppose additionally that some of the aborted fetuses are unviable. Surely *some* of them aren't (meaning that an unknown number of people are being murdered every year, and your response is to disregard their deaths as the mere "abuse by a tiny minority”). There is no way for us to know how many because the law makes no discrimination between what you regard as the perfectly legitimate taking of life in the first trimester and the illegitimate taking of life in the third. And according to the current legal definition of a human life, which has never been formally debated in Parliament, there is no reason why there would be a discrimination. But if the current legal definition of life's beginning is debatable (which is surely true, given that none of the pertinent scientific discoveries had been made when the definition was formulated), it stands to reason that the set of laws, policies, and rulings based upon that definition are also debatable. I don't see how it can follow that a discussion is undesirable.

    Secondly, I think you have it backwards when you say that since political discourse has not offered any arguments that you consider "cogent", there is no reason to open up the discussion. Surely the time to determine the cogency of arguments is *after* the debate has been reopened in an avenue where legislative change can be made according to the outcomes. You are committing the same error of which you accuse the "pro-lifers": You've decided in advance of the inquiry that your conclusion is correct and reasonable, and you therefore believe that people who don't share your opinion should not have the opportunity to have that binding discussion. How is this any different than the people you accuse of wanting to open the debate for the purpose of advancing pre-determined conclusions?

    You write that the pursuers of this debate want a demarcation point where none exists. But for the purposes of the law, there has to be a demarcation point of some kind. (There already is one — the point of birth, which is open to inquiry, but which you currently defend.) We need to have a defined moment at which the taking of a human being’s life becomes the business of the law. Some people, such as the Princeton bioethicist Peter Singer, think that killing “defective” infants is not murder, either (in addition to adults who suffer illnesses that prevent them from holding preferences), and I’m guessing (and hoping) that you do not accede to that maxim; if so, you’ll have to appeal to some demarcation point. Also, you complain that the people conducting the inquiry are politicians instead of biologists. But all of government’s connection to particular policies are in some way filtered by politicians. With luck, the politicians are deferent to expert opinion, but the biologists themselves do not have the authority to make law.

  5. [Part 2/2]
    One final remark about your dismissal of opposition to abortion as “religiously motivated” and about the limits you’ve set on possible definitions of life, which leave out the possibility of conception being the starting point not only of one’s material existence but also of one’s claim to rights. There is a school of thought holding that all human beings are entitled to an inalienable respect and dignity, rooted not in their cognitive capacities or development or social status but in their membership in the same species and class as rational, adult beings who themselves appeal to innate human rights. Secular liberals who advance a wide variety of rights-based claims in the realms of global justice, distributive justice, and identity politics assume that discriminations of any kind are the fruit of bigotry. Secular opponents of abortion simply apply this principle to those humans who, through no fault of their own, have not lived long enough to survive without dependence on someone else — a position that many adult humans, especially in the later stages of life, find themselves. You may well disagree with that belief, as is your right to do, but it is wrong for you to chide it as “religious” where there is no appeal to scripture or religious doctrine, or to dismiss it as “ridiculous” without providing any arguments for why this is so.

  6. 1) If people who are "pro-life" want to prevent abortions, they would get the best return on investment by working to have birth control be inexpensive and widely available.

    2) If a fetus is to be considered to be a human life, let's consider other situations in which one person could save the life of another with far less personal imposition and/or risk to the donor's life than carrying a baby to term. Why is it not mandatory for a person's organs to be harvested for transplantation after their death? Why is it not mandatory for people to regularly donate blood, especially those who have rare blood types?

  7. Jackson,

    You are inaccurately generalizing, again. I do not trust that Mr. Woodworth had any desire to allow evidence from the special committee to influence his position, and therefore am happy that his motion was defeated. I am not against investigation and research into embryonic development and its potential legal implications, and have stated so explicitly, several times now. It is not legitimate to claim that I believe any "discussion is undesirable".

    And while there has not been a formal debate in Canadian parliament, there have been several in the United States. Bills have been implemented - not just proposed, but introduced, debated, voted upon, approved, and signed into law - that allows a doctor to lie to their patients if the doctor thinks it might prevent an abortion. In all these deliberations, and the media punditry that covered it, I have yet to hear a cogent, secular argument to restrict a woman's access to abortion. That is a statement of fact, and in no way equivalent to "decid[ing] in advance of the inquiry that your conclusion is correct and reasonable, and you therefore believe that people who don't share your opinion should not have the opportunity" to present their arguments. The federal Conservative government's record to date regarding scientific pursuits and data collection do not make me optimistic that reason, logic, and fact will play a significant role in determining policy regarding women's reproductive rights.

    The one statistic you provide is wildly inaccurate. 7,000 abortions (representing 0.8% of the total) induced after 20 weeks gestation in Canada implies 875,000 such procedures. Yet according to Statistics Canada, there were 104,099 abortions in 2003 (see Table 1-1 on page 10). You are off by more than a factor of eight. Your position is not strengthened when the data you cite to support your argument are exaggerated by nearly an order of magnitude.

    One might argue that the moment an egg is fertilized the embryo is entitled to full protection of the law, and that terminating any pregnancy is the legal equivalent to murder, rendering irrelevant the means of conception (voluntary or coerced intercourse), the status of the mother's health or life, the desire and capability of the parents to raise a child, and so on. In principle, such an argument is possible. Please feel free to make one.

  8. Yes, I suppose it is a good idea to move the decimal point TWO spaces when calculating percentages. Looks like I punched in 0.08 x 100,000 instead of 0.008 x 100,000. This wasn't intentional - just sloppiness on my part, as I should have recognized that something was amiss. Sorry. But 700 is still significant, considering that these are human lives we're dealing with.

    If you remain opposed to Woodworth's motion, I'd ask you to identify what motion you *would* propose for answering the legitimate question of when life begins for legal purposes, given that the evidence upon which the current definition is based is wildly out of date. And I'm not sure it's fair to paint Woodworth as a loon that is of the same stripe as the "anti-science" Conservatives. After all, he broke with the party to bring the motion forward, as they wanted nothing to do with it. And when defending the initiative in the media, Woodworth always stressed the importance of following the scientific evidence to its conclusion. Whether one thinks that this was a mere rhetorical point or a matter of principle is anyone's guess.

    My arguments about abortion, including moral exemptions for rape and mother's health, are explained in Chapters 3 through 5 of my book on the subject. I can give you a pdf copy if you'd like to read it, though Marquis is a much better person to read on this topic than I am. At any rate, my purpose here wasn't to advocate a particular claim about abortion, but rather to argue a) that as wide a spectrum of secular views should be included in a discussion with legal implications, and b) that the extension of legal recognition and protection to fetuses on the ground of inalienable human rights is worthy of inclusion in that spectrum, even if you don't agree with it.


  9. Jackson:
    I still assert that the status of the fetus is a bit of a red herring in this argument. If people really want to stop killing fetuses, the best way to do that is to prevent conception in the first place, so why don't we see many prolifers strongly advocating for sex education and better access to contraception? (On the contrary, the majority of prolifers are opposed to widespread access to contraception, some (ie the RC church, and some Christian fundamentalists) even oppose it for married couples.) Why don't they try to address the fact that abortion is covered by government health plans, while contraception is not?

    With respect to "inalienable human rights", I would really like to see your views on the questions I asked about the obligations for a person to save the life of another. Think of how many lives would be saved if we mandated that people donate their organs after they die.

    And going a bit further, with respect to personal responsibilities, here's a thought experiment: Person A is driving a car, and makes an error such that Person B is seriously injured. B's liver is damaged, and their only hope for survival is a transplant. Coincidentally, A is a perfect match. Is A morally obligated to donate a portion of their liver to B? Should A be legally obligated to do so?

  10. Sorry for the delay in responding, Seanna. I'm not sure how the fetal status question is a red herring. How does invoking it distract the inquiry? Clearly the question matters a lot to the debate —— if the fetus is a human being with inalienable rights, preventing his or her deliberate killing is imperative (whether this be in the form of preventing conception in the first place to preeempt later abortion, or preventing abortion itself); on the other hand, if the fetus is just a blob of jelly deserving of no consideration, the decision to use or not to use contraception has no ethical content.

    I'm not representing any religious "pro-lifers", and since I'm an infidel, I'm sure they wouldn't be searching for my support. I know that the Catholic prohibition of contraception is based on the belief that sex is only moral when undertaken for procreation. I have written many times that anti-abortionists should favour contraception, since it a) makes sexual freedom possible without conception, in most cases, and b) prevents the creation of many likely victims of abortion. Catholics and Protestants who oppose abortion may be guilty of failing to recognize the absurdity in opposing contraception while also wanting fewer abortions, but that in itself doesn't make their abortion position incorrect.

    I also think your view of the anti-abortion position may be incomplete. While it is true, on my account, that opposition to abortion entails reducing the total number of abortions, including cases when conception can be prevented by contraception, it doesn't follow that preventing conception as often as possible, when a child is not desired, makes actual abortions any less odious or any less necessary of action. The position is not simply a calculation, in other words, but is primarily concerned with actual cases where the abortion of an actual fetus is being complicated. My view is that in such cases, where the relevant actors are the woman (and her abortionist), the fetus, and the state, and where there are no extenuating circumstances, the state should take the side of the fetus.

    As for your questions about obligations for a person to save the life of another: I do think that organ donation after death should be mandatory, as there is no plausible way for a dead person to have rights, except perhaps to a societal etiquette forbidding desecration. The car accident thought experiment is more difficult, and I don't have an absolute answer. Your insertion of Person A's responsibility for Person B's injuries is an interesting twist - it may be analogous to the responsibility of the mother in conceiving the child. My initial reaction is to say that if I were Person A, I would certainly feel morally compelled to donate a portion of my liver to the person I'd harmed. As for legal obligation, I'm more likely to say that Person A has a responsibility under tort law to recompensate Person B for his injuries. It is unlikely that Person A is the *only* person with a match. Therefore, for Person A to donate his liver would be supererogatory. But as I say, I'll have to give it more thought.