Ottawa is facing a flag flap. The National March for Life flag was raised at city hall in the morning on May 11, 2017 and taken down in the afternoon. As Canada’s capital city you can easily imagine that Ottawa hosts a number of local, provincial, national and international events. Many are accompanied by the symbolic raising of a flag at city hall. That flag pole has become something of a symbol for free speech.
For the twentieth year in a row thousands of Canadians filled the lawn and sidewalks of Parliament Hill, the seat of our democracy. The past few years, police have erected barricades on Parliament Hill and along the march route. Not to control pro-life participants but to protect them from opponents who in recent years have engaged in hateful, and harmful, displays such as throwing condoms and other items at marchers, spitting on marchers and other acts designed to provoke a negative response.
Canada’s absent legal protection for children prior to birth is an issue of much conversation but little action from the majority of Canadian politicians. The limited action of today’s political environment includes Prime Minister Justin Trudeau’s edict that those who support protection for children before birth are unwelcome in the political party he leads, and the written demand from several Ottawa city councillors that the flag be taken down. In the process, the Prime Minister and councillors mistakenly assert a “right” to abortion as their rationale.
The matter of unregulated availability of publicly funded abortion in Canada is the result of a Supreme Court of Canada decision made in 1988, and the subsequent failure of Parliament to follow the court’s direction to enact suitably constitutional legislation for the protection of children prior to birth.
At issue in the Morgentaler case was a section of the Criminal Code that became law in 1969. Section 251 maintained abortion as illegal in Canada, providing exception only for instances of medically therapeutic reasons. The exception to the continuing general prohibition required the abortions to be performed in a hospital following review and approval of the health reasons by a committee of three doctors.
The Prime Minister of the day was the current Prime Minister’s father. In regard to the new law Pierre Trudeau stated,
You know, at some point you are killing life in the foetus in self-defence – of what? Of the mother’s health or her happiness or of her social rights or her privilege as a human being? I think she should have to answer for it and explain. Now, whether it should be to three doctors or one doctor or to a priest or a bishop or to her mother-in-law is a question you might want to argue …. You do have a right over your own body – it is your body. But the foetus is not your body; it’s someone else’s body. And if you kill it, you’ll have to explain. (Montreal Star, May 25, 1972)
In 1988, the Supreme Court of Canada found that the requirements to first meet with a therapeutic abortion committee and then have the medical procedure performed in a hospital posed a risk to life for women who might qualify for a legal abortion but would experience delays because of their distance from a hospital with a therapeutic abortion committee.
In a blog from May 27, 2014, I noted:
In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.
I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available online. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.
The court was unanimous that Parliament has a constitutional interest in the child before birth. In fact, shortly after the decision, a legislative attempt to replace the section struck down in Morgentaler passed the House of Commons, passed two votes in the Senate and then died because of a tie on the final vote. Several Senators were absent for the third vote, and the Speaker of the Senate determined that on a tie vote it was his responsibility to declare that the proposed legislation had not passed and therefore he voted against it.
Since that time Canada has remained without legal protection for the “someone else’s body” identified in the statement made by Prime Minister Pierre Trudeau. Distinctly, the only democracy in the world that fails to offer protection even to the medically viable pre-born child.
The March for Life, like similar protests on Parliament Hill, demonstrates that there are Canadians who desire Parliament take political action on an unsettled question, one that is literally a matter of life and death.
The only right at issue in raising and lowering the flag at city hall is the constitutional right to freedom of expression, free speech on whether Parliament will exercise its recognized constitutional authority in the life of yet-to-be-born citizens by providing protection of the law or continue to withhold that protection.
Raise the flag. Let’s have the conversation.