Abortion Should Be Kept Out Of The Criminal Code Essay, Research Paper

Abortion Should Be Kept Out of The Criminal Code

Abortion, termination of pregnancy before the fetus is capable of

independent life. When the expulsion from the womb occurs after the fetus

becomes viable (capable of independent life), usually at the end of six months

of pregnancy, it is technically a premature birth.

The practice of abortion was widespread in ancient times as a method of

birth control. Later it was restricted or forbidden by most world religions, but

it was not considered an offense in secular law until the 19th century. During

that century, first the English Parliament and then American state legislatures

prohibited induced abortion to protect women from surgical procedures that were

at the time unsafe, commonly stipulating a threat to the woman’s life as the

sole (?therapeutic?) exception to the prohibition. Occasionally the exception

was enlarged to include danger to the mother’s health as well.

Legislative action in the 20th century has been aimed at permitting the

termination of unwanted pregnancies for medical, social, or private reasons.

Abortions at the woman’s request were first allowed by the Soviet Union in 1920,

followed by Japan and several East European nations after World War II. In the

late 1960s liberalized abortion regulations became widespread. The impetus for

the change was threefold: (1) infanticide and the high maternal death rate

associated with illegal abortions, (2) a rapidly expanding world population, (3)

the growing feminist movement. By 1980, countries where abortions were permitted

only to save a woman’s life contained about 20 percent of the world’s population.

Countries with moderately restrictive laws?abortions permitted to protect a

woman’s health, to end pregnancies resulting from rape or incest, to avoid

genetic or congenital defects, or in response to social problems such as

unmarried status or inadequate income?contained some 40 percent of the world’s

population. Abortions at the woman’s request, usually with limits based on

physical conditions such as duration of pregnancy, were allowed in countries

with nearly 40 percent of the world’s population.1

Under the Criminal Code. R.S.C. !970, c.C-34, abortion constitutes a

criminal offense. Section 159(2)(c) makes it an offense to offer or have for

sale or disposal, to publish or advertise means, instructions or medicine

intended or represented to cause abortion or miscarriage. Section 221(1) makes

the act of causing death to a child who has not become a human being, in the act

of birth, equivalent to murder. Abortion constitutes an indictable offense

under s. 251 of the Code whenever a person uses any means to carry out the

intent to procure a miscarriage of female person, whether she is pregnant or not.

Section 251(2) makes any female attempting to procure a miscarriage by any means

guilty of an indictable offense. Section 251(4) allows permission for a

therapeutic abortion to be obtained from a competent committee, fulfilling

strict regulations, with the operation performed by a qualified physician.

However, the common-law defense of necessity is theoretically available for a

surgical operation performed for the patient’s benefit. 2

Until 1988, under the Canadian Criminal Code, an attempt to induce an

abortion by any means was a crime. The maximum penalty was life imprisonment ,

or two years if the woman herself was convicted. The law was liberalized in

1969 with an amendment to the Criminal Code allowing that abortions are legal

if performed by a doctor in an accredited hospital after a committee certified

that the continuation of the pregnancy would likely endanger the mother’s life

or heath. In 1989, 70 779 abortions were reported in Canada, or 18.0 abortions

per 100 live births. 3

Henry Morgentaler is a major abortion supporter. Dr. Morgentaler was

one of the first Canadian doctors to perform vasectomies, insert IUDs and

provide contraceptive pills to the unmarried. As president of the Montreal

Humanist Fellowship he urged the Commons Health and Welfare Committee in 1967 to

repeal the law against abortion. To draw attention to the safety and efficacy

of clinical abortions, Morgentaler in 1973 publicized the fact that he had

successfully carried out over 5000 abortions. When a Jury found him not guilty

of violating article 251 of the Criminal Code the Quebec Court of Appeal (in Feb

1974), in an unprecedented action, Quashed the jury finding and ordered

Morgentaler imprisoned. Though this ruling was upheld by the Supreme Court a

second jury acquittal led Ron Basford, minister of justice, to have a Criminal

Code amendment passed, taking away the power of appellate judges to strike down

acquittals and order imprisonment’s. After a third jury trial led to yet

another acquittal all further charges were dropped. In Nov 1984 Morgentaler and

2 associates were acquitted of conspiring to procure a miscarriage at their

Toronto clinic. The Ontario government appealed the acquittal; the accused

appealed to the Supreme Court of Canada, which struck down the law in early 1988

on the basis that it conflicted with rights guaranteed in the Charter. 4

The Charter guaranteed a woman’s right to the security of her person.

The Court also found that this right was breached by the delays resulting from

the therapeutic abortion committee procedures. In May 1990 the House of Commons

approved (140-131) a new law that would put abortion back into the Criminal

Code, allowing abortions only if a doctor determined that a woman’s health was

threatened by her pregnancy. The bill died in the Senate in Jan 1991. 5

In the case of Campbell v. Attorney-General of Ontario (1987) the

allegations in the statement of claim that the effect of the stay was to deny

s.7 and s,15 rights to unborn children aborted or about to be aborted support a

reasonable cause of action. The law does not regard unborn children as

independent legal entities prior to birth, so that it is only at birth that

independent legal rights attach. Unborn children therefore do not enjoy any

Charter rights. 6

The problem with s.251 is that it takes the decision away from the woman

at all stages of her pregnancy. Balancing the state’s interest in a protection

of the fetus as potential life under s.1 against the rights of the pregnant

woman under this section requires that greater weight be given to the state’s

interest only in the later stages of pregnancy. 7

Abortion is a divisive social issue, condemned by some groups and

supported by others as a moral issue to be decided by individuals, not the state.

8 It is complicated for the government to balance both sides of the issue. Not

everyone can be unconditionally content. The government has to decide on what

is fair and what is morally right. The Charter guarantees the right to life,

liberty and security of the person and the right not to be deprived thereof

except in accordance with the principles of fundamental justice. A woman,

pregnant or not, has the right to control her own life and destiny. She also

has the right to make her own choices about what affects her. A woman has the

right to feel secure in having an abortion, and feel secure about her own health.

A woman’s body is her own. What she does with it is her own business. An

unborn child does not have the ability to think for itself, so the mother must

think for it. It may show life signs but it is not conscious and has no

reasoning. It is not up to someone else to decide what is right and what is

wrong for another individual. Who are we to tell someone else what to do or

think.

For an example, if a teenage girl is pregnant, what kind of a life could

she offer the child? Teenagers can barely take care of themselves, not to

mention a baby. It would benefit everyone involved if the abortion option is

openly present. It is hard enough to be a teenager without others judging your

opinions and choices.

It is understandable that people do not agree that abortion should be a

choice for a woman. They may not understand what the woman may be struggling

with mentally and or physically. The government should have little control over

this issue. They should monitor people to make certain that abortion is not

used as a contraception, for this may be endangering the health of a woman.

With world overpopulation, keeping the abortion law out of the Criminal Code may

benefit the entire planet. It’s a sad way of looking at it but people have to

face reality.

PERSONAL THOUGHT

People who protest against abortion have nothing better to do. They

protest only when their favorite talk show is not on the mind controller they

call television. If this statement is going to cost me any marks, please

disregard. THANK YOU!

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