The Supreme Court of Canada has heard two cases involving the rights of homosexuals since an Ontario court ruled in 1993 that gays and lesbians are entitled to special protection under the Charter of Rights and Freedoms. Both times the nation's top court endorsed gay rights. The Supreme Court has also been asked, on three occasions, to grant charter rights to prenatal humans. Each time it has refused. Over the last two weeks, the nine appointed justices had two more opportunities to examine the rights of homosexuals and unborn babies. True to form, it rejected the latter and, though a judgement is pending, it gave every indication it will again uphold and advance the rights of the former.

The latest fetal rights decision was handed down October 31, when the court ruled in Winnipeg Child and Family Services (Northwest Area) v. D.F.G. The widely publicized case involved a pregnant glue-sniffer who was forcibly hospitalized last year by a Winnipeg judge to protect her unborn child. Within days of her apprehension, the Manitoba Court of Appeal ordered "Ms. G's" release on the grounds that an unborn child is not a person under the law. Winnipeg Child and Family Services (CFS) appealed that ruling, but now the Supreme Court has upheld it, stating that only Parliament has the power to declare that unborn children are legal persons, deserving legal protection.

The court's restraint regarding the unborn contrasted sharply with its attitude in the gay rights case it faced a week later. Edmonton homosexual Delwin Vriend argued that Alberta's Individual Rights Protection Act should be amended to include special protection for gays and lesbians. Attempts by the lawyer representing the province to defend the act as it stands were aggressively challenged by the court. Witnesses in the courtroom said some of justices appeared hostile and even contemptuous of the province's position. Observers could not help but conclude that the court considers gay rights a far more pressing social concern than fetal life.

"The law of Canada does not recognize the unborn child as a legal person possessing rights," wrote Madam Justice Beverly McLachlin on behalf of the 7-2 majority in the Ms. G decision. "Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of a born person."

Few would dispute that the particular unborn child in question needed protection, with or without the law. Its mother, who left Manitoba's Berens River Reserve at 17 to take up prostitution and glue-sniffing on the streets of Winnipeg, had produced three other children. Ms. G poisoned two of them in the womb with her solvent-sniffing; they were born brain-damaged and declared permanent wards of the state. In May 1996, at age 22 and pregnant for a fourth time, she landed in a hospital after being found unconscious and reeking of paint-thinner. Neither friends nor Winnipeg CFS social workers could sway her behaviour. So on Saturday, August 6, the stoned, bruised and dirty young woman was brought before Manitoba Superior Court Justice Perry Schulman. He asserted the court's parens patriae jurisdiction or guardianship over her unborn child and sent her to the hospital.

Two days later the Manitoba Court of Appeal quashed Mr. Justice Schulman's decision. Fortunately, Ms. G elected to remain in hospital, even though she and her unborn baby were both suffering seizures from addiction withdrawal. Three months later, while CFS lawyers were in the process of appealing the Manitoba Court of Appeal's decision to the Supreme Court, she gave birth to an apparently healthy son, William. She has remained "clean" and under CFS supervision ever since, and has therefore been allowed to keep the boy. Last Monday Ms. G married William's father, 51-year-old George Timmerman of Winnipeg.

Things may have turned out more or less happily for the child that provoked the Supreme Court decision, but there is little in the decision to comfort the next child that finds itself in such grotesque prenatal circumstances. The court ruled that if Ms. G had continued her solvent sniffing, she could have been sued if the child had been born damaged. But the mother was free to do all the damage she could before the birth, because her child had no legal status. As the law stands, the prudent thing for an expectant drug abuser to do if she suspects her child may be born damaged, is to kill it before birth to avoid legal sanctions.

Despite the gruesome implications, abortion advocates were delighted with the court's decision. "Our healthcare system is premised on caring, not on policing," says Jo Dufay, spokesman for the Canadian Abortion Rights Action League (CARAL) in Ottawa. "If you care about the fetus, you must care about the woman, not punish her." CARAL intervened in the case, arguing that any recognition of the fetus as a person would ultimately lead to restrictions on abortion. "Women do not need legislation; they need adequate health support," says Ms. Dufay. "If you threaten women with incarceration, you will only drive them away from the hospitals."

Health support eventually came to Ms. G, though only after she had rejected the social workers who tried to change her lifestyle and only because she was unconscious long enough to get her into a hospital bed. Nonetheless, the Supreme Court was determined to protect her right to destroy her child—and herself. "Protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and as to how and where she chooses to live and be," wrote Madam Justice McLachlin. "It would seriously intrude on the rights of women. If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women."

Justice Jack Major of Alberta disagreed, however, and he was joined by Ontario's Justice John Sopinka. "When a woman chooses to carry a fetus to term, she must accept some responsibility for its well-being, and the state has an interest in trying to ensure the child's health," wrote Mr. Justice Major in dissent. "Since the pregnant woman has the right to decide her lifestyle, a court's ability to intervene to protect the fetus must be limited to extreme cases, where her conduct has a reasonable probability of causing serious irreparable harm to the unborn child...[However], while the granting of the remedy of confinement interferes with a mother's liberty interests, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented."

With regard to the issue of assigning rights to a fetus that has no legal status, Mr. Justice Major argued that modern medical technology has rendered the Common Law's old "born alive" standard, enshrined in the 1933 Tramways case, obsolete. The notion that a child has to be born alive in order to obtain legal rights derives from an era when many children failed to survive birth. But modern medical technology has vastly in-creased the likelihood of live birth, even if the fetus is extremely premature or crippled by chance or maternal abuse. Under these new circumstances, argued Mr. Justice Major, "If our society is to protect the health and well-being of children, there must exist the jurisdiction to order a pre-birth remedy, preventing a mother from causing serious harm to her fetus. Someone must speak for those who cannot speak for themselves."

Toronto lawyer David Brown, who intervened in the Ms. G case on behalf of the Evangelical Fellowship of Canada, calls it a "good loss," simply because it could have been much worse. "They could have ruled that the legislatures have no power to protect the fetus," he points out. "Instead, they agreed that a mother has obligations toward her unborn child, and they relegated the issue to Parliament and the provinces, only because it's 'too complex' for the court. They've also implied that they'll agree to any fetal-protection amendments to child welfare and child protection laws, providing they're protective and not punitive."

The question, then, is whether the political will exists to take such action. Following the ruling, federal Justice Minister Anne McLellan announced that her government will seek no new legislation. However, Alberta Social Services Minister Lyle Oberg voiced his opinion that the province should amend its child welfare laws to protect the unborn from maternal addictions.

Such a move would almost certainly provoke a challenge by abortion advocates and another legal examination of the rights of the fetus. In the Ms. G case, though the court repeatedly referred to the fetus as a "child" or "unborn child," the justices persistently wondered whether it was possible to protect "it" at all, without granting it the status of a "person." Doing that would give it "the right to life, liberty and security of the person," guaranteed to "everyone" by Section 7 of the Charter of Rights and Freedoms. And that would rule out aborting him or her. (Story on page 26 of the printed edition.)

Edmonton lawyer Mark McCourt says the Ms. G ruling has clarified where Canadian law currently sits regarding the "right" to abortion: precisely nowhere. "In the 1988 Morgentaler decision, the court struck down the 1969 abortion law solely on procedural grounds," he says. "But it also asserted that the protection of unborn human beings from abortion remains a valid parliamentary objective. Since then, Canada has simply had no abortion law at all." While the court has never granted "personhood" to the fetus, it has also "bent over backwards" to avoid denying its personhood, Mr. McCourt explains. It likewise skirted the issue of the fetus's humanity in the 1989 Borowski and Daigle decisions. There is no legal "right" to abortion; there is simply no law stopping it.

"We ducked the issue in Daigle," Chief Justice Antonio Lamer admitted last June during arguments in the Ms. G case. "We did not decide whether a viable fetus was a person or not." The Chief Justice added that the court's Morgentaler decision "specifically left open the issue as to whether a fetus is included in the word 'everyone,'" as it appears in Section 7 of the charter. Later, he went even further: "It's not an earth shaking proposition to say that the unborn child, we call it a fetus, is entitled to some protection. Why should it be just at the end of the pregnancy?...What's so wrong with backing it up?"

For his Supreme Court hearing in 1989, Winnipeg pro-lifer Joe Borowski accumulated a wealth of scientific evidence asserting the humanity of the unborn child. Some 800,000 fetuses have been aborted since then, as the court has "ducked" or otherwise deflected the fetal rights arguments it has heard. Pro-lifers have been frustrated and angered by the court's deferrals, especially because it has been comparatively activist in asserting the rights of others, notably homosexuals.

"In fact, the court has often been quite aggressive in extending rights to people it likes," says University of Calgary political scientist Ted Morton, author of Morgentaler and Borowski. "They refuse to consider the humanity of the fetus; but they're quick to 'read' sexual orientation into the charter, when Parliament clearly refused to include it." Some justices on the court agree with the homosexuals and feminists, and the rest are largely cowed by them, says Prof. Morton, who has made a study of the performance and personalities of the post-charter Supreme Court.

The court displayed its activist bent on gay rights questions in the 1993 spousal benefits case, Egan and Nesbit. Taking its cue from an earlier Ontario court ruling, the Supreme Court accepted that homosexuality is an "immutable characteristic" like race or sex, and ruled that it qualifies on "analogous grounds" for protection from discrimination under Section 15 of the charter. There was no consideration of the scientific evidence suggesting that homosexuality might also be a psychological disorder and homosexual behaviour a destructive lifestyle choice. As in a number of previous cases, the crown attorney elected not to raise that issue, and the court did not enquire into it.

In last week's hearing of the Vriend case, observers say, the court again revealed its sympathetic disposition toward gay rights. Madam Justice McLachlin in particular, who had previously been so cautious and so deferential to Parliament regarding the rights of the unborn, announced boldly to the counsel for Alberta that the Supreme Court would undertake to write his province's human rights legislation. (See story, page 28.)

The Supreme Court's indifference to the unborn, and solicitude for gays, may both spring from its "legal positivism," the deeply-rooted belief that the judiciary has the authority and the competence to define reality. For at least a generation—perhaps since the famous Persons case of 1929—the artificial (and arbitrary) concept of legal personhood has been eclipsing the natural fact of the human being. The distinction has enabled courts to assume that something otherwise human has no claim to their legal protection.

"The separation of legal personhood from the human being is one of the best-established tools of repression," says pro-life activist Jim Demers of Nelson. Mr. Demers is currently embroiled in a legal fight against the B.C. government's "bubble zone" law, which forbids any expression of abortion opinion outside the province's abortion facilities. "The concept of personhood has been used to deny ordinary human rights to blacks in the South, to women, to the Jews in Germany," he explains. "At the Nuremburg war crime trials, the Nazi doctors claimed that the retarded and the disabled had no rights in Germany, because they weren't persons under German law. The only answer to that lie is to insist, over and over, that if something is human, it must be a person, with all the basic rights of every other person."

Although the courts may continue to uphold the notion that the fetus lacks person status right up until the moment of completed delivery, there are signs of growing public discomfort with the position. Since 1988 Canadian opposition to abortion has held between 10% and 20%, and the public desire for limits on the procedure drifts between 50% and 67%. But the last reliable poll was taken in 1995, before Drummond, the case involving a pregnant Ottawa woman who shot her fetus with a pellet gun, and before the Ms. G case. Both have highlighted the fact that Canadian law offers no protection for the fetus, regardless of its age.

A new English poll and recent turns in the American abortion debate both suggest that in those two countries, at least, popular opinion is on the move. At the end of October, in recognition of the 30th anniversary of Britain's Abortion Act, the Gallup organization polled attitudes toward pregnancy termination. Fully 59% of British women (and a majority of men) want the country's current, 24-week ceiling on elective abortions reduced to 10 weeks. At present there is no time-limit in cases of fetal abnormality; but 57% of women and another majority of men want a 24-week limit there. Some 68% of women and 57% of men believe that abortion should be allowed "only in particular circumstances." And 49% of women believe that unwilling mothers should simply bear their children and put them up for adoption.

In the United States, the fight between Congress and the Clinton administration over "partial-birth abortions," in which a child is breech-birthed, his head punctured, his brain sucked out before he clears the birth canal and becomes a person, is apparently stirring the populace. Illinois recently became the latest state to propose a ban on all third-trimester abortions. And polls indicate 51% of Ameri- cans want the procedure prohibited, or permitted only in cases of rape, incest or gross deformity.

In a recent article in The Women's Quarterly titled "The Fetus Beat Us," writer Candace Crandall argues that "the abortion myth" has collapsed under the weight of growing awareness of the reality of abortion. Two-thirds of American obstetricians and gynecologists refuse to have anything to do with it. Most of America's 1.5 million yearly abortions are performed in so-called "abortion mills" that are isolated from mainstream medical facilities. As a result, Ms. Crandall writes, "Abortion, in the public mind, has become linked to sexual irresponsibility and the degradation of life."

The abortion debate in Canada remains restrained by comparison, but pro-lifers detect cracks in the public consensus. "It's becoming painfully obvious that Parliament is shirking its duty," says Jim Hughes, president of the Campaign Life Coalition in Toronto. "But a majority of folks still don't know that it's perfectly legal in this country to kill a baby right up to the moment of birth. When they discover there's no protection for the unborn, they will get mad."

—Joe Woodard

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