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