Sunday, June 05, 2005

R. v. Morgentaler: a preliminary post

As promised, I am continuing our earlier discussion of the abortion issue. At the risk of trying everyone's patience, I've decided to provide some supporting detail from R. v. Morgentaler before addressing the core issue.

In my original post, I stated, "In the 1970s and 80s, Canada had a law which permitted abortion in hospitals, but only if certain criteria were met." At least one reader felt cheated because I didn't give any content to the phrase, "certain criteria". Aaron wrote, "I do note here that you didn't identify the criteria, so I have no idea whether I would consider them reasonable or overly restrictive."

I've decided to explain the criteria, partly to satisfy the appeal for full disclosure, but also because it will provide a concrete framework for our subsequent discussion.

Courts generally do not rule on abstract legal questions; with few exceptions, they address questions only as they arise within a specific fact situation. Abortion involves real women, plus real zygotefetusbabies, medical procedures and, potentially, laws and regulations.

I think the wisdom of this approach will become clear as we explore R. v. Morgentaler in more detail. For starters, we will consider two questions:  (1) What procedural hoops did a woman have to jump through to obtain a legal abortion in Canada in the 1970s and 80s?; and (2) Why did the Supreme Court of Canada object to those procedural steps and strike down the law?

We will also gather some informative data. The Supreme Court decision includes a brief description of the several techniques used to carry out abortions. And it illustrates the practical difficulties that stand in the way of any attempt to regulate women's access to abortion. (A point that Aaron directed us to in one of his comments.)

My next post on the subject will address the core question:  in Snaars' words, "At what point in its development does a fetus have moral rights, and what are those rights?" I'll get there, I promise. I'm just methodical (if not downright plodding) in my thought processes.

Prior to the 1988 Morgentaler decision, Canada had a law which permitted abortion in hospitals, but only if certain criteria were met.

The law, section 251 of the Criminal Code of Canada, was structured as follows. Subsection (1) made it an offence for anyone to perform an abortion. Subsection (2) made it an offence for a woman to procure an abortion. Subsection (4) exempted women and doctors from the law against abortion if they jumped through certain, specified procedural hoops. In the words of Chief Justice Dickson:

The crucial provision for the purposes of the present appeal is subs. (4) which states that the offences created in subss. (1) and (2) "do not apply" in certain circumstances.…

The procedure surrounding the defence is rather complex. A pregnant woman who desires to have an abortion must apply to the "therapeutic abortion committee" of an "accredited or approved hospital". Such a committee is empowered to issue a certificate in writing stating that in the opinion of a majority of the committee, the continuation of the pregnancy would be likely to endanger the pregnant woman's life or health. Once a copy of the certificate is given to a qualified medical practitioner who is not a member of the therapeutic abortion committee, he or she is permitted to perform an abortion on the pregnant woman and both the doctor and the woman are freed from any criminal liability.

Let's unpack this rather condensed account of the law. A woman learns that she is pregnant and, for whatever reason, the news is unwelcome to her. She wants an abortion. She goes to her local hospital, where she is told, "We'll convene our therapeutic abortion committee to consider your application". (The wheels of bureaucracy are grinding into motion. This shouldn't take long!)

The sharp reader will immediately note that the law is formulated so as to minimize access to abortion. The statute first declares abortion illegal. The default position is, no abortion; the onus is on the woman to demonstrate that she qualifies for an exemption. The statute could have been written the other way around:  the legislature could have declared abortion legal in most cases, with certain exceptions.

The law required four doctors to be involved in each abortion. According to subsection (6) of the statute, a minimum of three doctors had to serve on the therapeutic abortion committee; then the abortion was to be carried out by a fourth doctor, not on the committee. (Presumably so that the doctors who were deciding whether to approve the abortion did not stand to gain financially or in any other respect from the procedure.)

The word therapeutic hints at the criteria the committee would consider. The pregnancy did not have be a matter of life and death for the committee to approve an abortion. Therapeutic signifies that the effect of the pregnancy on the woman's health is also a relevant consideration. But this gives rise to further questions:  will a woman's emotional health be taken into consideration, or only her physical health? And how grave must the threat to her health be, before an abortion will be approved?

For now, I am only calling these issues to your attention, but we will return to them shortly. First, more of Chief Justice Dickson's comments.

At the most basic, physical and emotional level, every pregnant woman is told by the section [of the Criminal Code] that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations.

Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress.

In the court's judgement, this constituted a "profound" interference with a woman's body. The statute thus violated the Canadian Charter of Rights and Freedoms, which protects the security of the person.

The court then noted an additional problem which we have already hinted at. Even for women who meet the criteria for an abortion, the bureaucratic process resulted in an unacceptable delay. In the province of Quebec, for example, the waiting time for a therapeutic abortion in hospital varied between one and six weeks.

In the context of abortion, any unnecessary delay can have profound consequences on the woman's physical and emotional well-being.

Different medical techniques are employed to perform abortions at different stages of pregnancy. The testimony of expert doctors at trial indicated that in the first twelve weeks of pregnancy, the relatively safe and simple suction dilation and curettage method of abortion is typically used in North America.

From the thirteenth to the sixteenth week, the more dangerous dilation and evacuation procedure is performed, although much less often in Canada than in the United States.

From the sixteenth week of pregnancy, the instillation method is commonly employed in Canada. This method requires the intra-amniotic introduction of prostaglandin, urea, or a saline solution, which causes a woman to go into labour, giving birth to a foetus which is usually dead, but not invariably so.

The uncontroverted evidence showed that each method of abortion progressively increases risks to the woman. Even within the periods appropriate to each method of abortion, the evidence indicated that the earlier the abortion was performed, the fewer the complications and the lower the risk of mortality.

…There is a world of difference, from the psychological point of view of the patient, between a reputedly safe technique of abortion performed under local anaesthetic requiring only a few hours in a hospital and an abortion procedure with a substantially higher complication rate performed under general anaesthetic requiring a longer period of hospitalization, and involving the trauma of induced labour and the delivery of a dead foetus.

We've addressed one of the issues I raised earlier:  the deleterious impact of bureaucratic delay. But the court had another reason for objecting to the statute:  it led to inequitable access to abortion for Canadian women. In some places, there was no local access to abortion except in life and death circumstances.

Of the 1,348 civilian hospitals in operation in 1976, at least 331 hospitals had less than four physicians on their medical staff. In other words, the seemingly neutral requirement of s. 251(4) that at least four physicians be available to authorize and to perform an abortion meant in practice that abortions would be absolutely unavailable in almost one quarter of all hospitals in Canada.…

A further flaw with the administrative system established in s. 251(4) is the failure to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted.…

Various expert doctors testified at trial that therapeutic abortion committees apply widely differing definitions of health. For some committees, psychological health is a justification for therapeutic abortion; for others it is not. Some committees routinely refuse abortions to married women unless they are in physical danger, while for other committees it is possible for a married woman to show that she would suffer psychological harm if she continued with a pregnancy, thereby justifying an abortion. Some committees refuse to approve applications for second abortions unless the patient consents to sterilization [while] others require psychiatric assessment.

[The result, inevitably, was that women outside an urban setting were much less likely to obtain an abortion locally.]

[For example,] doctors from the Chedoke-McMaster Hospital in Hamilton testified that they received telephone calls from women throughout Ontario who had applied for therapeutic abortions at local hospitals and been refused. At one point, 80 per cent of abortion patients at Chedoke-McMaster were from outside Hamilton, and the hospital was forced to restrict access for women from outside its catchment area.

In sum:
  • The law which existed in Canada in 1988 required a therapeutic abortion committee to approve applications for abortion. Four doctors had to be involved in each procedure.

  • The process resulted in delays which could be injurious to a woman's physical and emotional well-being. Even if the delay was a matter of only a few weeks, it might become necessary to utilize a more invasive and risky procedure to carry out the abortion.

  • The law also resulted in inequitable access to abortion for Canadian women. Many hospitals did not have enough doctors on staff to meet the requirements of the law. Each committee put its own interpretation on the law, with the result that many women had no local access to abortion.

  • The above issues, delay and inequitable access, illustrate the kind of practical difficulties which are likely to arise with any alternative regulatory regimen we might propose. The instant we attempt to protect the fetus, we risk introducing unintended, harmful consequences for women.

A few concluding comments are in order, and here's why. A lawyer once said, "If you allow me to choose all the illustrations, I will win every case." (I apologize, but I don't know the lawyer's name; it's a tidbit I picked up in a first-year law course.)

The saying is certainly apt with respect to the abortion issue. Advocates of the pro-choice position describe every scenario from the woman's point of view, and their position seems unassailable. Advocates of the pro-life position similary skew the data by describing every scenario from the baby's point of view.

I have only summarized the first 20 pages of a 100-page court decision. In all of the excerpts I have provided, Chief Justice Dickson views the issue from the perspective of the pregnant woman.

This is particularly striking when the Chief Justice speaks of the occasional fetus which survives the instillation procedure and is born alive. His concern is solely for the woman — the emotional trauma this will cause her. I am filled with horror for the baby:  a healthy baby, whose safe and pleasant environment is suddenly flooded with a saline solution; expelled from the uterus prematurely, horribly burned, alive and suffering terribly.

If we consider only the data summarized above, Dr. Morgentaler appears in a heroic light. But this post explores the perspective of only one party to the abortion.

Next, we will consider other aspects of the Supreme Court decision, in which the fetus is presented for our consideration. We will ask the vexed question, when does a fertilized ovum become a human being? And we will consider a variety of ways to approach the issue:  ways which seek that elusive balance between the conflicting interests of the pregnant woman and the zygotefetusbaby inside her.


At 10:39 AM, June 06, 2005, Blogger Bill said...

Q, you say "This is particularly striking when the Chief Justice speaks of the occasional fetus which survives the instillation procedure and is born alive. His concern is solely for the woman — the emotional trauma this will cause her.", then you note, "I am filled with horror for the baby: a healthy baby, whose safe and pleasant environment is suddenly flooded with a saline solution; expelled from the uterus prematurely, horribly burned, alive and suffering terribly."

I whole heartedly agree with your reaction to the results of instillation method. Pardon my ignorance on the case, but exactly what does Chief Justice Dickson say that leads you to belive "His concern is solely for the woman" in regards to a instillation procedure?

I have no doubt that he may have such a bias, but to add weight to the argument I think a direct quote would help.(or at least a reference to it)

At 1:19 PM, June 06, 2005, Blogger Bill said...

After looking through the case, I found one reference by chief Justice Dickson that seems to outline his approach to the rights of the foetus.

He says, "The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester."

I would say that this is to some degree a cop out, however from a conservative approach the legislature would be the best place for this to be dealt with.

As for the instillation procedure it is used after week 16 in the second trimester and from what I have read mostly in the later half of the second Trimester.

It would appear that Dickson's estimate as to when the state's interest in the protection of the foetus becomes compelling might thus make the instillation procedure history.

While this may not be totally indicative of Dickson's bias he quotes Dr. Jane Hodgson, the Medical Director of the Women's Health Center in Duluth, Minnesota, in that "The cost, the time consumed, the medical risks, the mental anguish -- all of this is cruelty, in this day and age, because it's [the instillation procedure] an obsolete procedure that is essentially disappearing in the United States."

So in essence the legislature should get off its collective behind and take a closer look at the issue.

As I have said before (in another blog dealing with Canadian politics - The Art of the Rant) the government of Canada is "The white bread government of Canada, inoffensive to nobody, but how honest is it?"

Not honest enough to admit they are dragging their heels. They are afraid to admit that this issue is to hot for any aspiring politician to handle without getting burned.

At 4:05 PM, June 06, 2005, Blogger Stephen (aka Q) said...

I'm impressed you read this post. I see it's 2100 words in total. I usually try to stay around 1,000 words, and even that is asking a lot of the reader.

The language I used is perhaps unfair to the former Chief Justice. To be precise, he makes no mention of the trauma to the baby. The references to the instillation procedure are at pp. 58 and 59 (where there is no mention of trauma to anyone) and pp. 61 and 103 (where he mentions the trauma to the woman).

I hope the instillation procedure has become obsolete in Canada since 1988, but I don't have any information about it.

As for the political angle — I agree, I'd like to see legislation against late-term abortions. (Though we should remember Snaars' point, there are other ways of responding to the issue aside from criminal law.)

It seems that no political party can get elected in Canada if it talks about introducing legislation on abortion. There would have to be a huge change of heart among the general public for it to occur.

At 8:22 PM, June 06, 2005, Blogger aaron said...

Q, many thanks for continuing this this topic. I find the discussion of Canadian law, about which I know virtually nothing, quite interesting. I am curious to see where you're taking us, and so look forward to reading your next post on the subject.

At 8:27 AM, June 07, 2005, Blogger Mary P. said...

How about "his expressed concern is solely about the woman"? We can't assume what he might think privately, but publicly there's no concern for the child. That's mind-boggling. A child is born alive from a procedure that was supposed to eliminate him/her - and then what? What happens to it next? I find this intensely disturbing. As far as we can know, the judge doesn't, at least not enough to mention the possibility of trauma to this accidental person.

At 9:44 AM, June 07, 2005, Blogger Stephen (aka Q) said...

• Aaron:
Thanks for the positive feedback. I enjoy following the reasoning of the Supreme Court Justices, but I feared everyone else would just want me to get on to the core issue.

• Mary P:
What happens to it next? If the baby is as young as 16 weeks gestation, presumably it can't be saved. Not that anyone in the operating room would want to save it, of course. I suppose they would "euthanize" him/her, to preclude unnecessary suffering.

If the baby is older than 21 weeks gestation, presumably there's a chance it could be saved. But I suppose they "euthanize" him or her anyway.

I remember reading about this scenario years ago, in a pro-life pamphlet by Melody Green. At the time, I discounted it as an extreme exception to the usual clinical practice. It's a little shocking to read this sober account of the scenario from the Chief Justice of the Supreme Court of Canada.

Nonetheless, I presume my initial assessment was right: it's an exceptional event. The pro-choice side trots out similarly exceptional cases: Surely you wouldn't deny an abortion to an 11-year-old girl, pregnant by her father?, for example.

Unless we're complete ideologues, we will respond compassionately to these exceptional — but real — human tragedies. But I don't think we can generalize whether abortion is right or wrong based on such data.

Having said that, this example does serve a purpose. It's too easy to dehumanize the "fetus". The example reminds us that even before the fetus is viable, it is already very much a baby.

At 3:58 PM, June 08, 2005, Blogger Bill said...

Does anyone know of a good source on prenatal development. I'm am curious as to when the areas of the brain that carry the cognitive ability develop? I'm sure you can see where I am going with this, but worry not I am not proposing a Mengella sort of research to find out.

Does the cognitive center of the brain develop before the autonomic after it or at the same time?

At 4:21 PM, June 08, 2005, Blogger Stephen (aka Q) said...

You're outside my area of expertise, that's for sure. (Even assuming I have an area of expertise.)

For what it's worth, one of the things I've been mulling over is that development in general continues long after birth. The capacity to digest food, for example. There's a reason newborns are fed mother's milk, not sirloin steak. And sexual development obviously is much, much later.

There are a lot of things young children lack the intellectual capacity for. In music, for example, the capacity to distinguish one pitch from another.

In other words — though I'm no expert on the subject — I'm confident that autonomic functions develop long before advanced cognitive functions.

The implication, with respect to the abortion debate, is this: even birth marks an arbitrary line. It isn't the end of the developmental process, just another stepping stone on the journey to maturity. You might just as well kill a newborn one month after birth as kill a baby at eight months' gestation.

I'd be interested in input from Journeywoman or from Mrs. Snaars. Both women have far more expertise in fetal development than I do.

At 10:39 AM, June 09, 2005, Blogger snaars said...

I agree that fetal development is very relevant to this issue. I'll ask Michelle about it and also see what I can dig up from her library. (I'll also ask her to comment here, but I have trouble getting her to read my own blog, so I won't promise anything.)

A warning, though - I'm nearly certain that medical science has not progressed to the point that we can say for sure what cognitive functions ARE - take a moment to let that sink in - let alone which ones are relevant to the abortion question, and when they develop.

Having got the disclaimer out of the way, we do have some strong clues and markers in fetal cognitive development. We may not fully understand pain for instance, but we know that beyond a certain point in its development a fetus has the capacity to feel it. Even more important than pain (in my own opinion) is the ability to suffer, or experience psychological and emotional anguish.

Even if we fully understood cognitive development though, our knowledge would not be sufficient to answer the moral questions raised by the abortion issue. As has already been mentioned, we would have to have a better understanding of moral rights - the fetus's and the mother's - and also the government's! (Does the government have moral rights? It almost seems as though it does, if parens patriae can be interpreted as a right/duty of the state. I'm treading in unfamiliar territory here!)

We would have to understand what makes a human being a person. It's not clear that it is always and under all circumstances wrong to inflict pain and/or suffering. We would still have to weigh the fetus's pain and suffering against other issues in the debate.

At 1:48 PM, June 09, 2005, Blogger Stephen (aka Q) said...

The distinction you make between (physical) pain and (psychological) suffering interests me. I agree with the distinction insofar as it is possible to suffer psychologically in the absence of physical pain.

But is the reverse true? Is it possible to experience physical pain without also experiencing psychological suffering? I am interested in hearing more from you on this point.

I can see that my cursory explanation of parens patriae has not reassured you. As a result, I've been digging a little deeper. I discover that I may have misrepresented the court.

In a 1997 Supreme Court decision, I found this comment: "The law as it stands is clear: the courts do not have parens patriae or wardship jurisdiction over unborn children. This is the law in the European Community, Great Britain and Canada."

A question and a comment: (1) Is this the law only since Morgentaler, or was it already the law in 1988? (2) I note that the judge does not include the USA in his list; perhaps the law is different there.

The Morgentaler decision speaks only of the interests of the fetus. (No reference to parens patriae, either to say that it applies or to say that it doesn't.)

To paraphrase Morgentaler: the objective of s. 251 of the Criminal Code was to balance the competing interests identified by the legislature. The Chief Justice affirmed that the protection of the interests of pregnant women and the protection of fetal interests are both valid governmental objective. "It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective."

Justice Beetz went so far as to say, "I believe that the State's interest in protecting potential human life exists throughout the pregnancy."

Let's set aside the question of parens patriae for the time being. Both our judiciary and our legislature are built on an adversarial model. For example, a criminal trial. The prosecuter argues that the accused is guilty. The defense lawyer argues that the accused is not guilty. The judge is passive: s/he does not investigate, but allows the two lawyers to make their respective cases. Then the judge decides who has presented the more compelling legal argument.

The legislature works in a similar fashion, with the opposition making a case against everything the government sets out to do. Out of this adversarial process, truth is supposed to emerge.

So what happens if only one side — with respect to abortion, the pregnant woman — gets to make her case? Someone has to present a case for the other interested party, no?

So the state has a role in protecting the interests of the fetus. I don't understand why this troubles you so much.

I keep coming back to one fact: the Supreme Court said it is "important" to balance the interests of the woman and the interests of the fetus, but the legislature has failed to do so.

At 2:36 PM, June 11, 2005, Blogger snaars said...

The pain/suffering distinction is an easy one. A common earthworm certainly seems to experience pain, but I seriously doubt that it has the capacity for suffering. I believe that many animals are capable of pain and suffering, which is one of the reasons I am a vegetarian.

About the parens patriae thing, Q - I'm not sure why it troubles me, either. Perhaps I am blurring a distinction between moral rights and legal rights, maybe something else is going on - I don't know, I'm confused. My question about whether governments have moral rights is not idle or rhetorical. I could elaborate on some of the directions in which my thoughts are turning but i'm afraid it would take the conversation farther afield. I'll try to stay within the bounds of the subject, abortion.

I think that my problem is not with parens patriae itself, which seems like a just and necessary general rule, but with the potential mis-application of it. You write:
So what happens if only one side — with respect to abortion, the pregnant woman — gets to make her case? Someone has to present a case for the other interested party, no?

So the state has a role in protecting the interests of the fetus.

Your argument assumes that a fetus has interests to begin with, but this has not been established. I think this is the reason that legislatures have not acted on this issue. If there is sufficient reason to believe that a fetus is the kind of entity that has interests in the relevant sense, then more could be done to protect those interests.

I see the problem this way: in the early stages of development, the fetus is a cluster of differentiated cells. An understanding of biology tends to lead us to the conclusion that this cluster lacks the characteristics that we associate with personhood, or something's having moral rights. It doesn't seem to have the capacity to feel pain as we know it. It doesn't have the capacity for conscious thought. Somewhere along the line these capacities are developed, but we don't know the timetable, or even which capacities are the most relevant ones.

Meanwhile, there are other people who definitely have moral rights - the pregnant women (I hesitate to call them mothers). How do you balance these competing interests, when it is not even clear when the interests of the fetus begin?

I think it's morally reprehensible to kill a day-old baby. A baby the day before it's born is not relevantly different from a day-old baby. Therefore I conclude that it's morally reprehensible to abort a baby in the latter stages of gestation. But I can't say when these moral rights begin, and to my knowledge, no one has come up with a satisfactory story.

I know you plan to post on this very subject. I am looking forward to it.

At 1:49 PM, June 12, 2005, Blogger Stephen (aka Q) said...

Hi, Snaars, I'm glad you responded to my comment. I had already published the new post to my blog before I read your comment. You write:

in the early stages of development, the fetus is a cluster of differentiated cells. An understanding of biology tends to lead us to the conclusion that this cluster lacks the characteristics that we associate with personhood, or something's having moral rights.

I won't respond here, because I suspect you'll want to take up this theme again in response to the new post. It should be interesting!


Post a Comment

<< Home