Canada’s struggle with abortion legislation demonstrates that there is no such thing as law or politics not based on a philosophical and moral tradition.
It is said of progressives that they always go on making mistakes. And of conservatives that they work tirelessly to ensure that mistakes are never corrected. Canada, of course, even managed to produce a party called the Progressive Conservatives, to demonstrate the harmony of these habits. Arguably its heir, though it has dropped the adjective, still fits the bill. Its idea of maintaining tradition is to go on making someone else’s mistakes, while adding a few of its own. Or so it seems from the Chief Whip’s speech in the House on 26 April, concerning M-312.
To review very quickly a familiar history: In 1969, Trudeau successfully piloted C-150 through the House, liberalizing inter alia access to abortion. In 1988, during the Mulroney era, the Supreme Court struck down Canada’s abortion law, not on the basis of any putative right to abortion, but on the grounds that the law violated in a practical way the Charter provision that “everyone has the right to life, liberty, and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (“Everyone” obviously included a pregnant woman; it was not determined whether this Section 7 provision might potentially include her fetus also.)
Later that year, a philosophically incoherent bill re-establishing some limits on abortion was roundly defeated and the following year a much stricter and more coherent bill passed the House, only to meet its demise by way of a tie vote in the Senate. Since that time we have been killing unborn babies at the rate of some 100,000 per annum. M-312, proposing that a special committee be struck “to review the declaration in Subsection 223(1) of the Criminal Code of Canada which states that a child becomes a human being only at the moment of complete birth,” is designed to put a stop to that. A new law on abortion is the end-game of M-312.
Now Mr. O’Connor, observing that M-312 is concerned with what it means to be human, argues that the legislature is not equipped to deal with such questions. It makes law, it doesn’t do philosophy or theology or anthropology or medicine. Though his own language is rather confused, he defends the tradition at law that a human being becomes a legal person, with the attendant rights, only when he or she is born. And there is indeed such a tradition, which Mr. Woodworth is trying to change. He thinks that this tradition is based on bad science – in short, that it is a mistake that ought to be corrected. Mr. O’Connor does not think it a mistake and does not want it “corrected.”
So far so good, perhaps, but then we encounter a problem. Instead of agreeing to a debate (first in committee, then in the House) about the soundness or unsoundness of the tradition in question, and about its bearing on the practice of abortion, Mr. O’Connor asks us not to have any such debate.
Why? Because, he claims, the decision whether to “terminate a pregnancy” – he follows the Court in employing this euphemism for killing babies – is a moral decision that belongs to the private realm of individual conscience*. Moreover, he claims that abortion is a “lifestyle” decision within the boundaries of the law, one that does not interfere with the lives of others and therefore should not be subject to legal scrutiny or penalty. (He stops short of saying that we should not have the debate because the Prime Minister does not want the debate, though he makes that perfectly clear.)
If this is anything to go by – and similar speeches from members across the aisle suggest that it is – then reasoned discourse that works within a recognizable and coherent tradition appears to be dead, or very nearly dead, in national politics; and there is every likelihood that we shall do nothing more than go on compounding our mistakes, thereby destroying that tradition. When I’ve explained a little further, however, I will ask whether this might, after all, present an opportunity for rediscovering our tradition and so for resuscitating our politics.
But first a closer look at the shortcomings of Mr. O’Connor’s argument: For starters, there is here a rather severe case of petitio principii, for O’Connor argues that since abortion is lawful behaviour it should therefore be – lawful behaviour. Meanwhile, he fails to acknowledge that abortion in Canada is lawful, lawful on demand and at every stage of pregnancy, only because Parliament has declined the invitation of the Supreme Court to craft legislation capable of withstanding Charter scrutiny.
Second, there is a glaring absurdity – unless it is a further question-begging move – in asserting that abortion is a “lifestyle” decision that does not interfere with others, when manifestly it is an act that ends the life of a genetically distinct member of the species – not to put too fine a point on it, a baby – thus ending also a particular line of inheritance and of human possibilities with which other existing lives are already intertwined (a point the Supreme Court failed properly to reckon with in Tremblay v. Daigle  2 SCR 530).
Third, and most crucially, there is a self-contradiction. If the issue raised by M-312, as Mr. O’Connor says, is the question as to what it means to be human, and if the House, as he maintains, is not competent to address such questions, then on what basis is it to decide that it should or should not be crafting a law respecting abortion?
Mr. O’Connor insists that it should not; this is the basis of his objection to M-312. He thinks that the decision to commit or refuse to commit an abortion is a strictly private decision belonging only to conscience.
But surely that view already rests on some form of moral judgment or moral philosophy, in which he wants the House (however incompetent) to concur. Surely it depends on some implicit anthropology, in terms of which it has already been decided that we are not in fact dealing, in abortion, with the fate of an actual human person. For I am certain, or at least I am hopeful, that Mr. O’Connor would not let an innocent victim’s lack of legal standing suffice as a justification to kill him or her, if we were really talking about a human person.
And he can hardly mean to say that we should leave it up to each distressed pregnant woman to decide for herself – or under pressure from others, as is so often the case – whether or not the fetus qualifies as a human person, as if she had resources for this judgment that the House lacks.
To press the point a little further: the Chief Whip’s objection to M-312 seems to rest either on a particular kind of moral philosophy, in which individual conscience is understood to operate independently of any universal moral law, or else on a particular kind of legal philosophy – a legal positivism, we might say – in which civil and criminal law operate independently of morality.
Thus all moral decisions (apart, presumably, from the decision whether or not to obey the law) belong to the private sphere of conscience, into which legislation should not intrude. “I firmly believe,” says the Whip, “that each of us should be able to pursue our lifestyle as long as it is within the boundaries of law and does not interfere with the actions of others.”
But this is a hopeless muddle! Law and morality cannot thus be severed, like a baby from its head. Besides, why should Mr. O’Connor’s philosophy, which sounds vaguely Millsian, have any standing in the House, which – so he says – is incompetent to judge such things? Why should what he “firmly believes” be introduced into Parliamentary debate as if it mattered one whit? Is that not special pleading? Does he wish to identify his own view (or Mill’s, for that matter) as the true backbone of our legal or political tradition? Is that what he means by his claim that we can’t turn the clock back, that “society has moved on”? Or is it the Whip, rather than Mr. Woodworth, who is actually sitting lightly to tradition?
There are other problems with his speech that we may pass over. Notable among them is the risible claim, as one of my colleagues aptly put it, that since “abortion is and always will be part of society” we must see that it is safely accommodated by law. (Perhaps if we adopted that approach more broadly we wouldn’t need all those new prisons the government is determined to build!) But, as I said, we may pass over that.
I do not know what will come of M-312. If the Whip has his way, it will fail; in which case we shall go on killing babies with insouciance, with all the moral and social and economic and political consequences that must inevitably have. But I suggested earlier that this controversy might – if the Whip’s sleight of hand does not succeed and M-312 does not fail – help resuscitate Canadian politics, though of course politics cannot resuscitate dead babies.
How so? By inviting us, as a people, even as a multicultural people, to reckon with the fact that there is no such thing as law or politics not based on a philosophical and moral tradition of some sort. To reckon indeed with the fact that from 1989, if not from 1969, we have been in the process of substituting one such tradition for another, without ever admitting that we are doing so.
The appearance of M-312 in the House of Commons demands that we face squarely at least two questions. First: Do we know, can we say, whether abortion on demand is or is not consistent with the principles and the loves of the Canadian people? Second: Do we still think there is any essential connection between law and morality, and, if so, what is it? How does it work, and how should the House respect it?
Facing these questions, if we have the courage, will help revitalize our tradition in its legal, moral and political dimensions – even its philosophical and theological dimensions – and to decide whether ‘moving on’ means moving on within or moving on from that tradition.
* Morgentaler et al. v. Her Majesty the Queen  1 S.C.R. 30, par. 37: “The right to liberty ... guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life... The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state.”
Douglas Farrow is Professor of Christian Thought at McGill University. This is the text of a presentation to the 2012 Civitas conference in Montreal.