Gestational Legislation – Giving Henry Morgentaler more than he asked for in 1967?

By Jakki Jeffs, Executive Director

Since the introduction of the Paul Steckle Bill in 2006 Canadian pro-lifers have grappled with the question of a gestational legislative strategy. This sometimes heated and hurtful discussion has divided loyal pro-life colleagues at a deep level. We have debated whether our pro-life principle would be offended, consulted our individual religious beliefs and doctrine, scanned foreign jurisdictions and Canadian court decisions, our mission statements and by-laws – but the fracture remains.

Hopeful to heal the developing wound, good intentioned church heirarchy entered the fray, sadly raising more tension. Those committed to a gestational strategy quote polls showing Canadians would tolerate some protection and inform us that legislators are ready to bring forward such legislation. They call for a change in direction and insist that “prudence’ would have us take this approach because we can expect nothing else in our current climate. Recently I have unearthed information that seals my opinion irrevocably.

On Thursday, October 19th 1967 the Standing Committee on Health and Welfare Committee met, respecting the subject-matters of three private members bills. NDP Grace McGinnis’s Bill 122, An Act to Amend the Criminal Code (Abortion) and NDP H.W. Herridge’s Bill 136, An Act Concerning the Termination of Pregnancy by Registered Medical Practitioners both bills called for killing of the child before birth if the mother’s life or health were endangered. The third, Bill 123,An Act to Amend the Criminal Code (Birth Control) sponsored by Liberal Ian Wahn called for consent of the spouse prior to abortion.

The committee, made up of 24 members 13 from the governing Liberal party, 8 Progressive Conservatives, 2 NDP and 1 Social Credit heard 48 witnesses and received 18 briefs for consideration.

I have been reading the second, of the 850 page two volume minuted proceedings and evidence of the House of Commons Health and Welfare Committee from October to December 1967.The first witnesses heard on October 3rd, were the proposers of the three private members bills. Grace McGinnis stands out by far, she noted that a large number of illegal abortions were taking place; Canada’s laws were “over a century old”; other countries were moving on and Canada was ready for a change. A 1965 Gallup Poll noted 71% of Canadians in favour of change “on the basis of conscience”.

On Thursday 19th October 1967, Dr Henry Morgentaler appeared representing the Humanist Fellowship of Montreal Inc. His brief provided an overview of current abortion law, reasons women sought abortion, illegal abortion statistics, debated whether abortion should be called murder, discussed the results of the present law and arguments raised against legalizing abortion. On page 94 his brief states the following;

“The time period at which a foetus can survive and live a life independent of the mother’s body is now with medical techniques around six months of pregnancy; theoretically, up to that time the foetus should be considered part of the woman’s body and an abortion allowed up to then. In practice, it seems advisable that a cut- off date for legal abortion should be established, after which a viable foetus could be considered as a person having a legal personality and protected by the law; it would seem reasonable that such cut-off date could be established at five months of pregnancy since this would come close to the period of extra-uterine viability. After that period no abortions should be authorized.”[my emphasis]

In further questioning, Dr Morgentaler stated, “We decided on this cut-off date, which is also in a sense an innovation because the timing is of extreme importance and because it takes nine-months of well-timed and ordered transformation from the moment of conception to the moment of delivery and an accident might happen at any time within these nine months. What we said was at the time when a baby may live outside the womb of the mother, that is at six months – and with medical knowledge it might be reduced to 5 and a half or five months because, after all, medical knowledge is advancing – we feel that no abortion should be granted.”[my emphasis]

Dr Morgentaler championed a gestational approach in 1967. The difference between that and our current discussion is that he would not entertain exceptions after the five month cut off. How can we possibly support a position that is more liberal than Dr Henry Morgentaler asked for 45 years ago? It is argued that we wish only the good, to protect the children after twenty weeks, but implicit in this approach is the fact that those we do not include we abandon. At one point, when asked if he believed that the ends justify the means Dr Morgentaler replied;

“I definitely do not. I believe it is a perversion to think that the end justifies the means. The means are just as important as the ends. In any question I think that people who employ means which are dishonourable, bad and unjust in order to achieve an honourable end are deluding themselves.”

Strange he did not see for the plank in his own eye. Let us not be the same.