http://www.today.com/moms/twins-mimic-life-womb-amazing-baby-bath-video-2D11603427
Monday, November 18, 2013
Indeed ‘We had a duty to try’
‘We had a duty to try’: Mulroney-era cabinet files reveal Tories struggled to agree on abortion bill defeated in Senate
John Major / Postmedia News fileOne minister said, and Mulroney agreed, that abortion should be the government’s top priority, as it was for country.
Recently declassified federal cabinet documents show Canada could have been a very different place for women seeking abortions and the doctors who provide them if then prime minister Brian Mulroney had bent to the wishes of some cabinet heavyweights.
Recently declassified federal cabinet documents show Canada could have been a very different place for women seeking abortions and the doctors who provide them if then prime minister Brian Mulroney had bent to the wishes of some cabinet heavyweights.
The minutes of cabinet meetings, sealed for 20 years and obtained by The Canadian Press under the Access to Information Act, open a window on the tensions between ministers who wanted abortion outlawed — indeed punishable by up to 10 years in prison for those who performed the procedure — and those who wanted a far greater latitude on a woman’s right to choose.
In an ironic twist, it was the Senate in 1991, an institution maligned in recent weeks to the point of deafening calls for its demise, that killed the best compromise Parliament could come up with, resulting in the legal vacuum most Canadians have by now accepted.
As a result, Canada today is one of the few nations with no laws governing abortion. About 100,000 such procedures are performed each year, and no administration since then has dared to legislate on the subject. Prime Minister Stephen Harper has stated he has no interest in revisiting the issue, although some Conservative backbench MPs continue to press ahead with private members bills.
All those features were dropped from Bill C-43, which passed the House but was defeated in an unprecedented tie vote in the Senate.
“None of us was gung-ho for new legislation but we did feel we had a duty to try,” former Conservative senator Lowell Murray, who acted as a neutral referee between the factions, said in an interview.
“A decision not to act would certainly have drawn scornful criticism from all quarters in the political arena.”
The story began Jan. 28, 1988, when the Supreme Court of Canada threw out the nation’s abortion law by ruling that Section 251 of the Criminal Code violated the Charter of Rights by denying women their “security of the person.” In doing so, it overturned an Ontario appeal court ruling against longtime abortion activist Dr. Henry Morgentaler, who died last May.
However, the judges also said a woman’s right to an abortion, especially in the later stage of pregnancy, can be subject to reasonable limits imposed to protect the unborn or the woman’s life or health, and it sent the issue on to Parliament to resolve.
The bombshell ruling elated pro-choice advocates and devastated anti-abortionists. It also created a legal gap that the newly released documents show left the Conservative cabinet bewildered.
The legal void was regarded as intolerable, in need of filling. Ottawa embarked on a gruelling three-year quest to produce a new law.
Leading the opposing sides at the cabinet table in the dark, oak-panelled Room 323-S were two of cabinet’s most influential ministers.
Epp’s lengthy speeches predominate in the minutes, but at one point, Mulroney pointed out McDougall was the only woman sitting on cabinet’s powerful 20-member priorities and planning committee. Mulroney noted the imbalance did not represent the general population, and he warned committee members McDougall’s views on abortion “were therefore not to be taken lightly.”
Said McDougall in the committee: “They did not, on balance, view the judgment as a victory. Rather, there was a sense of relief that the most restrictive elements of the law had been struck down. The practical concern was that there was no legal definition of the time frame in which an abortion could be performed.”
A special ad-hoc cabinet committee on abortion was created, chaired by Murray, who advised ministers to avoid extreme restrictions because “the government would look like fools if it passed a law that was subsequently thrown out by the Supreme Court.”
The minutes show the debate in cabinet revolved mainly around two visions. In the first approach, access to abortion was initially freer but would become much more restricted as the fetus developed.
The special committee reported it favoured a law allowing abortion at an early stage — up to somewhere between 12 and 28 weeks — but afterwards only if the mother’s life was in danger.
It was not accepted as the final word.
The minutes show Epp objected, saying “the implications of such an approach were frightening should a similar approach be taken for the elderly or the disabled.” Later that month, one draft resolution presented would “exclude physical or mental abnormalities of the unborn child as a reason for obtaining an abortion.”
In April, Mulroney sensed that “public feelings against abortion may be hardening in the country.”
One minister said, and Mulroney agreed, that abortion should be the government’s top priority, as it was for country. The minutes say: “The debate was too wrenching and divisive to be allowed to continue much longer.”
The debate dragged on past the 1988 general election which saw the Tories re-elected.
In 1989 a new cabinet set about again to try to design a new law.
The minutes show McDougall urged that the cabinet endorse a three-stage option allowing abortion under certain circumstances in the early stage, becoming more restrictive in the second stage and then more so in the last stage.
Kim Campbell, then minister of state for Indian affairs, supported a two-stage approach — allowing it in the early stage, with restrictions later — “as it codifies what currently exists and the only issue that remains is who is best placed to make the decision.”
But the minutes show Mulroney “was concerned that the government’s approach be in tune with a modern society, and avoid steering too far to the right.”
Communications minister Marcel Masse voiced his dislike of any criminalization of abortion and strongly endorsed the three-stage approach, but fisheries minister Tom Siddon “emphatically” stated his disappointment that cabinet did not protect the rights of the fetus.
After reviewing the debate, Murray concluded that most ministers, including Epp, could agree with a two-stage approach.
But there were more modifications to come: The last major obstacle was the Tory backbench caucus, which contained many more hardline anti-abortion MPs than did cabinet.
The term “psychological” was added to physical and mental “health,” and the penalty for violations was to be two years imprisonment, down from an earlier proposal of five years and the original cabinet suggestion of 10.
Epp thought this new one-stage solution would be accepted by caucus overall, and ministers “would have to put water in their wine.”
McDougall had a different view of it, lamenting that the pro-choice numbers were smaller in caucus, and that “women in cabinet would be bitterly disappointed but would do what had to be done.”
Justice minister Doug Lewis introduced this bill into the House of Commons, and on May 29, 1990, it passed in a free vote by 140 to 131. It was sent on to the Senate for approval.
Then a shock ensued. On Jan. 31, 1991, of 86 senators present, the vote split 43 to 43 on the bill. Under Senate rules, a tie vote is deemed to be negative and so it failed. Cheers erupted from pro-choicers in the packed Senate gallery.
In an interview with The Canadian Press, McDougall praised Mulroney’s management of the topic, but added that Bill C-43 was so flawed that she didn’t regret that it failed in the Senate.
“It was the best the drafters could do with a divided country, but it was not a good bill.”
Mulroney declined to be interviewed about the abortion saga and the topic is absent from his 1,152 page memoirs.
Epp could not be reached for comment.
McDougall said she’s content on abortion’s position in the Canada Health Act, and there is no need to legislate on the matter again.
“It is best to let sleeping dogs lie. It is a personal moral decision for each woman.”
In an ironic twist, it was the Senate in 1991, an institution maligned in recent weeks to the point of deafening calls for its demise, that killed the best compromise Parliament could come up with, resulting in the legal vacuum most Canadians have by now accepted.
As a result, Canada today is one of the few nations with no laws governing abortion. About 100,000 such procedures are performed each year, and no administration since then has dared to legislate on the subject. Prime Minister Stephen Harper has stated he has no interest in revisiting the issue, although some Conservative backbench MPs continue to press ahead with private members bills.
None of us was gung-ho for new legislation but we did feel we had a duty to tryThe records of the late 1980s also show the Conservative cabinet privately considered criminal penalties for women who self-aborted. One draft resolution would have banned the abortion of malformed fetuses. Another proposed that the stress caused to a woman by an unwanted pregnancy should not be considered a health danger and that the social and economic considerations of a woman facing an unwanted pregnancy should not be taken into account.
All those features were dropped from Bill C-43, which passed the House but was defeated in an unprecedented tie vote in the Senate.
“None of us was gung-ho for new legislation but we did feel we had a duty to try,” former Conservative senator Lowell Murray, who acted as a neutral referee between the factions, said in an interview.
“A decision not to act would certainly have drawn scornful criticism from all quarters in the political arena.”
The story began Jan. 28, 1988, when the Supreme Court of Canada threw out the nation’s abortion law by ruling that Section 251 of the Criminal Code violated the Charter of Rights by denying women their “security of the person.” In doing so, it overturned an Ontario appeal court ruling against longtime abortion activist Dr. Henry Morgentaler, who died last May.
However, the judges also said a woman’s right to an abortion, especially in the later stage of pregnancy, can be subject to reasonable limits imposed to protect the unborn or the woman’s life or health, and it sent the issue on to Parliament to resolve.
The bombshell ruling elated pro-choice advocates and devastated anti-abortionists. It also created a legal gap that the newly released documents show left the Conservative cabinet bewildered.
The legal void was regarded as intolerable, in need of filling. Ottawa embarked on a gruelling three-year quest to produce a new law.
Leading the opposing sides at the cabinet table in the dark, oak-panelled Room 323-S were two of cabinet’s most influential ministers.
There was a sense of relief that the most restrictive elements of the law had been struck downHealth Minister Jake Epp, a devout Mennonite Christian from Steinbach, Man., persistently pleaded that an infant’s life starts at the moment of conception. Barbara McDougall, of Toronto, was the minister for the status of women and she urged more free choice for women.
Epp’s lengthy speeches predominate in the minutes, but at one point, Mulroney pointed out McDougall was the only woman sitting on cabinet’s powerful 20-member priorities and planning committee. Mulroney noted the imbalance did not represent the general population, and he warned committee members McDougall’s views on abortion “were therefore not to be taken lightly.”
Said McDougall in the committee: “They did not, on balance, view the judgment as a victory. Rather, there was a sense of relief that the most restrictive elements of the law had been struck down. The practical concern was that there was no legal definition of the time frame in which an abortion could be performed.”
A special ad-hoc cabinet committee on abortion was created, chaired by Murray, who advised ministers to avoid extreme restrictions because “the government would look like fools if it passed a law that was subsequently thrown out by the Supreme Court.”
The minutes show the debate in cabinet revolved mainly around two visions. In the first approach, access to abortion was initially freer but would become much more restricted as the fetus developed.
The government would look like fools if it passed a law that was subsequently thrown out by the Supreme CourtIn the second approach, the same restrictions would apply all across the pregnancy. Anti-abortionists such as Epp pushed hard for this option, arguing life started at conception and setting dividing lines between stages would be medically and ethically too “arbitrary.” They wanted no free choice at any stage.
The special committee reported it favoured a law allowing abortion at an early stage — up to somewhere between 12 and 28 weeks — but afterwards only if the mother’s life was in danger.
It was not accepted as the final word.
The minutes show Epp objected, saying “the implications of such an approach were frightening should a similar approach be taken for the elderly or the disabled.” Later that month, one draft resolution presented would “exclude physical or mental abnormalities of the unborn child as a reason for obtaining an abortion.”
In April, Mulroney sensed that “public feelings against abortion may be hardening in the country.”
Reuters/Chris WattieFormer Canadian Prime Minister Brian Mulroney listens to a question while testifying at the Oliphant Commission in Ottawa May 19, 2009.
The debate dragged on past the 1988 general election which saw the Tories re-elected.
In 1989 a new cabinet set about again to try to design a new law.
The minutes show McDougall urged that the cabinet endorse a three-stage option allowing abortion under certain circumstances in the early stage, becoming more restrictive in the second stage and then more so in the last stage.
Kim Campbell, then minister of state for Indian affairs, supported a two-stage approach — allowing it in the early stage, with restrictions later — “as it codifies what currently exists and the only issue that remains is who is best placed to make the decision.”
But the minutes show Mulroney “was concerned that the government’s approach be in tune with a modern society, and avoid steering too far to the right.”
Communications minister Marcel Masse voiced his dislike of any criminalization of abortion and strongly endorsed the three-stage approach, but fisheries minister Tom Siddon “emphatically” stated his disappointment that cabinet did not protect the rights of the fetus.
After reviewing the debate, Murray concluded that most ministers, including Epp, could agree with a two-stage approach.
But there were more modifications to come: The last major obstacle was the Tory backbench caucus, which contained many more hardline anti-abortion MPs than did cabinet.
It was the best the drafters could do with a divided country, but it was not a good billThis final proposal was drafted as Bill C-43, which made it a criminal offence to induce an abortion on a woman at any stage unless it was done by, or under the direction of, a physician who considered that the woman’s life or health was otherwise likely to be threatened.
The term “psychological” was added to physical and mental “health,” and the penalty for violations was to be two years imprisonment, down from an earlier proposal of five years and the original cabinet suggestion of 10.
Epp thought this new one-stage solution would be accepted by caucus overall, and ministers “would have to put water in their wine.”
McDougall had a different view of it, lamenting that the pro-choice numbers were smaller in caucus, and that “women in cabinet would be bitterly disappointed but would do what had to be done.”
Justice minister Doug Lewis introduced this bill into the House of Commons, and on May 29, 1990, it passed in a free vote by 140 to 131. It was sent on to the Senate for approval.
Then a shock ensued. On Jan. 31, 1991, of 86 senators present, the vote split 43 to 43 on the bill. Under Senate rules, a tie vote is deemed to be negative and so it failed. Cheers erupted from pro-choicers in the packed Senate gallery.
In an interview with The Canadian Press, McDougall praised Mulroney’s management of the topic, but added that Bill C-43 was so flawed that she didn’t regret that it failed in the Senate.
“It was the best the drafters could do with a divided country, but it was not a good bill.”
Mulroney declined to be interviewed about the abortion saga and the topic is absent from his 1,152 page memoirs.
Epp could not be reached for comment.
McDougall said she’s content on abortion’s position in the Canada Health Act, and there is no need to legislate on the matter again.
“It is best to let sleeping dogs lie. It is a personal moral decision for each woman.”
Articles about a LAW...
Supreme Court ruling maintains Canada’s murky, contradictory definitions of when life begins
Files; Thinkstock/Getty ImagesIvana Levkovic, who was acquitted of concealing the body of her miscarried baby, now faces a retrial.
Supreme Court maintains Canada's murky definitions of when life begins.
Supreme Court maintains Canada's murky definitions of when life begins.
Can a child die before it is born?
In Canada it can, and until Friday, this possibility seemed like a strange oxymoron, a legal quirk that emerges from arcane fringes of the Criminal Code, in apparent tension with Canada’s awkwardly permissive pose on abortion.
But on Friday morning, the Supreme Court of Canada decided children can and do die before they are born. Indeed, this might well have happened in the case of Ivana Levkovic, a former stripper who was acquitted of concealing the body of her baby daughter, and will now face retrial.
The unanimous decision to dismiss her appeal upholds a lower court view that a fetus becomes a child when it is theoretically viable, and brushes aside the worries of a trial judge that the notion of an unborn “child” is unconstitutionally vague, given that elsewhere in the Criminal Code, in the section on homicide, the genesis of legal humanity is described as the complete live delivery from one’s mother, regardless whether the baby breathes or has the cord cut.
The law against concealing the body of a child “only captures the disposal of the remains of children that were likely to be born alive,” no matter when they actually died, the Supreme Court ruled.
In other words, not all “children” are “human beings” under the law. Some are unborn legal non-humans. It is a bothersome semantic muddle, which the Supreme Court’s decision in Levkovic does not even try to resolve, preferring to validate the murky status quo.
“It’s strange that a child is not considered a human being in Canadian law,” said Stephen Woodworth, a Conservative MP whose effort to have Parliament revisit the “complete delivery” criterion for humanity in the Criminal Code failed in a vote last fall. “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
For Ms. Levkovic, the consequences of the ruling are unclear.
Tried under the law that bans concealing the body of a child with intent to conceal its birth, regardless of whether it died “before, during, or after birth,” she was acquitted because the Crown had no evidence about when the baby girl actually died. A judge struck out the possibility of a child that died “before” birth, leaving the Crown unable to prove Ms. Levvkovic’s died “during or after.” Indeed, forensics could only determine the baby was “at or near full term” in April, 2006, when a building superintendent discovered it, wrapped in towels, in a garbage bag on the balcony of an Mississauga, Ont., newly vacated by someone close to Ms. Levkovic.
The trial judge was especially bothered that “he could not identify the moment on the gestational spectrum when a fetus becomes the body of a child for the purpose of [this law against concealing].”
Now, however, in a retrial, the question of when the baby died is once again moot, and the legal fact that it was a “child” is settled. In that sense, the “concealing” law is comparable to the one against offering an indignity to a body, which is a serious offence “even though neither the body nor its parts are persons in the eyes of the law,” said Eike-Henner Kluge, a bioethical philosopher at the University of Victoria who once directed legal and ethical affairs for the Canadian Medical Association.
Michael A. Moon, Ms. Levkovic’s lawyer, foresees an acquittal on the merits, but the defence just got tougher.
For Canada, however, the consequences are abundantly clear: the Supreme Court, like the Prime Minister, is not going to revive the abortion debate.
This is unfortunate, because the law about who or what is a human being, and when they become such, “looks like it needs a renovation,” said Wayne Sumner, a professor emeritus of philosophy at the University of Toronto who has long engaged with Canada’s abortion debates, an issue that is morally twinned with assisted dying.
“The same thing has happened to death,” he said. “We used to think we understood what it meant for someone to die, but now we have this notion of brain death, we’ve got people in comas hooked up to ventilators who are treated as dead even though their hearts are beating, their lungs are inflating and their blood is circulating. We had to address it there. Undoubtedly we’ll have to do it for birth as well.”
These legal adjustments may be as easy as recognizing a child with two fathers, or three parents, or just one: issues that have been legally refined without much grief or rancour in cases of adoption and surrogacy.
Or they might be as divisive as abortion usually is, pitting fundamentalisms against each other, offering no hope of compromise, just like euthanasia.
In death, the shift in meaning was “smoother than it should have been,” Prof. Sumner said. “Our language is all at odds with itself on this issue as well.”
Regardless of any resolution, these internal contradictions reveal the law’s loose grasp on such foundational human concepts as birth, death, and shared humanity. This is as it should be, said Prof. Sumner, because the law should never be chiseled in stone.
“I think maybe the trial judge shouldn’t have been as fussed about this as he was,” said Prof. Sumner. He called all this a confusion of law, not ethics.
“Those who believe in the restrictions [on abortion] are going to be able to look at the language of this decision, and say, we’re no longer talking just about a fetus. The Supreme Court has said it is a ‘child’ even though it’s in utero. And they’re going to try to then, I would expect, bridge the gap between a child that is in utero and a child which has been expelled from the woman’s body, and conflate the two together.”
Strangely, Canadian case law also suggests that not all “children” are “persons,” given that the Supreme Court ruled in R v. Sullivan, a 1991 case of two midwives charged over the death of a baby during delivery, that the term “person,” as it is used in the law of criminal negligence, is synonymous with the term “human being.”
That baby, the court decided, was not a person, because it was not a human being, because it had not yet been born. An acquittal followed. Ms. Levkovic’s daughter, on the other hand, was a child, insofar as the deliberate concealing of her corpse would have been a crime. Her acquittal was overturned, and she is to be retried.
Now that this moral fuzziness has been further enshrined in law, Canadians must either content themselves with compromise, or take the fight to the legislatures. As this ruling shows, once again, the courts will not offer a final answer.
National Post
jbrean@nationalpost.com
In Canada it can, and until Friday, this possibility seemed like a strange oxymoron, a legal quirk that emerges from arcane fringes of the Criminal Code, in apparent tension with Canada’s awkwardly permissive pose on abortion.
But on Friday morning, the Supreme Court of Canada decided children can and do die before they are born. Indeed, this might well have happened in the case of Ivana Levkovic, a former stripper who was acquitted of concealing the body of her baby daughter, and will now face retrial.
The unanimous decision to dismiss her appeal upholds a lower court view that a fetus becomes a child when it is theoretically viable, and brushes aside the worries of a trial judge that the notion of an unborn “child” is unconstitutionally vague, given that elsewhere in the Criminal Code, in the section on homicide, the genesis of legal humanity is described as the complete live delivery from one’s mother, regardless whether the baby breathes or has the cord cut.
The law against concealing the body of a child “only captures the disposal of the remains of children that were likely to be born alive,” no matter when they actually died, the Supreme Court ruled.
In other words, not all “children” are “human beings” under the law. Some are unborn legal non-humans. It is a bothersome semantic muddle, which the Supreme Court’s decision in Levkovic does not even try to resolve, preferring to validate the murky status quo.
“It’s strange that a child is not considered a human being in Canadian law,” said Stephen Woodworth, a Conservative MP whose effort to have Parliament revisit the “complete delivery” criterion for humanity in the Criminal Code failed in a vote last fall. “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
For Ms. Levkovic, the consequences of the ruling are unclear.
Fred Chartrand/CP filesMP Stephen Woodworth: “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
The trial judge was especially bothered that “he could not identify the moment on the gestational spectrum when a fetus becomes the body of a child for the purpose of [this law against concealing].”
Now, however, in a retrial, the question of when the baby died is once again moot, and the legal fact that it was a “child” is settled. In that sense, the “concealing” law is comparable to the one against offering an indignity to a body, which is a serious offence “even though neither the body nor its parts are persons in the eyes of the law,” said Eike-Henner Kluge, a bioethical philosopher at the University of Victoria who once directed legal and ethical affairs for the Canadian Medical Association.
Michael A. Moon, Ms. Levkovic’s lawyer, foresees an acquittal on the merits, but the defence just got tougher.
For Canada, however, the consequences are abundantly clear: the Supreme Court, like the Prime Minister, is not going to revive the abortion debate.
This is unfortunate, because the law about who or what is a human being, and when they become such, “looks like it needs a renovation,” said Wayne Sumner, a professor emeritus of philosophy at the University of Toronto who has long engaged with Canada’s abortion debates, an issue that is morally twinned with assisted dying.
“The same thing has happened to death,” he said. “We used to think we understood what it meant for someone to die, but now we have this notion of brain death, we’ve got people in comas hooked up to ventilators who are treated as dead even though their hearts are beating, their lungs are inflating and their blood is circulating. We had to address it there. Undoubtedly we’ll have to do it for birth as well.”
‘I don’t believe that this is going to be the last word’Fetal viability, for example, is a shifting medical standard, and given the expected progress of medical science, the Criminal Code definition of ‘human being’ seems to allow for children who will be born twice (in the case of a fetus removed for surgery), or not at all (in the case of a possible artificial womb), according to Prof. Kluge. He said the Criminal Code definition of human being as one who has been completely delivered of its mother is “woefully inadequate in contemporary times.”
These legal adjustments may be as easy as recognizing a child with two fathers, or three parents, or just one: issues that have been legally refined without much grief or rancour in cases of adoption and surrogacy.
Or they might be as divisive as abortion usually is, pitting fundamentalisms against each other, offering no hope of compromise, just like euthanasia.
In death, the shift in meaning was “smoother than it should have been,” Prof. Sumner said. “Our language is all at odds with itself on this issue as well.”
Regardless of any resolution, these internal contradictions reveal the law’s loose grasp on such foundational human concepts as birth, death, and shared humanity. This is as it should be, said Prof. Sumner, because the law should never be chiseled in stone.
“I think maybe the trial judge shouldn’t have been as fussed about this as he was,” said Prof. Sumner. He called all this a confusion of law, not ethics.
The consequences are abundantly clear: the Supreme Court is not going to revive the abortion debate“I don’t believe that this is going to be the last word,” said Mr. Moon, Ms. Levkovic’s lawyer, who said the top court “studiously avoided the broader issues” and “punted” the issue back to the House of Commons, but still wrote a decision that offers a “toe-hold in the door” for anti-abortion campaigners and those who want it regulated by law.
“Those who believe in the restrictions [on abortion] are going to be able to look at the language of this decision, and say, we’re no longer talking just about a fetus. The Supreme Court has said it is a ‘child’ even though it’s in utero. And they’re going to try to then, I would expect, bridge the gap between a child that is in utero and a child which has been expelled from the woman’s body, and conflate the two together.”
Strangely, Canadian case law also suggests that not all “children” are “persons,” given that the Supreme Court ruled in R v. Sullivan, a 1991 case of two midwives charged over the death of a baby during delivery, that the term “person,” as it is used in the law of criminal negligence, is synonymous with the term “human being.”
That baby, the court decided, was not a person, because it was not a human being, because it had not yet been born. An acquittal followed. Ms. Levkovic’s daughter, on the other hand, was a child, insofar as the deliberate concealing of her corpse would have been a crime. Her acquittal was overturned, and she is to be retried.
Now that this moral fuzziness has been further enshrined in law, Canadians must either content themselves with compromise, or take the fight to the legislatures. As this ruling shows, once again, the courts will not offer a final answer.
National Post
jbrean@nationalpost.com
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