Abortion Not In My Criminal Code Essay

, Research Paper

Abortion ! Not in my Criminal Code

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 conspiring to

procure a miscarriage at their Toronto clinic. The Ontario government appealed the

acquittal; the accused appealed to the Supreme Court of Canada, which struck down the

law in early 1988 on the basis that it conflicted with rights guaranteed in the Charter. 4

The Charter guaranteed a woman’s right to the security of her person. The Court

also found that this right was breached by the delays resulting from the therapeutic

abortion committee procedures. In May 1990 the House of Commons approved (140-

131) a new law that would put abortion back into the Criminal Code, allowing abortions

only if a doctor determined that a woman’s health was threatened by her pregnancy. The

bill died in the Senate in Jan 1991. 5

In the case of Campbell v. Attorney-General of Ontario (1987) the allegations in

the statement of claim that the effect of the stay was to deny s.7 and s,15 rights to unborn

children aborted or about to be aborted support a reasonable cause of action. The law

does not regard unborn children as independent legal entities prior to birth, so that it is

only at birth that independent legal rights attach. Unborn children therefore do not enjoy

any Charter rights. 6

The problem with s.251 is that it takes the decision away from the woman at all

stages of her pregnancy. Balancing the state’s interest in a protection of the fetus as

potential life under s.1 against the rights of the pregnant woman under this section

requires that greater weight be given to the state’s interest only in the later stages of

pregnancy. 7

Abortion is a divisive social issue, condemned by some groups and supported by

others as a moral issue to be decided by individuals, not the state. 8 It is complicated for

the government to balance both sides of the issue. Not everyone can be unconditionally

content. The government has to decide on what is fair and what is morally right. The

Charter guarantees the right to life, liberty and security of the person and the right not to

be deprived thereof except in accordance with the principles of fundamental justice. A

woman, pregnant or not, has the right to control her own life and destiny. She also has

the right to make her own choices about what affects her. A woman has the right to feel

secure in having an abortion, and feel secure about her own health. A woman’s body is

her own. What she does with it is her own business. An unborn child does not have the

ability to think for itself, so the mother must think for it. It may show life signs but it is

not conscious and has no reasoning. It is not up to someone else to decide what is right

and what is wrong for another individual. Who are we to tell someone else what to do or

think.

For an example, if a teenage girl is pregnant, what kind of a life could she offer the

child? Teenagers can barely take care of themselves, not to mention a baby. It would

benefit everyone involved if the abortion option is openly present. It is hard enough to be

a teenager without others judging your opinions and choices.

It is understandable that people do not agree that abortion should be a choice for a

woman. They may not understand what the woman may be struggling with mentally and

or physically. The government should have little control over this issue. They should

monitor people to make certain that abortion is not used as a contraception, for this may

be endangering the health of a woman. With world overpopulation, keeping the abortion

law out of the Criminal Code may benefit the entire planet. It’s a sad way of looking at it

but people have to face reality.

PERSONAL THOUGHT

People who protest against abortion have nothing better to do. They protest only

when their favorite talk show is not on the mind controller they call television. If this

statement is going to cost me any marks, please disregard. THANK YOU!

348