Accusations often stem from confusion about the law
By Sean Murphy
Special to The B.C. Catholic
The "We Need A Law" campaign has revealed a dispute in the pro-life community about whether or not it is acceptable to try to limit abortion with laws that impose gestational limits.
The dispute is divisive and it can take an ugly turn. Accusations of "heresy" have been hurled by some who believe that Catholics who advocate gestational limits legislation are contradicting the teaching of the Church's magisterium.
Although usually made in good faith, such accusations are often based on confusion about law, especially "rights" law. For example, some claim that American law allows abortion, but that no such law exists in Canada, so the kind of incremental approach approved by Blessed John Paul II in Evangelium Vitae cannot be justified here.
This is erroneous. The law in both countries allows abortion for exactly the same reason: Supreme Court rulings invalidated laws against it. If Catholics may support incremental legislation in the United States, they may do so here.
Note the word: "may," not "must." Support for gestational limits legislation remains a matter of prudential judgment, and reasonable people working from the same principles can arrive at different conclusions.
As an example, virtually all abortions done after 20 weeks are done for eugenic reasons, so gestational limits legislation that incorporated exceptions for eugenic abortions would likely have no practical impact on the number of abortions performed after 20 weeks.
For this kind of reason, one might decline to support a gestational limits strategy, and discourage others from doing so. However one cannot reasonably claim that support for gestational limits legislation in Canada is contrary to Catholic teaching, or that a law establishing gestational limits would, for the first time, legalize abortion or establish a "right" to the procedure.
It is worth taking the time to explain why this is the case, so that good people who sincerely disagree with each other can do so amicably and for the right reasons.
We begin with a general legal principle that holds in common law countries: what the law does not forbid, the law allows. Thus, unless the law actually says that X is illegal, it is legal, and people will claim a "right" to do X.
This is really no more than an assertion that one cannot be legally prevented from doing X. On the other hand, neither the state nor anyone else can be obliged to help someone do X.
This kind of "right" is often called a "negative" right, in contrast to "positive" rights that are the subject of constitutional law, such as rights to adequate food and water, to freedom of conscience and religion, or to freedom of expression and association.
In Canada, until 1969, abortion was normally a criminal offence, though judicial rulings allowed it to prevent serious harm or death to the mother. When the Criminal Code was amended in 1969 it continued the general criminal prohibition of abortion.
However, the amendment codified the exception to the rule, allowing abortions certified by a hospital committee as being necessary for the "health" of the mother.
Thus it came to be said that a woman had a "right" to abortion, in the sense that a woman could not be prevented from asking a hospital committee to approve an abortion, or from having an abortion a committee had approved. At best, this could be described as a "negative" right.
When the Supreme Court struck down the law in 1988, all legal restrictions on abortion were removed. Abortion has since been legal in Canada for the full nine months of pregnancy because it is not prohibited by law.
Many have claimed that a woman has a "right" to abortion, but this is true only in the sense that she has a "right" to wear a necklace; neither abortion nor wearing a necklace is illegal.
Of course abortion activists dispute this, but we need not get into that here. The key point is that, since abortion is already legal in Canada, a gestational limits law would not make it so.
Similarly, a legal (if negative) "right" to abortion already exists in Canada, so it cannot be said that a properly drafted gestational limits law would establish such a right. On the contrary, it would limit a negative "right" that is now unlimited, and make some abortions illegal when none now are.
This is hardly an affirmation of the legal status quo or the acceptability of abortion.
This is the legal framework that ought to inform discussion of Catholic teaching relevant to gestational limits legislation.
Sean Murphy is a member of Church of the Assumption Parish in Powell River. He is an associate of the Fellowship of Catholic Scholars and a former director of the Catholic Civil Rights League.