second-thought birth control. (She had stopped taking contraceptive pills before conception and, for four months afterward, had made no effort to end her pregnancy.) Tremblay sued and was granted an injunction against the abortion under the Quebec
Charter of Human Rights
, whose right to life ran to “human beings” rather than the “persons” protected by the national
Charter
and was arguably broader – broad enough, in fact, to outlaw the killing of a fetus, which is a human being, whatever the legal status of a “person” might be. Daigle was eighteen weeks pregnant when she and Tremblay separated and the case began. The Quebec court’s injunction was rushed to a hearing in the Supreme Court of Canada within one month.
On the day in question, when the Justices reconvened after a morning of argument, they were told by Daigle’scounsel that he had just learned that his client had gone ahead with the abortion in the United States. She had then been pregnant for just over five months. The reasoning of
Borowski
would indicate that the case was moot, but the Court decided to defer decision of that issue and went on with the hearing. Less than two hours after the conclusion of arguments, the Court announced that it was vacating the injunction and would issue an opinion later. After three months it did. The fetus was found not to have a right to life under the Quebec
Charter
because the framers had elected not to address the question of the fetus’s status.
Though the unsigned unanimous opinion reached the proper conclusion, it did so in a manner and in a context that makes it proper to label the opinion an instance of judicial activism. In the first place, if
Borowski
was moot, it is difficult to see why
Daigle
was not as well. Both cases were capable of laying down general rules for the nation. It is possible to think that in
Daigle
the Court exercised its discretion to find the case not moot because it wanted to validate the pro-abortion position and not the anti-abortion view.
The argument in
Borowski
that the legislature was not considering the protection of the fetus certainly seems correct, but it is equally applicable to the claimed right of a woman to an abortion. The two conclusions seem inseparable. Indeed, it may have been stronger in
Daigle
, since the omission of any position about abortion was known to have been deliberate in the framing of the
Charter of Rights
. The Canadian Court should havedecided that neither the national nor the provincial
Charter
had anything at all to say about abortion – meaning that the Court had no authority to decide the case either way. The same conclusion should have been reached in the United States, where neither the Fifth nor the Fourteenth Amendment was ratified with any thought of abortion. In both countries, such rulings would have returned the moral issue of abortion to the legislatures, where the decision belongs. In both countries, the Justices elected to decide themselves what morality required.
In explaining his vote in the
Morgentaler
case, Chief Justice Lamer said in a 1997 interview that, while he was personally opposed to abortion, he even more firmly believed that he “should not impose upon others [his] personal beliefs.” That statement can only mean that he is willing to impose on anti-abortionists the personal beliefs of those who favor abortion. Not only does the “explanation” leave the mystery of his vote murkier than ever but the statement is precisely the same as the lame excuse used by United States politicians who try to mollify both sides after voting for abortion: “I am personally opposed, but …” The Canadian Chief Justice thought the issue was his morality versus others’ morality, though neither had been enacted in law. That approach can only be a surrender to New Class attitudes.
The Supreme Court’s conduct in cases that in some way suggest that an unborn child is anything other than part of the mother’s body is in
Charter of Human Rights
, whose right to life ran to “human beings” rather than the “persons” protected by the national
Charter
and was arguably broader – broad enough, in fact, to outlaw the killing of a fetus, which is a human being, whatever the legal status of a “person” might be. Daigle was eighteen weeks pregnant when she and Tremblay separated and the case began. The Quebec court’s injunction was rushed to a hearing in the Supreme Court of Canada within one month.
On the day in question, when the Justices reconvened after a morning of argument, they were told by Daigle’scounsel that he had just learned that his client had gone ahead with the abortion in the United States. She had then been pregnant for just over five months. The reasoning of
Borowski
would indicate that the case was moot, but the Court decided to defer decision of that issue and went on with the hearing. Less than two hours after the conclusion of arguments, the Court announced that it was vacating the injunction and would issue an opinion later. After three months it did. The fetus was found not to have a right to life under the Quebec
Charter
because the framers had elected not to address the question of the fetus’s status.
Though the unsigned unanimous opinion reached the proper conclusion, it did so in a manner and in a context that makes it proper to label the opinion an instance of judicial activism. In the first place, if
Borowski
was moot, it is difficult to see why
Daigle
was not as well. Both cases were capable of laying down general rules for the nation. It is possible to think that in
Daigle
the Court exercised its discretion to find the case not moot because it wanted to validate the pro-abortion position and not the anti-abortion view.
The argument in
Borowski
that the legislature was not considering the protection of the fetus certainly seems correct, but it is equally applicable to the claimed right of a woman to an abortion. The two conclusions seem inseparable. Indeed, it may have been stronger in
Daigle
, since the omission of any position about abortion was known to have been deliberate in the framing of the
Charter of Rights
. The Canadian Court should havedecided that neither the national nor the provincial
Charter
had anything at all to say about abortion – meaning that the Court had no authority to decide the case either way. The same conclusion should have been reached in the United States, where neither the Fifth nor the Fourteenth Amendment was ratified with any thought of abortion. In both countries, such rulings would have returned the moral issue of abortion to the legislatures, where the decision belongs. In both countries, the Justices elected to decide themselves what morality required.
In explaining his vote in the
Morgentaler
case, Chief Justice Lamer said in a 1997 interview that, while he was personally opposed to abortion, he even more firmly believed that he “should not impose upon others [his] personal beliefs.” That statement can only mean that he is willing to impose on anti-abortionists the personal beliefs of those who favor abortion. Not only does the “explanation” leave the mystery of his vote murkier than ever but the statement is precisely the same as the lame excuse used by United States politicians who try to mollify both sides after voting for abortion: “I am personally opposed, but …” The Canadian Chief Justice thought the issue was his morality versus others’ morality, though neither had been enacted in law. That approach can only be a surrender to New Class attitudes.
The Supreme Court’s conduct in cases that in some way suggest that an unborn child is anything other than part of the mother’s body is in
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