Canada hasn’t had an abortion law since 1988. But that doesn’t mean that abortion doesn’t come up in court cases across the country. Close to 34 years of accessible, funded abortion means that abortion has become a pervasive issue in our culture. It’s not uncommon for legal cases to have abortion going on in the background. To illustrate this, I want to give a snapshot of a few of the legal decisions in just the past year that deal with abortion.
Medical Negligence
Perhaps the most disheartening case to report comes from the Ontario Superior Court of Justice, called Bonenfant v. Ponesse. The factual background includes a woman in Ottawa who gave birth to a son who had medical concerns that they struggled to diagnose. As their doctor was working on narrowing a diagnosis, the mother became pregnant again and gave birth to a son who was immediately diagnosed with Fragile X Syndrome – a genetic disorder that is passed by a mother to her male children. With the information of the second son’s diagnosis, the first son was also diagnosed with the same syndrome.
The mother then sued the doctor who didn’t accurately diagnose her first son, because if she had been aware “that she was a carrier of this genetic disorder at any time during her pregnancy with E., she would have arranged for in vitro testing and would, if the foetus was found to have Fragile X Syndrome, have terminated the pregnancy.” In other words, she is arguing in court that she would rather have a dead son than one with the Fragile X Syndrome. Because the doctor didn’t correctly identify her first son’s condition, she missed her opportunity to abort.
Another Ontario Superior Court of Justice case, Kamateros v Women’s College Hospital, relates to a medical negligence action regarding a dilation and curettage abortion performed at the Women’s College Hospital. This decision deals with preliminary matters in the case, meaning there aren’t a lot of details of what went wrong with this abortion, but the matter will be proceeding.
A Refugee after a Forced Abortion
The most recent decision relating to abortion came out earlier this month from the Federal Court of Canada, which deals with immigration issues. In Gong v. Canada (Citizenship and Immigration), the court upheld a decision to reject Ms. Gong’s refugee application that was partially based on a claim that in 2015 when she became pregnant in China , the family planning office forced her to have an abortion. She claimed that she was concerned she was pregnant again and was afraid of being forced to have another abortion. The problem with her application was that when she first talked to the border officers she claimed she was coming as a tourist and gave false information about a variety of facts. The result was that her refugee application was rejected.
Fathers who want their Children Aborted
A more common type of case involving abortions has to do with the fathers. For example, an Alberta Provincial Court decision called Aubichon v Mitchell involves a father who was a member of the British Armed Forces. While stationed in Alberta he became a father with a Canadian woman. From the very beginning he wanted nothing to do with his child and repeatedly told her to get an abortion. He cut off all contact with the woman and their child and went back to the UK. Since the father left the country, the mother and child lived around the poverty line, informing the court’s decision to make child support payments retroactive to the date of his child’s birth in 2015. The strange reality is a woman has 9 months to choose not to be a mother, but the father is not offered the same choice.
In another family law dispute, the history of a couple includes this sad episode: “In March of 2009, Ms. A discovered that she was pregnant. Mr. S seemed happy about it and the couple announced their pregnancy to the A family at a barbeque. Almost immediately after the announcement, Mr. S panicked and asked Ms. A to get an abortion, an act that was abhorrent within their shared Greek Orthodox religion. Ms. A felt betrayed and I accept that she was devastated. She did get the abortion; a decision that she carries with her to this day.”
Finally, a lawyer in Ontario pled guilty to criminal harassment after spending three months trying to pressure his intimate partner to have an abortion. He had persistently texted her, talked to her, talked to her family members, tried to kick her out of the home she rented from him, and even shared video and photos of their intimacies. Separate from the legal case, the Law Society Tribunal decided it would be appropriate to reprimand him, mandate counseling, and fine him $9,000. Happily, the decision notes that the woman “gave birth to the baby on December 6, 2019.” I’m grateful to the mother who had the strength to withstand the pressure and prioritze the wellbeing of her child.
34 years of legal abortion has resulted in 100,000 abortions every year.
Stories and cases like these will continue to be the norm in a country that has normalized abortion. Close to 100,000 pre-born are lost to abortion every year. That’s 100,000 mothers and 100,000 fathers, not to mention grandparents, aunts, uncles, friends, etc. We see this broad impact evidenced in legal matters all the time and it is worth remembering every time we bring up the topic. As we seek to engage our neighbours and our government about the need for abortion laws, we do so knowing that it is likely a personal topic. This doesn’t mean we avoid bringing it up, but it means being prepared for emotion and being openhearted to those who have been impacted by the death of a pre-born child.
Every lost life matters, and we see from these legal cases that even those short pre-born lives are having an impact on those around them.