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Abortion, Conscience and Democracy

Abortion, Conscience and Democracy

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Abortion, Conscience and Democracy

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Jan 10, 1994


Few issues have polarized Canadians and Americans as much as the abortion debate. In this thoughtful and thought-provoking reflection on the implications the law on abortion has on democracy, Mark MacGuigan brings a much-needed perspective to this controversial subject. Few people are as well qualified to do so: MacGuigan is a former law professor, minister of justice and attorney general of Canada, a Catholic, and a federal appellate-court judge.

Distinguishing carefully between morality and the law, MacGuigan includes a history of the criminal law, the Catholic Church's views, and the often-ignored roles of individual conscience, freedom and responsibility in democracy. He reviews the essential debate, important case histories, and the evolving social perspectives that have attached themselves to discussions of abortion. he also includes chapters on the related issues of contraception and euthanasia.

MacGuigan refers to a wide range of influential and international documents and judgements: papal encyclicals, the Wolfenden Report, Roe vs. Wade, a ruling in a case that involved Dr. Henry Morgentaler, and numerous other sources. With great candour, MacGuigan also explores how his own attitude and position have changed to the point where he now opposes any legislation limiting abortion before viability.

Those who are seeking clarity of the issues and those who want to uncloud the rhetoric and the arguments should not miss reading this important work.

Jan 10, 1994

Über den Autor

Mark MacGuigan was educated at St. Dunstan's (PEI), University of Toronto, Osgoode Hall Law School and Columbia University. From 1960-68 he held various teaching positions, culminating at the University of Windsor where he was founding dean of the Faculty of Law. First elected to the House of Commons in 1968, re-elected in '72, '74, '79 and '80; appointed secretary of state for external affairs in 1982 and judge of the Federal Court of Appeal in 1984.

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Abortion, Conscience and Democracy - Mark R. MacGuigan



Foreword by

The Rt. Hon. Joe Clark, PC

Mark R. MacGuigan

Abortion, Conscience and Democracy

Copyright © 1994 by Mark R. MacGuigan

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except brief passages for purposes of review) without the prior permission of Hounslow Press. Permission to photocopy should be requested from the Canadian Reprography Collective.

Hounslow Press

A member of the Dundurn Group

Publishers: Kirk Howard & Anthony Hawke

Editor: Nadine Stoikoff

Printer: Webcom

Canadian Cataloguing in Publication Data

MacGuigan, Mark, 1931-

Abortion, conscience and democracy

Includes bibliographical references and index.

ISBN 0-88882-171-9

1. Abortion - Moral and ethical aspects. 2. Abortion - Political aspects. I. Title.

HQ767.M33 1994 363.4’6 C94-931403-X

Publication was assisted by the Canada Council, the Ontario Arts Council, the Book Publishing Industry Development Program of the Department of Canadian Heritage and the Ontario Publishing Centre of the Ontario Ministry of Culture, Tourism and Recreation.

Care has been taken to trace the ownership of copyright material used in this book. The author and the publisher welcome any information enabling them to rectify any references or credit in subsequent editions.

Printed and bound in Canada

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Hounslow Press

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Hounslow Press

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1 The Morality of Contraception

2 The Morality of Abortion


3 The Role of Criminal Law in Democracy

4 Church Views on the Role of the Criminal Law

5 Democracy in Intellectual History

6 The Church and Democracy

7 Conscience, the First of Democratic Rights

8 Criminal Law and Abortion

9 The Christian Recognition of Abortion in Democracy

10 Euthanasia and Suicide


11 The Fallacy of the Law as Idol

12 Freedom and Responsibility for Christians in Democracy


Index to Names and Cases





For many people in public life, no issue has been more difficult than the law respecting abortion. It often raises a direct conflict between the pressures of public policy and private conscience, and requires legislators to consider the limits of Parliament’s power in a democracy.

Mark MacGuigan and I were colleagues in the House of Commons for twelve years. We were active in different political parties and, naturally, did not agree on every issue. But we were both interested in what governments should do, as well as what they could do. And we both believed that Parliament should not use the Criminal Code to deny Canadian women the option of abortion when confronted with an unwanted pregnancy.

The fashion today is to simplify political issues. Candidates for public office are asked to respond yes or no, for or against, to very complex questions. But even when simple answers are given, they are often the result of difficult, sometimes agonizing, consideration. In this book, Dr. MacGuigan goes beyond simple answers.

As the author says in his introduction, every politician of national experience instinctively knows that it would be wrong in a democracy such as ours … to make all abortions illegal. That is less a judgment about abortion than it is a reflection of what we have learned from active participation in the democratic political process. It is an instinct rooted in the knowledge that there are limits to the control which citizens, in a democracy, should accept over their personal lives and decisions. The importance of this book is that it justifies, with careful argument, a position to which many Canadian democrats have come intuitively.

It is not, in the conventional sense, a political book. It might be said to be a legal book, because it is about what the law should be. It could be described as a history of democracy, since it is replete with historical background on democracy. It might also be termed a book of political philosophy, for it is charged with conviction about the relevance, to contemporary society, of human rights, especially the fundamental right of conscience. But it is most appropriate to call it a work of Christian humanism, which is true both to the best of the Catholic tradition, and to the spirit of democracy.

I think Canadians will find this book timely, probing and persuasive.

Joe Clark


No one writes a book as a solo activity: in no human enterprise is it more true that no person is an island. Especially in an extended reflection like this on the implications of democracy for the law of abortion, the ideas of other people are of great assistance. In particular, I have benefited immeasurably over the years from my associations with fellow students and with academic, parliamentary and judicial colleagues. The names that stand out in my mind in this respect are Bora Laskin at the University of Toronto, Francis Leddy at the University of Windsor, and in public life Paul Martin and Pierre Elliott Trudeau.

I am also grateful to the teachers who taught me so much in law, literature, social science, philosophy and intellectual history: Clarence Murphy, Brendan O’Grady, Lily Seaman and G.D. Steel at what is now the University of Prince Edward Island; at the Pontifical Institute of Mediaeval Studies and the University of Toronto, I.T. Eschmann, O.P., Étienne Gilson, John M. Kelly, C.S.B., Laurence E. Lynch, Jacques Maritain (regrettably, only for the occasional series of lectures), Armand Maurer, C.S.B., H.M McLuhan, Anton Pegis, Gerald B. Phelan; R. St. J. Macdonald, Bert MacKinnon, Arthur G. Martin, Desmond Morton and Syd Robins at Osgoode Hall Law School; and at Columbia, Wolfgang Friedmann, Richard N. Gardner, Walter Gellhorn, Harry W. Jones, Michael Sovern, and Herbert Wechsler. Perhaps none of them would feel any kinship with what I have written, but it is a common failing of disciples to take their masters’ conclusions as their own starting points.

I am indebted to two friends who have generously read earlier drafts of this work and made many helpful suggestions: Dr. Donald J. McCarthy, Professor of Philosophy, University of Manitoba; and Rev. Dr. Francis G. Morrisey, Professor of Canon Law, Saint Paul University, Ottawa. I did not ask them to agree with what I wrote, but only to help me express it in the most intelligible and cogent way. The imperfections that remain in expression and theory are entirely my own responsibility.

I am also indebted to Dr. Sheila Rothstein for saving me from worse misconceptions of medical science than those I undoubtedly continue to hold.

My wife, Patty, was my most constant source of inspiration and encouragement and also my daily sounding board. In a real sense, this is our book.

I owe a great debt to my judicial assistant, Patricia Holland, both for her exceptional accuracy and efficiency and for her unfailing cheerfulness in transcribing not only the original draft of my text but also in making literally hundreds of subsequent revisions. I am also grateful to my law clerk, Faeron Trehearne, for research assistance and for compiling the index.

I am indebted as follows for the right to quote excerpts from copyright material:

L.W. Sumner, Abortion and Moral Theory, Copyright © 1981 by Princeton University Press, All Rights Reserved;

Laurence H. Tribe, Abortion: The Clash of Absolutes, Copyright © 1992, 1990 by Laurence H. Tribe, All rights reserved, permission to quote granted by W.W. Norton & Company, 500 Fifth Avenue, New York 10110-0017;

Pius XI, Casti Connubi, in Five Great Encyclicals, Copyright, 1939, by the Missionary Society of St. Paul the Apostle in the State of New York;

E.E.Y. Hales, The Catholic Church in the Modern World, Image Books Edition, 1960, Copyright: © 1958 by Doubleday & Company, Inc., All Rights Reserved;

John Paul II, Centesimus Annus,© 1991, Éditions Paulines, 250, boul. Saint-François Nord, Sherbrooke, QC, JIE 2B9;

The Documents of Vatican II, Abbott-Gallagher edition, reprinted with permission of America Press, Inc., 106 West 56th Street, New York, N.Y. 10019, © 1966, All Rights Reserved;

Paul VI, Humanae Vitae, translation from Appendix One, Janet E. Smith, Humanae Vitae: A Generation Later, Copyright © 1991, The Catholic University of America Press, All rights reserved.

Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia and Individual Freedom, Copyright © 1993 by Ronald Dworkin, All rights reserved under International and Pan-American Copyright Conventions, Published in the United States by Alfred A. Knopf, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto, Distributed by Random House, Inc., New York;

Love Kindness: The Social Teaching of the Canadian Catholic Bishops (1958-1989): A Second Collection, edited by E.F. Sheridan, S.J., © 1991 Éditions Paulines, 250, boul. Saint-François Nord, Sherbrooke, QC, JIE 2B9, Jesuit Centre for Social Faith and Justice, 947 Queen Street East, Toronto, ON, M4M 1J9, All rights reserved for all countries.

Jacques Maritain, Man and the State, Copyright 1951 by the University of Chicago, Copyright under the International Copyright Union, All Rights Reserved;

John Paul II, The Splendor of Truth,© 1993, Éditions Paulines, 250 boul. Saint-François Nord, Sherbrooke, QC, JIE 2B9.

The Tablet, 1 King Street Cloisters, Clifton Walk, London, England, W6 OQZ, for excerpts from articles by Dominian, 10 November 1984 and 17 November 1984, Moore, 7 October 1989, Häring, 30 June 1990, 24 July 1993 and 23 October 1993, Grisez, 16 October 1993, Lash, 13 November 1993, and from letters by Lash, 13 November 1993 and Fagan, 20 November 1993.


6 July 1994


I am a practising Catholic. Unlike some fellow Catholics, I accept the Vatican teaching that directly induced abortion is always morally wrong, and that people should be guided by this view in their daily lives. To this extent, my position is entirely orthodox.

However, for me the popular assumption that, if abortion is morally wrong, it ought to be prohibited by the criminal law, is a complete non sequitur, one based on a total confusion of the respective domains of morality and law, of sin and crime, in a democracy.¹

Indeed, I have written this book from the point of view that in a democracy law is not simply morality writ large, backed by the compulsion of the criminal law, but that the two spheres are distinct and separate, each having its own purpose, structure and methods. Although criminal law is admittedly dependent on morality for its legitimacy and acceptance, it nevertheless does not simply incorporate morality — nor morality, law.

In the specific case of abortion, where many people in a pluralistic democracy (in my opinion, it matters not whether they are majority or minority) believe that abortion is not only morally acceptable, but even morally required in conscience in some circumstances, in my view the law may not limit abortion before viability, even if the levers of public power should be held by those morally committed to oppose abortion.

This may seem to some anomalous, since the generally agreed standard for what the criminal law may prohibit is the avoidance of harm to others, and, for many, human fetuses should have the same rights not to be harmed as those already born. (The extent of their humanness — or at least of their moral and legal status — is, of course, often regarded as the nub of the moral disaccord in our society over abortion).

The Wolfenden Report in England in 1957 recommended the legalization of homosexual behaviour between consenting adults in private on the basis that there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.²

As an application of the common good in the field of criminal law, the Report was supported by the Catholic bishops of England, but its principle of the separation of law and morality is often not applied in the case of abortion by the Catholic community north of the Rio Grande. Indeed Daniel Callahan has written:³

The crux of the conservative Catholic legal position is the belief that, in the instance of abortion, it is not legitimate to employ distinctions normally used even by Catholics in other cases involving the relationship of law and morality.

King Baudoin of Belgium, who died in 1993, was regarded as a paradigm of Christian virtue by many pro-life adherents for his refusal in April 1990 to sign a law legalizing abortion. There can be no doubt that, subjectively, he acted morally because he followed his own conscience, to say nothing of his widespread reputation for holiness. But in my view his action was objectively wrong, morally speaking, because it was a failure to live up to his moral obligation in a pluralistic democracy to respect the consciences of those whose moral views were different from his own. He put himself in the same erroneous position as a Catholic legislator who votes against allowing abortion without taking account of the consciences of others. (In King Baudoin’s case he escaped the logical consequences of his refusal to sign the abortion law: the bill was deemed to become law without his signature and his abdication was rescinded by parliament two days after it occurred.)

Pope John Paul II has recently raised the questions surrounding abortion and contraception to the level of world controversy at the Cairo Conference on Population and Development. But to my mind, the fundamental issues are essentially the same at the national as at the world level, and are easier to focus on in a national context.

I believe that every politician of national experience instinctively knows that it would be wrong in a democracy such as ours for Catholics and fundamentalists, even if they did constitute a majority in the society, to make all abortions illegal. Governor Mario M. Cuomo, one of the leading Catholic politicians in the United States, has said so many times. In Canada five Catholic Prime Ministers from both traditional parties, Trudeau, Turner and Chrétien of the Liberal Party, and Clark and Mulroney of the Progressive Conservative Party, have either legislated permissive abortion legislation, or accepted a permissive status quo. This is in fact the next-to-unanimous view of Catholic political leadership in both countries.⁴ My purpose is to provide a coherent and — I hope — persuasive rationale for this often instinctive position.⁵

In so doing, I shall make use of U.S. experience interchangeably with Canadian in this book, on the theory that American events, social currents and latest thinking have a huge influence on Canadians in this sphere. Although the reverse is not true, there are indications that Americans are becoming increasingly open to the experience of other countries.

Of all active politicians, Governor Cuomo confronted the issue most directly in a 1984 address at Notre Dame University after Archbishop John O’Connor of New York (as he then was) had attacked Democratic vice-presidential candidate Geraldine Ferraro for her pro-choice position, and in my opinion has most fully stated the enlightened Catholic position:

[T]he Catholic who holds political office in a pluralistic democracy — who is elected to serve Jews and Muslims, atheists and Protestants, as well as Catholics — bears special responsibility. He or she undertakes to help create conditions under which all can live with a maximum of dignity and with a reasonable degree of freedom; where everyone who chooses may hold beliefs different from specifically Catholic ones — sometimes contradictory to them; where the laws protect people’s right to divorce, to use birth control and even to choose abortion.

In fact, Catholic public officials take an oath to preserve the Constitution that guarantees this freedom. And they do so gladly. Not because they love what others do with their freedom, but because they realize that in guaranteeing freedom for all they guarantee our right to pray, to use the sacraments, to refuse birth control devices, to reject abortion, not to divorce and remarry if we believe it to be wrong.

The Catholic public official lives the political truth most Catholics through most of American history have accepted and insisted on: the truth that to assure our freedom we must allow others the same freedom, even if occasionally it produces conduct by them which we would hold to be sinful…

I believe that legal interdicting of abortion by either the federal government or the individual states is not a plausible possibility and even if it could be obtained, it wouldn’t work. Given present attitudes, it would be Prohibition revisited, legislating what couldn’t be enforced and in the process creating a disrespect for law in general.

Not only is abortion permitted by law in both countries, it is so permitted because that is what respect for the consciences of others requires. Indeed, the legal interdiction of abortion is nothing more than a will o’ the wisp in a pluralistic society; it is no more enforceable than prohibition. Respect for the legal system as a whole and respect for the consciences of others both leave Catholics no choice but to allow abortion for those whose consciences so dictate.

Indeed, in morals the ultimate principle is not life, as some argue, but conscience, which is closely associated with the virtue of prudence, and by which I mean one’s inmost sense of what is right and wrong. Catholics are, of course, dedicated to an ethic of life, but they accept conscience as the ultimate guide to human conduct. As Pope John Paul II recently wrote in his encyclical (i.e., pastoral) letter Veritatis Splendor (The Splendor of Truth):

[T]he judgment of conscience … has an imperative character: man must act in accordance with it. If man acts against this judgment or, in a case where he lacks certainty about the rightness and goodness of a determined act, still performs that act, he stands condemned by his own conscience, the proximate norm of personal morality.

Individual conscience can be erroneous, even culpably so. Naturally, people have a moral obligation properly to inform their consciences. God will judge every one of us on whether we have taken the obligation to do so seriously. But, lacking God’s knowledge of others’ interior states, we must all accept other people’s consciences as they themselves represent them, giving them the benefit of the doubt. In other words, if they invoke conscience as the reason for an action, no one can gainsay it, on the basis of a supposedly superior conscience.

In the law as well, the first principle is freedom of moral conscience. Pope John Paul II has written in Veritatis Splendor of the authentic perception of conscience as the most fundamental of human rights:

[T]he right to religious freedom and to respect for conscience on its journey towards the truth is increasingly perceived as the foundation of the cumulative rights of the person.

This heightened sense of the dignity of the human person and of his or her uniqueness, and of the respect due to the journey of conscience, certainly represents one of the positive achievements of modern culture.

Since the state lacks the capacity to impose a moral code on its citizens, it does not have the right to second-guess claims of conscience, reducing some to mere matters of personal or social preference or convenience, even if that might be the best judgment of an objective observer. This lack of state competence was well expressed some decades ago, in a slightly different context, by Jacques Maritain in Man and the State:

A genuine democracy cannot impose on its citizens or demand from them, as a condition of their belonging to the city, any philosophy or any religious creed … [T]he common agreement expressed in democratic faith is not of a doctrinal, but merely practical nature … [T]he fact is that the State is not equipped to deal with matters of intelligence.

Of course, it would be theoretically possible for a state to maintain a general prohibition against abortion

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