Abortion, Conscience and Democracy

Robert A. Kominar is a barrister and solicitor and a lecturer in the
Department of Law and Justice at Laurentian University.

Though styled as a book about abortion, this volume in fact has a much
more general theme. Abortion is used by the author as the paradigm
example for articulating his understanding of the place that individual
conscience should occupy in a modern liberal democracy. MacGuigan also
touches upon the analogous situations faced when thinking about suicide
and euthanasia. Though the author is a Justice of the Federal Court of
Appeal and a former Attorney General of Canada, he clearly informs his
readers that he is writing this book from the position of a practising
Roman Catholic, not as an official representative of any public
institution.

The argument made in the book is that while moral relativism is not a
rationally supportable position, particularly for devout Roman
Catholics, legal relativism is. In essence the author accepts the
classical liberal distinction between public and private realms. Morally
we should aspire to respect life in all circumstances. Legally, however,
our only obligation is to not fall below a certain level of publicly
defined acceptable conduct. The criminal law should be employed only to
respond to those who fall below this minimum threshold; it should not be
used to pressure anyone in Canada to accept the moral or spiritual
beliefs held by anyone else. Prior to fetal viability, therefore,
abortion is not the law’s business, the author argues.

There is nothing new in any of this. The author sets out a quite common
contemporary Catholic understanding of the relationship of conscience to
law, one that has had a long history in jurisprudence. What MacGuigan
does do effectively is to gather together in a quite readable and
concise form the reasoning behind this position, a position that is much
more subtle than most of its detractors acknowledge. He also points out
the need for all Canadians, particularly the judiciary, to reflect more
deeply on freedom of conscience, the freedom that he argues is the most
fundamental one protected by the Charter of Rights and Freedoms. If the
courts followed the lead of the author, Canada would be a land justly
proud of its perpetual struggle for democratic integrity.