Books, Volume 13 #5

Mark MacGuigan's Logic
Is Based on Bad Biology

Mark R. MacGuigan, Abortion, Conscience and Democracy. Toronto: Hounslow, 1994. 165 pp., $16.99.

Mark MacGuigan has spent a great deal of his adult life studying, teaching, practising and dispensing the law. In some circles, he is considered a Catholic intellectual and a philosopher of the law. His career has taken him from professor and founding dean of law at the University of Windsor, to the House of Commons, representing Paul Martin, Sr.'s former constituency, to the inner cabinet and finally to a judgeship on the Federal Court of Appeals, a 1984 patronage appointment courtesy of Pierre Trudeau. MacGuigan is certainly no stranger to the world of critical writing on the history and nature of the law, demonstrating a wide range of knowledge on a large number of topics and a rigorous, analytical mind.

MacGuigan is convinced that "both the theory and practice of democracy, grounded as they are in respect for freedom of conscience above all else, do not allow those who believe that abortion is morally wrong to use the criminal law to try to outlaw it. Such legislation would violate the first principle of democracy, it would not respect the democratic compact, and it would be incapable of enforcement."

If MacGuigan is right, the major implications of this conviction are truly enormous and downright revolutionary. First, morality and the law are "distinct and separate concepts," and thus "the state lacks the capacity to impose a moral code on its citizens." The law's true business is "to establish a least-common-denominator approach to human behaviour." Second, freedom of conscience as applied to abortion is absolute. He does not hesitate to claim that the right to conscience is greater than the right to life. Third, the right to an abortion is absolute and is a necessary condition for democracy. No legal abortion means no real democracy. Fourth, any attempt to legislate against that right would be undemocratic as well as impossible to enforce because the majority of medical practitioners involved in neonatal care and the majority of the Canadian public favour abortion on demand. Those who insist on a legal solution to abortion worship the law as an idol.

Law and Morality. On the one hand, MacGuigan states that law and morality are "distinct and separate concepts." On the other hand, however, he admits that law and morality "are not totally independent in operation, but have a certain interrelationship, which is complicated to express because it involves a complex reality." He is waffling here, and the waffling crops up time and again in the book. Either there is a fundamental relationship between law and morality or no such relationship exists.

I believe that there does exist a close relationship between law and morality, and that the relationship between the two is not as complicated as MacGuigan suspects, especially in the partisan political arena where decisions on legislation are made. By their very nature, human beings are moral agents, and they do not stop being moral agents simply because they have a law degree or are members of Parliament or sit on the judicial bench. Laws are fashioned by human beings. Every law reflects someone's morality, his or her deepest held beliefs on what is right and wrong and the punishment to be meted out to those who do not follow the law.

A pertinent example of what I mean is the 1969 law which for the first time in Canadian history permitted abortion under certain circumstances. This legislation perfectly reflected the libertarian moral values of its chief architect, Prime Minister Trudeau, who thought that abortion could be justified in terms of self-defence. Of course, there are politicians, among them many prominent Catholic ones, who take refuge in the separation of law and morality. It allows them to hold contradictory beliefs on the same subject at the same time; it allows them to stifle their consciences, to smother their inner voices.

The status of conscience. According to MacGuigan, freedom of conscience is "truly the most fundamental of the freedoms" in a democracy. It is a right above all other rights. It comes first. In its negative capacity (freedom from) it is an absolute.

Of course, the right to exercise one's conscience is extremely important, and that particular right may rank first in a nation's list of rights, as it does in the Canadian Charter of Rights of Freedoms. But in the more prosaic realm of human existence and experience, the fact of human life remains preeminent. Life is what we have, and it is better to exist than not to exist. If we demand that our constitution protect our right to the free exercise of our conscience--a demand that is noble and reasonable--it is also reasonable to expect that the constitution protect our right to life, because we must be alive to exercise any rights, including the right to conscience. Existence is the necessary condition for anything we do in life.

In claiming that "life must yield to conscience in the matter of abortion," MacGuigan is committing his own version of the classical Cartesian howler. Descartes asserted, "I think, therefore I am." But one exists before one thinks or, in fact, does anything. For MacGuigan, the formula goes like this: "I have a right to conscience and all other rights, including the right to life, are secondary to this right." But one exists before one has a conscience, and if one's right to exist does not take precedence over the right to exercise one's conscience, it is conceivable that one may never get a chance to exercise one's conscience on any matter. This has been the fate of 1.5 million aborted human beings.

There are several more things about the way MacGuigan uses conscience vis-à-vis abortion that leave me uneasy. I find it strange that conscience is invoked to justify the destruction of another human being. In the dark old days before our enlightened leaders invented charters of rights and freedoms, people invoked their consciences at their own peril. The fate of St. Thomas More comes readily to mind. In the case of abortion, however, something radically different occurs. Someone else has to pay the price when conscience is involved. This strikes me as fundamentally unfair. Still stranger is the idea that only women can invoke conscience in this way on abortion. No one else is allowed into the moral universe at the time a decision to abort has been made. But since when do women have any different or any more rights than men? Lastly, MacGuigan is trapped in a paradox: the absolute freedom of the negative conscience, regardless of when it is invoked, is actually the freedom to have no conscience.

Absolute right to abortion: MacGuigan divides conscience into negative (freedom from) and positive (freedom for). The former is absolute and the latter is conducted within due limits. I have no great trouble with this. However, having divided conscience into two, he proceeds to divide human existence in the womb into two: the nonviable and the viable. This concept is absolutely crucial to MacGuigan's argument. In relation to abortion, negative conscience deals with the nonviable fetus, and positive conscience deals with the viable fetus. This is a very neat move on his part, but he is chasing an illusion based on bad biology.

MacGuigan defines viability as that "stage of fetal development at which the fetus can exist outside the mother's womb." Elsewhere he writes, "Viability marks the point at which the fetus no longer has to live through its mother's body, but can henceforth live through its own." Notice the use of the word "point." That is the illusion. One's existence does not unfold along a line of points.

It is arbitrary and absurd to split human existence into nonviable and viable for the following reasons. One, you are your body--there was never a time in your existence when you were not your body--and your body is viable from the moment of your conception; when your body ceases to be viable, it dies. To be viable means to grow and develop in the place which nature itself has appointed. The fetus's natural place is in the womb, where over time it becomes more like you and me. If the fetus is no longer viable, its mother has a miscarriage.

Two, the test of viability in connection to conscience, when conscience is invoked as a justification for abortion, demands that the fetus accomplish the impossible. The test is applied to the fetus when the fetus is in the womb, its natural home, but the fetus's success or failure at that test must be measured when it is outside the womb. The viable fetus is sucked out, and its dismembered remains are then declared to be nonviable. Therefore, according to MacGuigan's logic, it did not deserve the protection of the law, and any attempt to give it legal protection while it was in the womb is a coercive act against the conscience of the woman and undemocratic. However, it is no more reasonable to expect a perfectly viable fetus to survive the intrusive and powerful tools of an abortionist than it would be to expect someone to breathe air under water.

Having come to his own conclusions on conscience and viability, MacGuigan writes that "in theory there is a difference in kind between a fetus before and after viability." Surely he cannot be using the phrase "difference in kind" properly. A human fetus is a human fetus. Where does difference in kind come into play? Next, what on earth does this mean: "Viability is a kind of anticipated birth"? Then, "the mother's right to an abortion does not include the right to destroy the fetus as such. It is only that the inevitable effect of abortion is fetal destruction, given the fetus' inability to survive." This is plain silly. The intention of the person who wants an abortion is never that indirect. Abortion is the deliberate killing of an innocent human being in the womb. If one has the right to an abortion, one has the right to kill the fetus in the womb.

MacGuigan's concept of viability does not stand up to close scrutiny. As a result, his contention that abortion is an absolute right--and indeed the entire book--is undermined.

Prohibition of abortion. Indeed, it would be very difficult to prohibit abortion by means of a criminal law statute. It is always difficult, but not impossible, to put the evil genie back in the bottle. After twenty-five years of legal abortion and a persistent media campaign on behalf of abortionists and their clinics, abortion has become a full-blown mentality and a publicly funded industry. Readily available artificial contraceptives were supposed to make abortion disappear. The truth is something quite different. The bitter and divisive seeds of abortion on demand were sown in 1969, and our politicians, judges and opinion makers are morally responsible for the legacy of their ill-wrought ideas and decisions. They have refused to acknowledge the simple truth that every abortion destroys the body of a unique human being.

I would like to end by asking Mark MacGuigan to ask himself these two questions. "If, in my one and only shot at human life, at being me, I count the first four or five months of my life in my mother's womb as utterly worthless and disposable, what kind of person am I to think of my existence in such a strange way? And doesn't this have some echoes in what I secretly think of my existence now?"

Michael Power is a freelance writer living in Welland, Ontario.