The Constitutional Validity of Abortion Legislation:
A Comparative Note
H. Patrick Glenn*
A series of recent decisions, of the highest constitutional tribunals
of Canada,” the Federal Republic of Germany,2 France3 and the
*Jnited States of America,4 casts interesting light on (I) the nature
of prenatal existence, (II) the duty of the state to act affirmatively
for the protection of constitutionally guaranteed rights, and (III)
the relation of judicial to legislative authority. Since the subject
is a controversial one, and since there is considerable diversity in
the constitutional structure of these jurisdictions, some division of
opinion was to be expected. The extent of the division is, however,
striking.
Two of the decisions –
those of the courts of West Germany and
the United States of America –
declare legislation relating to abor-
tion constitutionally invalid. In both cases the invalidity flowed from
violation of human rights entrenched in a written constitution. In
the West German decision, a federal law removing penal sanctions
from abortions performed in the first trimester of pregnancy was
declared unconstitutional as violating the foetus’ constitutionally
protected right to life.’ In the United States decision, a state law
* Of the Faculty of Law, McGill University.
1 Morgentaler v. The Queen (1975) 53 D.L.R. (3d) 161 (S.C.C.).
2Decision of the Federal Constitutional Court of February 25, 1975, Neue
Juristische Wochenschrift (NJW) 1975, 573 (First Senate). All subsequent page
references are to this report. The decision has now also been published at 39
Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 1 (1975).
-3 Conseil constitutionnel, January 15, 1975, Journal Officiel (J.O.) January 16,
1975, 671, D. 1975.2.529, note Hamon. On judicial review in France generally,
see Beardsley, The Constitutional Council and Constitutional Liberties in
France (1972) 20 Am.J. Comp.L. 431.
4 Roe v. Wade 410 U.S. 113, 35 L. Ed. 2d 147, 93 S.Ct. 705 (1973)
(United
States Supreme Court). All subsequent page references are to the first of
these reports. Reference should also be made to a companion case, Doe v.
Bolton 410 U.S. 179, 35 L. Ed. 201, 93 S.Ct. 739 (1973). For Canadian comment
on the decision see Cheung, The Abortion Decision – A Qualified Constitu-
tional Right in the United States: Whither Canada? (1973) 51 Can.Bar Rev.
643; Slayton, “Roe v. Wade: A Canadian Perspective” in Kremer and Synan
(eds.), Death Before Birth: Canada and the Abortion Question (1974), 167.
5 Law of June 6, 1974, Bundesgesetzblatt (BGB1) 1, 1297, revising Articles 218-
220 of the German Criminal Code.
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the Canadian and the French –
imposing penal sanctions on the performance of abortions at any time
during pregnancy was declared unconstitutional as violating the
woman’s constitutionally protected right to privacy. The two re-
maining decisions –
conclude in
favour of the constitutional validity of abortion legislation. In the
French decision, a law removing penal sanctions from abortions
performed in the first ten weeks of pregnancy was declared valid, as
constituting no violation of the child’s constitutionally protected right
to health.7 In the Canadian decision, a federal law imposing penal
sanctions on the performance of abortions was upheld,” as consti-
tuting no violation of any rights conferred on the woman by the
Canadian Bill of Rights.” Two of the courts would therefore dictate
to the legislature opposing solutions to the problem of abortion, and
two would leave the legislature free to adopt what were in the cir-
cumstances also opposing solutions. How these conclusions were
reached, and any lesson that can be drawn from them, is the
subject of this note. The German decision will be presented in most
detail since it is the least accessible to North American readers.
I. The Nature of Prenatal Existence
Rather surprisingly, only one of the decisions, that of the German
Federal Constitutional Court of February 25, 1975, deals expressly
with this seemingly fundamental issue. Citing “well-established”
biological and physiological knowledge,
the Court unanimously
held (two dissenting judges of the eight-member court sharing this
view), 1 that life exists at least from the fourteenth day following
fertilization, on completion of the process of implantation.” The
foetus therefore falls within the terms of Article 2, para. 2 of the
German Basic Law (the Grundgesetz, or constitution), providing
that “Everyone has the right to life .. .”. Moreover, the Court stated
that the development begun at that point is a continual process
(there being no precise limits to the different stages of development),
6Arts.1191-1194 and 1196 of the Texas Penal Code.
7 Law No.75-17 of January 17, 1975, J.0. January 18, 1975, 739, Dalloz 1975.2.48.
8 Criminal Code, R.S.C. 1970, c.C-34, ss.251(1), (2) and (3).
9 S.C. 1960, c.44 (see R.S.C. 1970, Appendix III).
10Dissenting judgments in decisions of the Federal Constitutional Court
are now authorized by Art.30, para.2, of the Law concerning the Federal
Constitutional Court (Gesetz fiber dos Bundesverfassungsgericht, BVerfGG)
of March 12, 1951, since the passage of the Law of December 21, 1970, BGB1 1,
1765 (commented on by Rupprecht, NJW 1971, 169). For the concurrence of
the dissenting judges on this point, see supra, f.n.2, 582.
11 Supra, f.n.2, 574.
1975) CONSTITUTIONAL VALIDITY OF ABORTION LEGISLATION
675
which continues until well after birth, the newborn child having no
immediate sense of personal existence. 2 The existence of such life,
and the continual process of its development until a point after
birth, means that the protection of Article 2, para. 2 cannot be
restricted to persons born, or even to persons born and the foetus
during the third trimester, when it has acquired the capacity to
survive outside the womb.13 If any life short of that of a “complete”
person is to be protected, it must be the totality of the developing
life. Continuing its interpretation of Article 2, para. 2, the Court
rejected the argument that use of the word “Everyone” implied the
existence of a person born, stating that the protection of human
existence from state or governmental interference would be in-
complete if it did not apply as well to unborn life.:” Article 2, para.2
therefore operates to protect life developing within the mother’s
body as an independent legal interest (seIbstindiges Rechtsgut),
though it was not necessary to determine whether the foetus is
itself a subject of rights or, lacking legal capacity, is only the object
of protection by objective norms of the constitution. 5
Essential to this analysis is the view that the German constitu-
tion views human life in terms of its biological minimum, imposing
no social or anthropological dimension as a necessary part of its
definition. Having accepted this point of departure, the Bundesver-
fassungsgericht then proceeded to examine the manner of protection
of such a right to life, and its reconciliation with other constitu-
tionally guaranteed rights. 6
In contrast to this reasoning, neither the French decision nor
the United States decision –
the first permitting and the second
requiring more permissive abortion legislation –
are based on an
explicit denial of the existence of life before birth. The earliest
decision, that of the United States Supreme Court, rendered in
1973, expressly states that it is unnecessary to deal with “the difficult
question of when life begins”. 7 The actual litigation before the Court
was then resolved by deciding first of all that the woman’s right to
privacy, flowing from the Due Process Clause of the Fourteenth
Amendment to the United States constitution, was broad enough to
include the decision to abort.’8 Secondly, the Court held that the
12 Ibiq., 574, 575.
13 Ibid., 575.
14 Ibid.
15 Ibid.
16 See the discussion, infra, in Parts II and III.
17 Roe v. Wade, supra, f.n.4, 159.
18 Ibid., 153.
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appellee (or respondent –
representing the state whose legislation
was impugned) had failed to meet the ensuing burden resting upon
him to show a compelling state interest in protecting the foetus
which would justify the imposition of criminal sanctions on abor-
tions performed at any time during the pregnancy.0 The appellee
did not succeed in this because of his failure to bring the foetus
within the definition of the word “person”, it being the life of a
“person” which is guaranteed by the Fourteenth Amendment. In
reaching this conclusion the Court relied on other “postnatal” uses
of the word “person” jn the constitution (in matters such as qualifi-
cations for office, migration and importation) . 0 decisions of inferior
tribunals on the question of abortion laws,21 and private law cases
recognizing rights of the unborn only on condition of live, and
viable, birth.2 In short, in the United States, regardless of whether
there is, by whatever other criteria, life before birth, there is no
constitutionally recognized life before birth2*
The same general attitude appears to have been taken by the
French Conseil Constitutionnel in its concise judgment of January
15, 1975. After first declaring itself incompetent to adjudicate upon
an argument based on the provisions of the European Convention
on Human Rights, 25 the Conseil affirmed the compatibility of the
19 Ibid., 156-162.
20 1bid., 157.
21 Ibid., 158.
22 Ibid., 161, 162.
23This conclusion did not, however, lead the Court to authorize abortion
on demand at any time during the pregnancy. The Court did recognize a
“compelling” state interest in preserving the mother’s health which would
permit regulation of the abortion procedure in the period “subsequent
to
approximately the end of the first trimester”, and a further “compelling”
state interest in “the potentiality of human life” which would permit the
prohibition of abortion during the stage subsequent to viability; ibid., 163,
164. The latter is so “because the foetus then presumably has the capability of
meaningful life outside the mother’s womb” (emphasis added). As has been
seen, this distinction was rejected by the German Federal Constitutional
Court, on the basis that meaningful life, in a social or anthropological sense,
begins only at some point well after birth, and if it is thcrefore-only a
question of potentially meaningful life, this is constantly present back to the
completion of implantation. As to the notion of viability, it should perhaps
be noted that physicians in the Soviet Union have recently claimed to have
kept a foetus “alive” for a period of three days in an artificial environment,
and plan to continue their research; Le Devoir, September 18, 1974, 7.
24 Supra, f.n.3.
2-5 The Conseil considered that the control of the conformity of a law with
a binding treaty could not be accomplished in the same proceedings as the
control of the constitutionality of a law, the two controls being subject to
different conditions; ibid.
1975] CONSTITUTIONAL VALIDITY OF ABORTION LEGISLATION
677
more permissive abortion law with the rights of individual liberty
(here of the woman and the doctor) guaranteed by the 1789 Declara-
tion of the Rights of Man and the Citizen. The Conseil then dealt
with the main constitutional argument advanced in opposition to
the abortion law, the guarantee of protection of health accorded to
the infant by the constitution of 1946, incorporated by reference into
the constitution of 1958. Though some evidence was advanced that
this clause was intended by its proposer in 1946 to include the life
and health of the foetus,” the Conseil concluded with the simple
affirmation that none of the provisions of the questioned law in aiy
way violated the guarantee.- By inference, the child whose health is
protected by the constitution is the child who has been born? ‘
Finally, and for specific reasons, the least informatiye judgment
in this regard is that of the Supreme Court of Canada in Morgentaler
v. The Queen.’ The foetus having been expressly made the object of
protection through the criminal law by Parliament, it was inevitable
that the attention of the Court was directed to any rights of the
woman which would impede the legislative will. Finding none, for
reasons to be subsequently noted, the nature of the foetus, as the
object of legislative protection, required no further scrutiny (and
the case turned in fact on the availability of specific criminal law
defences to the charge of abortion laid against the defendant). ”
‘ See the comments of M. J. Foyer, Le Monde, December 25, 1975, 8.
27 The text of the “considdrant” is as follows: “Consid6rant qu’aucune des
ddrogations pr6vues par cette loi n’est, en l’6tat, contraire a l’un des prin-
cipes fondamentaux reconnus par les lois de la R6publiqtie ni ne m6connait le
principe dnonc6 dans le pr~ambule de ]a Constitution du 27 octobre 1946, selon
lequel ]a nation garantit i l’enfant la protection de ]a sant, non plus qu’aucunc
des autres dispositions ayant valeur constitutionnelle ddictdes par le m~me
texte.” Supra, f.n.3.
2 Curiously, the text of an amendment added to the law in the course of
its legislation appears to recognize the existence of life from the point of
conception. Article 1: “La loi garantit le respect de tout atre humain dzs le
commencement de ]a vie. I ne saurait 6tre portd atteinte h cc principe
qu’en cas de n6cessitd et selon les conditions d6finies par la pr6sente loi.”
This article is cited in one of the considdrants of the Conseil, suggesting the
further ground of decision that even if it were the case that the foetus was
recognized by the constitution, other values may be operative in some cases
to permit its destruction. See the discussion infra, Part II.
211 Supra, f.n.1.
:30 The existence of defences of necessity and reasonable care in the per-
formance of a surgical operation (as set out in the Criminal Code, supra,
f.n.8, s.45), was rejected by the majority of the Court, Laskin C.J.C., Judson
and SpenceJJ. dissenting, and the appeal from the decision of the Quebec
Court of Appeal setting aside a jury verdict of not guilty and entering a
verdict of guilty, was dismissed.
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Such an enquiry would have arisen, in the context of the Morgen-
taler affair, only if the Court had decided that the Canadian Bill of
Rights did confer certain rights on the woman, in which case a
balancing of her rights with any rights of the foetus might have
become appropriate. In the future, the nature of prenatal life might
be put in issue in Canada should a change in Canadian legislative
policy towards greater freedom of abortion occur (though a chal-
lenge to existing law would also be theoretically possible). In the
terminology of section 1 of the Canadian Bill of Rights, does the
foetus enjoy “the right of the individual to life”?”‘
II. The Protection of Constitutionally Guaranteed Rights
Since the French 3
‘ and Canadian tribunals rejected the existence
of constitutional barriers to legislative solutions, these decisions
avoid the thorny problem of how best to ensure protection of rights
recognized by a constitutional document. Nor is the problem fully
developed in the decision of the United States Supreme Court.
Since the woman’s right to privacy there emerged as the only
constitutionally protected individual right, its protection was assur-
ed by the well-recognized technique of striking down state laws
which would constitute a violation of it. Protection of the foetus,
a more difficult task, was not imposed by the constitution. The only
limitation of the woman’s right to terminate pregnancy was found
in the interests of the state to protect maternal health (after the
first trimester) and potential life (after the second trimester). But
since it is a state interest, no obligation is imposed upon the state to
ensure its protection, and it is therefore the case only that the state
may (not shall) prohibit abortion in the last trimester, and may not
even do that if the abortion is necessary to protect the life or health
of the mother during that period.3 3
In contrast, the recognition by the German Federal Constitutional
Court of the foetus’ right to life led necessarily to a further decision
as to how that right is to be protected, a decision of far-reaching
constitutional significance. Since the protection required is against
the acts of private persons, it was first necessary to decide whether
the individual rights protected by the constitution have as their
31 Presumably, however, the Bill would have the same force with respect
to the foetus as it does with respect to the woman. See the discussion infra,
Part III.
32 Cf., however, supra, f.n28.
33 Supra, f.n.4, 163, 164.
1975] CONSTITUTIONAL VALIDITY OF ABORTION LEGISLATION
679
corollary not only the duty of the state itself not to interfere with
those rights ( a principle well recognized), but also the duty of the
state to act affirmatively to protect against the acts of other parties,
in effect limiting the freedom of private citizens because of the
terms of the constitution. This latter conclusion the Court was
willing to accept, affirming that the protective duty of the state
becomes more intense according to the worth of the individual right
in question and that human life is of the highest constitutional
value.34 There has been support for this position in German doctrinal
writing,:” but the Court itself was divided, two members stating their
unwillingess to interpret a constitutional document designed essen-
tially to ensure freedom in the exercise of basic human rights in
such a way as to limit individual human activity.;
Having concluded in favour of necessary protective measures
by the state, the Court had then to decide whether the protection
must, or even can, be provided by criminal sanctions, or whether
alternate measures are not permissible or even preferable. This
question was particularly delicate in the circumstances because
the German law had not simply removed penal sanctions but had
provided for an elaborate system of counselling and maternal assis-
tance, apparently based on the Scandinavian model,3 7 which, it was
urged, would be more effective than penal sanctions in preventing
unjustifiable abortions. Here again, the Court divided.
The majority, and it is not possible to follow the detail of the
debate due to its length, formulated their position as follows:
Whether the criminal law must be resorted to is dependent on the
worth of the interest to be protected, the existence of competing
interests having constitutional significance, and the role and practical
effect of criminal sanctions. Human life, as the Court had previously
noted, is of the highest constitutional value, and though the woman’s
right to the free development of her personality also receives consti-
tutional protection (in Article 2, para.1 of the Basic Law), it cannot
be given priority over the right to life. This is so largely because the
decision to abort results in the total destruction of life, while child-
bearing and birth is prejudicial to, but not totally destructive of,
personal development.” Moreover, the Court considered that criminal
34 Supra, f.n.2, 575.
: See Lang-Hinrichsen, Zeitschrift fiur das gesamte Familienrecht (FamRZ)
1974, 500, 501 and the authorities cited.
‘1, Supra, f.n.2, 583.
37 See the description of Professor Cheung in his note, supra, f.n.4, 657.
28 Supra, f.n.2, 576.
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sanctions are necessary to ensure that priority is given to the right
to life, since the totality of other measures proposed would still
leave a gap in the protection of unborn life39 and the evidence
available (including foreign models) did not exclude the possibility
that the rate of abortion would thereby increase.4 Nor should the
maintenance of criminal sanctions be put into question by the high
(though imprecise) rate of illegal abortions under the previous
legislation. Though the Court considered the figures disturbing,
they should not obscure the generally preventive effect of criminal
norms, and once penal sanctions were removed any distinction
between abortions being “tolerated” as opposed to “authorized”
would be without effect.4′ Moreover, the statistics were high because
the previous legislation did not sufficiently discriminate between
different grounds of abortion, and provided for penalties in almost
all cases, with the result that many justifiable abortions were execut-
ed outside the law, and the authorities were reluctant to prosecute
vigorously even unjustifiable cases.42 The Court concluded that the
old law should therefore be suspended, since it also provided inade-
quate protection, and replaced with intermediary norms formulated
by the Court, until new legislation could be prepared.4 3 The new rules
should recognize that childbearing and birth are unreasonable de-
mands to make of the woman in particular circumstances, and this
more tolerant attitude should also have the effect of lowering the
rate of illegal abortions.
Here the Court formulated four situations in which non-penal
protection of the foetus –
through such measures as counselling and
maternal aid – would be constitutionally sufficient. In these specific
cases the protection of developing life is outweighed by circumstances
which give particular importance to the woman’s right of personal
development. 44 Such cases are those in which 1) there is a danger to
the life of the mother, or a danger of serious prejudice to her health,
2) the child is suffering from an incurable physical condition, 3) the
conception is the result of a criminal act, and 4) grave hardship
would result from childbearing and birth. This last ground of justifi-
cation, which would allow consideration of social circumstances,
must, however, be so defined by the legislator as to allow’ the
39 Ibid., 579.
40 Ibid., 580.
41 Ibid., 579.
42 Ibid., 578.
43 Ibid., 582. This procedure is authorized by Art.35 of the BVerfGG, supra,
f.n.10.
44 Ibid., 577.
1975J CONSTITUTIONAL VALIDITY OF ABORTION LEGISLATION
681
recognition only of grave social necessity.45
abortion would remain the object of penal sanction.
In all other cases
The two dissenting judges of the Federal Constitutional Court,
while relying heavily on more abstract arguments relating to the
nature of the constitution4 6 and the limits of judicial review,47
contested the necessity of criminal sanctions, affirming that the
alternative measures of protection provided by the law would even-
tually provide greater protection, and would avoid the corruption
of the legal order caused by massive disobedience. Specific excep-
tions to a principle of illegality were also seen as incapable of
precise definition 8
In the result, the constitution of the Federal Republic was seen
by the majority of the Court as necessarily imposing criminal sanc-
tions on certain types of human conduct, where no other’means of
protection of constitutionally guaranteed rights could be seen as
adequate. The state must prohibit abortion, except in specifically
defined exceptional cases, and presumably would therefore be consti-
tutionally obliged to maintain criminal sanctions in other, parallel
situations as well. The constitution (and hence its interpreters)
emerges not only as a specific check on governmental interference
with individual rights and liberties, but as a mandatory source of
specific forms of legislative activity.
III. Judicial and Legislative Authority
and hence to remove from the legislative arena4 9 –
Perhaps the most important feature of all of the~e decisions was
the willingness of the Courts of the Federal Republic of Germany and
of the United States of America to clothe with constitutional pro-
tection –
in-
terests which are nowhere clearly designated by the constitutions
of those countries. The two decisions are still more striking in that
they reach very different results from a process of interpreting con-
stitutional provisions which do not appear, on their face, to be
particularly dissimilar. It is therefore not surprising that criticism
has been voiced in both countries as to the role assumed by each
Court, and such criticism appears still more significant when the
4 Ibid.
46 See text, supra, at f.n.35.
47 See text, infra, at f.n.52.
48 Supra, f.n.2, 587.
49 It should perhaps be noted that neither court is bound by its own
decisions.
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decisions are compared with one another. In the United States, a
distinguished academic commentator has thus concluded that:
What is frightening about Roe is that this super-protected right [of the
woman to terminate pregnancy] is not inferable from the language of
the Constitution, the framers’ thinking respecting the specific problem
in issue, any general value derivable from the provisions they included,
or the Nation’s governmental structure … . It is … a very bad decision
… because it is bad constitutional law, or rather because it is not
constitutional law and gives almost no sense of an obligation to try to be.50
In the Federal Republic of West Germany perhaps the most
telling criticism has been that of the dissenting judgment of the
Federal Constitutional Court itself. Pointing out that the Basic Law
had been formulated after great controversy on the subject of abor-
tion during the period of the Weimar Republic (when current
methods of birth control were lacking), the two dissenting judges
conclude that the matter was deliberately omitted from the constitu-
tion in order not to restrict legislative attempts at solution. 51
Stressing that the effect of the majority judgment is to limit indi-
vidual freedom through criminal sanctions, and posing the question
of whether the Court must in the future assess all criminal law rules
to determine whether the legislature has sufficiently penalized, the
dissent states openly that the notion of judicial review in Germany
will clearly be endangered in the long term if the Federal Constitu-
tional Court does not resist the temptation to usurp legislative
functions. 52
The reticence of the French and Canadian Courts to strike down
abortion legislation should therefore best be seen not as reflecting
any particular attitude towards abortion, but rather the view that it
is not the role of the courts to intervene in whatever direction, in
the absence of more precise constitutional imperatives. The attitude
of the Supreme Court of Canada is particularly comprehensible,
given the ambiguity of the Canadian Bill of Rights with respect to
a woman’s right of privacy or a foetus’ right to life, and particularly
given the nature of the Bill as a simple statutory instrument, not
part of an entrenched constitution. This latter consideration was
expressly stated by Laskin C.J.C., in expressing the opinion of the
entire Court, to be “… relevant … in determining how far the
50-Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade (1973) 82
Yale LJ. 920, 935, 936, 947. Similar sentiments were expressed in the dissenting
judgments of Justices White and Rehnquist, supra, f.n.4, 174, 221, 222. Professor
Ely’s criticism is made in spite of the fact that he “would vote for a statute
very much like the one the Court ends up drafting” (at 926).
51 Supra, f.n.2, 583, 584.
52 Ibid., 582.
1975] CONSTITUTIONAL VALIDITY OF ABORTION LEGISLATION
683
language of the Canadian Bill of Rights should be taken in assessing
the quality of federal enactments which are challenged under
s.l(a)” 3 The Chief Justice concluded by stating that “[t]here is as
much a temptation here as there is on the question of ultra vires
to consider the wisdom of the legislation, and I think it is our duty
to resist it in the former connection as in the latter”.”4 The Supreme
Court also refused to regard the provisions of the Bill of Rights
as requiring a review of the question of whether therapeutic abor-
tions (permitted by the Canadian Criminal Code) 65 were equally
available in areas of the country with different population densities
and hospital resources. This would constitute, again in the words
of Chief Justice Laskin, “… a reach for equality by judicially un-
manageable standards …
The lack of constitutional primacy of
the source of the reviewing power is therefore an important element
in determining the limits of judicial review.
,
Conclusion
Framers of constitutions have rarely, if ever, declared that the
right of the foetus to life, or the right of the woman to terminate
pregnancy, forms part of the constitutional structure of the state.
Perhaps the issue has been seen as peripheral, or perhaps there has
never been the consensus required to justify the enshrining of either
principle. For whatever reason, such restraint in drafting is of
constitutional significance. In the absence of any such textual base,
the tribunal prepared to choose between these competing interests
in a manner contrary to the expressed will of the legislature is surely
acting in the outer reaches of permissible judicial activity. There can
be little doubt in Canada that the Bill of Rights is not an adequate
source of any such judicial authority.
What then can the decisions tell us as to the appropriate legislative
response to the problem of abortion? This writer is of the view,
perhaps because it is the only decision in which the underlying
merits of all the competing claims are fully examined, that there
is very considerable merit in the general position advanced by the
German Federal Constitutional Court. As the Court indicated, foetal
life is necessary to, and shares major characteristics of, complete
human life, one of the highest values, if not the highest value, of the
N Supra, f.n.1, 173.
54 Ibid.
55 Supra, f.n.8, s.251(4).
56 Supra, f.n.1, 175.
McGILL LAW JOURNAL
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legal order. Existence which satisfies such a biological definition of
human life should, it is felt, therefore represent an interest worthy
of some protection by the legal system. Moreover, attempts to
distinguish different stages of embryonic life appear both imprecise
and illogical,57 and are therefore unsatisfactory as criteria for identi-
fying whether the protection of the foetus or the woman should
predominate.
However, since embryonic life can at no point be equated with
the existence of complete human life, it is not necessarily of the
same sanctity. The fundamental question is therefore one of identi-
fying those situations in which the interests of the woman are
superior, justifying withdrawal of protection from the foetus. The
Canadian Criminal Code presently identifies only danger to the life
or health of the mother, when ascertained prior to abortion by a
committee of physicians, as justifying termination of pregnancy 8
To these justifications others could be added, as has been done by
the Federal Constitutional Court, in a conscious process of evaluation.
The essential feature in this process is that specific, objectively
ascertainable grounds are found which give supremacy to the
woman’s claim to the unrestricted development of her life and
personality.
If one accepts that the foetus is worthy of legal protection, its
continued existence should not depend, however, on the decision
of an individual human being whose interests are in conflict with
those of the developing life. Rather, an objective balance must be
struck between these conflicting interests by the legislature, de-
lineating clearly those circumstances in which the interests of the
woman have paramouncy over those of the foetus. At the same
time the legislature should ensure the provision of counselling
services and maternal assistance, and the removal of inequalities in
access to abortion facilities in those cases where the woman’s
interests prevail.
57 See text, supra, at f.n.12; see also f.n.23.
58 Supra, f.n.8, s.251(4).