Mary Wagner’s long road toward achieving legal recognition of the humanity of the unborn has come to an end as the Supreme Court of Canada dismissed her leave to appeal Feb. 18.
In a statement to her supporters, Wagner wrote, “We are saddened and disturbed by the scandal of this refusal to hear our plea for the most vulnerable members of our human family, whose own pleas are too weak to be heard.”
Wagner had hoped to take a constitutional challenge of the Criminal Code to the country’s top court to address what her lawyer Charles Lugosi described as a “once-in-a-century question” — whether Parliament has unlimited authority to define who is and who isn’t a human being.
“The moment a child is born alive, everyone recognizes the baby as a human being,” Lugosi said while preparing to file the leave to appeal in November. “It’s a pure fiction to pretend that one second before that baby is born it is not a human being. It defies logic, common sense, biology. The law should live in a world of truth, not in the world of fiction.”
However, that’s precisely what Section 223 of the Criminal Code states, that a child becomes a human being when it has “completely proceeded, in a living state, from the body of its mother.”
Lugosi said their case was not trying to re-hash the concept of “personhood,” something the Supreme Court has ruled does not apply to unborn children many times over, but on the fundamental concept of who is human.
“You can remove personhood from a human being, I suppose, but they are still human beings,” said Lugosi, pointing out that this was historically done to slaves. “To pretend an unborn child is not a human being is a fantasy.”
The Supreme Court of Canada dismissed the appeal without providing reasons or the names of the judges involved, as is customary.
In response, Lugosi said he remains “confident that our application had great merit and amply met the legal test for leave … one can only speculate why leave was refused.”
“Parliament retains the power to decide who is and who is not a human being,” said Lugosi. “Parliament’s definition is based upon a political value judgment instead of biological and scientific reality.”
This case goes back to 2012 for Wagner, when she was arrested and charged with mischief for entering an abortion clinic in Toronto to speak to women about alternatives to terminating their pregnancies.
She is now considering writing about her journey and what she attempted to achieve in the courts, she told Canadian Catholic News by e-mail.
“Ultimately it is not perfection in law that we seek, but perfection of heart, which can only come through the love that is not of this world,” she told supporters. “It is this love that can change hearts even to the point where the law is no longer needed to influence our actions.”