“If you talk to the people in the pro-life movement in England they will tell you that the worst possible thing that could have happened to their pro-life movement was the gestational law they have,” Cauchi told The Catholic Register. “(People believe) they’ve reached a compromise. They’re civilized because they have a law on abortion.”

The absence of any law restricting abortion in Canada is partly a political question and partly a reality of the law, said constitutional law professor Lorraine Weinrib of the University of Toronto.

In its 1988 Morgentaler decision, the Supreme Court of Canada invited Parliament to fashion a new law. Bill C-43 was passed, but when the Senate asked Weinrib whether this new law would pass muster under the Charter of Rights and Freedoms she told them no. The bill never became law.

While it may be possible to come up with a law regarding abortion, it’s unlikely that such a law would make much difference to the reality of abortions in Canada, said Weinrib. Abortion rates in Canada have been declining since 1998 and fell by another 3.2 per cent between 2004 and 2005, according to the latest Statistics Canada data. However, there were still 96,815 induced abortions in Canada in 2005, or 14.1 for every 1,000 women between the ages of 15 and 44.

“There are imaginative ways to think about dealing with abortion as a problem, but probably not much prospect of restrictions that are legal and constitutional,” said Weinrib.

Cauchi thinks there could and should be an abortion law with teeth.

“A lot of commentators say that no law that prohibited abortions would pass muster. But they’re forgetting that there is a notwithstanding clause,” he said.

Even without using the controversial notwithstanding clause, Cauchi believes there could be an abortion law. The possibility is contained in the first paragraph of the Canadian Charter of Rights and Freedoms, he said.

 The charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Cauchi believes banning abortion is a “reasonable limit” which can be “demonstrably justified in a free and democratic society.”

The precondition would be establishing in law that a fetus is a person.

“Nobody disagrees that one of the purposes of the government is to protect human beings from being killed,” said Cauchi. “If an unborn child was recognized as a person in law, then that would be a justifiable government purpose — to prevent a human being from being killed by another person, just like the laws against murder.”

Weinrib doesn’t think legal recognition of fetuses as persons is politically or legally likely in Canada. While legal recognition of unborn persons might change the American playing field that produced the 1973 Roe v. Wade decision, it wouldn’t have the same effect in Canada, she said.

“It would be very hard under the charter regime for legislatures or Parliament to say the fetus is a person in a way that would produce different analysis as between the rights of the fetus and the rights of the woman,” she said.

Cauchi doesn’t rate the immediate prospects of a law banning abortion very high.

“I think we have to change hearts first,” he said. “In the case of abortion I firmly believe — and it’s just a personal opinion — that the law will change only when the people as a whole believe that it’s wrong.”

The idea of the law as a teacher applies in most cases, but the history of abortion in Canada shows that governments can’t create a law where there is no societal consensus, said Cauchi.

Weinrib thinks the prospect of using criminal law to change people’s behaviour around abortion is unlikely.

“Neither level of government, federal or provincial, has the power to impose moral teaching or faith-based teachings,” she said. “In a sense, the federal government is out of the business. It can’t do morality under the criminal law and it doesn’t have another possibility.”