Thank you for pointing this out. I wasn’t sure what you meant and had to look it up… are you referring to the Tremblay v Daigle case?
If so, and if I’m reading the Wikipedia summary of it correctly:
The fetal rights were said to be anchored in the rights to life [under various charters and laws]. […] The Supreme Court considered and rejected all these arguments. As the Court noted, its role was to consider the fetus’s legal status; it would not rule on its biological status, nor would it enter “philosophical and theological debates.” […] Although the Charter does say its rights belong to humans, whether the fetus is a human is a merely “linguistic” question that would not solve the issue […]
[T]he Court considered the argument that since the Code deals with fetuses as “juridical” persons, fetuses must legally be human beings. Human beings, under the Code, have rights. Once again, the Court expressed skepticism as to the nature of the term “human being”, noting the linguistic nature of the argument. While the Code does give fetuses some similar treatment to legal persons, the Court replied that this does not necessarily imply other fetal rights exist. In the situations where fetuses are recognized as juridical persons, the Court stated that this is a “fiction of the civil law”.
The case next turned to Canadian law and common law. With some historical review, it was noted that while fetuses have usually had some protection under the law, abortion has not usually been viewed as being comparable to murder. Thus, a fetus is not a person under common law. The Court also declined to address the question of fetal rights under the Canadian Charter of Rights and Freedoms, noting that the Charter applies to government; it has no force in legal disputes between private citizens, which was the case in Tremblay v Daigle."
If that is the decision you are referring to, it seems to me that they’re not so much drawing a “bright line”, more just sidestepping the question altogether by saying they would not be the ones to resolve the dispute, that they were only looking at previous laws and did not find special protections for fetuses therein, and furthermore, that government shouldn’t be involved because it’s a private dispute between two parents (the fetus not being eligible under the charters and laws they examined).
If that’s an accurate reading of it, it seems like they’re really just passing the buck, and leaves open the possibility that later laws could move the needle either way (giving fetuses rights, or allowing infanticide). It doesn’t explicitly say that a fetus is not worthy of protections (only that they could not find it in charters and codes), nor does it say why birth automatically grants personhood rights.
On one hand, I think this is a perfectly reasonable approach to lawmaking (leave the government out of private matters between parents / a woman and their doctor), but it also doesn’t really meaningfully justify the status quo, just interprets it for the purposes of prosecution or the lack thereof. (I’m also not familiar with the Canadian legal system at all, so if I’m wrong about any of this, please say so.)
The “previous laws don’t explicitly say fetuses have rights, therefore we’re going to keep that going” line of argument might’ve worked for the Supreme Court of Canada in 1989, but probably wouldn’t fly in today’s political environment in the US, for example.
Right, but it does seem to indicate that laws do depend on moral values, whether they should or not. (Agreeing with Babale here.) They can’t be treated as separate issues. Skimming the full text of the case, it seems like born-viable fetuses (i.e., babies) have that right because a Canadian charter gave it to them (or at least recognized it in them), but that belief in that right is a moral judgment from some subset of that particular society, dating back to its Anglo-Canadian heritage. Other societies, as you say, may not necessarily have those rights enshrined by (or at least observed) by default.
In other words, there was some presupposed/chartered human rights under Canadian law. The court found that those rights did not apply to fetuses under those charters and related laws, and declined to grant them such rights (if the court were even able to do that). But if that court had a different makeup, or different people in other parts of government, it seems like the outcome could’ve been very different (like happened with Roe v Wade being overturned in the US).
Lawmaking isn’t amoral and I’d argue it cannot be; it is merely a reflection of the majority’s morals (by power, if not by vote). If the minorities are lucky, they may have squeezed in some compromise. If they’re not, they are simply oppressed by the will of the law and the morality of the majority group. And that’s not a hypothetical either; the law is oppressing women every day in the US (and elsewhere) now, because somebody with more power made a moral judgment and enshrined it into law.
Edit: And also, I’d argue that working backward from existing laws in order to justify a philosophical or moral standing would be going about it in reverse, using the ends to justify the means — e.g., “personhood is this way (or not) because the law says it is”. Not a very satisfying line of thought. A Supreme Court may be a collection of honorable (or not) judges, but they’re still just people making interpretations based on their own and their predecessors’ moral judgments.