By Andrea Mrozek and Faye Sonier
The "kerfuffle" hasn't abated. Since declaring the Canada Summer Jobs program would require prospective employers, from soup kitchens to summer camps, to check a box supporting abortion to receive a government grant to hire students, opposition has come from disparate corners, even as the minister responsible, Patty Hajdu, digs in her heels in defence of Charter rights.
In a justification of the new policy at a recent town hall, Prime Minister Justin Trudeau certainly used the word "rights" often. He ardently defends "rights," even unpopular ones (just not so unpopular as the rights of the pre-born child) —he said we can't "restrict women's rights" by "removing rights to abortion" as this is a "really important right that we have established."
Except that we — how to put this? — haven't.
How did the prime minister come to defend rights that don't exist? He can't make this claim on the basis of R v. Morgentaler. Yes, the 1988 decision threw out Canada's existing abortion laws, which required the issuance of a certificate by a hospital therapeutic abortion committee for an abortion to be legally provided. Since not every hospital had a committee, it resulted in unequal access to abortion for women who would otherwise meet the necessary criteria.
The only justice to declare a positive right to abortion was Justice Bertha Wilson, writing in a minority dissent. Even she didn't declare this right unfettered throughout all nine months of pregnancy. She wrote:
The question is: at what point in the pregnancy does the protection of the foetus become such a pressing and substantial concern as to outweigh the fundamental right of the woman to decide whether or not to carry the foetus to term? At what point does the state's interest in the protection of the foetus become "compelling" and justify state intervention in what is otherwise a matter of purely personal and private concern?
Pro-choice professor Shelley A.M. Gavigan of Osgoode Hall Law School echoes the idea that the Morgentaler decision did not create a right: "The Supreme Court's decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue."
How is it so many persist in believing there is a right to abortion, then? It could be because this is the language abortion activists use. Many who support "abortion rights" take exception to the term "pro-choice." A recent book, Without Apology, Writings on Abortion in Canada, identifies "pro-choice" as too conciliatory, lending credence to the notion there are good and bad reasons for abortion. "Pro-choice" does not promote women's entitlement to access abortion.
In identifying an abortion right, Canadians may also wrongly be drawing from the U.S. situation. The rough U.S. equivalent to the Morgentaler decision, Roe v. Wade of 1973, did invent (albeit on spurious grounds) the right to abortion via a "right to privacy." But the American context is vastly different from ours.
There are, in fact, numerous democratically legitimate arguments against declaring abortion a right.
Our Supreme Court left a legislative void by striking down our law, unanimously finding that the Canadian government had a legitimate interest in creating a better law to protect the pre-born child. Going even further than that, they stated that the Charter authorizes laws limiting abortion access. For example, Justices Beetz and Estey, both of whom concurred with the striking down of the abortion provision, wrote:
I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law... I think s. 1 of the Charter authorizes reasonable limits to be put on a woman's right having regard to the state interest in the protection of the foetus.
Let that sink in for a moment. In Morgentaler, the Supreme Court stated that the Charter itself justifies the legislature limiting abortion access. This is a far cry from the claim that the Morgentaler decision established a right to abortion, or that advocating for legislators to develop laws to protect the pre-born child is somehow anti-Charter.
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There are, in fact, numerous democratically legitimate arguments against declaring abortion a right. In the early days of the abortion debate, "the clump of cells" argument worked. Not so in an ultrasound era. In the early days of the abortion debate, stigma was attached to having a child "under the wrong circumstances." Not so today. Surveys and polls today consistently show more women than men lean pro-life. Abortion, an issue that was supposed to be "settled," is as hotly contested as it ever was.
Just not to our bold "women's rights" campaigner of a prime minister, surrounded by "yes" women in an apparent echo cabinet. Saying a falsehood over and over doesn't make it true. Naming abortion as a right doesn't make the choice any better.
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