LAWS 2201
Nov, 2012
In Morgantaler
v. Queen, the Supreme Court of Canada was asked to answer the question of
whether existing federal abortion legislation violated s. 7 of the Charter of
Rights and Freedoms. The majority decision by Dickson C.J. and Lamer J,
and roughly agreed upon by Beetz J, Estey J and
Wilson J, took a rather tangential approach to this question. Beetz J and Estey J argued as follows:
If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated. [1]
The decision would have been much clearer had it taken on the legislation directly, as Wilson J did in her concurring decision.
Several doctors were
illegally performing abortions in Toronto,
those abortions being illegal because the women that were treated did not have
legal certificates. These doctors, who were consciously ignoring the law out of
conscience, were arrested and charged under s. 251 of the criminal code. This
case has a complicated legislative history; these doctors had been fighting
this legislation in court through several separate cases for many years, with
the goal of getting a ruling in the Supreme Court. While they brought forth
several accusations of charter violations and other generally unconstitutional
things, the sole focus in the ruling is on the s. 7 violation.
The then existing
legislation was the result of a very mild liberalization of abortion law
brought in by Pierre Trudeau in 1967 that allowed for abortions under the circumstance
that a woman had a note from a doctor that stated that continuing the pregnancy
to term would endanger the woman's life. This was not meant to allow for
abortion on demand, in the situation of rape, as a result of financial
considerations or for any other reason beside the one explicitly stated - that
bringing the term to pregnancy would endanger the woman's life; under the terms
of this legislation, abortion would still be illegal in any of those other
circumstances, and in any others. So, the purpose of the law was simply to
allow for a single, specific exception - and, yes, to uphold the life of the
foetus. This was pointed out clearly by the dissenting judges, McIntyre J. and
La Forest J.[2]
However, the majority
decision completed side-stepped all of these difficult issues to instead focus
on the restrictions put in place to obtain legal abortions. They claim that the
state was unable to meet demand to perform abortions, which placed pregnant
women seeking legal abortions in a dangerous situation. As each week passed,
the threat of harm increased. As the purpose of the legislation was to provide
an exception for legal abortion in order to prevent harm to pregnant women that
would be harmed by a pregnancy, this inability to fund the system led to
ineffective and ultimately negative legislation that accomplished precisely
what it was seeking to prevent. As for the question of whether the law
infringed s. 7, the majority agreed that it did. Applying the Oakes Test, the
chief justice surprisingly concluded that the aim of the legislation was valid;
this is curious, but irrelevant, as the question of whether the legislation
would be effective in saving the
lives of women led to the law being declared unconstitutional because it did
not provide a reasonable path in achieving the objective of making women safer,
and in fact was making them less safe.
I would like to draw
some attention to the judgment of Wilson J, the only female on the Supreme
Court, as I feel it is the more valuable precedent to draw upon should a
government choose to legislate on the issue of abortion in the future. Wilson J
lays it out with refreshing clarity:
With all due respect, I think
that the Court must tackle the primary issue first. A consideration as to
whether or not the procedural requirements for obtaining or performing an
abortion comport with fundamental justice is purely academic if such
requirements cannot as a constitutional matter be imposed at all. If a pregnant
woman cannot, as a constitutional matter, be compelled by law to carry the foetus to term against her will, a review of the procedural
requirements by which she may be compelled to do so seems pointless.[3]
It seems to me, therefore, that to commence the analysis with the premise that the s. 7 right encompasses only a right to physical and psychological security and to fail to deal with the right to liberty in the context of "life, liberty and security of the person" begs the central issue in the case.[4]
It seems to me, therefore, that to commence the analysis with the premise that the s. 7 right encompasses only a right to physical and psychological security and to fail to deal with the right to liberty in the context of "life, liberty and security of the person" begs the central issue in the case.[4]
To be able to decide what to
do and how to do it, to carry out one's own decisions and accept their
consequences, seems to me essential to one's self-respect as a human being, and
essential to the possibility of that contentment. Such self-respect and
contentment are in my judgment fundamental goods for human beings, the worth of
life itself being on condition of having or striving for them. If a person were
deliberately denied the opportunity of self-respect and that contentment, he
would suffer deprivation of his essential humanity.[5]
A second contextual element of
interpretation of s. 1 is provided by the words "free and democratic
society". Inclusion of these words as the final standard of justification
for limits on rights and freedoms refers the Court to the very purpose for
which the Charter was originally entrenched in the Constitution:
Canadian society is to be free and democratic. The Court must be guided by the
values and principles essential to a free and democratic society…[6]
The idea of human
dignity finds expression in almost every right and freedom guaranteed in the Charter.
Individuals are afforded the right to choose their own religion and their own
philosophy of life, the right to choose with whom they will associate and how
they will express themselves, the right to choose where they will live and what
occupation they will pursue. These are all examples of the basic theory
underlying the Charter, namely that the state will respect choices made
by individuals and, to the greatest extent possible, will avoid subordinating
these choices to any one conception of the good life.[7]
Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.[8]
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision -- with the guidance of her physician and within the limits specified in Roe -- whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.[9]
It is probably impossible for
a man to respond, even imaginatively, to such a dilemma not just because it is
outside the realm of his personal experience (although this is, of course, the
case) but because he can relate to it only by objectifying it, thereby
eliminating the subjective elements of the female psyche which are at the heart
of the dilemma.[10]
Perhaps it is at this point that something should be said about the
paternalistic nature of the legislation and judgment alike in their competing
desires to "protect women from harm", and how the ruling ignores the
fundamental issue before the court, which is whether or not a woman should be
forced to go through difficult, painful procedures against her will, with the
promise of unending expenses as a punishment for it. She agrees with the
majority that the law should be struck down, but solely on the grounds that the
state does not have the right to tell a woman what to do with her body. Should
the issue arise again, it is hard to believe that the Supreme Court would use
the precedent set by the Chief Justice; it is solely the judgment of Wilson J
that is of value here for further jurisprudence.
While it may in general
be gracious to acknowledge both sides of any argument, the blunt reality is
that it is very difficult to understand the pro-life position without bringing
in concepts of religion. In practice, the position is in fact almost always
advanced by individuals with a religious agenda. I feel that it must be
acknowledged that there is simply no legal standing for the argument, and that
it cannot advance without being placed in the proper religious context, outside
of which it makes no sense. The pro-lifers are simply without a valid legal
viewpoint; one can simply not be constructed, even out of the most gracious
intentions. They are simply wrong, legally, and that is all there is to it. I'm
going to demonstrate this by analyzing the law from an atheist perspective.
First, the law states
that an unborn human has no rights, by way of the legal definition of a person.
Now, this is an old definition, and legal definitions are subject to
modification, but without that modification, there is simply no legal standing
for a foetus; while I acknowledge that "natural law theory" can be
used as a backdoor to allow all manners of religious silliness to enter into a
secular legal context, in this particular context it would be up against a
direct legal definition and would necessarily lose. So, there is simply no
question of balancing competing rights; the foetus simply does not have any
rights. There is only one human being involved, and she has been established
with a right to seek abortion through jurisprudence. There is no further
argument in the matter.
In order to endow the
foetus with rights, one must go through one of a number of religious arguments;
the most common approach in Canada
is to dredge up the doctrine of the sanctity of life, which states that all
life is precious because it is created by “God”. Yet, as I am an atheist, I do
not believe that such a “God” exists, and consequently deny that this doctrine
has any philosophical value, let alone any legal one without it being
legislated. Legislating the sanctity of life would
certainly be unconstitutional! So, if I were a genetic female seeking an
abortion, I would argue that any legislation rooted in this silliness would
infringe my s. 2(a) rights. As I would still be the only legally defined
person, it would still not be a question of balancing rights.
So, suppose the
definition is changed, as one conservative Member of Parliament attempted to
do, no doubt aware of the legal impossibility of abortion legislation without
such a change in definition. At this point, the question becomes whether the
change in definition is constitutional or not. If the justification is the
sanctity of life, that would once again violate s. 2(a). If the justification is
based on the idea that conception is the production of a new combination of
DNA, then this is arguably objective and secular, albeit arbitrary and likely
subject to unending revision. For brevity, let it be allowed. We are now at the
point where we have legally defined the foetus as a person with rights, and
finally have a conflict of competing rights and a legitimate legal quandary on
our hands. The Supreme Court of Canada has ruled that in cases of conflicting
rights the situation must be viewed in context; there can be no hierarchy of
rights. From the pro-life perspective, the argument would be that, as the
foetus is a legal person, consciously deciding to end its "life"
would be equivalent to first-degree murder. It is now the pro-choice perspective
that runs into an impossible legal position, as, due to the severity of the
first-degree murder charge, it would have to plead self-defence; however, as
the pregnant woman is clearly in control of the situation, it would be ruled
manslaughter in nearly every situation that the self-defence argument is taken
seriously in. While it could be argued that the criminal code for murder could
be modified to allow for a special exception, this would clearly infringe the
foetus' s. 15 rights to equality under the law. Yet, would it be justified?
Well, if it would be, it would be under s. 7, which brings us back to where we
started again.
We see, then, that the
situation is only interpreted in one of two extremes, depending on the
definition of a person - either the foetus is not a person and there is no
question of competing rights or the foetus is a person and abortion is clearly
pre-meditated murder, which is never tolerated for any reason. So long as the
foetus is not a person, the state has no effective way to regulate abortion; if
the foetus ever becomes a person, there is no way to argue against
pre-meditated murder. No balance is possible between these two extremes.
In
closing, and as an addendum, it should be pointed out that the initial
legislation was constructed before there was a Charter of Rights, when Canada
did not have a formal list of enumerated rights to act as a check on its
legislative power. While the Supreme Court decided to pursue a very awkward
argument, it should be clear that if s. 7 is to mean anything at all it must
restrict the state's ability to force women to come to term with their
pregnancies. While religious people that accept ideas like the sanctity of life
may see it differently, from a purely legal standpoint an abortion currently
only involves one person, and the rights of only one person. Theoretical
restrictions on abortion are currently legally no different than theoretical
restrictions on plastic surgery. Should this need to be tested in the future,
and the law not amend the definition of a person beforehand, I would hope that
the Supreme Court is able to fully clarify this matter - the state has no right
to tell a woman what to do with her own body, as is clear under s. 7, and as
the court itself made clear in it's opening statement:
Forcing a woman, by threat of criminal
sanction, to carry a foetus to term unless she meets
certain criteria unrelated to her own priorities and aspirations, is a profound
interference with a woman's body and thus an infringement of security of the
person. [11]
[11] Morgentaler v. Queen [1988] 1 S.C.R. 30, p
33-34
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