There’s no Charter right to abortion
A common refrain of abortion advocates in Canada, from Justin Trudeau’s Liberal platform to the pages of our own newspaper, is that there is a Charter right to abortion. That’s just not true.
Here’s how Teodora Pasca, a student in the ethics, society and law program at U of T, gets in wrong in The Varsity:
If I had stopped to confront the protesters that day, I would have reminded them that it was almost 30 years ago that the Supreme Court of Canada deemed legal restrictions on abortion unconstitutional. This is due to the fact that women’s rights to their own bodies are protected under Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees all individuals the right to security of the person. This fundamental provision throws legal weight behind the idea that a woman cannot be forced into any activity involving her own body without her consent.
Let’s actually read R. v. Morgentaler, specifically pages 36-38:
The right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. […] Section 251 of the Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on “criteria entirely unrelated to [the pregnant woman’s] own priorities and aspirations”.
Lesson #1: R. v. Morgentaler struck down the previous law under s. 7 on procedural and administrative grounds — because decisions about abortion were made by committees.
The primary objective of the impugned legislation is the protection of the foetus. This is a perfectly valid legislative objective. It has other ancillary objectives, such as the protection of the life and health of the pregnant woman and the maintenance of proper medical standards.
The situation respecting a woman’s right to control her own person becomes more complex when she becomes pregnant, and some statutory control may be appropriate. Section 1 of the Charter authorizes reasonable limits to be put upon the woman’s right having regard to the fact of the developing foetus within her body. […] The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines.
Lesson #2: R. v. Morgentaler explicitly admits that Parliament can legislate constitutionally on abortion, and that some legal protections for pre-born children — namely, later in a pregnancy — could explicitly be considered constitutional.
Given the conclusion that s. 251 contains rules unnecessary to the protection of the foetus, the question as to whether a foetus is included in the word “everyone” in s. 7, so as to have a right to “life, liberty and security of the person” under the Charter, need not be decided.
The question whether a foetus is covered by the word “everyone” in s. 7 so as to have an independent right to life under that section was not dealt with.
Lesson #3: R. v. Morgentaler punted on the question of pre-born Charter rights!
Let’s look at what the Canadian Charter of Rights and Freedoms actually says:
1. The Canadian Charter of Rights and Freedoms 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.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
R. v. Morgentaler essentially said that pregnant women have a right to security of the person (s. 7), subject only to reasonable limits (s. 1) — and a committee-based decision that could deny abortion at any point in pregnancy did not constitute a reasonable limit, because a reasonable limit would be subject to the development of the pre-born child.
But R. v. Morgentaler explicitly did not address the question of whether or not pre-born children should be included under the “everyone” in s. 7 to begin with! Which is insane, because if pre-born children do have a right to life and to security of the person, that would radically change any sane interpretation of what constitutes a “reasonable limit.”
So, let’s recap:
- The old law was struck down on procedure grounds, because decisions about abortion were made by local committees
- The right to security of the person under s. 7 is subject to reasonable limits under s. 1, and the protection of pre-born children can be a valid legislative objective — in particular, later in pregnancy.
- The question of whether or not pre-born humans should count as the “everyone” in s. 7 was specifically dodged! That would radically change any honest analysis of what limits are reasonable.
There’s no Charter right to abortion. Even R. v. Morgentaler admits some restrictions could be constitutional, and it dodged the question of pre-born Charter rights — a shameful silence.
Should every human being have human rights? To deny some human beings their basic human rights puts the Morgentaler decision on the wrong side of history.