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In listening to our political leaders, you’d be hard pressed to know there is no right to abortion in Canada. Take the Prime Minister’s recent comments regarding the Canada Summer Jobs program, which now requires prospective employers, from soup kitchens to summer camps, to declare support for abortion to receive a government grant to hire students. In his justification of this new policy at a recent townhall, the Prime Minister certainly used the word “rights” often. He ardently defends “rights”—even unpopular ones (just not so unpopular as the rights of the preborn child); 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 therapeutic abortion committee at a hospital 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. Still, 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 believe there is a right to abortion then? It could be the language of abortion activists is becoming entrenched. 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 the absolute entitlement of women to access abortion. When Hillary Clinton said abortions should be “safe, legal and rare” some pro-choice activists were critical. For if abortion access is necessary or a cultural good, why should the procedure be rare?
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.
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.
In watching the Prime Minister defend “abortion rights” it may appear as though the pro-choice side is winning a great victory these days. But democratic winds can shift, which is what justifies democratic debate in the first place. We have seen what might be a first inkling of such a shift. There’s been a rare show of media support for pro-life groups remaining eligible to receive Canada Summer Jobs. Even a Globe and Mail editorial last week said, “[c]onflating opposition to abortion with bigotry is simplistic, and no better than demagoguery.”
There are, in fact, numerous democratically legitimate arguments against declaring abortion a right. Several chapters in the above-mentioned book, Without Apology, share women’s abortion stories so their voices can be heard. So many of those stories could be lifted almost word for word and told into the next pro-life book. One woman tells her abortion doctor, “I don’t feel I have any choice;” not exactly a resounding endorsement for a positive right.
The chasm between abortion politics, our bold “women’s rights” campaigner of a Prime Minister, and the reality of women’s experiences is very wide. For every politician with bold political rhetoric defending abortion, there is a woman, mourning a basic lack of support. Falsely claiming abortion is a right won’t improve that.
Andrea Mrozek is program director of Cardus Family and founder of ProWomanProLife.org. Faye Sonier is executive director and general legal counsel for Canadian Physicians for Life.
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