The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.
Justice Bertha Wilson, Supreme Court of Canada, R. v. Morgentaler, 1988.
No one should debate my rights over my own body.
Tracey Ho, Director, Univ. of Victoria Students' Society, 2008.
There are many incorrect beliefs about the legal status of abortions in Canada. Some people believe that Canadian women, like their American counterparts, have a constitutional right to an abortion, and that this right is absolute. Others believe that a legal abortion is available only up to a certain point in the pregnancy, such as the end of the first trimester.
In fact, abortions in Canada are limited only by the availability of a doctor who will perform the operation, and by the availability of a hospital or clinic where the surgery can take place. There is no law placing limits on whether and when a woman can obtain an abortion. But there is no constitutional guarantee for abortion either. There is no law whatsoever. We have abortion on demand in Canada because there is no law (since 1988) prohibiting it.
Justice Wilson (quoted above), somewhat of a hero is pro-choice circles for her reasoning regarding "a woman's right to choose," actually took a more conservative position on government restrictions on access to abortion than in fact prevails in Canada. Citing relevant American legislation, she wrote as follows:
For our purposes the most interesting development in this area of American law are the decisions of the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), and its sister case Doe v. Bolton, 410 U.S. 179 (1973). In Roe v. Wade the Court held that a pregnant woman has the right to decide whether or not to terminate her pregnancy. This conclusion, the majority stated, was mandated by the body of existing law ensuring that the state would not be allowed to interfere with certain fundamental personal decisions such as education, child-rearing, procreation, marriage and contraception. The Court concluded that the right to privacy found in the Fourteenth Amendment guarantee of liberty ``. . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (p. 153).
This right was not, however, to be taken as absolute. At some point the legitimate state interests in the protection of health, proper medical standards, and pre-natal life would justify its qualification. Lawrence H. Tribe, Professor of Law at Harvard University, in his work entitled American Constitutional Law (1978), conveniently summarizes the limits the Court found to be inherent in the woman's right. I quote from pp. 924-25:
Specifically, the Court held that, because the woman's right to decide whether or not to end a pregnancy is fundamental, only a compelling interest can justify state regulation impinging in any way upon that right. During the first trimester of pregnancy, when abortion is less hazardous in terms of the woman's life than carrying the child to term would be, the state may require only that the abortion be performed by a licensed physician; no further regulations peculiar to abortion as such are compellingly justified in that period.
After the first trimester, the compelling state interest in the mother's health permits it to adopt reasonable regulations in order to promote safe abortions -- but requiring abortions to be performed in hospitals, or only after approval of another doctor or committee in addition to the woman's physician, is impermissible, as is requiring that the abortion procedure employ a technique that, however preferable from a medical perspective, is not widely available.
Once the fetus is viable, in the sense that it is capable of survival outside the uterus with artificial
aid, the state interest in preserving the fetus becomes compelling, and the state may thus proscribe its premature removal (i.e., its abortion) except to preserve the mother's life or health (emphasis added).
Interestingly enough Canada's abortionist laureate, Henry Morgentaler, agrees with this view. He will not permit abortions in his clinics after 24 weeks.
The Chief Justice of the day, Brian Dickson, admitted that his court had not written the last word on the abortion issue, nor did he rule that abortion on demand was the only way of satisfying the Charter of Rights and Freedoms. He pointed out that the Court was dealing only with specific Canadian legislation that placed certain restrictions on the availability of abortions and whether this legislation was constitutional. The majority found that it was not. But Dickson went on to say this:
During argument before this Court, counsel for the Crown emphasized repeatedly that it is not the role of the judiciary in Canada to evaluate the wisdom of legislation enacted by our democratically elected representatives, or to second-guess difficult policy choices that confront all governments. In Morgentaler v. The Queen, [1976].....I stressed that the Court had "not been called upon to decide, or even to enter, the loud and continuous public debate on abortion." Eleven years later, the controversy persists, and it remains true that this Court cannot presume to resolve all of the competing claims advanced in vigorous and healthy public debate. Courts and legislators in other democratic societies have reached completely contradictory decisions when asked to weigh the competing values relevant to the abortion question. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Paton v. United Kingdom (1980), 3 E.H.R.R. (European Court of Human Rights); The Abortion Decision of the Federal Constitutional Court -- First Senate -- of the Federal Republic of Germany, February 25, 1975, translated and reprinted in (1976), 9 John Marshall J. Prac. and Proc. 605; and the Abortion Act, 1967, 1967, c. 87 (U.K.) (emphasis added).
Well, that's a lot of legalese, but it is worth wading through. Canada has no law pertaining to abortion. But the key Supreme Court of Canada decision that struck down the last law regarding abortion ever enacted by a Canadian Parliament did not in fact say that there was no place for laws placing restrictions on access--quite the opposite.
Nevertheless, opposition to the pro-life movement in Canada is founded, in the final analysis, on the conviction that restrictions on abortion are incompatible with a woman's charter rights. No Canadian court has ever ruled as such--but this is the position taken.
In my next post, I'll attempt to deal with the ways in which the pro-choice sorority goes beyond anything the courts or the Charter prescribe in attempt to muzzle the pro-life movement--and in doing so placing restrictions on a woman's right to an informed choice.
Justice Bertha Wilson, Supreme Court of Canada, R. v. Morgentaler, 1988.
No one should debate my rights over my own body.
Tracey Ho, Director, Univ. of Victoria Students' Society, 2008.
In fact, abortions in Canada are limited only by the availability of a doctor who will perform the operation, and by the availability of a hospital or clinic where the surgery can take place. There is no law placing limits on whether and when a woman can obtain an abortion. But there is no constitutional guarantee for abortion either. There is no law whatsoever. We have abortion on demand in Canada because there is no law (since 1988) prohibiting it.
Justice Wilson (quoted above), somewhat of a hero is pro-choice circles for her reasoning regarding "a woman's right to choose," actually took a more conservative position on government restrictions on access to abortion than in fact prevails in Canada. Citing relevant American legislation, she wrote as follows:
This right was not, however, to be taken as absolute. At some point the legitimate state interests in the protection of health, proper medical standards, and pre-natal life would justify its qualification. Lawrence H. Tribe, Professor of Law at Harvard University, in his work entitled American Constitutional Law (1978), conveniently summarizes the limits the Court found to be inherent in the woman's right. I quote from pp. 924-25:
Specifically, the Court held that, because the woman's right to decide whether or not to end a pregnancy is fundamental, only a compelling interest can justify state regulation impinging in any way upon that right. During the first trimester of pregnancy, when abortion is less hazardous in terms of the woman's life than carrying the child to term would be, the state may require only that the abortion be performed by a licensed physician; no further regulations peculiar to abortion as such are compellingly justified in that period.
After the first trimester, the compelling state interest in the mother's health permits it to adopt reasonable regulations in order to promote safe abortions -- but requiring abortions to be performed in hospitals, or only after approval of another doctor or committee in addition to the woman's physician, is impermissible, as is requiring that the abortion procedure employ a technique that, however preferable from a medical perspective, is not widely available.
Once the fetus is viable, in the sense that it is capable of survival outside the uterus with artificial
Interestingly enough Canada's abortionist laureate, Henry Morgentaler, agrees with this view. He will not permit abortions in his clinics after 24 weeks.
The Chief Justice of the day, Brian Dickson, admitted that his court had not written the last word on the abortion issue, nor did he rule that abortion on demand was the only way of satisfying the Charter of Rights and Freedoms. He pointed out that the Court was dealing only with specific Canadian legislation that placed certain restrictions on the availability of abortions and whether this legislation was constitutional. The majority found that it was not. But Dickson went on to say this:
During argument before this Court, counsel for the Crown emphasized repeatedly that it is not the role of the judiciary in Canada to evaluate the wisdom of legislation enacted by our democratically elected representatives, or to second-guess difficult policy choices that confront all governments. In Morgentaler v. The Queen, [1976].....I stressed that the Court had "not been called upon to decide, or even to enter, the loud and continuous public debate on abortion." Eleven years later, the controversy persists, and it remains true that this Court cannot presume to resolve all of the competing claims advanced in vigorous and healthy public debate. Courts and legislators in other democratic societies have reached completely contradictory decisions when asked to weigh the competing values relevant to the abortion question. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Paton v. United Kingdom (1980), 3 E.H.R.R. (European Court of Human Rights); The Abortion Decision of the Federal Constitutional Court -- First Senate -- of the Federal Republic of Germany, February 25, 1975, translated and reprinted in (1976), 9 John Marshall J. Prac. and Proc. 605; and the Abortion Act, 1967, 1967, c. 87 (U.K.) (emphasis added).
Well, that's a lot of legalese, but it is worth wading through. Canada has no law pertaining to abortion. But the key Supreme Court of Canada decision that struck down the last law regarding abortion ever enacted by a Canadian Parliament did not in fact say that there was no place for laws placing restrictions on access--quite the opposite.
Nevertheless, opposition to the pro-life movement in Canada is founded, in the final analysis, on the conviction that restrictions on abortion are incompatible with a woman's charter rights. No Canadian court has ever ruled as such--but this is the position taken.
In my next post, I'll attempt to deal with the ways in which the pro-choice sorority goes beyond anything the courts or the Charter prescribe in attempt to muzzle the pro-life movement--and in doing so placing restrictions on a woman's right to an informed choice.
2 comments:
I look forward to your next post.
I do believe that there are some restrictions on abortion which are not violations of women's human rights. That said, I think that too many pro-lifers get complacent, and lose sight of the fact that although abortion is the taking of a human life, not every way of taking legal action against it is just. Some really are violations of women's rights. As one example, I think it's unjust to base restrictions on abortion on the notion that there is no Constitutional (U.S. perspective, sorry, but that's what I'm most familiar with) right to privacy, and therefore the majority can prevent women from doing whatever the majority thinks is immoral.
I think a lot of opponents of abortion get stuck on "but ... it's killing human beings!" -- which I agree with -- and don't think through the implications of the way that they go about fighting it. Some of those implications end up being harmful to women.
Thank you for your ongoing interest in the blog, Jen R. Your own blog, Turn the Clock Forward, is a very interesting read.
As to your observations, you make excellent points. If we are to move beyond "pro-fetus" to "pro-a life worth living", we can't just gang up on pregnant women with constitutional or other tools while ignoring the situations that many expectant women find themselves in.
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