This is not about the Right to an abortion, this is about the Freedom of Choice

This is not about the Right to an abortion, this is about the Freedom of Choice

The Controversial Section 251 of the Criminal Code and the Case Against Dr. Morgentaler

 

Section 251 of the Canadian Criminal Code allowed for abortions to be performed at only accredited hospitals with the proper certification of approval from the hospital’s Therapeutic Abortion Committee. This Section of the Canadian Criminal Code opened up a lengthy judicial debate that continues on 22 years after Dr. Morgentaler, Dr. Smoling and Dr. Scott were charged with unlawfully procuring miscarriages in violation of Section 251 (r. v. Morgentaler 3).Dr. Morgentaler et al, ran privately owned Abortion Clinics in Toronto, Canada. (Richer 2)

The overall issue is that Section 251 violated Section 7 of the Canadian Charter of Rights and Freedom. Supreme Court of Canada, Chief Justice Madame Wilson opined the following:

“The right to “liberty” contained in Section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life.

Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them.

A woman’s decision to terminate her pregnancy falls within this class of protected decisions.

It is a decision that reflects the way the woman thinks about herself, her relationship to others and to society at large. This is a profound social and ethical decision and not just a medical decision.”

(r. v. Morgentaler 21-22).

Chief Justice Dickinson agreed and wrote, “Section 251 clearly interferes with a woman’s bodily integrity in both a physical and emotional sense. Forcing a woman by threat of a criminal sanction to carry to term a fetus unless she met certain criteria unrelated, unrelated to her priorities is a profound interference of a woman’s body and a violation of the person. Therefore Section 251 is required by the charter to comport with the principles of fundamental justice.” (r. v. Morgentaler 5-6).

From my understanding of r. v. Morgentaler, Morgentaler set out many years ago to decriminalize abortion and the journey he undertook was a deliberate one to increase and improve upon the Rights of Canadian Women and to uphold their constitutional Charter of Rights and Freedom of Choice.  For this the Order of Canada was granted to him in 2008 (Richer 1). It is common knowledge that Canada banned abortion and enacted the Criminal Code of Canada, Abortion became a crime punishable by life imprisonment and the use or sale of contraceptives became an indictable offence that was punishable by a two-year term in prison. S-91(27) of the Constitution Act, 1867. (12 ) (Richer 5)

The arguments against 251 continued by The Honorable Mr. Justice Jean Beetz of the Supreme Court of Canada, Beetz, joined by The Honorable Mr. Justice Estey, wrote a second opinion finding the abortion law invalid. In it, Beetz, noted that by adopting Section 251(4), the government acknowledged that the interest of the state to protect the woman is greater than its interest to protect the fetus when “the continuation of the pregnancy of such female person would or would be likely to endanger her life or health”. As the procedural requirements of section 251 were “manifestly unfair” (r. v. Morgentaler 7). The Honorable Mr. Justice Jean Beetz, found that the objective had no rational connection to the means, thus the law cannot be justified. He also speculated that if the government were to enact a new abortion law, this law would require a higher degree of danger to the woman in the later months rather than the early months for an abortion to be allowed. In this case it could be sufficiently justifiable under Section 1. (r. v. Morgentaler 8).

The law was struck down as unconstitutional and Morgentaler’s conviction was overturned. However, the Criminal Code of Canada still contains a provision (Section 287) which limits an individual’s right to perform abortions and, as outlined in Subsection 4, gives medical practitioners the sole right to perform an abortion.  Since 1988, abortion is considered a private medical matter between a woman and her doctor. The woman and her fetus are considered one and the same under the law. A fetus is not considered to be a “legal” person and therefore as no rights until it is “born alive “(Richer 14).

Dr. Mergenthaler’s contribution in the field of health care for women has taken the form of a fight for women’s reproductive rights that has had a profound impact on abortion policies in Canada.  (Richer 1). It is surprising that it took one doctors’ enlightened stance to ignite a powder keg of lifelong controversy. I also noted that strangely enough, there were no women doctors going out on a limb as per Dr. Morgentaler’s expression of compassion. That issue may be worthy of further investigation as perhaps a woman’s perspective may have been suppressed by the male dominated Supreme Court, as it was in the instances of abortion.

Upon further examination of the Morgentaler decision suggests that the intention of the court was not to remove all limits to access abortion but that what limits did not unduly a pregnant woman’s rights, under the charter.  Abortion in Canada: Twenty Years After R. v. Morgentaler (Richer,5).

To that end, Prime Minister Brian Mulroney introduced Bill C-43, Bill C-43 once again tried to uphold the original criminal charges to those who performed abortions. The Bill replaced Section 251, the hospital’s Therapeutic Abortion Committee to the assessment of one doctor who found that the pregnancy if not terminated, the life of the female person would be threatened. The Bill was defeated in 1991. .  Abortion in Canada: Twenty Years After R. v. Morgentaler (Richer 5).

Canada’s abortion services are still limited and unequal and depend on the provinces funding and the legal declarations of rights and the extent of health services.

The College of Physicians and Surgeons agree across Canada and the territories that abortion is a medically necessary procedure but some dissenters, the pro choice movement promotes the sancity of human life from fertilization to natural death. Life Canada, states on its website, Abortion is seldom done to save the life of a patient, Pregnancy is not a disease and our tax-payer are paying for these abortions (Richer 5-6).

The Adoption of the Canada Health Act, (18), with which the provinces must comply in order to receive grants in the form of the Canada Health Transfer. The purpose is as per section 4, to establish criteria and conditions provided under provincial law in respect of insured health services and extended health services. Under the Act the provinces are required to provide free access to medically necessary health services, in order to receive the full federal contribution. It further states that an abortion must be performed by a medical doctor but the disagreement remains as to whether abortion is a medically necessary procedure. (Richer 7)

The case of  R. v. Morgentaler and Section 251 of the Canadian Criminal Code still continues in other provinces.  Central to the notion of access to abortion services is   the question of who is responsible for providing and regulating such services. If the issue,  is the prohibition of abortion through criminal sanction, then parliament has jurisdiction under section 91(27)  of the Constitution Act , 1867. (12)

Once the criminal prohibition on aborting was removed, judicial scrutiny shifted to provincial regulations regarding access to abortion services inclusive of these services being parts of the provincial medical insurance schemes. (Richer 8)

This has given rise to the question of competing jurisdictions. The government of Nova Scotia under the Medical Services Act, that supports Section 251, prohibits abortions unless they are performed in a designated Hospital. Morgentaler established a clinic in Halifax.  He performed fourteen abortions there and was charged with fourteen counts of violating the Medical Services Act. Morgentaler has gone on to confront the same law under a variety of Provincial Acts including Nova Scotia to New Brunswick, PEI and in Manitoba. (Richer 8, 9, 10,)

          The Manitoba Court of Queens Bench, the summary judgment was in favor of the plaintiff, Morgentaler, as the provincial legislation violated Section 7 of the Charter because legislation, that forces women to stand in line in an over burdened publically funded health care system and to have to wait for a therapeutic abortion, a procedure that probably has to be performed on in a timely manner is a gross violation of the rights of the woman  to both liberty and security of the person as guaranteed by Section 7 of the charter (Richer 9).

These judicial findings echo the original opinion of Supreme Court of Canada , Chief Justice Madame Wilson opined the following: “The right to “liberty” contained in Section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life.” And that of Chief Justice Dickinson agreed and wrote,

“Section 251 clearly interferes with a woman’s bodily integrity in both a physical and emotional sense. Forcing a woman by threat of a criminal sanction to carry to term a foetus unless she met certain criteria unrelated to her priorities and aspirations, is a profound interference of a woman’s body and thus a violation of security of the person. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice.” (Richer 3)

The reiteration of these passages is an alarming tribute to Canada’s profound provincial legal court decisions, however thinly veiled in Provincial Medial Acts, Section 251 and Section 7 have legally  proven to be a on going criminal threat against women and their rights to choose an Abortion. Instinctively as a woman, the need to have this freedom of choice, I hold as a fundamental right in Canada, but that perception is not the case throughout Canada.

In the past, the federal government has indicated that abortion services constitute medically necessary services under the Act. (22) Not all Provincial governments have shared this interpretation and some have openly defied the requirements of the Canada Health Act.  Examples of this include, the failure to provide any abortion services in provincial hospitals, placing abortion on the excluded list with regards to reciprocal billing arrangements between provinces as well as refusing to reimburse women who obtain abortions through private clinics. Authors have used the terms “uncooperative federalism” (23) and that Canadians have tolerated “the ambiguity in having no national standards and allowing larger degrees of sub national variation.” This ambiguity may be beneficial in certain policy areas, “there are no ways to frame it as a positive choice for women regarding abortion access.” (25) .” (Richer 7)

In conclusion, according to the latest data by Statistics Canada, in Women in Canada; A Gender-Based Statistical Report ( Fifth Edition) not only is the number of abortions being performed in Hospitals, as opposed to private clinics but the total number of abortions being performed in Canada has been decreasing. An interpretation of that statistic could be due to the increased access of contraception. Or that Pro-life and restrictive polices in some provinces has impacted a woman’s decision of whether to abort. However the controversy will continue in Canada for years to come.” (Richer 24)

In the past two decades, the abortion issue seems as undecided as it was in 1988, in some provinces, except for the fact women, now have a greater perceptual “legal choice” for their own reproductive processes. It seems that an old law passed in Canada by parliament literally caused Canadian women to be guilty of a punishable crime that was based on their right to carry a fetus to term. That it took a courageous doctor, Dr. Morgentaler, to fight for the rights of us all.  A right that is inherent, to all men, the Right of choice for themselves. But the fact Canadian legislature still has to be challenged repeatedly over the issue of Abortion, is an unconstitutional reality. For Canada to still have divisions within its provinces , as reflected in r.v Morgantaler and 20 years after Morgantaler, indicates to me that the fundamental issue is that the constitution is a perceptual reality rather than a legally binding one. Albeit in regards to Abortion. This statement,  by Mr. Justice Jean Beetz, (r. v. Morgentaler 7). “the objective had no rational connection to the means, thus the law cannot be justified” is of noteworthy interest. For a law that cannot be justified, a law mandated by the Canadian Charter of Rights and Freedom, .to have no rational objective connection to the means, is an extraordinary statement. It would seem that s.251 had no legal bearing on Canadian women or the rights to their bodies etal. Once, again there is a perceptual reality at work here

Of laws that govern, that may in fact be unrelated to those that they are governing, or the legal processes as evidenced by the many court trials of Dr. Morgantelor for these laws NOT to relate to the actual functioning of the law, is an unfathomable thought. We believe, we live in a free society, but laws like S.251, or fragments of that law as represented in many Provencal Acts, indicate that we in reality are not a free nation. And perhaps our rights as Canadian women may still be unjust.  This is not about the Right to an abortion, this about the Right of Choice. S.7 (Canadian Charter of Rights and Freedom.)

Works Cited

Karine, Richer. “Abortion in Canada: Twenty Years After R. v. Morgentaler.” Law and Government Division. (2008): 1-24.

Please note (Richer 8, 9, 10,) refer to specific Court cases and that a summary is required and not the entire rulings of the case.

  1. v. Morgentaler. 1998. 1 S.C.R. 30.
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