Posted by: bridget | 31 January 2008

20th Anniversary of Canadian “Right to Abortion” Ruling

Twenty years ago today,* the Supreme Court of Canada ruled that various restrictions on abortion violate a woman’s right to reproductive autonomy.  (Hat tip: Eoin O’Dell.) According to the Court, state interference with the abortive procedure creates two infringements upon the person: unnecessary psychological stress and an elevated risk of complications from a delayed abortion:

According to the evidence, the procedural requirements of s. 251 of the Criminal Code significantly delay pregnant women’s access to medical treatment resulting in an additional danger to their health, thereby depriving them of their right to security of the person. This deprivation does not accord with the principles of fundamental justice. While Parliament is justified in requiring a reliable, independent and medically sound opinion as to the “life or health” of the pregnant woman in order to protect the state interest in the foetus, and while any such statutory mechanism will inevitably result in some delay, certain of the procedural requirements of s. 251 of the Criminal Code are nevertheless manifestly unfair.

The Canadian decision is couched in the “freedom of conscience” element of the Canadian Charter of Rights and Freedoms: “The deprivation of the s. 7 right in this case offends freedom of conscience guaranteed in s. 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state.”  The Court cited American privacy jurisprudence – Skinner, Roe, Dalton, and Griswold, in support of its decision (pp. 168-170).

Ultimately, the Supreme Court set a standard for abortion jurisprudence  – proportionality – that closely tracks the Casey decision’s “undue burden” standard.  Canadians are largely accepting of this result (here).

Of course, this all presumes that an abortion does not implicate another human being who is worthy of protection.  Otherwise, that human would also have autonomy, privacy, and freedom interests in its own life and bodily integrity – freedoms necessarily implicated by abortion.  The Morgentaler decision, like Roe and its progeny, explicitly assume that the unborn child is of no consequence – that the person with the ability to end its life is endowed, by virtue of that superiour physical and emotional position, with the moral sanction to so murder.  This upends the rule of law and the idea of civilisation: the former, in its recognition of the limitations of human decision-making, and the latter, in subverting domination based on physical strength into a system based on reason and non-aggression.

*Well, today as in 28 January, not the belated day upon which this post was finally finished.

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