Tuesday, April 02, 2013

Canada's Supreme Court Wants To Restrict Abortions

One sign that a country is in trouble is when the top court's opinion is deemed controversial.

Canada doesn't have to worry about that, not because its Supreme Court is so respected, but because of how little Canadians know about its rulings, in particular that our highest court believes abortion should be restricted. 

It was only a few months ago when many MPs, of all stripes, attacked Conservative MP Stephen Woodworth's motion that sought to study when life begins, either pretending or genuinely not knowing their nation's Supreme Court had asked for the government to do the very same thing 25 years earlier.

It was the 1988 Supreme Court case of R v Morgentaler that made abortion legal and freely available to every woman in the country. However most Canadians, including many reporters, politicians, and interest groups who sensationalized Woodworth's motion, apparently didn't know that the court also called for abortion to be restricted in the later stages of pregnancy. The court also stipulated that Parliament should study and draft legislation on when life begins.

From the Supreme Court ruling:

"Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the states's interest in protecting the foetus would justify its prescribing conditions. 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."
Now of course there's more than one sign a nation is in trouble, popular disagreement with it's Supreme Court is one, and certainly incredible ignorance of the law is another, but perhaps the most distressing is a third, and that's the sign of increasing public polarization.

For years the abortion debate has become defined around either being pro-choice or pro-life, but such a dichotomy wrongfully frames the issue. Canada's highest court pointed this out over two decades ago:
"Both traditional approaches to abortion, the so‑called "liberal" and "conservative" approaches, fail to take account of the essentially developmental nature of the gestation process. A developmental view of the foetus, on the other hand, supports a permissive approach to abortion in the early stages of pregnancy and a restrictive approach in the later stages."
Despite the court's decision however polarization on the issue is only getting worse; being right is becoming increasingly seen as being either liberal or conservative, pro-choice or pro-life. If only Canadians stopped ignoring the Supreme Court they would find the only thing controversial is not the judges' opinions, but their own.


KC said...

Maybe before criticizing an entire country for not reading Supreme Court decisions you should learn to read them yourself.

The Morgantaller decision was a split decision with three separate judgments striking down the abortion provisions from each of Dickson/Lamer, Beetz/Estey, and Wilson; as well as a dissenting opinion from McIntyre/LaForest. The quoted portion is from the judgment of Wilson alone so it does not reflect what the Supreme Court believes. The Beetz, Estey, Dickson, Lamer holdings are actually what legal scholars consider to be the 'law' on the issue.

Ironically, you actually had a valid point but made it clumsily. The Morgantaller decision is much more 'conservative' than pro-choicers would have you believe. Justice Wilson was the only member of the court who found that there was a substantive right to abortion and, judging from the quoted portion, even then only during the earlier stages of the pregnancy.

The four judges who actually struck the law down took an even narrower approach and essentially found that the abortion law was invalid because it was procedurally unfair. The implication is that the government could regulate abortion as long as it redrafted the legislation to make the procedures for women to get abortion. Mulroney tried and failed to introduce such legislation. It died in the Senate on a split vote.

thescottross.blogspot.com said...

KC, I have read the decision and I implore you to as well.

The passages I quoted were written by Wilson but are entirely supported by the majority decision.

I am away from my computer at the moment and unable to provide the many quotes necessary but I will do so later today.

The majority of the court said explicity that Parliament is the only institution that can regulate abortion, which would not be contrary to the charter.

The majority deciding that abortion is not in all cases protected by the charter necessarily shows that at some point a woman's s.7 rights are overridden by the rights of the fetus. If this was not the case abortion in all cases would be fully protected by the Charter, it isn't.

As courts prefer to have Parliament draft legislation in situations where laws don't exist, and the majority of SCC has ruled in Morgentaler that the rights of the fetus at some point must outweigh the s.7 rights of a pregnant woman, it is a necessary conclusion that the SCC supports some restriction on abortion.

KC said...

I've read the decision. In its entirety. Multiple times. And in the context of a constitutional law class with discussion and debate--which is what I think you are missing.

The court never says that "at some point a woman's s.7 rights are overridden by the rights of the fetus". The court never says that a fetus has rights. It says that Parliament has an interest in protecting a fetus. That is an important distinction. In fact in two later decisions--R v. Sullivan and Tremblay v. Daigle--the court explicitly found that fetus' aren't "people" and have no rights under the Charter.

You are probably confused because the court say that protection of a fetus is a "pressing and substantial in a free and democratic society". But that is a statement on the application of the Oakes test not an endorsement of an abortion law. The first stage of the Oakes test is quite broad and satisfied in almost ever Charter case.

I'm actually in agreement with you that the decision is not the stake in the heart of abortion restrictions that pro-choice advocates say it is. The court left the door open.

But even the portion you quoted from Justice Wilson isn't an endorsement of an abortion law but rather a statement that at some point in a pregnancy the Oakes test could trump s. 7. Again this is a can, not a should.

You have to know how to read Charter decisions and understand the application of the Oakes test to get this.

thescottross.blogspot.com said...

KC, interesting with all your "creditials" (sarcastic quotes) how much you presume and your reliance on ad hominem attacks to support your points.

Your suggestion that I misquoted the court is just laughable and I question not just your argument but your grasp of english.

I never said the court stated "at some point a woman's s.7 rights are overridden by the rights of the fetus", I clearly said that the courts decision "necessarily shows", as in, by strict logical inference, that to be the case.

For someone with such "creditials" (sarcastic quotes once again) I hope you read all court cases more thoroughly than comments you reply to.

KC said...

Scott - You are the one who constantly relies on ad hominems. I've read your blog with some regularity. You accuse pretty well anyone who disagrees with you of being irrational or emotional or otherwise not understanding what they are talking about. You do this time and time again to multiple individuals. Maybe you need to take a look in the mirror. I suspect this is some sort of defense mechanism that you pull out whenever your argument is weak. In any event, saying that you are probably "confused" and pointing out that you're not a legally trained person hardly qualify as ad hominems.

But I digress... Not only does the court not SAY that "that at some point a woman's s.7 rights are overridden by the rights of the fetus" it doesn't imply it either. In fact--and you've seemed to ignore my citations to this effect-they later go on to say that fetus is not a person. Read the later decisions.

My analysis is certainly not laughable. It is the result of actually having a base of knowledge about constitutional law and legal training rather than amateurish cherry picking of quotes. All the court said is that the objective of protecting a fetus would pass the first stage of the Oakes test. It does this all the time.

Don't like my credentials? Well how about Peter Hogg, Constitution Law of Canada, Student Edition 2005, p. 824:

"[T]he requirement of a sufficiently important objective has been satisfied in all but one or two of the Charter cases that have reached the Supreme Court of Canada. It has been easy to persuade the Court that when the Parliament or Legislature acts in derogation of individual rights, it is doing so to further values that are acceptable in a free and democratic society, to satisfy concerns that are pressing and substantial and to realize collective goals of fundamental importance"

The court often expresses the view that something can qualify as being a legitimate social objective without necessarily accepting that it is good policy so such a finding cannot be construed as an endorsement of a particular law. From R. v. Malmo-Levine on the subject of marijuana criminalization:

"The criminalization of possession is a statement of society’s collective disapproval of the use of a psychoactive drug such as marihuana, and, through Parliament, the continuing view that its use should be deterred. The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm. In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers. In light of these findings of fact it cannot be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself."

The court's statements regarding protection of a fetus must be read in the context of the overall jurisprudence surrounding the Oakes test. That you don't have the base of knowledge to understand what that means and instead choose to read these statements as a political endorsement demonstrates fairly conclusively that you are out of your element when it comes to constitutional law.