Wednesday, February 27, 2013

25 years ago: Supreme Court of Canada strikes down Criminal Code restrictions on abortion

Warning: Lengthy post ahead

An item that should have been published last month: On January 28, 1988, 15 years and 5 days after the Supreme Court of the United States handed down its ruling in Roe v. Wade that had the effect of legalizing abortion on demand, the Supreme Court of Canada, in Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott v. Her Majesty The Queen and The Attorney General of Canada--better known as R. v. Morgentaler--ruled 5-2 that section 251 of the Criminal Code of Canada, the section prohibiting abortion except for "therapeutic" reasons, was a violation of a woman's constitutional rights. Trudeaupia (officially still known as "Canada," although it bears no relation to that great country now long gone) has had no abortion law since that decision.

Those who are interested can go here to see the full text of the Supreme Court of Canada's decision in R. v. Morgentaler. I particularly recommend reading the concurring judgment of Bertha Wilson, who, before her appointment to the Supreme Court, helped to formulate the pro-abortion position of the hopelessly apostate United Church of Canada. Ted Byfield, then the editor of Alberta Report magazine, accurately referred to Bertha Wilson's "so-called judgment...which reads like something you might be handed on a street corner."

A couple of attempts were made to pass an abortion law after the Supreme Court ruling, but the last one, while passing the House of Commons, died in 1989 on a tie vote in the Senate (unlike the United States Senate, the Canadian Senate has no provision for breaking a tie). The present "Conservative" government has a few backbench Members of Parliament who have attempted, and are attempting, to pass private member's bills that attempt to define human life, but Prime Minister Stephen Harper, widely (and erroneously, in my opinion) assumed to be a Christian, can't run away from the issue far enough or fast enough.

I need not rant about the outrage I felt on the occasion of the 1988 Supreme Court ruling, and still feel, but I think it might be worth looking at the legal "reasoning" of the five "justices" who voted in favour of abortion. The following article, Assessing Morgentaler, by third-year Osgoode Hall (University of Toronto) students Robert Muir and Robert Minnes, was published in the Canadian Association of Law Schools' newspaper Legal Communique Du Droit, Vol. 1, No. 1, April 4, 1988, pp. 1,5. As far as I know, it was the only issue of that newspaper that ever appeared--at least it was the only one I ever saw.

Note: The mention in the article of the "Lochner era" refers to a period in the early decades of the 20th century when the Supreme Court of the United States was a conservative activist court that made a habit of striking down progressive and New Deal legislation that the Court saw as interfering with the free market. Lochner v. New York was a 1905 U.S. Supreme Court ruling that a New York law limiting the number of hours a baker could work was an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract."

On January 28, the Supreme Court of Canada finally delivered its judgment in R v Morgentaler.

Morgentaler has been received with emotions ranging from joy to anger. We were asked to jot down a few thoughts on the decision. We stress that what appears below is random and highly superficial. As are we.

The Morgentaler decision must be examined on various levels: its result, its reasoning and its implications for the future direction of the Supreme Court of Canada.

We make no comment on the result of the decision. It appears, however, that the initial euphoria of those who favour freedom of choice may soon give way to disappointment and despair: the Supreme Court has quite clearly left the door wide open for Parliament to enact a new provision controlling access to abortion, provided it conforms with the principles set out by the Court. For those who favour abortion, these are not necessarily glory days.

The purpose of our discussion is unrelated to the vexing issue of abortion: ultimately that is a matter of opinion. Our comments and observations are directed more towards the method of reasoning and constitutional analysis used by the various justices in dealing with the abortion question. The implications of the decision are far wider than is immediately apparent: with Morgentaler the Supreme Court has continued upon an excursion of constitutional reasoning which we consider to be bad and dangerous. In our view this journey may not travel the glorious path of reform and social justice which proponents of the Charter envisaged at its inception.

Chief Justice Dickson, in reasons concurred by Mr. Justice Lamer, finds that the impugned section of the Criminal Code (section 251) interferes with a woman's physical and bodily integrity by forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations and that such interference is a profound interference with a woman's body; it is thus an infringement of security of the person. The "stress and strain" which results from having to submit to this procedure is the basis for the infringement of the principles of fundamental justice and section 1 of the Charter does not save the Criminal Code provision.

Mr. Justice Beetz, concurred in by Mr. Justice Estey, places more emphasis on the procedural difficulties with section 251. While recognizing the objective of the abortion provision, he finds that the means chosen by section 251 "are not reasonable and demonstrably justified." This seems to establish a balance between the approach of the rest of the majority and the dissenting views of Mr. Justice McIntyre.

Madam Justice Wilson, writing alone, is a great deal more expansive (and imaginative) in her interpretation of the Charter than the other majority justices. She finds that not only section 7 but also section 2(a) of the Charter support a constitutional right to abortion. Reason gives way to rhetoric in Madam Justice Wilson's analysis and she finds that the Canadian Charter of Rights and Freedoms includes the clear right to an abortion, at least during the first trimester.

Madam Justice Wilson's judgment will inevitably be hailed as a welcome feminist influence on the court: "The more recent stuggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in a man's world, to develop a set of legislative reforms in order to place women in the same position as men...The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman's struggle to assert her dignity and worth as a human being" [emphasis in original]. These appear to be the sentiments guiding Madam Justice Wilson's approach to constitutional interpretation in this case; the legal guidance offered by such assertions, however, is elusive.

Mr. Justice McIntyre, concurred in by Mr. Justice La Forest, dissents from the majority judgments and emphasizes that the Court should not disregard its role in our democratic structure. There is an apparent rebuke for judges who are willing to act as "knights errant" in their interpretation of the law: "But the courts must not, in the guise of interpretation, postulate rights and freedoms which do not have a firm and reasonably identifiable base in the Charter...It is not for the Court to substitute its own views on the merits of a given question for those of Parliament." He observes that abortion has long been a proscribed practice and had only recently been subject to legal reform. This is the historical background from whence emanates the majority's "discovery" of a fundamental right to an abortion.

Mr. Justice McIntyre makes several observations which remind us of the role to be played by the Court in our democratic dynamic: "It is for Parliament to pronounce on and to direct social policy. This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities--the exposure to public opinions and information--as well as the political power to make effective its decision."

These are the judgments in a nutshell. Obviously they require rigorous reading to be fully understood, but there can be no escaping the conclusion that Morgentaler has established a divisiveness in the Supreme Court and set the firm groundwork for the Court to play a much more powerful role in our society, a la U.S.A.

The question that all of us must address is not the justness of this particular decision, but whether the role the Court has arrogated to itself is proper and will, in the long run, benefit or harm Canadian society. This has nothing to do with one's personal views on abortion: it has to do with constitutional theory and the distribution of power among the institutions which influence the development of our community.

One must, to be true to our discipline, put aside any delight or displeasure with the result of the judgment and attempt to discern, logically and rationally, what Morgentaler means. Never known to shy from presumptuous and arrogant undertakings, we present below our views.

We place greater emphasis below on the judgment of Madam Justice Wilson. This is because it represents what we perceive to be the most disturbing and egregious from of judicial reasoning: the substitution of the values of judges for the values of Parliament. As well, her wholesale importation of American constitutional doctrine, without the surrounding historical context, is a dangerous and beguiling practice which should be avoided by Canadian jurists. Our criticisms may equally be applicable to the judgment of Mr. Justice Dickson, for it is arguable that he too has created "fromo whole cloth" a constitutional right to an abortion; the essential difference is that Madam Justice Wilson is a great deal more explicit in finding a constitutional right to an abortion during the first trimester.

Her Majesty the Queen v Henry Morgentaler et al is bad constitutional law. The Court has created a constitutional right to an abortion which simply does not exist. The expansive interpretations given to "liberty" and "security of the person," while perhaps achieving a just result in this case, arm the Court with a powerful doctrinal arsenal which effectively allows it to sanction the social and economic policies of which it, and it alone, approves, while rendering null and void those with which it disagrees. This has nothing to do with constitutional law.

If one agrees that Morgentaler is a proper result for the Court to arrive at, then it must be accepted--of necessity--that the role of the Court is simply to make binding pronouncements on political, social, and economic matters uninhibited by what we are taught to believe are the legal myths of precedent and judicial restraint. But we already have an institution which is given the task of determining these matters.

We are not so naive as to suggest that our system of parliamentary democracy is completely efficient and entirely responsive to the needs of the electorate, nor do we deny the unfortunate effects of political expediency and short term benefits which seem to characterize much of the workings of our partisan political system. That, however, is a problem with our system of government, and one which should not be remedied by resort to an external body of arbiters equipped with an ambiguous Charter of Rights and Freedoms and the awesome power of substantive judicial review.

Constitutional liberty, without too much imagination, could be used to prevent compulsory unionism, to render nugatory human rights legislation, to destroy health and safety regulations in the workplace, to attack collective bargaining regimes, to prohibit expropriation and zoning regulation, to diminish the usefulness of consumer protection laws, and ultimately to whittle away at taxation and social welfare advances which we perceive to be as fundamental to a just society. Such possibilities may seem absurd and impossible, yet one only need consider that the United States Supreme Court during the Lochner era found such legislative provisions to be antithetical to a democratic state in which the sanctity of individual liberty and autonomy was supreme.

Madam Justice Wilson's logic cuts both ways: "...the basic theory underlying the Charter, [is] that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life...Liberty in a free and democratic society does not require the state to approve the personal decisions made by its citizens; it does, however, require the state to respect them." Ironically, Madam Justice Wilson notes that her conception of liberty is consistent with the American jurisprudence on the subject. We commend Lochner and its progeny to her.

However unpopular a viewpoint, it seems preferable to have judges guided by the constraints of legal precedent and doctrine. However imperfect we may view the process of legal reasoning, it offers more stable and certain guidance than the "subjective elements" of whatever "psyche" might be implicated in a particular dispute.

More importantly, however, the elected legislature must ultimately have the last say, without constant resort to the section 33 override clause. Section 33 should be reserved for emergencies and time of national crisis; it should not be viewed as the legislature's weapon to combat a meddlesome court.

The messages contained in the majority judgments are confusing. An ostensible deference to Parliament is clearly overwhelmed by an eagerness to indicate to our elected representatives just how defential the Court, flanked with the new found power of substantive judicial review, is willing to be. To use Mr. Jutice Brennan's words, it is "nothing short of arrogance clothed in humility."

Our reaction to Morgentaler is best expressed by John Hart Ely in his telling article "The Wages of Crying Wolf: A comment on Roe v Wade" (1973) 82 Yale L.J. 920, at 947: "It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court--it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's--it doesn't. It is bad because it is bad constitutional law and gives almost no sense of an obligation to try to be."
For a contemporary analysis of the political implications of the Morgentaler decision, see A Supremacy Dilemma: Parliament vs. Supreme Court on Abortion by Kathryn Mohrmann, Western Today, Volume 1, Issue 1, March 1988, pp. 4-5.

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