Such a statute would threaten the very thing it seeks to protect.
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Last month, the US Supreme Court overturned Roe v. Wade. It is now constitutional for US states to restrict abortion in any way they choose, including banning it. Only new federal legislation allowing abortion can stop such state bans. But on May 11, shortly after the leak on May 2 of a draft of the Court’s reasons, Republicans in the US Senate defeated a federal bill that established a national standard for legal abortion. in that country.
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The ongoing turmoil south of the border has some Canadians wondering if our federal government should proceed with new legislation to confirm that abortion and women’s reproductive choice are legal in Canada.
On May 4, in response to the leaked decision, Prime Minister Justin Trudeau said at a scrum that “every woman in Canada has the right to a safe and legal abortion,” and spoke about “defending and promoting” women’s rights. women. Health Minister Jean-Yves Duclos said on May 11 that codifying abortion as a right in the law was “on the table”, but also indicated that this would carry risks.
Canadians should say a resounding no to any new legislation that addresses the right to abortion.
We are in a very different situation than the US Under our constitution, provinces and territories cannot restrict abortion. That is a criminal law matter and only the federal government can legislate regarding criminal law. In its 1988 decision, R. v. Morgentaler, the Supreme Court of Canada struck down provisions in the Penal Code that made abortion a criminal act unless the procedure was approved by a “therapeutic abortion committee” of an accredited or approved hospital. The Court held that these provisions infringed women’s right to liberty and security of the person under section 7 of the Charter of Rights and Freedoms, and that the procedural requirements of the code were not in accordance with fundamental fairness. In that case, Judge Bertha Wilson described the choice to have an abortion as an important decision intimately related to a woman’s private life, which the state does not have to approve but does have to respect. The Charter’s protection of a woman’s right to abortion may also be protected by sections 15 and 28, which were not even tested in the 1988 Morgentaler case.
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Prime Minister Brian Mulroney’s government responded to Morgentaler with a new bill that tests a different set of restrictions. Bill C-43 was defeated by an unprecedented tie in the Canadian Senate on January 31, 1991. Since then, no government has attempted to legislate on abortion.
“No” to federal legislation was the correct answer then, and it is the correct answer now.
Any new federal law, whether it affirms or restricts women’s rights, would put the legality of abortion in Canada at serious risk of erosion, through the process of formulation, parliamentary review, and the inevitable subsequent litigation.
Parliament has never used s. 33 of the Canadian Charter of Rights and Freedoms, the notwithstanding clause, to override Charter rights. Doing so now would be highly controversial in its own right. Section 33 would also not protect new abortion legislation from challenge. The Québec government used the s. 33 to protect House Bill 21 from Charter challenges, but that has not preserved it from litigation.
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Currently, there is no easy way to bring the matter to court, and all non-easy ways have not worked to date. A new federal statute would serve as a superhighway to bring abortion back into the Canadian courts. And a new statute would also provide endless opportunities for Parliament to destroy abortion rights through amendments.
There is no shortage of funds or fighters to challenge the legality of abortion in Canada. Abortion opponents say they oppose the legislation, but they also know it gives them a platform.
A new federal bill or statute in Canada would have the perverse result of throwing the door wide open to constitutional challenges and political tinkering by those who oppose abortion. This is time-consuming, costly and destabilizing, and will complicate further improvements in abortion access on the ground.
Canada has a clear legal space for abortion and some of the most liberal abortion rights in the world, because we don’t have a federal law dealing with it. We must keep it that way.
Donna Dasco is a member of the Canadian Senate representing Ontario. elizabeth acheson has worked on the Women’s Rights Charter since 1980.
