No Charter Right to Abortion in Canada

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Saturday, November 30, 2019By Patricia Maloney
There is [still] no Charter right to abortion in Canada
From Canadian Lawyer Magazine:
“Jennifer Taylor argues Canadians can’t trust the Tory leader on his promise to avert the anti-abortion movement”
In her article, Ms. Taylor repeats the urban legend that there is a Charter right to abortion in Canada. I responded to her article with my own letter.

Here is that letter:

Dear Canadian Lawyer Magazine,

I recently read this piece in your magazine by Jennifer Taylor. I must comment on this article, in particular, Ms. Taylor’s opening paragraph below.
“It’s been 50 years since abortion was partly decriminalized in Canada, and 31 years since R v Morgentaler, the Supreme Court of Canada decision that struck down the remaining Criminal Code restrictions. Surely, in 2019, Canadians have accepted that there is a constitutional right to abortion access in this country, and abortion is a publicly funded health care service – not a subject for debate. We’ve moved on. Right? Unfortunately, not.”
I take issue with Ms. Taylor’s comments, for two reasons.

In one breath Ms. Taylor invokes the constitution, which guarantees freedom of religion, speech and conscience. In her next breath, she states that abortion is not up for debate. This appears to me to be a serious disconnect from both the spirit and the letter of our Canadian Charter of Rights and Freedoms. I posit that in a democracy, everything is up for debate. Even abortion.

Secondly, and this point is as important as the first, is the simple fact that there is no constitutional right to abortion in Canada. Abortion advocates have been pushing this myth for some time now but it simply is not true.

I refer you to an in-depth analysis of the Supreme Court Morgentaler decision: .
“Contrary to what many Canadians think, the Supreme Court of Canada, in its landmark 1988 Morgentaler decision striking down Canada’s abortion law, did not recognize a constitutional right to abortion. Nor did the Court “settle” the abortion issue as is often claimed. Rather, the Court left it to Parliament to come up with a new abortion law that would balance the rights of women with the state’s interest in the protection of the fetus, without offending the Charter.”
This analysis goes into great detail about what the Morgentaler did say, and what it did not say.

Clearly the Supreme Court did not resolve the abortion issue in 1988, but left it to Parliament to come up with a new law–which Parliament did not do. In fact, the Court was unanimous in also finding that the state did have an interest in the protection of fetal/unborn human life.
CHIEF JUSTICE DICKSON (AND JUSTICE LAMER CONCURRING):
Like Beetz and Wilson JJ., I agree that protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.” (R v Morgentaler at page 75)
JUSTICES MCINTYRE AND LA FOREST (DISSENTING OPINION):
Historically, there has always been a clear recognition of a public interest in the protection of the unborn and there is no evidence or indication of general acceptance of the concept of abortion at will in our society. The interpretive approach to the Charter adopted by this Court affords no support for the entrenchment of a constitutional right of abortion. (R v Morgentaler, at p. 39)
There is no constitutional right to abortion in Canada. Parliament is exactly the place where a new law, can and should be debated, and where fetal protection can and should be provided. Just as the Supreme Court of Canada advised.

Debate in Canada–a free, democratic and highly educated country–should never be shut down. Especially over a topic as controversial, and as highly political, as abortion.

Thank you.

Sincerely,
Patricia Maloney

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