The British Columbia Supreme Court has reinstituted Bill 48, the provincial legislation severely restricting pro-life activity near abortion clinics and hospitals.
In an October 8 decision, Justice Mary Saunders overturned an earlier court ruling that found restrictions on pro-life activity violated freedom of speech and religion guarantees. Justice Saunders ruled that a January 23 decision by Provincial Court Judge E.J. Cronin is invalid. She said the right of a woman to seek and abortion outweighs the right to freedom of expression. The judge also said the aims of Bill 48 (Access to Abortion Services Act) should take precedence over any infringement of the Charter of Rights and Freedoms.
The ruling is a serious setback for pro-life activity in British Columbia, and it could have implications across the country.
The Judge Cronin decision, rejecting sections of Bill 48, was rendered in the case of pro-life activist Maurice Lewis. Bill 48 was introduced by the provincial New Democrats purportedly in response to the November, 1994 wounding of abortionist Carson Romalis.
Lewis was the first person charged under Bill 48, which established 50-metre “bubble zones” around the province’s abortion clinics and hospitals. Pro-life activity at these sites, including prayer and hymn singing, was thought to be a form of harassment and intimidation of women seeking abortions.
Ted Gerk, president of the Pro-Life Society of B.C., suggested the Saunders decision will be appealed to the Supreme Court of Canada. However Paul Formby, the lawyer representing Maurice Lewis, isn’t sure if an appeal is the best way to go.
Formby is particularly disturbed by references in the Saunders decision that pro-life supporters admit to creating guilt feelings on the part of women seeking abortion. “As candidly admitted by Mr. Lewis through his counsel, his protest activity is designed to engage the conscience of women entering the clinic in an effort to change the decision to have an abortion and with the expectation of creating guilt if the abortion is performed,” Judge Saunders wrote in her decision.
Formby however, deputed the view that pro-life demonstrations are designed to create guilt feelings in abortion-seeking women. He said evidence throughout the case indicates women obtaining abortions experience guilt afterward, regardless of any pro-life presence at abortion clinics.
Freedom of expression and freedom of conscience guarantees are essential to the pro-life movement, said Formby.
“Conscience is what you appeal to through freedom of expression to get people to change their minds,” he said.
Although he is disappointed with the judge’s decision, Formby is not overly surprised. “I don’t think we had a fair hearing,” Formby told The Interim. “Judge Saunders didn’t seem very receptive to pro-life arguments.” Formby hopes to draw attention to what he believes are irregularities in Judge Saunders’ decision; particularly that she paid no attention to lower court testimony and evidence.
Formby said the decision to uphold the validity of Bill 48 has implications for freedom of expression throughout the country.
The Saunders decision means Maurice Lewis could still face up to three months in prison for ignoring the bubble zone law. In September, 1995, Lewis approached the Every Woman’s abortion clinics in Vancouver while carrying a poster of Our Lady of Guadalupe. Pro-abortion supporters contend that pro-life signs and posters, including those with prayer messages, are intimidating to women seeking abortions.
Judge Cronin’s original ruling in the Lewis case was hailed by pro-life supporters who see picketing and sidewalk counselling as a key means of alerting the public to the true nature of abortion. However the ruling was immediately appealed by the New Democratic government of British Columbia which has long advocated wide open access to abortion services.
B.C. pro-lifers were not overly optimistic that Judge Saunders would rule in their favour. They feared a decision upholding the bubble zone legislation will severely hamper all forms of pro-life demonstration.
Prior to the Judge Saunders ruling, Vancouver-area pro-life supporters expressed concern over further restrictions on sidewalk counselling and demonstration.
“If the Crown wins this appeal, protesting will soon be considered a crime regardless of its location,” said a recent issue of the pro-life Gianna House newsletter.