In a Sept. 27 feature on feminism entitled “25 years of women making progress,” Toronto Star “Life writer” Trish Crawford made a common, but egregious, error when she paraphrased former National Action Committee on the Status of Women president Judy Rebick as saying “the legalization of abortion may not have been the most important milestone for women, but it is the one that feminists hold most dear.” Crawford treated as a fact the claim that abortion has been legalized in Canada. That’s one step short of claiming, as feminists usually do, that abortion was declared constitutional, but both notions are incorrect.
It is time for a short history lesson.
In 1969, Pierre Trudeau decriminalized abortion, through a provision in an omnibus bill, that made abortion widely available in hospitals once a woman’s request to kill her unborn baby was rubber-stamped by a “therapeutic abortion committee.” In 1988, the Supreme Court of Canada struck down what was in effect an extremely permissive abortion law – approximately 100,000 babies were being killed by abortion each year under the “restrictions” of the time – on the grounds that these abortion committees violated the privacy of women seeking abortions. Nothing in the majority decision found a right to abortion, either in the Constitution or elsewhere. Only one justice was so bold as to declare such a right, Justice Bertha Wilson. To repeat, eight justices did not find a right to abortion. The court also urged Parliament to pass a law on abortion to clarify the exact legal status of the procedure before law.
The result of this ignominious decision is that Canada is left with no abortion law. We are the only democracy in the world to have no abortion law. Abortion is legal because the law is silent on the issue, but it has never been legalized. In our common-law tradition, anything that is not specifically outlawed is permitted; that is, it is legal. However, the term “legalized” connotes that something is not just permitted, but specifically approved. In political philosophy terms, one is a negative right (a right to do something without interference), the other is a positive right (a right that is enabled by a third party, usually the state). Unfortunately, without a law on abortion, the killing of unborn children is accepted as legal in Canada. If the court declared a constitutional right, or Parliament passed a law addressing abortion, then abortion would be “legalized.”
The difference, though, is not merely semantic. If something is legalized, it has the state’s – even society’s – approval. It is something that must be enabled – taxpayer funding of abortion, the silencing of protests through bubble zone injunctions, prevention of informed consent for women and parental notification for minors seeking abortion, etc. – by the state.
When the likes of Judy Rebick or the Toronto Star talk about abortion being legalized, they are subtly proclaiming a right to abortion that Canada has never recognized.
