A common strategy employed by “pro-choice” advocates today is to claim that women in Canada have the constitutional right to abortion. For example, Justin Trudeau, speaking in 2014 before he had yet become Prime Minister, said: “Since 1988, the Supreme Court of Canada has affirmed that a woman’s right to choose in this matter is part of her fundamental rights and freedoms…. And Canadians need to count on the fact that Liberals, with our votes, will defend women’s rights and Charter rights.”
More recently, Michael Coren, writing in the Toronto Stardefending Trudeau’s Summer Jobs attestation requirement, said: “A woman’s right to choose, of course, is one of the fundamentals of Canada’s health care, legal and moral framework.”
Although this strategy may be rhetorically effective, it is completely without warrant or justification. There are, at least, three problems with the claim that women have the constitutional right to abortion.
First, the Charter of Rights and Freedoms is neutral on the issue of abortion. In his dissent in R. v. Morgentaler Justice William McIntyre, with Justice Gerard La Forest concurring, said, “the Charter is entirely silent on the point of abortion.” Furthermore, McIntyre, after examining the transcripts of the Parliamentary debate concerning the Charter, as well as the minutes of the Special Parliamentary Committee on the Constitution, claimed that this silence was intentional. Although Prime Minister Justin Trudeau claims that the “right to choose” abortion is enshrined in the Charter, his late father, Pierre Elliot Trudeau, the “father” of the Charter, explicitly stated that the Charter was silent about abortion. Speaking of abortion he said” “the Charter is absolutely neutral on this matter.” Elsewhere he said, “no provision of the Charter is reasonably capable of an interpretation that would either enshrine a right to abortion or a right to life for the unborn.” The political scientists F.L. Morton and Rainer Knopff have written, “During the framing process, the Trudeau government rejected numerous petitions from both pro-choice and pro-life groups to entrench their respective positions in the Charter. There was strong evidence that influential framers intended to leave abortion entirely to the regular political process, beyond the scope of judicial review.”
McIntyre, in his dissent, argued that because the Charter is silent about the abortion issue, the issue should be left to Parliament to decide, “The solution to this question in this country must be left to Parliament. It is for Parliament to pronounce on, and to direct, social policy.”
In a parliamentary democracy, such as Canada is supposed to be, important public policy issues like abortion should be resolved by legislators who are elected, accountable, and representative, not by judges who are unelected, unaccountable, and unrepresentative.
Second, contrary to the claims of some “pro-choice” advocates, the Supreme Court, in R. v. Morgentaler(1988), did notrule that women have the constitutional right to abortion-on-demand. Recently, in response to the misinformation circulating concerning the verdict reached by the Supreme Court of Canada in R. v. Morgentaler, former P.E.I Supreme Court Chief Justice Gerard Mitchell wrote a letter to The Guardianin which he said, in part: “The case was heard by a panel of seven judges. Five of the seven ruled to strike the law down. Four of the five majority judges ruled that the law violated a woman’s right to security of the person under s. 7 of the Charter of Rights and Freedoms. The other majority judge, Madam Justice (Bertha) Wilson, ruled the section violated a woman’s rights to security of the person and liberty under s. 7 as well as her freedom of conscience under s. 2(a). All five majority judges found the provisions were too restrictive to be saved by s. 1 of the Charter. The two minority judges held the section did not violate the Charter in any way.”
Mitchell continued: “None of the seven judges held that there was a constitutional right to abortion on demand.”
Other legal scholars reinforce this view of the Morgentalerdecision, that women do not have the constitutional right to abortion.Shelley A.M. Gavigan, Osgood Hall law professor: “The Supreme Court’s decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue. Daphne Gilbert, associate professor of law, University of Ottawa: “The Morgentaler decision didn’t say a woman has a constitutional right to abortion, it didn’t go that far.”
Gilbert also said that even if the state fails to protect the “inalienable rights of its citizens … these rights, they continue to exist.” She made the point that Jews were “deprived of their legal rights by the highest court of Nazi Germany in 1936,” but that did not make their slaughter any less a violation of their natural rights.
It is one of the primary purposes of government to protect the weak from being crushed by the strong. To quote Thomas Jefferson, “the chief purpose of government is to protect life. Abandon that and you have abandoned all.” The fact that the Canadian government has not only failed to safeguard and protect the inalienable rights of pre-born children, but has itself deprived them of these rights, is a manifest injustice. Indeed, it is tyrannical.
Tim den Bok is director of A Voice for the Pre-Born.