Did the January 28, 1988 Supreme Court decision grant Canadian women the “right” to abortion? Despite newspaper headlines and first impressions, it did not.
Only one of the seven judges, Mme Justice Wilson, argued the case for every woman’s right to kill her pre-born baby. The others rejected this idea outright or based their decisions on different grounds.
One must understand that the five judges who formed the majority opinion striking down Section 251 of the Criminal Code provide three distinct sets of reasoning which agreed on only one point: that Section 251 was unconstitutional under Section 7 of the Charter.
Dickson and Lamer
Chief Justice Dickson and Mr. Justice Lamer ruled that the procedures required by Section 251 (abortion committee, delays, uncertainty of approval, etc.) created serious state-imposed psychological stress, thus constituting a breach of “security of person” of Section 7 of the Charter. Section 7 states that everyone has the right to life, liberty and security of person.”
“When Parliament creates a defense to a criminal charge,” the two judges said, referring to the fact that under Section 251 abortion was a crime unless done legally according to the stipulations of the Act, “the defense should not be illusory or so difficult to attain as to be practically illusory.”
Beetz and Estey
Justice Beetz and Estey supported their two colleagues on the infringement of the “security of person” clause in Section 7 of the Charter. They concentrated on Subsection 4 of Section 251, which explained that abortions could be done legally when they were supposed to endanger the mother’s life or “health.” Justices Beetz and Estey argued that the term ”health” was far too vague and therefore undermines the “security of person” provision.
Mme Justice Wilson
Only Justice Bertha Wilson spoke of a woman’s “right” to abortion. This is not surprising. Trudeau appointed Wilson to the Supreme Court, in 1982 as a known feminist. In 1966 she had been one of the main drafters of the United Church brief to the Senate House of Commons Committee on Abortion. This brief approved abortion in the most liberal way.
In her judgment, Justice Wilson claims that: “the right to ‘liberty’ contained in Section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require it to respect them.”
Justice Wilson goes on to state: A woman’s decision to terminate her pregnancy falls within this class of protected decisions….”
In other words, Mme Justice Wilson bases her decision on the argumentation used in the United States in the 1973 case of Roe vs. Wade which approved abortion in principle and which permits abortion on demand in the first trimester. The justification for the decision is the so-called “right to privacy,” a right of which practically nobody had heard until 1973.
In 1973, in Roe vs. Wade, the U.S. Supreme Court struck down the anti-abortion statutes of every state in the Union, legalized abortion on demand, and opened the way for the legal killing of some million-and-a-half pre-born children annually. Mr. Justice Rehnquist, now the Chief Justice of the U.S. Supreme Court, condemned this decision saying: “To reach its result the Court necessarily had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the amendment.” That “right” was the newly minted “right of privacy.”
Right to be let alone
According to legal scholars the first hint of say “right” to privacy dates back to an article written by Brandeis and published in the Harvard Law Review early in the century. In that article Brandeis said that owners of letters have the right to prevent their publication, and they have the right to be free from the invasion of the press into their private lives out of “prurient interest.” He quoted another article, which claimed that a person has a right “to be let alone.” In the context of the second article, “to be let alone” meant only the right “not to be hit.”
Some thirty years later Brandeis, now a member of the U.s. Supreme Court, was involved in a case in which wiretapping had been used to get evidence against bootleggers. The question before the Court was whether such evidence was admissible. The Court answered “yes” in a five to four decision, and Brandeis was one of those who dissented. He claimed that wiretapping was an invasion of privacy and against The Fourth Amendment. He added that the “right to be let alone” is the “right most valued by civilized man.” It seems that in his view the right to be let alone was of greater value than the right to life, or the right to liberty.
Justice Holmes, who also dissented, disagreed with Brandeis, he said the “penumbra” of The Fourth Amendment did not include a ‘right to be let alone.’
The U.S. Supreme Court was obviously a long way from ruling that there was a right to privacy which would permit abortion on demand. However, in 1965, in Grisvold v. Connecticut, it took another step that direction. It ruled that a Connecticut statute which prohibited contraception was invalid. The Court said that the statute affected the marital relationship, and that there was a right of privacy tied “to the sacred bond of marriage.”
This was the first mention that there might be a constitutional right to privacy, and its existence was hotly disputed by the minority of the judges. Justice Black said that ‘privacy’ was too wide, too abstract a term to use, and in any case a right to privacy was not in the Constitution. His fellow judge, Justice Stewart, said that no case had ever been decided by the Supreme Court giving consent to a right of privacy.
Four years later in 1969 the Court ruled on Stanley v. Georgia. This case was about the right of someone to look at pornographic pictures in his own home. The Court ruled that the ‘privacy’ of his home gave him the right to this type of sexual gratification.
The case which laid the groundwork for Roe vs. Wade. Roe v. Wade was Elsenstadt v. Baird in 1972. The Commonwealth of Massachusetts had a statute which forbade the distribution of contraceptives to unmarried people. Bill Baird, a leading pro-abortionist in the United States, distributed contraceptives at Boston University, was arrested, an sent to jail by the trial judge. After various appeals the Supreme Court ruled that the Massachusetts law as invalid. Justice William Brennan wrote that the decision “to bear or beget” a child was private whether a person was married or single. Legal scholar, John T. Noonan Jr., commented: “What had been in Griswold the basis of the decision, namely the sacred precincts of matrimony and marital privacy, was turned on its head by Justice Brennan.”
Roe v. Wade
Just one year later, in Roe v. Wade, the Supreme Court “discovered” a right to privacy in the Constitution. According to his critics, Justice Blackmun, who wrote the judgment was not sure whether the right was in the Ninth or the Fourteenth Amendment but, wherever it might be, it gave the right to abortion. This decision marked the first time privacy as a right was found in the Constitution.
Its discovery has been attacked by, almost every legal scholar, even those like Professor Ely who favour a woman’s right to abortion.
Professor Richard Epstein, University of Chicago law School, has one blistering sentence: “Roe [is] symptomatic of the analytical poverty possible in constitutional litigation,” Professor John Noonan stated:
“The liberty established has no foundation in the Constitution of the United States. It was established by an act of raw judicial power. Its establishment was illegitimate and unprincipled, the imposition of the personal beliefs of seven justices on the men and women of fifty States. The continuation of the liberty is a continuing affront to constitutional government in this country.”
In the light of its serious jurisprudential and logical flaws, it is not surprising that six of the seven members of the Canadian Supreme Court, ruling on the Morgentaler case, distanced themselves from Roe. Only Madame Justice Wilson used Roe as a prop to her arguments that a woman’s right to personal autonomy – read “privacy” – gives her the right to abortion. Her opinion, too, was no surprise.
It is generally assumed in legal circles in the United States that Roe v. Wade will be overthrown in the not-too-distant future. Obviously, Justices on the Canadian Supreme Court would not want to be caught short in using Roe, now so discredited, just before the judgment is overturned.
In the intervening years the “right to privacy” has been used to give legitimacy to the claims of many new rights. Courts of Appeal, e.g. in Iowa and New York State, have declared laws against sodomy and homosexual activity unconstitutional.
It is quite easy to see that the right of privacy could be used to legitimize incest, and, indeed, certain types of incestuous behavior are no longer illegal in some states.
The right of privacy is not only claimed as grounds for killing preborn children. Today that same right of privacy has been extended to cover euthanasia and assisted suicide. Other ‘wanted’ groups, the old, the comatose and the handicapped child are now at risk.
Others exercise incompetent patients’ “rights”, with the permission of the courts. Sad to relate, there are many cases where sons and daughters, or husbands and wives demand that incompetent members of their families be starved to death using the patient’s right of privacy, and their right of substituted judgment as an excuse.
U.S. Supreme Court Justice White, in Thornburgh 1986, said of the Court, that, “in Roe it essentially created something out of nothing.” One can only wonder whether any other “nothing” ever created so much evil.
The idea of “potential” life is a popular one, but it has no basis in fact. The late Sir William Liley of New Zealand, a world famous authority on peri-natal medicine, who did the pioneering work on amniocentesis, testified at Joseph Borowski’s Regina trial in May 1983 (to come before the Supreme Court in June). He was asked about “potential” life.
Dr. Liley replied that the word “potential” is not a medical or scientific term. The preborn, he said, are considered growing or developing human beings. “Life, was we deal with it in biology, is defined in absolute terms. Life is either there or not.”
Meanwhile, lawyers and judges are struggling with it in their own way.