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OPINION: A bridge too far

No right to abortion enshrined in the Canadian Charter of Rights and Freedoms.
No right to abortion enshrined in the Canadian Charter of Rights and Freedoms. - The Guardian

Supreme Court decision did not hold that there is a constitutional right to abortion

BY GERARD MITCHELL

GUEST OPINION

I am writing in response to a guest opinion piece by the executive director of the Abortion Rights Coalition of Canada published in The Guardian on Feb. 13 under the headline “Abortion a Charter right.” Specifically, I disagree with the author’s assertion that the Supreme Court of Canada decision in the 1988 Morgentaler case “means you cannot restrict abortion without violating Charter rights.”

I also disagree with her assertion that “the evolution of Charter and

abortion- rights jurisprudence have now established a secure Charter right to abortion.”

These two assertions are not true. It is true that a majority of the judges of the Supreme Court of Canada who sat on the Morgentaler case struck down the then-existing abortion law in the Criminal Code because it was

so restrictive it violated the s. 7 Charter rights of women.

However, the Supreme Court’s decision did not hold that there is a constitutional right to abortion. Such a reading of the case is a bridge too far. The decision did not say or imply that Parliament cannot restrict abortion without violating Charter rights.

The court did say that balancing the protection of the unborn with the health of women is a valid governmental objective. The Court therefore left the door open for Parliament to enact an abortion law that comports with Charter standards. In fact, the Mulroney government unsuccessfully tried to do so twice. It remains open for Parliament to try again.

Meanwhile the country has no law protecting the unborn. None of the seven judges who sat on the Morgentaler case held there was a constitutional right to abortion on demand. The one judge who held there was any constitutional right to abortion limited its application to the relatively early stages of pregnancy. All of the judges recognized

that protection of the unborn is a valid objective of Parliament. Even Madam Justice Wilson, who found a limited Charter right to abortion, left it to legislators to decide the point in time when the state interest in the fetus would become so compelling as to justify restrictions.

The Supreme Court has not reversed or altered its 1988 decision.

Despite the failure of Parliament to pass a new law these past 30 years, the Morgentaler decision has not somehow morphed into a ruling that abortion is a Charter guaranteed right. Parliament retains the power,

even if presently not the will, to enact a law that balances the rights of women with the state’s legitimate interest in the protection of its unborn. Doing so would take Canada off the very short list of nations that provides no legal protection what-so-ever for the unborn.

- Gerard Mitchell, Charlottetown, is a former chief justice of the Supreme Court of Prince Edward Island

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