Abortion a Charter right

Morgentaler decision found law restricting access to abortion violated women’s rights

Re: Trudeau denying charter rights, Feb 6, The Guardian. Kevin J Arsenault claims abortion is not a Charter right, but he is wrong.

The 1988 Supreme Court Morgentaler decision found that the law restricting access to abortion violated women’s right to security of the person — and one judge said in addition, the rights to liberty and conscience.

This means you cannot restrict abortion without violating Charter rights.

Obviously, the word abortion does not need to appear in the Charter itself — rights are stated broadly and it’s the task of judges to interpret whether a specific issue involves a Charter right. Court decisions have often expanded Charter rights, and this associated case law essentially becomes part of Charter law.

Subsequent court decisions have strengthened the Charter-based right to abortion, including on the basis of gender equality rights, and rights to life, liberty, and privacy. (http://ottawacitizen. com/opinion/columnists/ gilbert-student-jobs-grant-program-respects-charter-rights Since 1988, all provincial and federal court cases related to abortion (http://www.arcccdac.ca/court-decisions-lawsabortion-canada.pdf) have upheld women’s rights and denied fetal rights on the basis that this would infringe women’s Charter rights.

The evolution of Charter and abortion-rights jurisprudence have now established a secure Charter right to abortion.

It’s unlikely that any law restricting abortion or granting rights to fetuses would withstand constitutional scrutiny today.

Under the right to equality alone, anti-abortion restrictions would be discriminatory because they apply only to women. And of course, fetuses have no rights — they are not persons under the law until born alive.

The Supreme Court often notes that it’s up to Parliament to legislate because that is not the court’s jurisdiction. But Parliament passes laws only if necessary or desirable.

All governments after 1988 have fulfilled their duty by stating they will not legislate on abortion.

And 30 years later, Canada has successfully proved to the world that no abortion law is necessary. Our low abortion rates compare favourably to many countries in western Europe, and are generally much lower than in countries with strict anti-abortion laws. (https://www.guttmacher.org/fact-sheet/induced-abortionworldwide).