Constitutional limits surround abortion debate

There’s some wiggle room but not very much, says Sarah Burningham.

Abortion made headlines in Saskatchewan recently as Saskatchewan Party leadership candidates weighed in on the issue.

The opinions ranged from Tina Beaudry-Mellor’s pro-choice stance to Ken Cheveldayoff ’s support for legislation restricting the procedure. This op-ed is not about whether the provincial government should or should not legislate on abortion.

Rather, I want to address the question of what sort of law would be constitutionally permissible if a government were so inclined to act.

Contrary to popular belief, the Supreme Court has never categorically held that Canadian women have an absolute right to abortion under the Charter. An influential opinion by Madam Justice Wilson, however, found that Sec. 7 protects a woman’s right to choose whether to receive an abortion, partially on the basis that this is an intensely personal and private decision properly in the hands of the individual and not the state.

The reasoning underlying Justice Wilson’s opinion has been largely accepted by the Court in later cases, most recently in Carter v Canada, where the Supreme Court partially struck down the Criminal Code provision prohibiting assisted suicide. If the abortion issue came before the Supreme Court again, it is likely the Court would accept Justice Wilson’s position that Sec. 7 includes a right to abortion.

It should be noted that Justice Wilson acknowledged that the government’s interest in protecting the fetus means that some restriction on abortion in the later stages of pregnancy may be appropriate. However, a blanket law that subjects women to state control at all phases of pregnancy could not pass constitutional muster.

Accordingly, legislation that completely prohibited abortion would be vulnerable to a Charter challenge. Perhaps some restrictions on the practice — something short of a full ban — would be permissible. But such legislation would have to be carefully tailored in order to respect the Charter rights at play.

As Rob Clarke observed, there is a route to circumvent the Charter: The notwithstanding clause.

This constitutional provision allows governments to enact legislation that infringes Charter rights. Legally, Parliament could invoke this clause to pass abortion legislation that would otherwise contravene Sec. 7. Politically, though, the provision has proven publicly unpopular and thus difficult to use.

There is a further wrinkle for Sask. Party leadership hopefuls to consider. Prohibition of abortion falls within federal jurisdiction over the criminal law.

The Constitution sets out matters on which federal Parliament and provincial legislatures have authority to legislate, which is called “the division of powers.” Provincial legislation that seeks to restrict or punish abortion falls outside the province’s legislative jurisdiction, and thus is unconstitutional under this division of powers.

There is some room for the province to legislate on abortion, provided it is treated as a health procedure and the legislation is aimed at the protection of women’s health. But any attempt by the provincial government to prohibit abortion completely or restrict access for reasons not related to women’s health would fall outside the scope of provincial competence. And the provincial government cannot use the notwithstanding clause to get around this constitutional barrier. The notwithstanding clause only permits governments to pass laws that infringe Charter rights; it does not let governments opt out of other constitutional provisions.

So there is some legislative room to regulate abortion, but any legislation must be carefully crafted with close attention paid to potential constitutional pitfalls.

Some federal restrictions may be permissible under the case law as it currently stands, but very restrictive legislation would be vulnerable to a Charter challenge. Provincially, the legislature could pass laws dealing with abortion as a health matter, but any attempt to prohibit or punish it would be an unconstitutional overreach into federal jurisdiction.

These constitutional limitations should inform the discussion of this hotbutton issue.