Blogging For Choice Day: Why I Am Pro-Choice

Honourable Madam Justice Bertha Wilson

This year’s Blogging For Choice topic is to write about why you’re pro-choice. On the merits of being pro-choice, I have an extensive body of work, and I will hopefully have a piece coming out at the Prospect later today about abortion as a class issue. So today perhaps I’ll take a slightly more personal tack.

My direct interest in the abortion issue is easily traced. The first court decision I remember hearing about and discussing was R. v. Morgentaler, the 1988 decision of the Supreme Court of Canada that ruled Canada’s federal abortion legislation unconstitutional. I gave a speech defending it at that year’s persuasive speech at my high school, and my interest in the subject has never really waned. (One can probably also trace my eventual decision to become a scholar of law and courts back to that decision too, although I would have never dreamed it at the time.) Morgentaler is worthy of examination by American supporters of reproductive freedom, because it addresses some issues that its American counterpart (with the partial exception of William O. Douglas’s short, brilliant concurrence in Doe v. Bolton) doesn’t. While I strongly believe that Roe v. Wade was correctly decided (1, 2, 3), like almost everybody I find Blackmun’s opinion for the Court deficient in many respects. Morgentaler is not the perfect opinion, but is does a much better job with similar legal materials.

The Court in Morgenlater was divided and produced two broad rationales, both of them compelling. The first–based in procedural due process–I’ve already discussed. Canada’s abortion law required that a woman obtain a certificate from a “Therapeutic Abortion Committee.” (This is very relevant to the American case, because similar legislation was the preferred “reform” legislation in American states as well. Being more concerned with the rights of doctors than the rights of women, it’s sort of the holiest of holies for abortion “centrists.”) The opinions of Chief Justice Dickson and Justice Beetz meticulously detailed the irrational construction and arbitrary operation of these committees, and correctly argued that a women’s fundamental rights could not be violated in such a manner. As I’ve said before, I like this opinions because 1)they focus on how abortion statutes work in practice and their tenuous-at-best relationship to protecting fetal life, and 2)because they call the bluff of the “pro-lifers.” The other (and most famous) concurrence was by the first woman to serve on Canada’s highest court, Justice Bertha Wilson. I wish that she had linked her analysis to the gender equality provisions of The Charter of Rights and Freedoms rather than making a more straightforward substantive due process argument (although it’s embarrassing to Harry Blackmun that her opinion shows much greater command of the relevant American precedents than its American counterpart.) Wilson does, however, explain very eloquently why reproductive freedom is critical to the dignity of women, and her explanation is a good way to conclude a post on Roe‘s anniversary:

I agree with my colleague and I think that his comments are very germane to the instant case because, as the Chief Justice and Beetz J. point out, the present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.

…In comments, Pithlord points out that s.15 of the Charter didn’t apply at the time of the alleged offense, so Wilson couldn’t refer to it (and, for reasons I don’t fully understand, the explicit guarantee of gender equality in s.28 has done very little work in Canadian constitutional law.)