Abortion is a fundamental right in Canada. Really?
A government elected at the federal level with the promise to criminalize abortion again would only have to invoke the notwithstanding clause to achieve its ends. Are we so far from this scenario? Answers with Julien David-Pelletier.
We would like to be able to say that some fights are behind us. That feminist struggles for equality have borne fruit. That it would be embarrassing today, in Canada, to resume the discussion on the right of women to freely dispose of their bodies. That our " home sweet home " is not like Alabama, which has just banned abortion on its territory , even in cases of rape or incest. That our Charter of Rights and Freedoms is immutable and protective of these essential rights.
However, the right to abortion remains subject to the possibility of using the derogation provision, when other rights (linguistic in particular) are not. This provision, which is also at the heart of the bill on secularism currently being debated in the National Assembly , makes it possible to exempt a law from judicial review for a period of five years, making politics prevail over the legal.
In other words, a government elected at the federal level with the promise to criminalize abortion again would only have to invoke the notwithstanding clause to achieve its ends.
Are we so far from this scenario? The floor is up to political scientists, but the various legal battles of recent years lead us
to believe that it is still essential to remain vigilant.
However, the right to abortion remains subject to the possibility of using the derogation provision, when other rights (linguistic in particular) are not. This provision, which is also at the heart of the bill on secularism currently being debated in the National Assembly , makes it possible to exempt a law from judicial review for a period of five years, making politics prevail over the legal.
In other words, a government elected at the federal level with the promise to criminalize abortion again would only have to invoke the notwithstanding clause to achieve its ends.
Are we so far from this scenario? The floor is up to political scientists, but the various legal battles of recent years lead us
to believe that it is still essential to remain vigilant.
Little throwback. In 1988, it was thanks to the Morgentaler judgment of the Supreme Court of Canada that abortion was decriminalized. Dr. Morgentaler, along with a few colleagues at his abortion clinic, were charged with "conspiracy with intent to procure abortions", offenses then provided for in the Criminal Code. If abortion is legal today, it is because these provisions have been invalidated under the Canadian Charter. And although this famous judgment is now more than 30 years old, pro-life groups continue to be very active today, and several obstacles to abortion rights persist in Canada.
Harassment against freedom of expressionIn 2016, the Minister of Health of Quebec submitted a law to the National Assembly restricting pro-life demonstrators from asserting their positions at least 50 meters away from any abortion clinic. This followed several complaints of harassment
from patients and staff of these establishments.
Very recently, a Quebec doctor, accompanied by the anti-abortion group, Campagne Québec-Vie , however, filed a legal request aimed at invalidating this law , pleading the freedom of expression of the demonstrators.
Harassment against freedom of expressionIn 2016, the Minister of Health of Quebec submitted a law to the National Assembly restricting pro-life demonstrators from asserting their positions at least 50 meters away from any abortion clinic. This followed several complaints of harassment
from patients and staff of these establishments.
Very recently, a Quebec doctor, accompanied by the anti-abortion group, Campagne Québec-Vie , however, filed a legal request aimed at invalidating this law , pleading the freedom of expression of the demonstrators.
Yet such laws exist elsewhere in the country. A similar case was heard before the British Columbia Court of Appeal in 2007, but was unsuccessful. That province's Abortion Services Access Act is still in effect today. Courts balance the right to freedom of expression of pro-life protesters with the right to security and privacy of women who use the services of these clinics. Will the Superior Court of Quebec hear it otherwise? It is permissible to doubt it.
Poor accessAlthough abortion is decriminalised, it seems that access to it is not guaranteed in certain regions of the country. Until 2016, women did not have access to abortion services in Prince Edward Island . They had to go to New Brunswick or Nova Scotia to benefit from it. (Another) lawsuit under the Canadian Charter against this government forced the latter to make voluntary termination
of pregnancy available to women in the province.
By the way, you read that right: 2016, 28 years after the lawsuit against Dr. Morgentaler ended.
Poor accessAlthough abortion is decriminalised, it seems that access to it is not guaranteed in certain regions of the country. Until 2016, women did not have access to abortion services in Prince Edward Island . They had to go to New Brunswick or Nova Scotia to benefit from it. (Another) lawsuit under the Canadian Charter against this government forced the latter to make voluntary termination
of pregnancy available to women in the province.
By the way, you read that right: 2016, 28 years after the lawsuit against Dr. Morgentaler ended.
Even today, many Aboriginal communities and several regions of Canada suffer from this lack of access to a service that is perfectly legal in Canada and supposed to be covered by the various health insurance plans. Although Quebec accounts for no less than 50% of abortion clinics in the country, the distribution of these clinics remains unequal depending on the region.
In New Brunswick, funding for abortion is granted only in hospitals, whereas it is the universality of the public health care system that should be guaranteed by the Canada Health Act . Health Canada was still concerned about access to this care in its 2016-2017 annual report for this province. Until 2014, women had to seek the advice of two doctors to obtain an abortion.
This means that women's concerns are still perfectly justified and legitimate in 2019. And this is not the statement of an Ontario Conservative MP who wants to make abortion an " unthinkable " thing in Canada, or that of a Manitoba federal deputy who shouts in the middle of the House that “ abortion is not a right ” or even certain populists who see a parliamentary debate on the question
as a “beautiful risk”, which will reassure them.
In New Brunswick, funding for abortion is granted only in hospitals, whereas it is the universality of the public health care system that should be guaranteed by the Canada Health Act . Health Canada was still concerned about access to this care in its 2016-2017 annual report for this province. Until 2014, women had to seek the advice of two doctors to obtain an abortion.
This means that women's concerns are still perfectly justified and legitimate in 2019. And this is not the statement of an Ontario Conservative MP who wants to make abortion an " unthinkable " thing in Canada, or that of a Manitoba federal deputy who shouts in the middle of the House that “ abortion is not a right ” or even certain populists who see a parliamentary debate on the question
as a “beautiful risk”, which will reassure them.
Julien David-Pelletier
Society
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Society
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