Introduction
- Canada currently does not have any active criminal laws penalizing abortion
- The Canada Health Act governs the proper process of abortion in Canada
- Provision of abortion in Canada varies by province
Thesis
- The due observation and respect towards abortion rights in Canada stands as inviolable under the Canadian Charter of Rights, in light of the fundamental principle of protection to life through the autonomy of decisions on the health and body of Canadian women from state intervention.
Body: Abortion Rights under the Canadian Charter of Rights and Freedoms
- Article 2(a)
- MAIN IDEA: Abortion is an issue severely debated by both religious and nonreligious sectors – the former mostly contending against its perceived termination of life and the latter arguing for medical reasons and fundamental rights, among many others.
- NEGATIVE POINT: With religion being central against the issue of abortion per se, early Canadian history has since shown struggles from pro-choice activists in their quest to make abortion a legal procedure without state intervention.
- AFFIRMATIVE POINT: By virtue of freedom over religion and beliefs, religious groups may therefore not impose against abortion in Canada for reasons rooted on moral principles that may not be the same as with all other religions in the nation.
- Article 7
- MAIN IDEA: The main argument of parties supporting abortion rights in Canada revolves around the guarantee of life, liberty and security of the person provided under the Canadian Charter of Rights and Freedoms, particularly Article 7.
- NEGATIVE POINT: Pro-life laws against abortion used to operate within the Canadian legal system in the form of Section 251 and its amended version, Section 287, of the Canadian Criminal Code, both of which allowed abortions subject to the deliberation of a hospital-based Therapeutic Abortion Committee formed by three doctors.
- AFFIRMATIVE POINT: The landmark Supreme Court case of R. v. Morgentaler determined that Section 287 (amendment of Section 251) of the Canadian Criminal Code, which it has stricken down, presupposes the control of the state over the pregnancy of Canadian women – a clear breach of Article 7.
- Article 15
- MAIN IDEA: There is an understanding that pregnancy is a biological phenomenon exclusively experienced by women.
- NEGATIVE POINT: Abortion, under the pro-life lens, is a criminal act, regardless if it appears discriminatory against women, given any fetus is bound to become a legally recognized human after birth.
- AFFIRMATIVE POINT: Pro-life arguments against abortion would not stand a chance against the message sent by Article 15, for such would entail the banning of a procedure only women could suffer; issue is focused not on the contentious legal persona of the fetus, but on the autonomy of Canadian women on decisions over their bodies.
Conclusion
- The lack of abortion laws in Canada stemmed from the application of the fundamental rights principle under the Canadian Charter of Rights and Freedoms, particularly under Articles 2(a), 7 and 15, which protects the security of Canadian women. Such protection involves respecting the decision of Canadian women on matters involving their bodies; the presence of abortion laws in Canada thus provides as a contravening measure to the foregoing principle.
Introduction
Canada is one of the few nations in the world that does not expressly condemn abortion by law. Cases involving abortion lie under the Canada Health Act, although in itself it is not a criminal offense. The lack of legal restrictions on abortion, however, does not preclude problems involving accessibility and regulations, within which potential perils lie against Canadian women. Variations on the provision of abortion procedures differ according to different provinces in Canada, ranging from full subsidies coming from the provincial government to the complete lack of facilities providing abortion such as clinics and hospitals.
Thus, this study aims to explore the rights of Canadian women to abortion. The due observation and respect towards abortion rights in Canada is inviolable under the Canadian Charter of Rights, in light of the fundamental principle of protection to life through the autonomy of decisions on the health and body of Canadian women from state intervention. The legal status of abortion in Canada as technically an unrestricted medical practice allows Canadian women to have the discretion of undergo it, upon due consultation with her doctor. The Canadian Charter of Rights and Freedoms provide the basic framework for this study on identifying the rights of Canadian women to abortion. Issues on any potential support or violations against the rights of Canadian women to abortion form a substantial part of the findings of this study.
Abortion Rights under the Canadian Charter of Rights and Freedoms
Article 2(a)
Abortion is an issue severely debated by both religious and nonreligious sectors – the former mostly contending against its perceived termination of life and the latter arguing for medical reasons and fundamental rights, among many others. With religion being central against the issue of abortion per se, early Canadian history has since shown struggles from pro-choice activists in their quest to make abortion a legal procedure without state intervention. With the eventual buildup towards legalizing abortion through upholding Article 7 of the Canadian Charter of Rights and Freedoms presently institutionalized – a matter discussed in the succeeding section, Article 2(a) has emerged as one that has a strong significance to the issue. Part of the fundamental right imparted by Article 7 in justifying the legalization of abortion in Canada is the need to respect the “freedom and conscience and religion” of pregnant women wishing to undergo the procedure, which is exactly the main point raised by Article 2(a). By virtue of freedom over religion and beliefs, religious groups may therefore not impose against abortion in Canada for reasons rooted on moral principles that may not be the same as with all other religions in the nation. Religion and morality – beliefs, in general, does not come in a “one-size-fits-all” size; not all people in Canada observe the same beliefs. Therefore, if abortion becomes illegal in Canada on pro-life grounds rooted in religion and beliefs, it would inevitably affect those who do not share the same beliefs but would benefit anyway from the procedure, just like during the times when the procedure was restricted between 1869 and 1988. In turn, Canadian women who do not agree with the pro-life principles against abortion and choose to undergo the procedure may face arrest on criminal grounds, technically due to upholding their beliefs – a clear indication of Article 2(a) (Kiefer, 2012).
Article 7
The main argument of parties supporting abortion rights in Canada revolves around the guarantee of life, liberty and security of the person provided under the Canadian Charter of Rights and Freedoms, particularly Article 7. The right of every Canadian “to life, liberty and securityin accordance with the principles of fundamental justice”, as stated in Article 7, has become the main argument of supporters of abortion rights in Canada and is duly applied as the main argument in the landmark R. v. Morgentaler case (Cole & Frankowski, 1987; Constitution Act, 1982). Morgentaler became a significant development to the present legal state of abortion in Canada, in that it ruled against carrying out criminal threats to pregnant Canadian women wishing to abort their fetus because such constitutes a violation to their right to security of person under Article 7. Moreover, Morgentaler determined that Section 287 of the Canadian Criminal Code, which it has stricken down, presupposes the control of the state over the pregnancy of Canadian women – a clear breach of Article 7. Thus, Article 7 has paved way for further emphasizing the rights of women to autonomy over their bodies, particularly on the issue of abortion, in turn standing as the main cause behind the current absence of legal restrictions of abortion in Canada (Fischer, 2003; McLachlan, 1997).
Although there is an ongoing legal recognition of the validity of Article 7 of the Canadian Charter of Rights and Freedoms in upholding abortion rights in Canada– both by the effectivity of the Morgentaler decision and the absence of laws criminalizing abortion, arguments against it continue to figure in debates on issues related to abortion. Pro-life laws against abortion used to operate within the Canadian legal system in the form of Section 251 and its amended version, Section 287, of the Canadian Criminal Code, both of which allowed abortions subject to the deliberation of a hospital-based Therapeutic Abortion Committee formed by three doctors. All violations against Sections 251 and 287 stood as criminal offenses - a contention raised by pro-choice activists as violative of the rights presently espoused by Article 7. Both Sections 251 and 287 signified the concern of the Canadian government over the integrity of undertaking abortion, particularly in ensuring its conduction only in circumstances where the health of the pregnant woman is at risk. Yet, pro-choice activists have repeatedly asserted that state intervention over abortion is, in itself, a violation of Article 7 – the main principle upheld by Morgentaler. Regardless of the purpose, abortion is currently not for the Canadian state right now to criminalize; the Canada Health Act currently governs its proper conduct (Johnstone, 2012; Kiefer, 2012; Sabourin & Burnett, 2012).
Article 15
There is an understanding that pregnancy is a biological phenomenon exclusively experienced by women. It would therefore emerge that the denial of abortion to Canadian women would serve as somewhat a discriminatory measure against them under the principle imparted by Article 15 of the Canadian Charter of Rights and Freedoms. Guaranteeing all Canadians with equal protection under the laws, Article 15 may therefore fit in Sections 251 and 287 of the Canadian Criminal Code as discriminatory measures against women. Following from Morgentaler, which held that Sections 251 and 287 has violated Article 7 by denying Canadian women the fundamental right over securing their lives and holding decisions over their bodies through state intervention on abortion, anti-abortion laws may also serve as illegal under Article 15, as it discriminates against the biologically exclusive right of Canadian women to undergo abortion. As a procedure exclusive to women, abortion in Canada should not face any legal bans under Article 15, as those deliberately entrench on a procedure applicable only to women. Anti-abortion laws serve as entrenchments against the guarantee set by Article 15, given that those would deprive women from undergoing abortion - a decision that requires their full and unadulterated consent. Pro-life arguments against abortion would not stand a chance against the message sent by Article 15, for such would entail the banning of a procedure only women could suffer (Kiefer, 2012).
Conclusion
Abortion has been a highly controversial issue in the history of Canada, given that it has sparked endless debates on the role of the state over it and the autonomy of Canadian women over decisions involving their bodies. Historically, abortion has been a banned activity in Canada due to pro-life assertions over the legal status of all fetuses carried by pregnant Canadian women. Yet, the developments that happened in 1960s, the introduction of the Canadian Charter of Rights and Freedoms and the Morgentaler decision all contributed to the present status of abortion in Canada as a legal medical practice. Pro-choice activists have pushed for the rights of Canadian women over affairs involving their bodies and have consistently noted that state intervention through abortion laws serves as a severe contravention. The Morgentaler decision further affirmed said argument by formally striking down Section 287 of the Canadian Criminal Code. Subsequent attempts to introduce anti-abortion laws in Canada failed, in an apparent showing of growing awareness towards the main point raised by the Morgentaler decision. Therefore, the lack of abortion laws in Canada stemmed from the application of the fundamental rights principle under the Canadian Charter of Rights and Freedoms, particularly under Articles 2(a), 7 and 15, which protects the security of Canadian women. Such protection involves respecting the decision of Canadian women on matters involving their bodies; the presence of abortion laws in Canada thus provides as a contravening measure to the foregoing principle.
References
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McLachlan, H. (1997). Bodies, rights and abortion. Journal of Medical Ethics, 23 (3), 176-180.
Part I: Canadian Charter of Rights and Freedoms. (1982). Constitution Act, 1982. Retrieved January 20, 2014, from http://laws-lois.justice.gc.ca/eng/const/page-15.html.
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