The Galloping Beaver
In short, abortion was decriminalized - it was not established as a woman's right.
Not entirely true actually, as the court interpreted the issue as a matter of security of the person:
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.
In short, R. v Morgentaler makes it very difficult to make any basically safe medical procedure criminal.
Thanks Grog. That provides a better explanation than I've heard.
Is that reversible? The reason I ask is that the Harperites were clearly prepared at one point to ignore that decision.
I'm not sure that it would be impossible to reverse, but it would depend on managing to make things like the "Unborn Victims of Crime" act stand in court.
Then one (theoretically) has opened the door to "recognizing the fetus as a person" legally, and then you have a tension between the rights of the mother and the rights of the fetus with respect to "security of the person" that would have to be examined. (That said, I'm not a lawyer, only a rank amateur that's spent far too much time reading legal decisions in recent years - so my analysis is likely quite flawed)
The Harperites are more likely to try and "starve" abortion indirectly by way of policy "guidance" from the "reproductive technologies panel" that is heavily stacked with theocons.
I hope we never see that day arrive.
Thanks for posting this Dave. It's great to find blogs with a Canadian perspective.
Harper could use the notwithstanding clause, because I don't think a section 1 challenge would work.
But I don't intend to ever see that day dawn again. I have a daughter and a gun.
Let them try.
Harper could use the notwithstanding clause, because I don't think a section 1 challenge would work.
Unless I miss my guess, Harper's not quite that naive. Using s. 33 to reinforce a law against abortion would essentially be a tacit admission that he is attacking the rights and liberties of women.
Even the more conservative leaning women I know would react negatively to that.
Actually, I would put nothing past Harper.
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