Constitutionalizing Abortion Rights in Canada.

• Author: Erdman, Joanna N.

CONTENTS Constitutionalizing Abortion Rights in Canada Joanna N. Erdman Introduction 225 I. Feminist Activism in the Back-Alley 230 II. Adjudication in the Courts 239 III. Institutionalization in Markets and Medicine 246 Conclusion: A Collective Democratic Future 257 INTRODUCTION

Ottawa figures as an important place on the 35th anniversary of the Canadian Charter of Rights and Freedoms (Charter), (1) and the 150th anniversary of the Constitution Act (Constitution). (2) Ottawa is also an important place for the constitutionalization of abortion rights in Canada, but not for the reasons one may first assume--namely that Ottawa is the seat of Parliament and home to the Supreme Court of Canada (the Court). Ottawa was a critical site for the women's liberation movement. In 1970, it marked the destination of the cross-country Abortion Caravan, which carried women's liberation activists to Parliament Hill to demand the repeal of the 1969 criminal abortion law. (3) The caravaners announced their arrival with a blistering letter to then Prime Minister Pierre Trudeau and his Ministers of Health and Justice, which read:

We are FURIOUS WOMEN in a nation that does not recognize or respect our basic rights as human beings and citizens of Canada.

We charge the Government of Canada with violation of its responsibility and trust to serve all of its citizens. We charge the Government of Canada with the following:

1. Of being responsible for the MURDER BY ABORTION of 2,000 CANADIAN WOMEN who die each year from illegal abortions.

2. Of being responsible for the hospitalization and possible mutilation of 20,000 WOMEN, who enter hospitals for treatment of complications arising from illegal abortions.

3. Of being responsible for the psychological, physiological and economic oppression and degradation of thousands of women who forced into unwanted motherhood...

We, therefore, demand... [t]hat Abortion (Section 237) be removed from the Criminal Code of Canada...

We are angry, furious women and we demand our right to human dignity. (4)

Twenty-five years later, local abortion rights activists issued a similar charge and demand in a quieter encounter in Charlottetown, Prince Edward Island (PEI). A veteran activist stepped onto the elevator of a government administration building, greeted by the PEI Premier who asked "[y]ou're coming up to see us this morning?" (5) Indeed she was to serve notice of an intention to challenge the province's restrictive abortion policy as a violation of women's Charter rights, and to bring local and safe abortion services back to the Island. (6) Months later, with no case won or even litigated, the Premier announced that his government would not contest the challenge. He agreed the provincial abortion policy was likely unconstitutional. (7) "The character of all places changes and evolves," he said, "[i]t's one of those things that comes at its time." (8)

The objective of this article is precisely to study how constitutional abortion rights in Canada change and evolve over time. Most would begin such an analysis with R v Morgentaler (Morgentaler 1988). (9) In this landmark 5:2 ruling, the Supreme Court of Canada struck down the 1969 criminal abortion law as unconstitutional, and with Parliament's failure, and later lack of desire, to enact a new law, abortion in Canada remains decriminalized today. Yet, in Morgentaler 1988, the Supreme Court was deeply divided as to how to frame the abortion right. (10) Three different opinions formed the majority, with none achieving more than two signatures. (11) This diversity in constitutional meaning, however, predates and postdates Morgentaler 1988. This feature of abortion rights reflects a more general phenomenon of constitutional rights: the ways in which rights carry multiple meanings, some dominant and others marginal, and how this mix of meaning changes over time. Sometimes this change happens in a paradigmatic shift--omnibus criminal law reform or a Supreme Court judgment. Sometimes it occurs outside formal lawmaking and unmarked by legal judgment: a caravan on Parliament Hill or a hand-delivered envelope. Thus, that Morgentaler 1988 remains the reference case for abortion rights today marks not stability in constitutional law, but rather the remarkable capacity for abortion rights both to accommodate and to shape normative change.

The article therefore does not study constitutional abortion rights through legal doctrine alone, but situates Morgentaler 1988 in historical context. Structured as a retrospective and prospective case study, it endeavours to understand the feminist activism from which constitutional abortion rights were born, as well as the influences of these rights on continued feminist activism for reproductive justice. It is a socio-legal analysis based on the relationship between doctrine and discourse, law and politics, and the state and its members. The article takes seriously the idea that abortion rights are not forged in legal text or doctrine, but by those who claim and organize around them and the institutions of the state that give meaning and expression to them. Together, these claims and demands, and the ideas and practices that shape and express them, over time and in new political contexts, have fundamentally shifted the meaning of abortion rights in Canada over the 150 years of its Constitution, not least the 35 years of its Charter, and will continue to do so into the future.

Part I briefly reviews the state of abortion law and practice prior to and immediately after the 1969 criminal abortion law reform, with attention to feminist activism through direct service provision as part of a national campaign to repeal the criminal law as a matter of constitutional justice. Throughout this review, the article emphasizes abortion as a site of overlapping feminist discourse. The campaign for repeal was radical in its opposition to patriarchal culture, left in its critique of capitalist society, and liberal in its demands for legal rights and equality. (12) The capacity for abortion rights to carry multiple meanings was present in the very claim for them, which was critical to broad-based feminist support for them across different political commitments.

Part II turns to the courts, including Morgentaler 1988 and the three opinions that formed the plurality judgment of the Supreme Court. The article draws attention, in particular, to differences in how each judge responded to and channelled feminist constitutional claims in their reasoning. This part begins by exploring the continuity of constitutional ideas between feminist liberation action and the defence of necessity in the physician civil disobedience trials that ultimately led to the constitutional challenge in Morgentaler 1988. The physicians' argument that their clandestine services were necessary to avoid the graver harm of obeying the law, and the Supreme Court's engagement with this argument, gave voice to liberation feminists' clandestine service provision as political action necessitated by the injustice of the criminal law. Dr. Morgentaler and his colleagues endeavoured to put the law on trial, and with the introduction of the Charter, they could do so directly. In turning to the landmark Morgentaler 1988 judgment, the article explores how the Court's section 7 security of person analysis both reaffirmed the feminist view of abortion rights as resistance against an unjust state, but also de-radicalized this resistance by reconstituting abortion rights as a right to access safe and timely therapeutic care. Abortion rights suffered the same fate in the lone opinion of Justice Wilson, who reconstituted abortion rights in a liberal feminist tradition as a private right of personal choice unencumbered by the state.

Part III reverses the direction of influence to examine how Morgentaler 1988 shaped popular understandings of abortion rights, and a new wave of activism within a new political climate. The article studies the ways in which liberal abortion rights exacerbated, rather than alleviated, social inequalities in access by cutting a constitutional path to the withdrawal of the state from and the privatization of abortion care. Against this outcome, feminist activists returned to the narrower security rights of Morgentaler 1988, and the promise of universal abortion access in the Canadian health care system. Yet, by channelling feminist activism through the logic and institutions of the health care system, the politics of abortion became the politics of health care. Charter litigation over abortion funding, for example, took on the same market rationality that dominated health care policy debates generally. Moreover, when feminist activism eventually succeeded, and abortion care was integrated into the health care system, it changed more than it changed the system; appropriating, if not reproducing, many of the institutional norms of state and medical authority that liberation feminists railed against. Collective rights in the service of political emancipatory ends became individual rights of free and informed consent in the receipt of medical services. Within the health care system, feminist action turned inward, toward the private, personal space that liberal abortion rights had carved for it, rather than outwards towards collective political action.

The article concludes with a reflection on what constitutional abortion rights may yet become by reference to the 2016 constitutional abortion challenge in PEI. It does so by following the constitutional "road not travelled" in the vision of reproductive justice: namely abortion rights as a demand for democratic inclusion and participation, rooted in the real and material needs of women's reproductive lives, and the social and economic institutions that shape them.

1. FEMINIST ACTIVISM IN THE BACK-ALLEY

   Before the constitutionalization of abortion, there was the commonplace of abortion. In 19th century Canada...