Relationship, particularity, and change: reflections on R. v. Morgentaler and feminist approaches to liberty.

• Author: Lessard, Hester

The judgments in R. v. Morgentaler are taken as the point of departure for a discussion of some of the insights that feminist legal theories can bring to aid in resolving paradoxes in contemporary liberal rights discourse. In particular, the author draws on the recurrent themes of relationship, particularity and change in feminist writings to present a rearticulation of the liberty interest under s. 7 of the Charter as it applies to the issue of reproductive self-determination. Noting the central role that the judicial articulation of rights plays in reinforcing existing distributions of wealth and power, the author also argues that a reconception of rights must be accompanied by the transformation of the structures that define and enforce them.

L'arret R. c. Morgentaler sert de tremplin a une reflexion portant sur certaines idees developpees par la litterature juridique feministe qui pourraient contribuer a eliminer les contradictions qu'on retrouve dans le courant de pensee liberal. Plus precisement, l'anteure s'inspire de certains themes importants de la litterature feministe, soit la necessite de proteger l'individu dans ses rapports avec les autres et de respecter egalement les particularites et l'evolution des relations entre personnes; ainsi, l'auteure propose une reinterpretation du droit a la liberte consacre par l'article 7 de la Charte, qui inclut la liberte de reproduction. L'auteure met en lumiere l'importance de l'interpretation judiciaire qui est donnee aux droits consacres par la Charte, en ce qu'elle tend a renforcer la repartition actuelle de la richesse et du pouvoir social. Dans cette perspective, l'auteure affirme qu'une redefinition de ces droits doit s'accompagner d'un remodelage des institutions qui les definissent et les font respecter.

Synopsis Introduction I. Morgentaler and Liberty as Privacy II. Feminism's Cartesian Anxiety III. Feminism: Rethinking Liberty A. Gilligan: Beyond the Ethic of Care? B. Scales: Concrete Universality and the Role of Difference C. Elshtain: Parenting and the Interactive Public D. Young: The Heterogeneous Public IV. A Revised Notion of Liberty and Section 7 V. Conflict and Difference Conclusion Introduction

This essay uses the Supreme Court of Canada's decision in R. v. Morgentaler (1) and the claim for reproductive self-determination (2) which underlies it as an occasion to discuss the ways in which feminist theory can change our conception of rights. The current critique of rights has exposed the central role that the judicial articulation of rights plays in reinforcing existing distributions of wealth and power. The problem is both institutional and conceptual. The courts as institutions exercise power which is unaccountable and cannot be legitimized within a democratic framework. Furthermore, attempts to develop normative constraints on judicial power founder on the indeterminacy of language and the subjectivity of moral claims. Finally, rights, in particular liberty rights, are conceived in terms of providing a radical separation between individual and community which leaves socially and economically disadvantaged groups unable to claim state support as a prerequisite for meaningful rights.

This essay begins with the conceptual strand of the critique. It looks to feminist theorizing as the source of different notions about relationship and community. It also explores the ways in which the decontextualized and individualist focus of rights discourse might be transformed to reflect these alternative notions. Equality rights speak most directly to the experience that the official and unofficial institutions that control women's lives are largely male. What I suggest in this paper is that if we are seeking to confront the fundamental arrangements within which we live our lives, then a challenge to the gendered structure of social relations which uses the language of rights should extend to liberty rights. It is in terms of liberty that the legal culture comes closest to addressing the structure and nature of state power. Liberty evokes a specific image of individual relations within community and with the state. Feminist theorizing challenges that image on epistemological as well as political grounds.

This paper takes as its starting point the claim in Morgentaler for reproductive self-determination because it illuminates sharply the conceptual dilemma underlying constitutional liberty claims and places it in the Canadian constitutional context. In the first part of the paper I outline that dilemma in terms of what Richard Berustein calls the opposition between objectivism and relativism, (3) namely the conviction that our only alternatives are either an unsupportable claim that there is an objective basis on which to ground a hierarchy of rights, or an intolerable and inexorable slide into moral relativism. In the second part of the paper, I relate the terms of that opposition to a similar division within feminist theory. In the third part, I examine in greater detail feminist discussions of a revised notion of the self, moral reasoning and the implications for theories of liberty. I focus on the themes of relationship, particularity and change in feminist theorizing, and I suggest that the underlying premises of feminist discourse and the feminist political agenda provide a basis for working out and moving beyond the despair engendered by the paradoxes of liberal rights discourse. In the fourth part I sketch the contours of an argument under s. 7 of the Canadian Charter of Rights and Freedoms (4) for reproductive control that incorporates that alternative vision. I discuss the problem of conflict and difference inherent in any individual rights claim and examine how one feminist approach to creating room for difference within community can be worked into the two part structure of s. 7. This approach focuses on the political efficacy of groups within communities and within our larger social structures. Finally, I suggest that the conceptual strand of rights critique must be intertwined with the institutional strand, that a reconception of rights must be accompanied by the transformation of the structures that define and enforce them. Unless courts are recognized as part of a state structure which reproduces the patriarchal ordering of social life, the legalization of politics through the expansion of rights discourse will inevitably reinforce rather than challenge that order.

1. Morgentaler and Liberty as Privacy

   In his book Beyond Objectivism and Relativism, Richard Bernstein describes the seemingly eternal dialectic within Western philosophy between claims of the objectivist that "there is or must be some permanent, ahistorical matrix or framework to which we can ultimately appeal in determining the nature of rationality, knowledge, truth, reality, goodness, or rightness," and the challenge of the relativist that "there is no substantive overarching framework or single metalanguage by which we can rationally adjudicate or univocally evaluate competing claims of alternative paradigms." (5) Within contemporary legal scholarship, the same dialogue takes place between the varieties of fundamental rights theorists who posit an objectively ascertainable foundation for evaluating rights claims either in conventional morality or irreducible human values, (6) and, at the other end of the spectrum, Critical Legal Studies scholars who view rights discourse as part of a larger struggle for political power. (7) Although any interpretive disagreement calls into question the possibility of evaluative criteria, the divergence becomes sharpest when dealing with open textured constitutional provisions. Thus, the claim in Morgentaler that the values of liberty and security of the person in s. 7 of the Charter provide women with a right to reproductive self-determination, invites a court to confront directly what Bernstein calls "the Cartesian Anxiety" or the inevitable progression towards a "grand and seductive Either/Or," namely,

   Either there is some support for our being, a fixed foundation for our knowledge, or we cannot escape the forces of darkness that envelop us with madness, with intellectual and moral chaos. (8) For the most part the judges in Morgentaler evade that confrontation. The case concerns the prosecution of three doctors who set up a clinic which provided abortion services for women who had not obtained approval from a therapeutic abortion committee at an accredited or approved hospital in accordance with s. 251 of the Criminal Code. (9) Section 251 criminalized abortion except in the limited circumstance of committee approval. The accused raised the constitutional rights of women in defence to the charges. A majority of the Supreme Court, consisting of five judges writing three separate opinions, struck down the Criminal Code provisions as a fundamentally unjust violation of women's s. 7 rights. Two groups of two, Dickson C.J. with whom Lamer J. agreed, and Beetz J. with whom Estey J. agreed, based their conclusions on women's s. 7 right to security of the person. The fifth judge, Wilson J., while agreeing that women's security interests were seriously constrained by s. 251, also based her decision on women's s. 7 right to liberty, thus delineating a broader and fuller right. Wilson J. and the other two groups in the majority also differed in their treatment of fundamental justice. The two groups of two limited their considerations to the procedural aspect of fundamental justice, leaving for another day the question of whether a procedurally irreproachable constraint on access to abortion would nevertheless violate the substantive aspect of fundamental justice. Again, Wilson J. felt that a fuller examination of the issue was required, that the question "what is meant by the right to liberty in the abortion context?" (10) required looking at both the procedural and substantive aspects of fundamental justice. The difference between...