Women's Reproductive Equality and the Supreme Court of Canada

• Author: Sanda Rodgers
• Pages: 189-218

189

Women’s Reproductive Equality and

the Supreme Court of Canada

sanda rodgers*

A. INTRODUCTION

Reproductive autonomy is key to women’s equality and essential to women’s

full and constitutionally protected membership in the Canadian state. In pre-

Charter litigation, the Supreme Court of Canada refused to recognize woman’s

right to reproductive control. is refusal occurred despite Canadian women’s

demand for access to abortion, the refusal of juries to convict doctors who per-

formed them, and evidence that abortion services available were insucient to

meet women’s needs.

e adoption of the Canadian Charter of Rights and Freedoms provided

the legal and constitutional grounds upon which the Supreme Court of Can-

ada denitively reversed prior jurisprudence and recognized woman’s right to

* I am particul arly grateful to Sheila McI ntyre for conversations regarding equ ality theory

and jurisprudence that ma de this text possible. I wish to t hank the Social Science s and

Humanities Rese arch Council and the Law Found ation of Ontario for providing na n-

cial support and Ad rienne Telford for excellent research assista nce. A much abbrevi-

ated version of this arg ument appears in Sanda Rodger s, “Misconceived: Equal ity and

Reproductive Autonomy in the Supreme Court of Ca nada” in Sheila McIntyre & Sa nda

Rodgers, eds., Diminishing Returns: Inequalit y and the Canadian Charter of Ri ghts and

Freedoms (Markh am: LexisNexis But terworths, ) .

 See Sanda Rodgers , “e Legal Reg ulation of Women’s Reproductive Capacity in Can-

ada” in Jocelyn Downie , Timothy Cauleld, & Col leen Flood, eds., Canadian Health

Law and Policy (Mark ham: Butterworths,  ) [Rodgers, Canadian Health].

Canadian Charter of R ights and Freedoms, Part I of the Constitution Act, , bein g

Schedule B to the Canad a Act  (U.K.), , c.  [Charter].

190 Health Law at the Supreme Court of C anada

control her reproductive capability. e Charter made both the decriminaliza-

tion of abortion, and acce ss to it, possible. e decision of the Supreme Court

of Canada in R. v. Morgentaler was the rst of a series of key post-Charter

decisions which described the terrain of women’s reproductive autonomy and

assured Ca nadian women ac cess to abortion s ervices and to other key protected

reproductive rig hts.

ese rights are of critical importance to Canad ian women and the signi-

cance of these decisions of the Supreme Court should not be minimized. Nor

should the Court be held accountable for the failure of health care professionals

or federal a nd provincial g overnments to ensure t hat abortion ser vices are made

available to all women without barriers. Nonetheless, the Court’s jurisprudence

as it concerns women’s reproductive capability must be careful ly examined to

determine whether it enhances or disappoints women’s aspirations for full and

substantive equality within the Canad ian state.

In this chapter, I consider the many ways in which women’s reproductive

capability has served as a location for the imposition of gender specic, socially

imposed subordination and inequality. I review Supreme Court jurisprudence

on family recognition and benets and note that the Court clearly and forceful-

ly has recognized the equality i mplications of women’s reproductive role. I then

examine those cases that specically address women’s reproductive autonomy.

In these cases, the Supreme Court resorted to an analysis that is procedural

rather than substantive, narrowly based on statutory interpretation and reliant

on private law remedies rather than on public rights. Despite equality-based

argument before the Court, it considered Charter entitlements in the narrow-

est sense or eschewed equality analysis altogether and persistently invited the

legislature to limit women’s reproductive rights.

I close with a brief description of the current and increasing challenges to

women’s reproductive equality and speculate on the relationship between the

persistence of continuing barriers and the Supreme Court’s failure to recognize

challenges to women’s reproductive autonomy as barriers to equality.

B. WOMEN’S REPRODUCTION: THE MANY LOCATIONS OF LEGAL

REGULATION

Women’s reproductive capability, the biological ability to conceive, to carry,

and to birth children and the socially assig ned obligation to nurture and to care

R. v. Morgentale r, [] S.C .R. , [] S.C.J. No.  [Morgentaler].