Why Abortion is not a Right

Reprinted with permission

Citing the Supreme Court’s historic Morgentaler decision, Andrea Mrozek and Faye Sonier show why Prime Minister Trudeau gets so-called abortion rights so wrong.

January 23, 2018  |  By Andrea Mrozek with Faye Sonier

In listening to our political leaders, you’d be hard pressed to know there is no right to abortion in Canada. Take the Prime Minister’s recent comments regarding the Canada Summer Jobs program, which now requires prospective employers, from soup kitchens to summer camps, to declare support for abortion to receive a government grant to hire students. In his justification of this new policy at a recent townhall,  the Prime Minister certainly used the word “rights” often. He ardently defends “rights”—even unpopular ones (just not so unpopular as the rights of the preborn child); we can’t “restrict women’s rights” by “removing rights to abortion” as this is a “really important right that we have established.” Except that we, how to put this, haven’t.

How did the Prime Minister come to defend rights that don’t exist? He can’t make this claim on the basis of R v. Morgentaler. Yes, the 1988 decision threw out Canada’s existing abortion laws, which required the issuance of a certificate by a therapeutic abortion committee at a hospital for an abortion to be legally provided. Since not every hospital had a committee, it resulted in unequal access to abortion for women who would otherwise meet the necessary criteria.

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The only justice to declare a positive right to abortion was Justice Bertha Wilson, writing in a minority dissent. Still, she didn’t declare this right unfettered throughout all nine months of pregnancy. She wrote:

The question is: at what point in the pregnancy does the protection of the foetus become such a pressing and substantial concern as to outweigh the fundamental right of the woman to decide whether or not to carry the foetus to term? At what point does the state’s interest in the protection of the foetus become “compelling” and justify state intervention in what is otherwise a matter of purely personal and private concern?

Pro-choice professor Shelley A.M. Gavigan of Osgoode Hall Law School echoes the idea that the Morgentaler decision did not create a right: “The Supreme Court’s decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue.”

How is it so many believe there is a right to abortion then? It could be the language of abortion activists is becoming entrenched. Many who support “abortion rights” take exception to the term “pro-choice.” A recent book, Without Apology, Writings on Abortion in Canada identifies “pro-choice” as too conciliatory, lending credence to the notion there are good and bad reasons for abortion. “Pro-choice” does not promote the absolute entitlement of women to access abortion. When Hillary Clinton said abortions should be “safe, legal and rare” some pro-choice activists were critical. For if abortion access is necessary or a cultural good, why should the procedure be rare?

In identifying an abortion right, Canadians may also wrongly be drawing from the U.S. situation. The rough U.S. equivalent to the Morgentaler decision, Roe v. Wade of 1973 did invent, albeit on spurious grounds, the right to abortion via a “right to privacy.” But the American context is vastly different from ours.

The chasm between abortion politics, our bold “women’s rights” campaigner of a Prime Minister, and the reality of women’s experiences is very wide.
Our Supreme Court left a legislative void by striking down our law, unanimously finding that the Canadian government had a legitimate interest in creating a better law to protect the pre-born child.  Going even further than that, they stated that the Charter authorizes laws limiting abortion access. For example, Justices Beetz and Estey, both of whom concurred with the striking down of the abortion provision, wrote:

I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law... I think s. 1 of the Charter authorizes reasonable limits to be put on a woman’s right having regard to the state interest in the protection of the foetus. 

Let that sink in for a moment. In Morgentaler, the Supreme Court stated that the Charter itself justifies the legislature limiting abortion access. This is a far cry from the claim that the Morgentaler decision established a right to abortion or that advocating for legislators to develop laws to protect the pre-born child is somehow anti-Charter.

In watching the Prime Minister defend “abortion rights” it may appear as though the pro-choice side is winning a great victory these days. But democratic winds can shift, which is what justifies democratic debate in the first place. We have seen what might be a first inkling of such a shift. There’s been a rare show of media support for pro-life groups remaining eligible to receive Canada Summer Jobs. Even a Globe and Mail editorial last week said, “[c]onflating opposition to abortion with bigotry is simplistic, and no better than demagoguery.”

There are, in fact, numerous democratically legitimate arguments against declaring abortion a right. Several chapters in the above-mentioned book, Without Apology, share women’s abortion stories so their voices can be heard. So many of those stories could be lifted almost word for word and told into the next pro-life book. One woman tells her abortion doctor, “I don’t feel I have any choice;” not exactly a resounding endorsement for a positive right.

The chasm between abortion politics, our bold “women’s rights” campaigner of a Prime Minister, and the reality of women’s experiences is very wide. For every politician with bold political rhetoric defending abortion, there is a woman, mourning a basic lack of support. Falsely claiming abortion is a right won’t improve that.

Andrea Mrozek is program director of Cardus Family and founder of ProWomanProLife.org. Faye Sonier is executive director and general legal counsel for Canadian Physicians for Life.

CPSO: Changing the definition of discrimination

College of Physicians, please stand up for religious minorities

JANUARY 2, 2015 BY FAYE SONIER LEAVE A COMMENT

*Dr. Gabel is Member of Council and Past President of the College of Physicians and Surgeons of Ontario. He is the chair of the College’s policy working group which issued the draft “Professional Obligations and Human Rights” policy.

Faye Sonier

Dear Dr. Marc Gabel,

I just read this article which was published in the Catholic  Register. You were quoted in the piece. Here is an excerpt:

Catholic doctors who won’t perform abortions or provide abortion referrals should leave family medicine, says an official of the College of Physicians and Surgeons of Ontario.

“It may well be that you would have to think about whether you can practice family medicine as it is defined in Canada and in most of the Western countries,” said Dr. Marc Gabel, chair of the college’s policy working group reviewing “Professional Obligations and Human Rights.”

The Ontario doctor’s organization released a draft policy Dec. 11 that would require all doctors to provide referrals for abortions, morning-after pills and contraception. The revised policy is in response to evolving obligations under the Ontario Human Rights Code, Gabel said.

There have been no Ontario Human Rights Tribunal decisions against doctors for failing to refer for abortion or contraception.

Gabel said there’s plenty of room for conscientious Catholics in various medical specialties, but a moral objection to abortion and contraception will put family doctors on the wrong side of human rights legislation and current professional practice.

“Medicine is an amazingly wide profession with many, many areas to practice medicine,” he said.

Yes, medicine is “an amazingly wide profession.” Thankfully, it is also a profession which attracts an “amazingly wide” array of Canadians. Of those Canadian physicians are some who share my pro-life perspective. They may refuse to refer for abortion due to their conscience, but they may also refuse to refer due to their religious beliefs (or both – we’re working out what this means under the Charter). They may be Christian, Muslim, Jewish or atheist physicians but they have an issue with abortion or contraceptives. For them, to refer for this procedure or these drugs is to be complicit in the actions and their consequences.

I am an Ontario resident. I’m a cancer survivor. I’m a mother.  I have spent far more than my fair share of time in Ontario hospitals and clinics being treated by wonderful Ontario doctors.

Over the last few years, I’ve gone out of my way to work with pro-life physicians who share my perspective. I reject the notion that killing and dismembering unborn children is medicine, and I wanted to work with physicians who share my values regarding human life and human dignity.  Due to the “amazingly wide” practice of medicine in Ontario, I was able to find a few, and become their patient. I am so thankful for their care.

But due to your working group’s proposed new policy, I might lose my family physicians. They will choose to practice medicine in a province that respects both their skills and their rights, rather than sacrifice their conscience or their sincerely held religious beliefs.

I’m also a human rights lawyer. The College’s reasoning for stripping physicians of their conscience and religious rights is not based on law. Your working group received a number of submissions on that point, so I’ll leave you to review them with your legal counsel. The doctors seeking to exercise their freedoms have a leg to stand on. Heck, they have Canadian and Ontario human rights law on their side.

Of great concern to me is the definition of “discrimination” which you provided when interviewed:

“We’re saying that the discrimination occurs when you are not acting in the best interest of the patient,” said Gabel. “When you are not communicating effectively or respectfully about this with the patient, when you’re not managing conflicts, when you differ from the patient and when you are not respecting the patient’s dignity and ensuring their access to care and protecting their safety. That’s the issue.”

Dr. Gabel, this is not the definition of “discrimination” at law. If someone chooses to make up definitions for words, they are free to do so. (My son, for example, seems to think that “babagaba” is a verb which means “to chew on mommy’s ankle.”)

However, for a body like the College of Physicians and Surgeons of Ontario to create a new definition of “discrimination” which will result in the stripping of legal and human rights of some of their members is shocking, and this new definition will not stand up in a court of law. I urge the College to abide by Canadian and Ontario law.

Dr. Gabel, I suspect you are well intentioned and a kind and caring psychotherapist, like so many of the wonderful doctors who have treated me over the years. But please don’t force my physicians from the province with your policy. My family depends on their expertise and professionalism. I like to see my own values reflected in the “amazingly wide” practice of medicine in Ontario. For someone like myself, a religious minority, this is very important.

The membership of your College is broad and wide enough to include some family physicians who happen to hold pro-life positions. If it is not, it should be.

Sincerely,

Faye Sonier

Challenging the extremes

Thank goodness we have a national pro-life group (weneedaLAW.ca) that is always active, on the move, stirring things up, and telling us what they're doing while they're at it.

For instance check out Faye Sonier's legal perspective on the closing of the Morgentaler clinic in New Brunswick.

At the end of the piece Faye has a line that should make the pro-abortions flinch:

"Those who lament the closing of this abortion clinic call themselves "pro-choice." Indeed, "choice" is the governing principle of their movement. "My body, my choice" is the best known slogan. Perhaps they do not realize the conundrum. For if abortion is truly a personal choice, how on earth can it also be medically necessary?"

Indeed. So how do the pro-abortions reconcile "choice" with "medical necessity"? They don't. Because if you choose to have an abortion, then what could be medically necessary about it? And if an abortion is medically necessary, there isn't really a choice at all, is there? Just don't confuse the pro-abortions with the facts, I guess. They might get a headache.

Take action by sending this email to government officials in New Brunswick and Ottawa.

And We Need a Law has also done a great position paper on gestational abortion legislation. It is a logical, coherent and moral analysis on the state of abortion legislation in Canada:

The difference between Legal, Decriminalized and Regulated abortion, & why we support Gestational Limits

The paper ends with a challenge to those who don't agree with gestational legislation, inviting them to explain why:

"...gestational limits would not legalize abortion because it already is legal. We've also argued that saving some does not condone the death of those we cannot yet save. And we've tried to show that all pro-lifers already support legislative efforts that will protect only some children (in this case, the children of poor mothers). 

We want to conclude with a challenge. If you think we are wrong, please address these points one by one and explain why. Be specific. Please show how abortion in Canada is, in any sense, not already completely legal right now. Show how a gestational limit that will protect only some differs morally from a defunding effort that will protect only some. And explain why those who saved Jewish children weren't condoning the death of their parents (who they couldn't save), but today when we try to save some pre-born children (via a gestational limit) we are supposedly condoning the death of the children we aren't able to save.

Exposing the specificity of Exposing Crisis Pregnancy Centres in BC

Today I re-read Faye Sonier's article, reprinted in LifeCanada's Journal, on the BC Crisis Pregnancy Centres defamation case against Joyce Arthur Defamation Suit and the Tactic of Being Vague.

Faye says:

Unfortunately the court found that the report was so unclear in its attributions of wrong-doing that a reasonable person reading the report wouldn’t necessarily think that the Vancouver and Burnaby CPCs were guilty of committing those particular ethical breaches. As the judge ruled, “it is difficult to say that the ‘deceptive’ tactics reflect personally on the plaintiffs. The impugned statements do not have any specificity; the Report describes the tactics in broad generalizations.”

I always thought Arthur was writing about BC's CPCs, for the same reasons Faye does:

And keep in mind, that these allegations are made within a report entitled Exposing Crisis Pregnancy Centres in British Columbia, where that title appears on the top of each page of the report, wherein the stated goal of the report is to “find out what these centres were doing and saying to women in B.C., and whether they were engaging in deceptive or harmful practices,” and where the appendix lists only B.C. CPCs. I think the average reader would likely assume that the allegations made within the report apply to B.C. CPCs, and likely to the two CPCs which launched the suit against Arthur.

What exactly is not specific about "Exposing Crisis Pregnancy Centres in British Columbia" appearing as a title on every page of the report?

I decided to take another look at my ATIP to Status of Women regarding the infamous $27,400 funding Joyce Arthur received to write this horrid report.

Here are a few "specific" references to CPCs in BC from that ATIP. And remember. This document is what clinched the funding for Arthur.

From Arthur's proposal:

There are CPC's in almost every city in BC. With the closure of many women's centres, and the brief office hours of most family planning clinics around BC, comprehensive and non-judgmental reproductive services for women (and referrals to such services) are becoming very difficult to access. In some areas, women may only be able to access the local CPC. In fact, CPC's are striving to replace feminist-based agencies. They even obtained government funding from the BC Liberals while funding cuts for Women's Centres were being planned. 

It is critical to research and evaluate the extent and impact of CPCs' reach and influence in BC. Armed with this knowledge, we can take concrete steps to stem the tide, by educating women and the public about the true nature of these centres, lobbying government to stop funding them, using the media to publicize the CPC anti-feminist agenda and tactics, and promoting and establishing feminist-based alternative services for women.

Under the document entitled Goal and Objectives in Arthur's proposal:

The overall goal of this social justice project is to minimize the harmful impact of CPC's through public education. As part of that goal, we hope to be able to accomplish the following objectives:

• research the current situation in BC -- for example, numbers, locations, sizes, and resources of CPC's and similar agencies
• research community influence of CPC's — for example, relationship between them and other women's groups, whether legitimate agencies refer to them, alternative services in the community impact on minority groups and youth in particular, etc.
• research how CPC's shape public policy and discourse on reproductive rights — for example:
• – analyze how these groups are co-opting feminist language and strategies while using them to foster a right-wing patriarchal agenda that promotes a traditional, narrow role for women as wives and mothers
• – evaluate how and to what extent their anti-feminist agenda asserts itself into the public consciousness and negatively impacts women's ability to achieve equality
• – evaluate their relative success at supplanting feminist-based resources in local communities in BC, and look at ways to counter this
• solicit and collect stories from women who have been harmed or deceived by CPC services
• research and try to curtail CPC's public funding sources
• publicity expose the anti-woman and anti-feminist agenda of CPC's using various public education and media initiatives, and by doing so, work to mitigate discriminatory attitudes towards women
• shift public awareness by alerting and educating the following target audiences (in BC):
• — women
• — aboriginal, minority, and youth group— women's groups and other community organizations
• — health professionals and institutions who might refer to CPC's, including doctors, walk-in clinics, hospitals, counselors, family planning clinics — government
• — public

Under section 24. JUSTIFICATION

Expected concrete results: 

1. To examine the state and organization of CPC's in B.C., including numbers, size, locations, funding sources, their influence in the community and how they shape public policy discourse on reproductive health issues

2. To examine the ways in which CPCs disseminate deceptive and misleading information to circumscribe women's right to full reproductive agency

3. To produce a report detailing the research findings, which will be used as a tool to inform the public about the anti-woman agenda and practices of CPCs, with a particular focus on educating women's organizations, health professionals and government as well as individual women

4. To implement any changes recommended in the report

5. To persuade CPCs to alter their current practices in order to ensure women have full choice over their reproductive health 

In Arthur's Summary Of Expected Outcomes:

• Public discourse on the issue of women's reproductive choices is drawn from a broad spectrum of perspectives, including a feminist perspective

• Diverse women throughout BC have full access to comprehensive arid nonjudgmental reproductive services

And finally, this from Status of Women Canada, in their recommendation for approval of the funding to Arthur, and SWC's brief description of the initiative:

This initiative seeks to ensure access by a diversity of women in British Columbia to comprehensive and non-jugmental reproductive services as well as a representative speck of perspectives on women's reproductive rights. It has two related components, research and public education. The first component will consist of examining the current trend towards the proliferation of crisis pregnancy centres operating in the province and their role in shaping public discourse on women's reproductive rights. The second part of the initiative will be to inform the public, educators, health professionals and governments about the results of this research. This information will help ensure the public has an accurate understanding of the various approaches to supporting towards women's reproductive choice, as part of an overall strategy to provide the public with a comprehensive understanding of women's reproductive rights. A set of indicators will be used to evaluate the effectiveness of both components of this initiative in achieving planned outcomes. 

There's only one question left to ask.

If Arthur's report is not "specifically" referring to Crisis Pregnancy Centres in British Columbia, then why would Status of Women Canada, use funds from the Women's Program, whose mandate "is to achieve the full participation of women in the economic, social and democratic life of Canada. Funding is provided to eligible organizations in support of projects at the local, regional and national levels", hand over Canadian tax dollars, to a Canadian person, for a report that is about Crisis Pregnancy Centres not in Canada?