Description of the Abortion Issue in Canadian Constitutional Law
The subject of abortion for some time has troubled the Canadian society. This is because it is an issue that involved widely varying and deeply held viewpoints about rights of an individual, women’s role, moral norms, and the societal responsibilities (Dunsmuir, 1). The issue of abortion in the Canadian constitutional law is potentially disruptive and divisive issue. The Supreme Court of Canada struck down the provisions of the criminal code that governs the procedures of abortion in early 1988. Moreover, a new bill for abortion (Bill C-43) was introduced late in 1989 in parliament with the belief that a negotiated legislation would offer solution to the discussion of abortion at the federal level. However, in 1991, the bill was overwhelmed by unprecedented tied in the senate (Dunsmuir, 1).
The attitudes towards the issue of abortion throughout history have been influenced by social mores, religious principles, and attitudes towards family and the women. Of late, the attitudes towards abortion have increasingly been influenced by advances in the technology as well as, including safer and simpler techniques of abortion, and improved techniques for understanding development of the fetus (Dunsmuir, 1).
In the constitutional law, the abortion issue has elicited considerable discussion over the limits of the responsibilities of the federal government, or their jurisdiction over abortion. This is for the reason that abortion is a health issue and needs a medical procedure. If to the desirable extent to ban abortions, or create the situations under which abortions cannot be done, then the federal government will have the jurisdiction, since moral reasons or prohibition of action of health is constitutional linked to criminalization. However, if the desirable extent for abortion regulation, or the conditions under which abortion regulations can be performed, then the government shall have the jurisdiction and the duty and right to regulate such issues of health (Dunsmuir, 1).
Principles of Fundamental Justice as the basis for assessing the abortion issue
principles of fundamental justice, according to CCLN, refers to the principles against which the laws that are potentially infringing must be measured if they are in compliance with section 7 of the charter. This section is concerned with the security, liberty and life of a person. It states that everyone has the right to security, liberty and life as well as the right not to be deprived of these rights in line with the fundamental justice principles (1).
The enumerated rights under section 7 of the charter can be compromised in the cases where the laws regarded as infringing are in accordance with the fundamental justice principles (Canlii – 1988 Canlii 90 (SCC)). This implies that within the justice system, there are core values that must prevail over these rights for the society’s greater good. These include substantive guarantees and natural justice (Re B.C. Motor Vehicle Act, ).
In 1983, Dr. Henry Morgentaler with other two physicians were charged for procuring miscarriages illegally. When the case reached the supreme court, several legal matters had been reduced effectively as whether the criminal code’s abortion requirements, in an way that is not justified, infringed on the woman’s right to security, liberty and life as guaranteed under section 7 of the charter (Dunsmuir, 1). In their decision, all the judges agreed that section 251 (now 287) of the criminal code infringed on the right to security of the woman. Also, the processes by which a woman was deprived of this right was not in accordance to the fundamental justice. These decisions echo a finding by Wilson J. who in 1969 found that abortion law was in accord with the fundamental justice principles (Dunsmuir, 1).
Abortion laws in Canada has for many years been controversial and sensitive politically. With removal of some unconstitutional provisions in the criminal code, this may elicit anti-abortion movements sentiments as well as those opposed to abortion laws. Back then and today, the issue of abortion has remained political and divisive and condemned by both sides, that is the pro-life and the pro-choice camps. The pro-choice camp consider abortion as a individual issue that should be decided by the expectant woman and not by the state (Long, 1). Throughout 1970s and 1980s, the pro-choice (those looking for abortion legalization and its funding by the public) and the pro-life camp (those seeking abortion law that is stricter) organized huge rallies and demonstrations.
However, since the ruling of 1988, abortion issue has continued being a hot political issue. As a result, the governments and the federal political parties since 1990 have avoided the topic of abortion in their legislative debate, favoring the supreme court to have the final word instead of enacting new legislation that would either make the present system formal, or in some way change it. Some individual members of parliament on many occasions have brought to the floor private member bills in the past decades (both sides of the debate on abortion). However, none of these bills have passed the House of Commons and so none has become a law (Long, 1).
Should constitutional or legal rules relating to the abortion issue be changed?
This paper is of the opinion that the legal or constitutional rules relating to the abortion issue should be changed. This view is also supported by the federal government in Canada since they have started the processes of stripping sections of the Canada’s criminal code that are outdated. In landmark Supreme Court ruling in 1988 that favored Dr. Henry Morgentaler, the court found the prohibition against abortion to be unconstitutional. However, the text that outlawed forced miscarriage was never expunged from the books (Harris, 1).
Justice Minister Jody Wilson-Raybould earlier this year stated that if the government is going to remove the provisions of the abortion from the criminal code or making a link to the discussion of abortion, the Canadian government without equivocation acknowledges and recognizes the women’s constitutional rights and taking the courageous steps to make sure it expunges the section from the criminal code (Harris, 1).
Harris also pointed out that the experts in criminal justice have been calling on the government to enact reforms on the code which they state that is composed of laws that are outdated, inconsistent language and duplications (1). For instance, Stephen Coughlan, a law professor at Dalhousie University indicated that a wider overhaul is needed
Lastly, the paper is also of the opinion that the enforcement system/ penalty system for the rules be changed to increase compliance with the rules. This is because this provisions in the criminal code criminalizes the conscience and a moral decision of whether or not to terminate pregnancy. This violates the freedoms of conscience that is protected by section 2(a) of the charter, and is not in accord with the fundamental justice (Dunsmuir, 1).
“Canlii – 1988 Canlii 90 (SCC).” Canlii.org. N.p., 2017. Web. 6 Oct. 2017. < https://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html>
CCLN. “Principles Of Fundamental Justice – Canadian Criminal Law Notebook.” Criminalnotebook.ca. N.p., 2017. Web. 6 Oct. 2017.
Dunsmuir, Mollie. “Abortion: Constitutional And Legal Developments (89-10E).” Publications.gc.ca. N.p., 2017. Web. 6 Oct. 2017. <http://www.publications.gc.ca/Collection-R/LoPBdP/CIR/8910-e.htm#ISSUE>
Harris, Kathleen. “Government Moves To Strip Abortion Law From Criminal Code.” CBC News. N.p., 2017. Web. 6 Oct. 2017. <http://www.cbc.ca/news/politics/justice-legislation-criminal-code-1.4015508>
Long, Linda. “Abortion In Canada.” The Canadian Encyclopedia. N.p., 2017. Web. 6 Oct. 2017. <http://www.thecanadianencyclopedia.ca/en/article/abortion/>
Re B.C. Motor Vehicle Act,  2 SCR 486, 1985 CanLII 81 (SCC), <https://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html>, retrieved on 2017-10-06