unconstitutional because it makes no such exception for the health of the womanAnd that's exactly what
they CAN'T agree to put into the law -- because they know that there is no constitutional way to deny access to abortion where a claim is made that it is necessary in the woman's health interests.
This is exactly what Canada's restrictive abortion legislation foundered on in 1988. Abortion was available where a hospital committee certified that "the continuation of the pregnancy of the female person would or would be likely to endanger her life or health".
There is no possible method of providing due process on that point. If a woman is denied an abortion (whatever the reason she may have wanted it) and suffers adverse health effects (or dies), her rights were violated by the decision.
There is simply no standard of proof that could be applied to a claim that a pregnancy endangers a woman's life or health. Quite apart from how vague "health" is, no one has a crystal ball and no one can ever know which woman will die or suffer disability or damage, of any kind, as a result of pregnancy or delivery.
I'll keep urging anyone committed to fighting these attempts to violate women's rights (or who just doesn't get it) to read the Supreme Court of Canada decision:
http://www.canlii.org/ca/cas/scc/1988/1988scc2.htmlexcerpts from the summary of one set of reasons; note that "the principles of fundamental justice" in our constitution include due process:
Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.
The procedure and restrictions stipulated in s. 251 for access to therapeutic abortions make the defence illusory resulting in a failure to comply with the principles of fundamental justice. ...
... The administrative system ... fails to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted. The word "health" is vague and no adequate guidelines have been established for therapeutic abortion committees. It is typically impossible for women to know in advance what standard of health will be applied by any given committee.
And I urge my USAmerican neighbours to start framing the issue in terms of women's right to
life and
liberty, and not merely privacy. As Bertha Wilson J., the first and excellent woman appointed to our own SC, said:
The right to "liberty" contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them.
A woman's decision to terminate her pregnancy falls within this class of protected decisions. It is one that will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well.
Section 251 of the Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on "criteria entirely unrelated to own priorities and aspirations".
Section 251 also deprives a pregnant woman of her right to security of the person under s. 7 of the Charter. This right protects both the physical and psychological integrity of the individual. Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman's physical "person".
This violation of s. 7 does not accord with either procedural fairness or with the fundamental rights and freedoms laid down elsewhere in the Charter <Cdn constitution>.
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