How is Canada doing on abortion rights?

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Originally posted by Pride for Red Dolores:[b]If any laws were put into place explicitly stating the legality of abortion it would have to be provincial laws.[/b]

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The provinces could not maske laws in respect to abortion, they would never pass Charter challenges. And I see you still do not get Charter Rights.

For those of you who read French, there is a great 16-page dossier - "L'avortement, un droit menacй" - summarizing abortion rights and lack thereof here and in various countries around the world (especially Brazil) in the current issue (Summer 2008) of A BABORD magazine*, a Quebec Left-wing publication. If you think papal pronouncements are irrelevant, think again...

*Subscriptions are a steal at 35$ (25$ - students, 50$ - institutions) for five 52-page issues: 5819 de Lorimier, Montrйal Qc H2G 2N8

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Originally posted by Pride for Red Dolores:[b]...what charter right are you speicfically refering to- I am not altogther very familiar with that document as I have never read it. Security of the person ? The clause about gender equality ?[/b]

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Both those 2 and freedom of conscience and privacy, as well as the criminal code which states no person can be compelled to give their body into the service of another, which was formerly only true for men. And the Charter equality rights back this criminal code premise of self determination.

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[b]Also, if health is the realm of the provinces, would it be acceptable for the federal government to try to get provinces to make abortion available by withholding transfer payments ?[/b]

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It is the provinces responsibility to [b]dispense[/b] health services, on a unbiased universal basis, the Health Act itself is under the providsion of the federal government. And yes it would be accepotable for the feds to withhold money, if the provinces were failing to meet the Health Act provisions.

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[b]Wouldn't that be trying to enforce something that is outside their responsibility?
[/b]

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No, it is their responsibility, and when thinking about this further, the Canadian College of Physians and Surgeons, may also be able to be pressured into making sure their members are conducting themselves within the Health Act provisions.

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Originally posted by remind:
[b] The provinces could not maske laws in respect to abortion, they would never pass Charter challenges. And I see you still do not get Charter Rights.[/b]

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Actually, provincial anti-abortion laws have been found to violate the division of powers for infringing on the federal parliament's power over criminal law, rather than being struck as violating the [i]Charter[/i].

Further, a caution that the decisions respecting abortion laws and the [i]Charter[/i] have all been focused quite specifically on the exact provisions in place. It is not at all clear that the [i]Charter[/i] itself provides an unfettered right to abortion. There is constitutional room for laws restricting access to abortion, which is why it really matters what politicians think and say on the issue.

That the answer the question of this thread from your perspective is "very, very well".

On abortion, Canada is way more liberal than the vast majority of countries (I would do that exercise), and more liberal than even most industrialized countries; and its likely to remain that way, because social conservatives and social moderates have a very hard time opening up debate on the issue.

The thing that always makes me wonder what the hell anti-abortionists are smoking is their bald claim that pregnant women should be prohibited from getting an abortion just because [i]they know better[/i].

This kind of patronizing attitude is precisely what gets up my nose about 'em - especially when the epitome of hypocrisy is displayed by [i]male[/i] anti-abortionists. Since when did they get the right to tell a woman to not get an abortion? I don't see any of [i]them[/i] offering to take part in some mad genius's highly experimental male pregnancy program where the baby can be transplanted, because that's what it'll take before I change my firm opinion that any man who is anti-abortion is automatically a sanctimonious hypocrite of the highest order who will gladly tell a woman what to do but will never ever offer to bear her burden.

What also really slays me is when the anti-abortionists say "BUT AREN'T YOU GLAD YOU WEREN'T ABORTED?"

To that, I answer: "If I had been aborted I wouldn't be here having you waste my nerve endings with your bleating, so the point is moot."

Tell ya, I'd be happy to see the GST go back up to 6% if it meant the extra percentage point went straight to compensation of women who for whatever reason needed get an abortion.

We need MORE abortion clinics, not less, and I'm glad Morgentaler was named to the Order of Canada.

[ 02 August 2008: Message edited by: DrConway ]

Bit of a thread drift...

Is that true, remind, that there are no regulations regarding international adoptions? I know only small pieces about the international situation. A friend who has twice adopted internationally had to undergo a home assessment before she was allowed to proceed.

76,000 in Canada waiting to be adopted. That would not include the large number of children in care who are considered "unadoptable" -- children who are not newborn, white, healthy, etc. What a world we live in!

I adopted a child (one of the unadoptables) and in subsequent years obtained service from a psychologist in upstate NY who dealt almost exclusively with issues related to international adoptions. He had much of interest to say.

Are you able to provide me with some links regarding the status of international adoptions?

Does Canada need a new abortion law as Andrew Coyne suggests? In the years that Canada has had no laws with respect to abortion, I have not heard any complaints about women receiving abortions improperly by qualified doctors. If women were to be seriously injured because of they received abortions by qualified doctors, I would be one of the first to request laws or regulations to protect the safety of the women. Abortion is a health issue between a woman and her doctor. Unless women are treated poorly, there is no need for a new law.

With respect to access to abortion, here is a copy of an email sent to me from Rosella Melanson, ED of the NB Status of Women office:

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Here is the CBC report from this morning, the decision and an interpretation of the decision by Morgentaler's lawyer.
Rosella

N.B. court gives nod to Morgentaler's challenge

Last Updated: Friday, August 8, 2008 | 10:54 AM AT

CBC News

Abortion provider Dr. Henry Morgentaler has the legal right to challenge the New Brunswick government's policy on abortion funding, a judge has ruled.

Morgentaler is trying to force the government to pay for abortions done at his private Fredericton clinic. Currently, women pay the $750 fee themselves, while the province only pays for abortions approved by two physicians and performed at an approved hospital.

When the case first went to court in 2007, the province tried to stop it by arguing that Morgentaler did not have the legal standing required to challenge the policy. Instead, the province said, only a woman who had used the abortion clinic had the right to question the government's payment policy.

In a decision made public this week, New Brunswick Court of Queen's Bench Judge Paulette Garnett rejected the province's argument, saying Morgentaler has the legal right to take the case to court .

"There are many valid reasons why women who have had abortions at the Fredericton clinic would not or could not bring this challenge," Garnett ruled. "Dr. Morgentaler is therefore a suitable alternative person to do so."

The decision is a major victory, said Rosella Melanson, executive director of the New Brunswick Advisory Council on the Status of Women.

"Dr. Morgentaler seems to have won on all counts," she said. "So finally, it will get to court, hopefully soon."

The government said it is reviewing Garnett's decision before deciding whether it will appeal

Below are my responses to the questions you posed in your prior e-mail. I trust this is the information you require. I am out of the office until August 20th but will be checking e-mail from time to time if there is anything further.

Regards

Darlene

1. What are the key legal issues being explored in this decision?

2. Does the decision have relevance for lawyers across the country?

3. Does the decision raise or clarify any issues?

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1. What are the key legal issues being explored in this decision?

Dr. Henry Morgentaler is seeking a declaration that Regulation 84-20, made under the Medical Services Payment Act, discriminates against women, contrary to the Canadian Charter of Rights and Freedoms, s.7 and s.15. In particular, Dr. Morgentaler is challenging the provinces decision to deem therapeutic abortions unentitled and uninsurable services unless women first overcome strict, qualifying preconditions. At present, New Brunswick requires that two medical practitioners must certify, in writing, that an abortion is "medically necessary". The criteria for determining medical necessity is left to the unfettered discretion of the doctor. Once the referrals are provided, the procedure can only be performed by a certified specialist in obstetrics/gynecology, and then, only in an approved hospital facility. At present, only one hospital in New Brunswick will perform abortions.

Early in the litigation, the Province took the position that Dr. Morgentaler did not have the necessary legal standing to challenge the legislation as a public interest litigant. In particular, the Crown advanced the position that Dr. Morgentaler failed the third branch of the standing test, that it would be more reasonable and effective for a directly affected woman to bring this issue before the Court. The Crown however refused to consent to having the issue of standing determined as a preliminary matter. Instead, it maintained the position that the Rules, as they stood, reserves to the Crown, the exclusive right to challenge the standing of a public interest litigant. The Crown further argued that the Crown should determine the timing of a challenge to standing.

Two legal issues were before the Court in Morgentaler v. The Province of New Brunswick, 2008 NBQB 258. The preliminary issue concerned the operation of Rule 23(2)(b) which permits a defendant to apply to the court to have an action stayed or dismissed on the ground that the plaintiff does not have the legal capacity to pursue the action. There is no Rule in New Brunswick that directly and appropriately sets out the procedure by which a plaintiff can request a preliminary determination of standing. Further, the Rules governing the admission of evidence on applications under Rule 23.02 severely curtailed the admission of the necessary affidavit evidence.

If the Court agreed to hear the application to determine standing, the second issue was whether Dr. Morgentaler ought to be granted public interest standing.

Justice Garnett first confirmed that Dr. Morgentaler lacks "legal capacity in this instance." She then examined Rule 23(2)(b) and found that it, "relates to a different circumstance and does not apply to nor contemplate the issue of Public Interest Standing.". Having decided that there was no applicable rule, Justice Garnett exercised the court's inherent jurisdiction to permit the issue to be brought before the Court as a preliminary question.

Justice Garnett then proceeded to consider whether Dr. Morgentaler meets the test for public interest standing and concluded that he did. Central to this finding was an acknowledgment that, "there are many valid reasons why women who have had abortions would not or could not bring this challenge". The decision clears the path for Dr. Morgentaler to proceed with his constitutional challenge solid in the knowledge that the case will be heard on its merits.

2. Does the decision have relevance for lawyers across the country?

This decision reiterates the important role of public interest litigants as advocates for those who can not, or will not, challenge the state. It opens the door for lawyers to offer their clients, where the rules don't otherwise permit, the option of eliminating one of the risks of proceeding to trial.

Public Interest Standing is not a creature of statute, nor did it emerge from the rules of the court. It has been granted to litigants on a case by case basis by courts using their inherent jurisdiction to do what is right. In the case of the public interest litigant, courts have found that it is right and just to permit citizens standing to challenge the state where it appears that is acting beyond its authority and where the attorney general has shown no inclination to intervene. The courts have found that in certain circumstances, it is not practical to wait for a directly affected person to challenge the legislation. Without granting standing to a qualified and interested party, ultra vires and unconstitutional legislation could remain immune from judicial scrutiny. In effect, state power could go unchecked. The public and the courts need the public interest litigant, or more specifically, the right public interest litigant.

Faced with a challenge to its legislation, the state may draw upon seemingly endless resources. The same is rarely true for the public interest plaintiff who must balance the risks of committing extensive time, funds and energy of proceeding to trial against the knowledge that at the tail end, they may fail on the issue of standing alone.

More generally, the risk of losing at trial on the issue of standing operates as a general deterrent to every public interest litigant, regardless of the merits of the challenge.

This decision reiterates the principal that the Court determines whether it is fit and appropriate to grant public interest standing, and in so doing remains the master of its own process and resources. It is illogical and wasteful to deny a determination on standing until after a full trial.

The decision also underscores the importance of the public interest litigant. The public relies on such "interested strangers" to advance the rights of those who will not or can not challenge the state on their own. This decision affirms the obvious, that where a litigant knows that standing will be challenged at trial, they should have the right to request affirmation prior to proceeding to trial, to know in advance that their resources will be directed to a hearing that will focus on the impugned legislation, not their right to mount the challenge.

3. Does the decision raise or clarify any issues?

After clearly distinguishing between "legal standing" and "public interest standing", Justice Garnett revisits the third branch of the test for public interest standing. In particular, what role does the existence of alternative plaintiffs play in deciding if a public interest litigant should be able to advance a constitutional challenge?

Repeating the reasoning of Justice Jenkins in Morgentaler v. PEI, [1994] PEIJ No. 16, Justice Garnett considered the "intimate and private nature" of the decision to terminate pregnancy, and found that, "There are many valid reasons why women who have had abortions at the Fredericton Clinic would not or could not bring this challenge. Dr. Morgentaler is therefore a suitable alternative person to do so. "

In so deciding, Justice Garnett underscored the special role of the public interest litigant as an advocate for those who can not, or will not challenge the state. The decision is a reminder that those who suffer discrimination and prejudice at the hands of the state may be vulnerable not only in terms of their ability to access the necessary resources, but for personal and emotional reasons that deserve equal consideration and recognition.

Darlene Jamieson, Q.C.

Merrick Jamieson Sterns Washington & Mahody

Barristers

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The word is out in Quebec that Ken Epp of the multi-party Anti-Choice Caucus on Parliament Hill has assured supporters that C-484 would resurface again in the upcoming Parliament.
Big demo Sunday afternoon in Montreal - I'm going in my Benedict XVI garb!:

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Le projet de loi C-484, intitulй Loi sur les enfants non encore nйs victimes d’actes criminels, qui octroie un statut juridique au fњtus, ouvrant ainsi la porte а la re-criminalisation de l’avortement, avait йtй adoptй en deuxiиme lecture а la Chambre des Communes. Mкme si C-484 est tombй avec le dйclenchement des йlections, un dйputй du Caucus Pro-Vie a dйjа annoncй que ce projet de loi serait reprйsentй au nouveau parlement. Nous devons donc lancer un message claire aux futurEs йluEs :
Pas d’autres C-484
On ne joue pas avec le droit des femmes !
Dimanche 28 septembre 2008
Au Parc Lahaie
Boul. St-Joseph, coin St-Laurent
Mйtro Laurier
Ralliement 13h30, dйpart 14h00
Le 28 septembre 2008,
soyons nombreuses et nombreux а manifester et а signifier clairement qu’[b]on ne joue pas avec les droits des femmes ![/b]
Cette manifestation est une initiative de la Fйdйration du Quйbec pour le planning des naissances (FQPN) et de la Fйdйration des femmes du Quйbec (FFQ), en collaboration avec le mouvement autonome des femmes et le mouvement syndical. Pour en savoir plus sur cette lйgislation qui a l’appui du Caucus Pro-Vie et qui reprйsente une vйritable menace pour le droit а l’avortement et le libre choix des femmes, consultez le site [url=http://www.contrec484.qc.ca]http://www.contrec484.qc.ca[/url]

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[ 26 September 2008: Message edited by: martin dufresne ]

[url=http://www.marketwatch.com/news/story/election-2008-dont-play-womens-rig... 25th press release, picked up by no English-language media except the CBC and the Toronto Star:[/url]

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Representatives from Abortion Rights Coalition of Canada, Canadian Labour Congress, the Ottawa Coalition to End Violence Against Women, Federation du Quebec pour le planning des naissances and Action Canada for Population and Development (ACPD) held the press conference, describing themselves as a united front in the mobilization of women voters.

"The bill that went the furthest, Bill C-484 - The Unborn Victims of Crime Act, would have opened the door to re-criminalizing abortion. But members from various parties supported the bill at second reading, and it almost received third and final reading in the Commons before dying on the Order Paper as a result of dissolution. . .

These threats have spurred the coalition to declare September 28 as a National Day of Action against Bill C-484. The current election now presents an opportunity to use the Day of Action to call on parties and candidates to state their commitment to women's rights, especially women's right to choose, and clearly state that they will refuse to introduce any anti-choice bills in next Parliament.

NATIONAL DAY OF ACTION September 28 - BACKGROUND INFORMATION:
Montreal
- Demonstration starting at Parc Lahaie (corner of St-Laurent and St-
Joseph) from 1.30pm
Contact: Nathalie Parent [email protected] or [url=http://www.contreC484.qc.ca]www.contreC484.qc.ca[/url] ;
Ottawa
- Rally at Minto Park / Women's Monument from 12pm
Contact: Pro Choice Coalition of Ottawa (PCCO);
[email protected]
Vancouver
- "Stop the Cons!" - a visual protest at the Vancouver Art Gallery,
Robson Street side, at noon
Contact Joyce Arthur at [email protected]
Toronto
- Rally at 12 noon, at the Bloor Parkette, corner of Bloor and Spadina
Contact: Carolyn Egan [email protected]

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[url=http://www.cbc.ca/news/canadavotes/story/2008/09/25/abortion-newser.html... Story Sept. 25.[/url]

[url=http://www.thestar.com/FederalElection/article/506014]Toronto Star.[/url]

[ 27 September 2008: Message edited by: Wilf Day ]

Women’s rights are not up for debate: what you can do to defeat M-312

M-312 is a private member’s motion introduced by Conservative MP Stephen Woodworth that, if passed, would strike a parliamentary committee to study changing the criminal code definition of the term “human beings”. This is a back-door attempt to allow the re-criminalization of abortion in Canada.

CUPE has a proud history of advocating for women’s rights in our workplaces and society.

We are encouraging CUPE divisions and locals to make connections with activists at the local level to lobby members of Parliament to vote against M-312 and to help make the public aware of the importance of reproductive freedom to women’s empowerment and human rights.

We want to mobilize activists to:

• Write, telephone or meet with their Member of Parliament
• Circulate and collect signatures on the M-312 petition
• Write letters to local media, particularly in response to anti-choice letters, editorials or articles
• Make connections with local Planned Parenthood offices, women’s organizations and other equality-seeking activists to engage them in joint actions
• Work with grassroots activists to organize creative actions at MP offices, such as visits from Radical Handmaids.

Tools at your disposal

The Abortion Rights Coalition of Canada (ARCC) has collected a number of excellent resource materials and information about a range of actions. All of the information is collated on their M-312 Action Page:

• Fact sheets, counter-arguments and other commentary
• Postcards that can be downloaded and printed
• An online petition and versions that can be downloaded and printed for gathering signatures
• Sample letters to members of Parliament
• Information about creative actions like the Radical Handmaids.

https://cupe.ca/human-rights/womens-rights-debate-defeat-m-312

NDP Niki Ashton is tabling a private members bill, for this Thursday, which calls on MPs to affirm that “a woman’s right to choose abortion is a fundamental question of equality and human rights, both in Canada and around the world.”

Kaitlin McNabb wrote:

@terrytowel: really? That's amazing. Do you have more information on it, and do you know if it is partially in response to the stuff happening in NB?

[url=http://www.ndp.ca/news/ndp-defends-womens-right-to-choose-0]NDP defends women's right to choose[/url]

The women of FEMEN who protested the Right to Life rally on Parliment Hill speak to Evan Solomon about why they went topless at the rally to protest.

http://www.cbc.ca/player/News/Politics/Power+%26+Politics/ID/2455207279/

Go to 9:30 into the video to see the interview

If Niki Ashton wishes to risk re-opening the abortion "debate" for partisan political aims, maybe at least she should deal with some real-live issues:

[url=http://www.theguardian.pe.ca/News/Local/2014-05-09/article-3717981/Ghiz-... says P.E.I.'s abortion policy will not change, despite Trudeau's pro-choice stance[/url]

[url=http://www.thestar.com/news/canada/2014/04/17/politicians_jeered_over_ne... of people gathered in front of the New Brunswick legislature Thursday for a pro-choice rally aimed at getting the provincial government to fund abortions at private clinics.[/url]

The brilliance of this NDP move continues to reveal itself:

[url=http://news.nationalpost.com/2014/05/12/ndp-mps-right-to-choose-motion-g... MP’s ‘right to choose’ motion gets rare support from anti-abortion activists eager to reopen debate[/url]

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Ms. Ashton said her motion is simply about recognizing women’s rights: “This is not about reopening the debate,” she said on Monday.

But anti-abortion activist Mike Schouten said the Ashton motion acknowledges “that abortion is not a settled issue in Canada.”

“We see this as a positive development. We think the debate needs to be had,” said Mr. Schouten, campaign director of WeNeedaLAW.ca.

Can Ms. Ashton please withdraw her opportunistic and misguided motion? Please?

terrytowel wrote:

Looks like she listened to you Union. Her motion was withdrawn from the order paper, and instead they will debate the future of the CBC.

Yes! Good news indeed:

[url=http://www.cbc.ca/news/politics/abortion-debate-nixed-as-ndp-shifts-focu... debate nixed as NDP shifts focus to CBC funding cuts[/url]

Nice to see the NDP can turn on a dime when needed. I'd love to know how this decision was made.

Of course, the motion isn't dead yet, but hopefully it will never come back. Some damage may already have been done, given how it emboldened anti-choice organizations in recent days, which may well breathe life into some new dinosaur Conservative MP looking to make trouble.

quizzical wrote:

my daughter informed me today after school they're having a debate on abortion in socials class tomorrow or the next day! started by the anti-abortion contingent. i've got no idea if i should have a hissy with the principal or nbot?

I don't know about a hissy fit but I would want written confirmation that any non-factual information would be challenged by staff or that the event be recorded so that misinformation could be corrected at a later date. 

My problem with this, is that they wouldnt provide 'facts' which you could dispute, but 'feelings' or 'spiritual guidance' neither of which you can dispute thus making it more persuasive to the kids

Either way it's good news!  I often read the claim that X% of Canadians want a law on abortion, but recently I read that 59% don't want the topic reopened. So, while some may say they think there should be legal limits they must also think that Canada's current medical regulatory system is fine. 

Maybe the teacher had the facts on the timing of most abortions in Canada and reasons why women have abortions past 20 weeks.

http://rabble.ca/columnists/2014/05/moving-forward-abortion-debate

This is the first time I have read some serious analysis of the legal protection women have under the Charter.  

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In reaction to Trudeau's linking of abortion to women's Charter rights, a chorus of social conservatives have been insisting that abortion is not a constitutional right. They are wrong. First, it's irrelevant that the Charter does not actually contain the word abortion. That shows a lack of understanding of how legal precedents shape an evolving interpretation of our laws and human rights. The Supreme Court threw out our old abortion law in 1988 because it arbitrarily restricted or denied access, thereby increasing risks to women's health. Any abortion restriction passed today would not likely pass constitutional muster as it would infringe women's right to bodily security, life, liberty, conscience, privacy and equality. Abortion becomes a de facto constitutional right because the situation of restricted or inadequate access violates women's rights.

Second, the right to abortion has grown stronger with post-1988 jurisprudence. For example, the Supreme Court at that time said that "protection of foetal interests by Parliament is also a valid governmental objective," but two Supreme Court decisions after 1988 denied rights to fetuses because that would compromise the established rights of women (Dobson v. Dobson, 1999; and Winnipeg Child and Family Services, 1997). This undermines any legitimate state interest in fetal rights.

Third, it's no longer meaningful that the Supreme Court said in 1988 that Parliament could try to re-legislate on abortion, or that Justice Bertha Wilson further suggested that abortion could perhaps be restricted sometime in the second trimester. Neither were requirements, and more importantly, society has moved on and so has medical practice. Colby Cosh says:

"...such a law would explicitly infringe on Charter rights; the point of the decision was that Parliament can only do so proportionally and minimally, to serve a pressing objective. That last requirement is a problem, since medical self-regulation already discourages purely elective late-term abortions; an appellate court would demand a factual demonstration that the status quo wasn't working."

Whoops! I should have posted (also) this much better story by rabble's News Intern, Alyse Kotyk:

[url=http://rabble.ca/news/2016/03/pei-announces-it-will-soon-provide-abortio.... announces it will soon provide abortion services[/url]

[url=http://www.cbc.ca/news/canada/prince-edward-island/political-party-leade.... party leaders react to province's abortion announcement[/url]

Interesting to contrast the parties' reactions - ranging from strong principled support on the part of the NDP, all the way down to the scumbag Conservative leader. Worth reading.

[url=http://www.cbc.ca/news/politics/mike-duffy-speaks-first-time-1.3568130]Mike Duffy talks abortion access in 1st words since return[/url]

Quote:

The independent P.E.I. senator showed up at the Senate's legal and constitutional affairs committee to join the group of senators studying the government's assisted-dying legislation. He waited patiently to speak, for more than two hours, and was then given the floor by the chair, Conservative Senator Bob Runciman.

He opted to ask a question of Health Minister Jane Philpott and to voice his support for expanding abortion access in the province he represents.

"Minister, I'll make this quick because I know you're on a tight time schedule. I represent Prince Edward Island and there, women in P.E.I. have, for some time, had concerns about access to full medical facilities, medical services for women. That's recently changed, and that's a good thing," Duffy said.

"Have you thought ... about what mechanisms the federal government might have, i.e. the Canada Health Act, cash, money, to ensure that this service you're proposing will be available everywhere in Canada?"

Philpott praised the question as "excellent," and noted abortion access on P.E.I. is an appropriate comparison to the future availability of physician-assisted dying should the Liberals' bill C-14 pass.