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1Abortion Rights

Over the past number of years, abortion advocates and politicians have repeatedly been telling Canadians a terrible lie (which mainstream media outlets have continually reported as a fact); namely, that the Charter of Rights and Freedoms embedded within the Canadian Constitution guarantees women a fundamental “right to abortion”.

If there is one upside to Trudeau’s current attack on our Charter Rights to freedom of conscience and religion – which he has launched by compelling applicants to the 2018 Summer Jobs program to either indicate they support abortion and agree with him that there is a fundamental right to abortion in Canada, or be denied funding – it’s that media outlets across the country are now reporting the truth that there is no Charter right to abortion. This is an extremely hopeful cultural change for everyone working to protect unborn children, especially the question of whether tax-payers should be paying for unnecessary abortions.

As you may recall, I attempted to have that question decided by the PEI Supreme Court in 2016, but was denied “standing” to have my case heard by Supreme Court Justice Nancy Key. I knew I was fighting a losing battle at the time – despite having what one retired PEI Supreme Court Chief Justice told me was pretty much an iron-clad legal case after he read my brief – all because of the culturally-established lie held by most citizens that women enjoy a fundamental Charter right to abortion which all provinces must recognize by providing abortions and paying for them.

During that time, despite providing solid evidence in numerous newspaper articles that (1) there is no constitutional right to abortion in Canada; (2) PEI has the jurisdictional right to not fund unnecessary abortions; and (3) our provincial law (e.g., specific provisions within PEI’s Health Services Act & Health Services Payment Act) explicitly decrees that therapeutic abortions are NOT TO BE PAID FOR under the PEI Health Services Plan unless they are deemed by a doctor to be  “medically necessary,” I could unfortunately find no legal or political support for my case, mostly, I believe, because of the well-established lie that there is a constitutional right to abortion in Canada.  Consider a couple of examples of how entrenched this lie was at the time in a couple of public statements made by the leaders of both the governing Liberals and opposition Conservatives.

When the former Minister of Health and Wellness, Hon. Doug Currie was interviewed by CBC Compass  and asked to explain the rationale for the new Moncton abortion policy that came into effect on July 1, 2015 – a policy which allowed women to “self-refer” for an abortion without even seeing a doctor, thereby failing to meet the legal requirement of having a “medically-required” abortion, he made the following statement:
“Today was about improving access with a 1-800 number to provide the service to Island women that the Supreme Court decided upon over 30 years ago.”

When interim PC leader Hon. Jamie Fox was interviewed by the Guardian on April 3, 2016 about the government’s decision to provide and fund surgical abortions in PEI – again, where women could self-refer – he said that although he opposed abortion on principle:
“I totally respect the Supreme Court and the ruling that they have provided in regards to this being a Constitutional issue and that there is an obligation for all provinces to provide services.”

Both these Island politicians made these statements notwithstanding the fact that I had published several articles in Island newspapers just prior to the implementation of McLauchlan’s “abortion-on-demand” policy which provided evidence with primary sources proving that the 1988 Morgentaler Supreme Court decision not only didn’t confirm a Charter right to abortion, but that it had done exactly the opposite by asserting that there is no constitutional right to abortion, and even going further to highlight that it is parliament’s prerogative to put reasonable restrictions on abortion with a new law to replace the Criminal Code provision which was struck down.  These key facts were apparently only regarded as my “opinions” by PEI media and politicians alike, but hopefully that’s now changing.

I also believe it was the well-established lie that there is a constitutional right to abortion in Canada that best explains why PEI Supreme Court Judge Nancy Key refused to give me standing and hear my Judicial Review case explaining how PEI’s abortion policy brought in by Premier McLauchlan contravenes key provisions of provincial law.  I was confident that the Court would rule that the provincial government was indeed failing to follow it’s own provincial law (e.g., the Health Services Payment Act) if the PEI Supreme Court was to hear my case, given that the legislation clearly stipulates that abortions are not to be paid for unless they are “medically necessary”.  And that statutory provision remains in force, although the Liberal Cabinet did amend the regulations – just prior to my day in court to have standing determined – saying abortions didn’t need to be medically necessary. However, that was essentially smoke and mirrors, since any good lawyer knows that when regulations contravene provisions of the governing statutes, the laws passed in the legislative assembly always take precedence over the regulations put in place by Cabinet.  As it turned out,  Justice Key’s decision not to hear my case essentially gave Premier McLauchlan leave to continue breaking the law by using tax dollars to pay for abortions which aren’t medically required.

So what a pleasant change to read the following paragraph in a January 18, 2018 CBC article:

“Hajdu’s nod to ‘hard-won rights’ is a reference to the Supreme Court’s landmark 1988 Morgentaler decision. But that decision didn’t recognize a constitutional right to abortion under the Charter. While it did nullify Canada’s existing abortion law, the Court left it to Parliament to come up with new legislation that would balance the rights of women with the state’s interest in the protection of the fetus, within the bounds of the charter.”

….or the following from the Ottawa Citizen on January 16, 2018:

Rev. Moyle responds: “There is no constitutional right to an abortion,” but there is to freedom of religion.

….or the following from CBC’s program The Current on January 15, 2018:

Blaise Alleyne, the president of Toronto and Area Right to Life, has filed a claim in federal court, arguing that it is the government, not anti-abortion groups, who are contravening the Charter.   “If you read the Morgentaler decision, there is actually no Charter right to abortion,” he tells The Current‘s Anna Maria Tremonti. “But there is a Charter right to freedom of expression, freedom of conscience, freedom of religion, and equality rights. So this is a charter challenge.”

….or many, many other similar statements in numerous provincial, regional and national news outlets. This is something entirely new. And it’s powerful.  It represents, I believe, an important step in the struggle to fully expose and banish the lie that we have no choice but to allow Canadian women to abort roughly 100,000 babies each year in Canada because the most important law in our country – the Constitution – tells us we must!

 

Yes, it’s true that there is still no federal “law” to recognize the rights of unborn children to continuing living – a law that, as the Supreme Court stated, would “put reasonable limitations on abortion;” but as more and more Canadians are realizing  that millions of other Canadians just like them DON’T support abortion, and that abortion is not, in fact, a Charter Right…..well, for the first time in a long time this sudden and growing awareness makes it far more likely that provincial governments – or at least some provincial political parties, especially the Progressive Conservative Party in PEI – will now give serious consideration to whether funding “medically-unnecessary” abortions should continue to take precedence over funding  “life-giving” medical procedures or services which are currently not being funded.

 

I would, therefore, respectfully ask opposition politicians, especially Hon. James Aylward, leader of the PEI PC Conservative Party, to take a careful look at the Case I prepared,  ask their own legal counsel to provide an opinion on the merits of the case and likelihood of a challenge being successful, and if that opinion is favourable, which it should be, submit a question to the PEI Supreme Court asking for a ruling on whether the current abortion policy is breaking the law by funding abortions which are not medically required.  All the work has already been done, so it shouldn’t cost anything much to take it forward. A little courage to do the right thing and a sense of duty to hold the government accountable to not break the law is really all that’s required.