During the past few years, I have published quite a number of Guest Opinions in PEI newspapers clarifying how the oft-repeated claim that there is a constitutional “right to abortion” is wrong. This claim has been repeated so often, by so many people, for so many years, it had become solidly entrenched as an indisputable “fact” in both the public psyche and political discourse.
Many politicians – including provincial premiers and even the Prime Minister – have cited the fundamental “charter right to abortion” in support of their ideological belief in the rightness of abortion-on-demand; and even pro-life politicians would say that although they were personally against abortion, they couldn’t support laws restricting abortion – or provincial policy not to fund abortion – because the “right to abortion” was guaranteed in the constitution.
My arguments and claims in numerous articles (Links can be found under the “Abortion” tab at the top of this page) were dismissed as my personal “opinions” and largely ignored as the well-established mantra about a right that doesn’t actually exist continued to be accepted as true….until very recently.
When Justin Trudeau decided to make it mandatory for applicants to the summer job program to indicate support for abortion, he put the spotlight on the issue. No one could dispute that there are fundamental rights to freedom of religion, freedom of conscience, freedom of expression, etc. in the Charter…anyone could read them outloud in Section 2 of the Charter. But abortion wasn’t mentioned anywhere in the Charter. “That doesn’t matter,” stated abortion advocates, “because the Supreme Court recognized that abortion was a Charter right in it’s 1988 Morgentaler ruling.” But did it? No. And as national media, and groups seeking funding who were opposed to abortion started examining the issue, they also started to realize (and report) that there is, in fact, no constitutional right to abortion in the Charter!
When I published a recent letter in the Guardian, Journal-Pioneer and Eastern Graphic titled Trudeau Denying Charter Rights. Joyce Arthur, the Executive Director of Abortion Rights Coalition of Canada (ARCC), responded to explain why she believed I was wrong, with an article titled No Abortion Law Necessary.
I responded to her article to clarify why she was not only mistaken about there being a Charter right to abortion in the Charter, but further explaining why parliament also has a moral and legal duty to protect unborn children with an article titled “Parliament has a legal duty to Protect Unborn Children” (See Below).
On February 22, 2018, former Chief Justice of the PEI Supreme Court, Gerard Mitchel (who ruled against Morgentaler in a case he made to the PEI Supreme Court attempting to challenge the constitutionality of provincial law preventing him from establishing an abortion clinic in PEI back in the 1990s) also responded to Joyce’s article, with an excellent and authoritative Guest Opinion in the Guardian titled A Bridge Too Far.
I won’t be writing publicly on this issue again. If the matter comes up, I’ll simply cite my last article on this matter (see below) and Gerard Mitchell’s definitive legal response to the question and/or forward a link to this blog post where all four articles can be read. Readers can then decide for themselves what they want to believe.
Parliament has a Legal Duty to Protect Unborn children
[Kevin J Arsenault, Journal-Pioneer, February 12, 2018]
Joyce Arthur, Executive Director of the Abortion Rights Coalition of Canada, claims that I’m wrong to say there’s no constitutional right to abortion (Journal Pioneer, Feb 8). She argues that the 1988 Morgantaler case decided “…you can’t restrict abortion rights without violating the Charter.” That’s simply not true. Hopefully this article will clarify, once and for all, how Parliament has both the right and duty to restrict abortion. Let’s start with three statements taken directly from the Morgantaler ruling:
“Section 1 of the Charter authorizes reasonable limits to be put on a woman’s right [to abortion] having regard to the state interest in the protection of the foetus.” (p.124)
“Protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.” (p.75)
“The interpretive approach to the Charter adopted by this Court affords no support for the entrenchment of a constitutional right of abortion.” (p.39)
Gerard Mitchell (former Chief Justice of the P.E.I. Supreme Court) explained how “None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn.” (Guardian, May-22, 2014)
The Supreme Court struck down the abortion law primarily because of administrative and process flaws. Women had to appear before a three-doctor committee, which many hospitals didn’t have, forcing women to travel to other hospitals with backlogs and long waits. As a result, the law failed to ensure equal and timely access where continuation of the pregnancy might endanger a woman’s life or health, thereby violating the “security of person” provision in the Charter. The Justices rightly struck down that law and suggested Parliament come up with a better one. In 1990, under Mulroney, Bill C-43 addressed those administrative problems by requiring just one doctor’s approval. It passed the House, but was defeated in the Senate by one vote. We’re still waiting for a new law.
Ms. Arthur is correct that unborn children are currently not recognized by Parliament as having legal rights; however, Parliament still has a legal duty to protect them. That was decided when Canada signed the 1990 UN Convention on the Rights of the Child, which states: “The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” So Parliament not only has a legal “right” to restrict abortion (according to the Supreme Court 1988 ruling) Parliament also has a legal “duty” to protect unborn children (as a signatory to the UN Convention) which means enacting a law preventing unnecessary abortions.
For 30 years, abortion advocates like Joyce Arthur have mislead Canadians by continually repeating the lie that there is a constitutional right to abortion enshrined in the Charter. As more people come to realize the truth, they will hopefully decide to join the growing movement demanding Parliament act on it’s legal and moral duty to protect innocent, unborn children from being unnecessarily destroyed.