This is the seventh essay in a special eight-part series on Feminist Constitutionalism, organized by Melina Girardi Fachin as part of the project ‘Transforming Judicial Outcomes for Women in Canada and Brazil’, which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). For more information about Feminist Constitutionalism, please email Melina Girardi Fachin at melinafachin@gmail.com.
–Dr. Kerri A. Froc, Associate Professor of Law, University of New Brunswick
One of the tasks of feminist constitutionalism has been to render gender in constitutional law visible. The best articulation of this process I have seen is from Joanna Conaghan, in her book, Law and Gender. She says:
A truly gendered analysis turns out to require…unearthing the normative premises which support legal rules and doctrines, and considering their impact and effects in a wider social, political and cultural context…[revealing] patriarchal values and assumptions about women’s inferiority and social role [that] are knitted into the very fabric of liberal legal thought.
For this blog post, I was asked to provide a case study of landmark feminist constitutional decisions. I revisit the 1988 Canadian decision of R v Morgentaler, which struck down as unconstitutional section 251 of the Criminal Code. It prohibited all abortions except those approved by a 3-doctor, hospital “Therapeutic Abortion Committee” (TACs) based on risk to a woman’s life or health. The court split 4 ways, with one “majority” decision by Chief Justice Dickson (writing for himself and one other judge), two concurring decisions (one written by the only female judge on the court at the time, Madam Justice Wilson) and a two-person dissent. I have previously written less sympathetically about all of the decisions in the case as unable to escape the liberal framework of the Canadian Charter of Rights and Freedoms. However, with time I have come to appreciate the majority decision’s more subversive elements, especially in light of the US Supreme Court decision of Dobbs v Jackson Women’s Health Organization. I was inspired to do so by recent conversations with prolific reproductive rights scholar, Joanna Erdman.
The 1988 Morgentaler decision takes its name from Dr. Henry Morgentaler, who pioneered abortion access by virtue of clinics, which were safer and provided quicker access to abortions than that provided by virtue of the cumbersome TAC system, which in practice meant that abortions were accessible only in 25% of hospitals with widely divergent interpretations of what constituted a risk to a woman’s “health.”
Morgentaler charged together with another doctor with unlawfully conspiring to procure abortions. To challenge the law’s validity, he used section 7 of the Canadian Charter of Rights and Freedoms, guaranteeing the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The majority of the Court found that the TAC procedure violated women’s physical and psychological integrity because of the unnecessary delay occasioned by the system, and was fundamentally unjust because the difficulty in obtaining a TAC-approved abortion meant the Criminal Code defence was “practically illusory.” Chief Justice Dickson’s majority decision did not address the question as to whether any restrictions on abortion would violate women’s rights. That was left to the concurrence of Madam Justice Bertha Wilson, who found that they would. It would be a violation of women’s right to liberty in a manner than was fundamentally unjust by interfering with a matter of conscience.
Chief Justice Dickson was conscious of writing his decision in a way that would persuade some of his more conservative colleagues to sign on. Nevertheless, a close reading reveals its transformative potential. The lower appeal court was unanimous that the Charter did not protect abortion rights (reasoning echoed in the Morgentaler dissent, and decades later by the US Supreme Court in Dobbs). The Chief Justice side steps woman-blaming arguments that were implicit in a pre-Charter challenge of section 251 under the Canadian Bill of Rights, which said that women suffered no “treatment” to which the state can be held accountable – their anxiety about unwanted pregnancy is not its doing. Instead, he deeply implicates the state not only for the psychological torment and enhanced physical risk caused by delay occasioned by section 251, but also, for its “removal of decision-making power” from women.
In so doing, he echoes the more “radical” decision by Wilson J, that interference with the fundamental life choice of whether to bear children is a violation of liberty. In other words, the very act of “getting permission” (whether from an actual man or from the patriarchal state) through an administrative regime does violence to women’s sense of self and autonomy over her own life. Justice Wilson identifies this element – reproductive autonomy – as a gendered phenomenon unique to women given the biological reality of pregnancy. In Dobbs, by contrast, Justice Alito says that “attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”
Furthermore, Dickson CJ refused to absolve the state on the basis that delay was simply an administrative inefficiency without constitutional consequences. He first casts doubt on the delay being innocent, saying it “may be true” that Parliament did not intend it, and even “were it nevertheless possible in this case to dissociate purpose and administration” (my emphases) that our constitutional doctrine considers both purpose and effect in deciding government has violated rights. Sometimes, as the saying goes, the procedure is the punishment. Dickson CJ revealed what he calls the “seemingly neutral” requirements of the Criminal Code as anything but. He pointed to the lived, on-the-ground experience of women, including practical realities like the “emotional and financial burden” of travelling long distances to find hospitals with accredited TACs that would approve an abortion, and rejected theoretical access under the law as good enough.
The provision was “manifestly unfair.” Compare this to the willfully ignorant dicta from the Dobbs court that. “[It[ is hard for anyone – and in particular, for a court – to assess…the effects of the abortion right on the lives of women.” Much has been made of the deficiencies of the 1988 Morgentaler majority decision, including the lack of an equality analysis (the sex discrimination claim having been dropped before reaching the Court), its procedural focus, and the fact that doesn’t mandate abortion access but only protection from an unfair criminal provision. These are legitimate critiques (and I’ve made some of them). However, Morgentaler may be one case where a deeper, gendered analysis demonstrates that its normative underpinnings have transformative potential for women’s equality in future cases, including cases seeking to establish a right to funded abortions at clinics under provincial Medicare.
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