Written by guest bloggers, Rachael Johnstone and Emmett Macfarlane.
When Canada’s now defunct abortion law was struck down in 1988, it was found unconstitutional on the grounds that it created delays and uneven access to abortion services across the country. This patchwork of services was seen to violate women’s Charter rights to life, liberty, and security of the person. Yet a different patchwork of access has emerged in the wake of the decision. The significance of this dynamic served as the jumping off point for our article. If the Supreme Court can strike down a law on the grounds that it creates unequal access to a necessary service, what happens when the resulting policy vacuum mimics aspects of the initial problem? What bodies are responsible to address such problems? And how should Canadians expect solutions to emerge?
A common tactic among social movement actors and governments, both federal and provincial, is to export potentially fraught policy questions to the courts, rather than address them in Parliament or the provincial legislatures. Using abortion access to guide our analysis, we explore some of the problems in limiting such debates to the courts. While courts continue to serve as an important platform for governments and individuals to debate rights claims, they possess neither the necessary tools nor the inclination to address the legal vacuum that surrounds abortion access. Instead, we stress the need to hold governments accountable to uphold the spirit of the Charter. Rights claims were never intended to be the sole domain of the courts – they are inherently political, and substantive rights often necessitate political action. Abortion is no exception.
While there is no abortion law in Canada, we also show that it is incorrect to suggest that abortion is unregulated or that there is such a thing as “abortion on demand”. As a healthcare issue, the provinces have significant power to shape the nature of service provision and to decide which procedures are funded and under what conditions. The federal government can also have influence over these decisions through a diligent enforcement of the Canada Health Act although, increasingly, they have been loath to do so. Moreover, significant aspects of these services fall to healthcare professionals who are themselves self-regulating. When the resulting regulations and norms produced by these bodies are considered alongside the continuing social stigma of abortion in some areas of Canada, it quickly becomes apparent that claims that abortion is an unregulated service are misleading.
This article, our first collaboration, is the beginning a larger research project we plan to undertake exploring the interrelationships between the Courts, government, and public policy in their dealings with reproductive rights in Canada. Through this work, we aim to shed light not only on the continued problems posed by challenging social issues in politics, like reproductive rights, but also on the need to hold governments accountable to address and uphold these rights according to the Charter.
Rachael Johnstone and Emmett Macfarlane’s article,“Public Policy, Rights, and Abortion Access in Canada”, appears in Volume 51 (2015) of the International Journal of Canadian Studies. Read it today on IJCS Online: http://bit.ly/IJCS51g or on Project MUSE – http://bit.ly/IJCS51PM_Johnstone