Helping or Hurting? Utility of the Charter for Reproductive Justice and Abortion Access in Canada
By: Sophia King Gillis, JD Candidate, Schulich School of Law
August 25, 2023
Keywords: Abortion, Human Rights, Reproductive Justice, Canadian Charter of Human Rights and Freedoms, Social Justice
Abortion Access in Canada
In Canada, abortions were criminal until 1988 when the Supreme Court of Canada decided otherwise in the case of R v Morgentaler. Until then, the Criminal Code prohibited abortions unless the mother’s life was at risk or the abortion was approved by a therapeutic abortion committee. A majority of the Supreme Court of Canada agreed that preventing abortions violated section 7 of the Canadian Charter of Human Rights and Freedoms, 1982 which guarantees a person’s life, liberty, and security of the person. Though this landmark decision paved the way for more inclusive reproductive care, the majority decision did not guarantee or identify a legal right to abortion under the Charter. In fact, it was only Justice Bertha Wilson, who, in her concurring decision, alluded to a legal right to abortion. She argued that forcing a woman to carry an unwanted fetus was a breach of a woman’s life, liberty, and security, writing that forcing a woman to carry an unwanted fetus was a “complete denial of the woman’s constitutionally protected right under s. 7, not merely a limitation on it.”
This lack of a rights acknowledgement has had lasting impacts, both politically, and for access to abortion care across Canada. Because the Supreme Court gave no direction except to strike down section 251 of the Criminal Code, the federal government was left to their own devices. With the polarization of pro-life and pro-choice dialogue at the time, the government tried and failed three times to pass federal laws setting out how abortion administrations should be handled, ultimately passing the job to the provinces under their jurisdiction over healthcare. This led to unequal access to abortions, with some provinces (such as Prince Edward Island) failing to provide any care until as late as 2017.
Because access to reproductive care is already limited based on factors such as socioeconomic status and living in a rural setting, activist groups have played a significant role in raising awareness and holding governments and individuals accountable for actions that actively prevent reproductive healthcare access.
Significant work in this area comes from the reproductive justice movement. The reproductive justice movement fights for the recognition of socioeconomic and systemic issues that non-white, cisgendered women face when they seek reproductive healthcare. It has three main concerns: (i) the right to have a child, (ii) the right NOT to have a child, and (iii) the right to parent children and control birthing options.
Using Charter Rights to Advance Reproductive Justice
Reproductive justice advocates tend to choose their battles carefully, relying on social change rather than legal change. However, their values on paper align with four specific Charter rights, which are:
- Section 2(a)(b): Freedom of conscience and religion; freedom of thought, belief, opinion and expression
- Section 7: Right to life, liberty and security of the person
- Section 15: Equality rights
- Section 28: Rights guaranteed equally to both sexes
While these rights should, in theory, form a strong defence for the principles of reproductive justice and its goals, they have largely failed to live up to those standards in practice. Mainly, in applying the law judges often fail to take into account social discrimination, for instance on the basis of race, gender, and income, and the ways that grounds of a person’s identity (such as “woman” or “person of colour”) interact to shape their experiences. This has been particularly evident with regard to judicial interpretation of sections 15 and 28 of the Charter.
Issues With Legal Interpretations of the Charter
This issue is apparent in cases such as R v Hess, 1990 and Symes v Canada, 1993. R v Hess concerned section 146(1) of the Criminal Code, which made it an offence for a man to have sexual intercourse with a female under the age of 14 if they were not his wife. The Charter challenge argued that the law discriminated against boys, by depriving them of their right to launch a claim if they were sexually abused under the age of 14. The Supreme Court of Canada elected to keep the law as it was, reasoning that the topic of biological differences between men and women required the creation of new laws for the sexual assault of young boys and would be better handled by the legislative branch. This decision is particularly problematic because the court only considered biological factors and failed to consider the social inequity between genders. Simultaneously, the Court failed to adequately address concerns promptly when they left the issue to be dealt with through lengthy legislative processes, rather than deal with it themselves.
Symes v Canada was the first section 15 claim brought before the Supreme Court of Canada by a woman. Ms. Symes alleged that the non-deductibility of childcare expenses on a tax return, per the Income Tax Act, 1952, was unconstitutional under section 15. The Court dismissed the appeal in a ruling that acknowledged the disparities women face in sourcing and funding childcare but maintained the constitutionality of the Income Tax Act. The Court ruled that pregnancy and childbirth were not personal decisions, rather they were family ones, the scope of which included the decision to pay for childcare. Overall, the Court failed to consider how sourcing and paying for childcare can influence a person’s decision to have a child. Further, they failed to consider that those who are socially disadvantaged often face greater difficulty in accessing and paying for childcare.
Both Symes v Canada and R v Hess lead to similar interpretations of section 15. This interpretation, however, changed somewhat with the recent case of Fraser v Canada, 2020. Fraser was the first case where the Court acknowledged socioeconomic discrimination. While this case had a favourable result, the dissent (which vehemently opposed the Court considering non-biological factors) indicates that new interpretations of section 15 may resort back to considering only biological factors in discrimination cases.
Section 28 has been consistently used to further inequality between the sexes, such as in the case of the Native Women’s Association of Canada v Canada, 1994. In this case, the Native Women’s Association of Canada (NWAC) had been left out of several negotiations for the Charlottetown Accord, and was given little to no funding when they did participate. In contrast, other Indigenous organizations that were male-dominated were paid to participate in negotiation discussions. The NWAC made a claim under section 28. They argued that not giving their members any money to participate, while paying groups primarily composed of male members to participate, was discrimination on the basis of sex. Rather than taking the time to understand how double discrimination could be taking place, the Court dismissed the NWAC’s argument. By not acknowledging and helping to remedy the injustice, the Court disregarded the rights of Indigenous women. Worse than that, they justified the exclusion of the NWAC from the Charlottown Accord negotiations by saying the government expenses would be too great if they included every disadvantaged group in every government negotiation. Effectively, the Court acknowledged the disparities but refused to take any action to deal with them.
Legal Interpretations Supporting Reproductive Justice
Despite the pitfalls of the four Charter sections, all hope is not lost. For example, section 2(b) has had the most success. The cases of CCBR v City of Grand Prairie, 2016 and CCBR v South Coast British Columbia Transportation Authority, 2017 have set an unusual precedent. Both of these cases had to do with an extreme pro-life group, the Canadian Centre for Bio-Ethical Reform, who claimed that abortion propaganda fell under their right to freedom of expression. In both cases, the Court ruled that the Canadian Centre for Bio-Ethical Reform’s graphic ad propaganda was unreasonable, and not covered under section 2(b) protections.
Additionally, despite its many disadvantages, section 15 has been a remarkable support for other Charter claims, and helps support stronger sections, (such as section 2(b)) in Charter claims. This kind of supporting role was first seen in R v Morgentaler, 1988 (described above), which found a section 7 breach that also violated sections 15 and 2(b) of the Charter. Most recently, section 15 was used alongside section 7 in the Charter challenge brought forth by Abortion Access Now PEI (AAN PEI) against the provincial government of PEI. AAN PEI challenged a PEI policy that prevents abortions from being performed in the province. AAN PEI relied on R v Morgentaler to argue that delays in healthcare are unconstitutional under section 7. They made this argument alongside a new argument: that such delays infringed section 15. Together, these arguments made it impossibly difficult for the government of PEI to justify their active prevention of abortion access in the province.
Historically, section 15 claims include an individual’s experience, including social and biological discrimination. However, case law continuously refused to acknowledge the social discrimination aspects. Knowing this, AAN PEI constructed a new approach and used section 15 to argue that equal community membership was breached. In short, this approach argued that since abortions are a procedure only people with uteruses can have, failing to provide abortions prevents people with uteruses from equal citizenship and accessing comprehensive healthcare.
Using this approach instead of one rooted in an individual’s experience (as was attempted in Symes and Hess) provides a stronger basis for claims, leading to more success in court. For example, AAN PEI’s approach showed that a reproductive justice-informed approach to analyzing Charter breaches is possible in cases where a breach is obvious, especially so when the breach is so obvious it creates social outcry.
The Future of Reproductive Justice and Abortion Access
In addition to some of these successes in courts, the reproductive justice movement shows no signs of stopping their social advocacy. Advocates for reproductive justice continue to operate with one foot outside of the legal system, creating social change, and one foot in the legal system by participating in cases as an intervenor group. Intervenor status provides a chance for reproductive justice advocates to speak to courts directly about the long-term and social impacts of a case, rather than being restricted to only talking about the specific case being heard by the court. Reproductive justice groups with intervenor status can demand that legislative interpretation and laws account for the economic, political, and social factors that impact a person’s ability to have dignity in their reproductive choices.
By taking this path, reproductive justice advocacy reinforces the intersectional approach required for long-term change within the court system and creates opportunity for marginalized groups to be heard inside the judicial system. Most importantly, reproductive justice advocacy pushes to ensure that inequitable access to reproductive healthcare is addressed, where otherwise it is likely that it would not be.