Abortion "rights" in Manitoba.

Just before Christmas, 2004, Associate Chief Justice Jeffrey Oliphant of Manitoba ruled that the provincial government had committed a gross violation" of women's rights by refusing to fund private abortions. In his 25-page report, Oliphant placed the blame squarely on the NDP government. "In my view," he said, "legislation that forces women to have to stand in line in an overburdened, publicly funded health-care system and to have to wait for therapeutic abortion, a procedure that probably must be performed in a timely manner, is a gross violation of the right of women to both liberty and security of the person."

Judge Oliphant's decision to strike down sections of the Manitoba Health Insurances Act on the ground that they violate the Charter of Rights means that women who have paid fees to terminate their pregnancies may seek compensation from the province. It may also mean that patients who have paid fees for other medical procedures because they could not get treatment in the public system in a reasonable length of time, will also be able to apply for redress.

Lawyer Chris Wullum, representing the anonymous women as Jane Doe 1 and Jane Doe 2, said, "If it takes a shorter period of time to have a medical procedure at a private clinic than it would in a hospital, that may infringe on a person's Charter rights." The argument is far from conclusive.

Charter and health care

Constitutional lawyer Bryan Schwarz points out that the ruling raises questions about the relationship between the Charter and public access to health care. "If you get a cancer diagnosis, you might have to wait a while in this province. Is that a denial of your Charter rights because that jeopardized your security of the person?"

In two recent Supreme Court cases, Schwarz said judgments varied on whether a health service had to be provided, or risk violating rights. Both cases involved B.C. patients. In the first, known as the Eldridge decision, the court ruled in 1997 the B.C. government had to provide sign-language interpreters for hearing-impaired patients accessing health services. The court said failing to provide the service when it was needed for the patient to access proper health care services violates patients' rights.

But in a more recent decision known as the Auton case, the court ruled on December 1, 2003, the B.C. government had the right to decide whether to fund treatment for children with autism, and that not getting treatment was not a violation of fights.

The Supreme Court also recently heard arguments on a third case, in which a Quebec doctor and patient are suing for the right to buy private health insurance so they can get treatment from private clinics if the public system is taking too long. This case was decided in favour of private health insurance this summer (2005).

Other objections

Other objections are not far to seek. For one thing, Judge Oliphant referred to a "therapeutic abortion." Such a procedure does not exist. The word "therapeutic" refers to healing, but abortion always kills the baby.

More importantly, Judge Oliphant seems to think that women have a right to abortion. But Canada has never legally granted such a "right." The Charter right to "liberty and security of the person" does not imply a "right" to abortion, as explained by the January 1988 Supreme Court ruling which overthrew the existing 1969 legislation permitting abortion under Criminal Code Section 251.

In the 1988 Morgentaler case, as EL. Morton sums it up in his book Morgentaler v. Borowski, only one justice (the feminist Bertha Wilson) attempted to claim a constitutional right to abortion; but the ruling itself explicitly recognized the legitimate interest of the state in protecting the life of the unborn child.

A historical note

Not many people will remember that in 1981 Prime Minister Pierre Trudeau solemnly asserted that the new Charter of Rights and Freedoms--then under discussion--would not affect in any way the existing abortion legislation as formulated under Section 251 of the Criminal Code in 1969. That legislation allowed abortion, but only after the approval of the hospital's Therapeutic Abortion Committee (TAC) (obviously a misnomer). The TAC's were supposed to allow abortions only for serious reasons but this soon deteriorated into rubber-stamp approvals. At any rate, Section 251 still maintained by means of its legal definitions that there had to be a reason for getting an abortion. In other words, the 1969 law did not proclaim or accept that abortion was a right.

During the discussions in 1981, pro-life activists worked hard to insert the words "from conception till natural death" into clause 7 of the Charter. This reads, "Everyone has the right to life, liberty and security of the person ...". Then in mid-March 1981 this pro-life work--which upset many Liberals--was completely undercut by an announcement from Cardinal Gerald Emmett Carter that Mr. Trudeau had personally assured him that the new Charter would not in any way affect the existing legislation on abortion. Pro-lifers greeted the announcement with extreme skepticism, so much so that after a few months, the Cardinal asked for more assurances from the government. Thereupon Mr. Trudeau obliged by repeating his promise (that the Charter would not affect Section 251), in the House of Commons in October 1981.

To make a long story short, seven years later, in January 1988, the Supreme Court of Canada declared the 1969 legislation contrary to the Charter and, therefore, unconstitutional. It ruled that under the equality clause, Section 15, TAC's created unequal treatment for those applying for abortions because one TAC would take longer than another TAC elsewhere. Mr. Trudeau's verbal promise, of course, meant nothing to judges who claim they only follow the legal provisions. But as mentioned above, while the ruling from here on in permitted abortion on demand in practice, it did not bestow a right to abortion in law. On the contrary, it pointed out that new legislation was up to Parliament.

Manitoba Judge Jeffrey Oliphant pretends to know better and is building a legal construct which would make abortion a right.

Christians, needless to say, deny that evil actions can be made into a bona fide human right. Killing newly conceived babies can never be a right.

Father de Valk is a priest with the Congregation of Saint Basil, and the editor of Catholic Insight magazine.