Counter-point: Motion 312 questions women’s rights to bodily self-governance
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By Stephanie Boulding
Motion 312 is unconstitutional. In all the wrangling over “reopening the abortion debate,” this fact has slipped by the wayside.
The Canadian Supreme Court cases Tremblay v. Daigle (1989) and R. v. Sullivan (1991) together form a solid legal basis for the assertion that a fetus is not a legal person; together with R. v. Morgentaler (1988) they secure Canadian women’s right to bodily self-governance.
Section Seven of our Charter of Rights and Freedoms asserts that “[e]veryone has the right to life, liberty and security of the person.” Proponents of Motion 312 allege that an unborn fetus has the same rights as legal persons and ought to be accorded them. However, another Supreme Court case — Borowski v. Canada (Attorney General)(1989)— unanimously held that the question of a fetus’s right to life under Section Seven was “moot” and that the claimant (Borowski) had lost his standing before the Court.
Of particular note is the timing of both Borowski v. Canada (Attorney General) and Tremblay v. Daigle. Borowski, in March of that year, was faced with the Appeals Court ruling that the fetus was not entitled to Charter rights, but declined to issue judgment, deeming the case moot. Tremblay v. Daigle, in November, saw the Supreme Court take the unanimous decision that a fetus had no legal standing as a “person” in Canadian law.
Limiting a woman’s right to abortion infringes severely upon her lawful right to “security of . . . person,” to which she is absolutely entitled. For this reason (but not only this reason), Woodworth’s proposal is violently unconstitutional. He knows it, I know it, you know it. And yet, Woodworth wishes to “reopen the debate.”
There is no reopening of this debate. It was closed in 1988, twice more in 1989, and once further in 1991. Even Stephen Harper has said that “as long as [he is] prime minister, we will not reopen the debate on abortion.” Woodworth’s motion is guaranteed to fail in the House, but as a piece of agenda-setting, it succeeds admirably. Woodworth has managed to tell Canada that we have a debate on abortion rights; this is patently untrue.
What’s more, it’s dangerous. By defining a fertilized egg as a “person” under Canadian law, Woodworth’s motion would needlessly criminalize several things Canadians take for granted. The IUD, or intrauterine device, an efficient form of birth control, would become illegal. So would in-vitro fertilization. The morning-after pill would be a memory. It’s also not hard to draw the line from motion 312 to the pill being illegal, as well as other forms of hormonal birth control.
And what of women who miscarry? Would they be forced to take part in criminal investigations, primary suspects in the murder cases of their own child-to-be? Motion 312 is an unconstitutional attack on women’s rights, and regardless of your beliefs on what constitutes a “person,” you must conclude that motion 312 is an unconstitutional attack on the personal liberty of Canadian women, and we must not stand for it.
