POLI 324 Lecture Notes - Lecture 16: Therapeutic Abortion Committee, Therapeutic Abortion, Section 33 Of The Canadian Charter Of Rights And Freedoms
15 Jun 2018
School
Department
Course
Professor
POLI324
Legal Rights and Health Care Policy
R.V. Morgentaler & Chaouilli v.Quebec are the two cases we will at look here.
What did the court establish in Morgentaler case? Most misunderstood decision ever delivered by the
Supreme court, it did not recognize the right to abortion, it was a very narrow judgment, though the myth
of Mogetale, fa outeighs the legal sigifiae of the deisio. Thees the th of Mogetale ad
the Reality of Morgentaler.
Conservative judicial critics, and their concerns about judicial review and the paradox of liberal
constitutionalism. In some ways we can view this unit as evidence for that concern. What is the paradox
of liberal constitutionalism?
Judiial Poe ad the hate, the paradox of liberal constitutioalis” – REMEMBER: Manfredi is a
conservative judicial critic, hes a adoate of outs respecting the boundaries of the constitution.
Paradox: judicial review can be consistent with liberal constitutionalism so long as THE constitution is the
supreme law. What Manfredi means by that is the charter as drafted is what constraint judicial review,
the judges bind themselves to the clear meaning of the Charter of Rights & Freedom. Manfredi argues
that this has not exactly happen under the Canadian charter of rights and freedom. While he refers to
judicial review by the Supreme Court, as demonstrated the paradox of Liberal constitutionalism.
Remember, constitutional supremacy is about the Constitution being the highest authority and what binds
the legal actors. The dilemma that Manfredi identifies is the following: if the courts interpret the Charter
and instead of applying its meaning actually creates its meaning, they then are not bind by the
Constitution. Therefore, there are no constraint on judicial review. Remember the constitution is what
binds the use of authority by the legal actors, courts interpret the constitution and the courts apply the
constitution. The difficulty under the Charter is that the Supreme Court has shifted from application of
the Chate to eatio of the Chates eaig. Theefoe thee ae o effetie ostait o judiial
eie. “a oe ehais, ad thats the Notithstadig Clause. That is oe of the easos h
conservative judicial critics are strong advocates of the Notwithstanding clause. They say that again the
way that you constraint judicial power is by the constitution test, the courts have exceeded that, they
created according to Conservative judicial critics. Therefore the only way to address the paradox of liberal
constitutionalism is in aggressive use of the Notwithstanding clause. So again there is a principle view of
why the notwithstanding clause must be part of the constitutional dialogue. His argument (Manfredi) is
that it should require not simply, a majority vote in parliament but should require a 2/3 of support.
Health care and the charter is a clear paradox of liberal constitutionalism. Why? Because all cases we are
looking at here are based on legal rights. How can health care become a legal right worthy of protection
ude the Caadia Chate. Mafedi sas that thats a eaple of Paado of Lieal ostitutioalis.
We are talking about section 7, the Right to Life, Liberty and Security of the Person, not to be deprived
except in accordance with the principles of fundamental justice. That has a specific meaning, when the
faes dafted setio , thees a ig headig Legal ight, ho a e talkig aout health ae ude
legal right? Manfredi argues that the only way for health care to be discussed under section 7 is if the
courts have infused this notions, with a meaning that the framers did not intend. Right to health care via
legal right, that was not intended (Manfredi).
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R.v Morgentaler a case of 1988s
Criminal code provision that was challenged in the case.
Ba “tae, as tudeaus iiste of Justie, he as o to eoe a judge i the fedeal out. He said
that one of the problems with judicial activism is the fact that many of the statutes that are invalidated in
the early years of the charter, he says we are actually living on borrowed time. He said that they were
inacted in a different policy context, it could notwithstand constitutional scrutiny after 1984. Why?
Because the Legal context has changed. So it is something to be aware that most of what the court struck
down at the beginning tend to be quite old statute.
Section 251 provided for penalties for either the physician that performed an abortion and the woman
requesting the service. The rest of the provision provide exemption to these penalties. The penalties are:
for the physician that performed the abortion they had the possibility of life in prison. For the woman
having the service provided, were liable for up to 2 years in prison. (251 and 251.2) Abortion is perceived
as a criminal offence. The next part provides exemption to those penalties: This is what is relevant for the
Morgentaler decision. The pealties didt petai i the folloing circumstances;
First a medical practitioner permitted to perform abortion as a medical service approved by the decision
of hats ko as a theapeuti aotio oittee. The aotio as a edial seie is peitted,
provided, that if the physician saw approval for the medical service via the therapeutic abortion
committee.
Second part: it was at the discretion of the provincial minister of health to establish therapeutic abortion.
The minister of Health in each province who has the responsibility to establish therapeutic abortion
committee. The obligation on the minister was to accredit hospital to provide the service.
What this mean is that abortion is a legal medical procedure in a very narrow context.
At the end of the day only abortion in a publicly accredited institution, accredited by the Minister of Health
whereby a therapeutic abortion committee was established, could sanction legal abortions. Any other
procedure was in violation of the criminal code, and both the physician and the pregnant woman were
liable to penalties and time in prison.
R.V.Morgentaler Decision
First, we have to look at the content of the case:
- In many ways this decision is about federalism, the criminal code is a federal responsibility in this
particular case the parliament of canada has created a legal framework for the provision of a
service. But under canada federal structure the provinces has the responsibility for the health
care. So going back to Matthew Hall, the provinces are the implementer of health care policy in
canada. In some ways when we look at the response to Morgentaler the SCC is an implementer
independent institution on two levels: Parliament responding to the constitution challenge to the
criminal code. The outcome of this decision is that section 251 is struck down but the provinces
are ultimately responsible for implementing health care in their region. In this respect the SCC
requires both government of Canadian federalism to implement its judgment for its judgment to
have force.
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- The Case start in the province of Quebec, in 1970 Henry Morgentaler, openly refined the criminal
code restriction on abortion, and opens a series of private clinics in Montreal. So Morgentaler is
in defiance of the Criminal code for the following reasons, the institutions are non-accredited by
the Poiial iste of health, hes pefoig aotio ithout the appoal of a theapeuti
abortion committee, and therefore Morgentaler and the women precuring the abortion are liable
for criminal prosecution under the Criminal code. This shows the importance of the provinces as
implementer. Why was Henry Morgentaler able to establish private abortion clinics within the
province of Quebec? For a very simple reason, the Quebec government refused to implement
section 251 of the Criminal code. If he had done this anywhere else in canada he would have been
arrested, but Quebec did not implement the section 251, therefore he was able to open the clinic.
This is why federalism is very important to understand the health care policy when its
criminalized. What allowed Quebec to refuse to apply section 251 of the Criminal code? This is
because the provinces have the responsibility for the administration of justice. So again, the
Federal government creates the criminal code and the Provinces apply it, in responsibility for the
administration of justice and the attorney general of Quebec in a sense was in favor for the
Quebec government for the liberal approach to legalizing private abortions. They simply decided
not to prosecute Morgentaler under section 251 of the criminal code because Quebec was not
enforcing it. Federalism is part of the equation when we think of courts as the interdependent
implementer institution, rely on two levels of governments, to give force to judicial decisions. One
goeet a ipl to the outs ulig ad oe a ot, eause of fedealis.
- In 1983, Henry Morgentaler, opened private abortions clinics in Winnipeg, and Toronto. Two
jurisdictions in which the provincial attorney general implemented section 251, of the criminal
ode. Thats ho this eds up eig, Mogetale eig poseuted, udestad setio of
the criminal code, it operates under a jurisdiction and this provision of the criminal code is
implemented. This is how we end up getting to R.v.Morgentaler which is decided by the SCC in
1988. So Henry Morgentaler is charged under section 251, for operating an illegal abortion private
clinic. Henry Morgentaler challenges the constitutionality of section 251 as a violation of section
7 of the Canadian charter of rights and freedom.
- The courts as an interdependent implementer can be complicated in a federation such as Canada.
We dot hae a lea diisio of poe. Caadia fedealis is ail aout shaed
responsibilities, not division of responsibilities.
- Henry Morgentaler Constitutional argument and what the SCC did in response.
o Mogetales aguet: he agued that setio of the Ciial ode itefeed ith
Security of the person for women. That under section 7 of the Canadian charter of rights
and freedom which protected personal autonomy women possessed the ability or the
personal reproductive freedom. He is actually arguing that section 7 security of the
person can recognize the right to abortion. Security of the person having a component of
pesoal autoo this leal is a ase of oe hat should ad shouldt do, ad that
women under section 7 of the charter have the right to decide on their own reproductive
choices.
o The SCC: Only one judge of the SCC accepted that section 7 could be used as a way to
recognize the right to abortion. That was justice Wilson, who wrote for the minority. So
again, Morgentaler raises a Constitutional challenge on section 251 restricts personals
autonomy this is in a sense a way to recognize a right to abortion via section 7. A majority
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