I realize that the democratic state allows citizens to have a hand in the legislative process. But the last time I checked, the course of a legal obligation involved a walk through Parliament and some semblance of a democratic debate. So how did it come to be that:
“Lorraine Weinrib, faculty of law at the University of Toronto, mused about why doctors should be protected from performing or referring for abortions.”
An obligation to refer women seeking abortions to abortion providers presupposes a right to abortion. Let’s turn to Canadian abortion laws… Wait a minute… There aren’t any!
Before 1988, abortions could only be performed in hospitals upon approval by abortion committees. Morgentaler struck down the Criminal Code’s provision that substituted a woman’s judgment for the decision of an abortion committee. It gave women the right to make an autonomous decision and it gave Henry Morgentaler the right to terminate their pregnancies in private clinics. Forgive me for thinking like a lawyer but the right to decide to have an abortion is substantially different from the obligation to provide or facilitate it.
Morgentaler did not close the door on any state-based initiative to regulate abortion and did not give women a positive right to abortion. Granting women a right to abortion – and obliging physicians to provide it – requires taking abortion back to Parliament and engaging in an open, democratic discussion about our national stance on abortion. And opening the legislative process on abortion would cause – Yikes! – a real debate! And that’s not something abortion advocates want.