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Pro-Choice or Pro-Life, Abortion is a Constitutional Right: Checking up on Ontario’s Safe Access to Abortion Services Act

By Jacqueline Atkinson

Women face a variety of barriers accessing abortion healthcare services in Canada. These barriers can range from geographical distance from service facilities to unsafe conditions surrounding the facilities themselves. By Feb. 1, the Ontario government hopes to mitigate at least one of these barriers with the Safe Access to Abortion Services Act, which says that anti-abortion protesters must be at least 50 metres away from abortion service facilities.

Passed on Oct. 25, 2017, the law prohibits “advising a person to refrain from accessing abortion services, abortion-related protests and any activities that intimidate or physically interfere with those accessing services” within a minimum of 50 metres from the property limits. In some cases this safe zone can be extended up to 150 metres from the property line.

The legislation is not just about protecting women’s rights to access these facilities but also about protecting those who administer abortion-related services. Under the new law, abortion service providers are guaranteed a 150-metre safe zone outside their homes as well as a blanket anti-harassment provision that applies to all abortion clinic workers and service providers anywhere in Ontario.   

Violation of this law can be slapped with a hefty fine and significant jail time. First offences can be charged with fines up to $5,000 as well as up to six months imprisonment. Subsequent offences can carry increased fines up to $10,000 and up to one year imprisonment.

Attorney general and Ottawa City Centre MPP Yasir Naqvi announced his proposal to draft legislation last May following several instances of harassment by anti-abortion protesters outside the Morgentaler Clinic on Bank Street. One woman was even spat on by protestors. The events led Ottawa mayor Jim Watson to call on the province to introduce more binding legislation to ensure everyone accessing the clinics could do so without fear of harassment.

Some abortion clinics in the province, particularly ones located in Toronto, already have guaranteed safe zones of up to 150 metres thanks to several court injunctions enacted in 1994 to respond to ongoing harassment by anti-abortion protestors. Unfortunately, several abortion clinics, including many in Ottawa, are not protected by these court injunctions since they were not open when the injunctions came into effect.

The Safe Access to Abortion Services Act does however invite debate on abortion rights impeding the right to freedom of expression. Prime Minister Justin Trudeau has once again fired up this debate on a national level following his comments at a recent Hamilton town hall.

At the townhall, Trudeau addressed changes to the Canada Summer Jobs program. The program allows organizations, both nonprofit and for-profit, to apply for funding grants for the purposes of hiring students for the summer. Some of these organizations have made use of the grants by hiring students to carry out anti-abortion activities.

Trudeau announced organizations would no longer be able to access the grants unless they signed an attestation stating both their organizational mandate and the role of students hired under the program would respect the provisions of the Charter, including the right to access abortion services. He stated that while all Canadians are free to hold whatever views around abortion they like, they are not free to receive government funding to actively work against guaranteed abortion rights.

Trudeau continued on to say organizations whose explicit purposes are attempting to strip Canadians of their rights to abortion services are “not in line with where we are as a government and, quite frankly, where we are at as a society.”

The pushback to sweeping legislation like this is the balance between freedom of expression and women’s reproductive health rights. Anti-abortion protesters argue freedom of expression – explicitly in this case the right to express vehement opposition to abortion – is a right guaranteed under the Canadian Charter of Rights and Freedoms, whereas the right to abortion is not guaranteed.

While there is no explicit mention of abortion in the Charter, the Supreme Court of Canada decided in 1988 that equal access to abortion followed from section 7 of the Charter. Section 7 states “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.” The right to access abortion was interpreted as guaranteeing the “security of the person.” In this crucial interpretation, the right to access abortion was guaranteed as a constitutional right.

It is clear where the Liberal Party of Canada stands on this issue but the prioritization  of abortion rights strikes a hierarchy of the right to security of the person over the right to freedom of expression. Those partaking in expressions that are better understood as harassment have argued time and time again for their right to do so under freedom of expression. It is clear now, and arguably always has been, that some rights under the Charter simply take priority over other rights, should they be in conflict. We are all free to think, speak and act (within the provisions of the law) upon our beliefs but we are not free to oppress others.

Critics of Trudeau have argued he is simply inserting his personal beliefs into policy rather than reflecting the Constitution – or the beliefs of the Canadian people for that matter. Certainly not every Canadian agrees with Trudeau’s comments and his government’s position on the matter.

It is important, however, to realize Trudeau’s comments, though passionate and potentially polarizing, reflect decisions of the Supreme Court rather than simply personal beliefs he wishes to turn into policy. Regardless of whether you find yourself in the pro-choice or pro-life camp, the right to abortion is a constitutionally guaranteed right that both the Canadian government and the Ontario government have made perfectly clear will be prioritized over the freedom of expression.

This article first appeared in the Leveller Vol. 10, No. 4 (Jan/Feb 2018).

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