Group C: R v Morgentaler
- 1 R v Morgentaler,  1 S.C.R. 30,  S.C.J. No. 1
- 2 Traditional Natural Law Theory: Law for the Common Good
- 3 The Positivist Response: Law as Command (Austin)
- 4 The Separation Thesis
- 5 The Morality of Law
- 6 Law as a System of Rights (Dworkin)
- 7 Liberty/ Paternalism
- 8 Law and Economics: Law as Efficiency
- 9 Feminist Jurisprudence: Law as Patriarchal Institution
- 10 Critical Legal Studies & Critical Race Theory
R v Morgentaler,  1 S.C.R. 30,  S.C.J. No. 1
Morgentaler 1988 was not about the permissiveness of abortions in Canada, but instead whether the abortion law, s. 251 (now s. 287) enshrined in the Criminal Code, violated the Canadian Charter of Rights and Freedoms. Abortion procedures were criminalized in the Code, but s. 251(4) provided an exception for therapeutic abortions performed in accredited hospitals if they were approved by a "therapeutic abortion committee" which would determine if the abortion was necessary to preserve the health of the pregnant woman. The procedure would be performed by a physician not on the committee.
The particular issue under discussion was whether s. 251 infringed or denied the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter. In a 5:2 decision, Chief Justice (as he was then) Dickson held that the impugned law was arbitrary and unconstitutional and struck the provision out of the Code.
Traditional Natural Law Theory: Law for the Common Good
Natural law theorists such as Aquinas would suggest that law is about people being rational reasonable beings, implanting a desire to reach the common good. On the facts, the courts apply this concept and indicate that the safety and liberty of a pregnant woman is paramount to that of her foetus. Objectively, rational human beings would be inclined to consider the delays inherent in s. 251 in reference to the psychological impact and infringement on security of the woman only.
Medical practitioners, like Morgentaler, are the metaphorical “serpents” that Aquinas speaks of. Any unauthorized abortion (i.e. a female intending to procure her own miscarriage without approval) would certainly be seen as the deviation in one’s path. In addition, the legal sanctions and penalties imposed by s. 251 are simply the force needed to keep the actors in this dispute on the road.
According to natural law theorists, to understand the purpose of law we look to the end. Section 251 purports to prohibit abortion except where the life or health of a pregnant woman is endangered. The teleological foundation of natural law tradition is explored in the majority’s judgment. According to Dickson and Lamer, the telos or final cause of s. 251 is the protection of the health and life of a pregnant woman.
With this end in mind, the court considers elements such as hospitals, approvals, committee procedures to assess whether the end is aligned with its purpose. Dickson and Lamer suggest that the function of this provision is not being fulfilled. Canadian hospitals that do not meet the restrictions attached to the term “accredited” or hospitals that do not obtain provincial approval are automatically disqualified from performing abortions.
In other words, Aquinas would argue that if the law can only be understood with the end purpose in mind, then it would be unjust to have an inconsistent application of these standards, all leading to inconsistent ends. The majority judgment mentions that although a hospital is not compelled by law to create a therapeutic abortion committee under s. 251. In applying the naturalistic perspective, Aquinas would argue that the spirit of the law, or the purpose of the provision, should be paramount the letter of the law. Therefore, although s. 251 does not oblige hospitals to form committees, they should otherwise be created in order to uphold the spirit of this provision. Acquinas would agree with the majority judgment on this point. Dickson and Lamer suggest that since s. 251 causes unreasonable delay and it is practically unavailable for some women to comply with the provision, it would be an injustice to let s. 251 stand. Since law and justice can never be separated under natural law, this provision would be invalid.
It is also mentioned that provincial regulation can restrict or deny the used of s. 251(4). Aquinas would take the same approach to these arbitrary powers and suggest that the decision makers uphold the purpose of the provision. It is essential to human flourishing that consistent standards be available and accessible to all women. Acquinas’ perspectives of law are workable in a homogenous society, however, based on the facts of this case, the discrepancies in the therapeutic abortion process suggest that we are not in a homogenous society.
Since natural law consists of principles that are implemented by human beings in logical and permissible ways, some change is accounted for through changing circumstances. Women are not getting equal access to the therapeutic abortion process. Abortion procedures and grants seriously effect the safety and security of the life of a women. If s. 251 is not implemented in a logical and permissible way, then perhaps some change in the Criminal Code should be accounted for in these changing circumstances.
Is s. 251 vested with a common good?
Natural law theorists such as Aquinas argue that laws directed to the common good are valid and that rational human beings are bound by these laws.
Aquinas may suggest that we seek the preservation and success of our offspring. While procreation is for common good, both the majority and dissenting opinion do not explore the controversy concerning abortion. Based on the facts, the security of the woman is the common good. Dickson and Lamer agree that state interference with a woman’s bodily integrity and state-imposed psychological stress both constitute a breach of security of the person.
The common interest in the safety and security of the woman is divergent from the procedural requirements set out in s. 251. The provision causes delays in the abortion process (including hospital and doctor requirements). Based on the natural law theory, the court would settle the matter by suggesting that law is an essential element of order, which in turn is an essential element of society. If the law (s. 251) does not create order (adequacy of guidelines, discrepencies in the application and definition of “health”) then what good is it to the community and society?
The court addresses the issue of security of the person in relation to abortion. Security of the person may be a general common good value. However, in this case, Dickson and Lamer focus specially on the security of pregnant women. The concurring judgment delivered by Wilson considers liberty of the pregnant woman as the common good.
The majority suggests that the "increased psychological stress imposed upon women who are forced to wait for abortions…compounded by the uncertainty of whether a therapeutic abortion committee will actually grant approval” causes harm to the psychological integrity of pregnant women. Based on these points, s. 251 does not lead to the teleological end; the common good. Rather, it causes harm to the secutiry of the woman, and so it may lose its validity.
The concurring majority judgment suggests that the law does not provide the practical reason to the lead to liberty due to the restrictive nature of the law. As a result, s. 251 fails this element of natural law theory.
Alternatively, the dissent would determine the law does lead to the common good, so practical reason does exist. The common good, in the dissent's conception, would be the protection of the unborn, which is historically established. There is no established right to an abortion in Canadian jurisprudence. The law set down by Parliament to ensure that the abortions provided in this country are of a particular type; the fact that many women fail to get them because they fail to meet this standard is not a failing of the law. The dissent also points out that the claimed infringement of s. 7 is insufficient to be a genuine violation. Essentially, the dissent would determine the protection of the unborn as the common good and the law provides the necessary form of guidance to protect the unborn, to a reasonable extent (creating barriers to ensure that a legal abortion will only be preformed in the most necessary circumstances.
Aquinas may disagree with how the Court has framed the common good. The underlying principles are the preservation of life and procreation; similar to the debate in R v Rodriguez (where a 42 year old mother suffered from ALS). R v Rodriguez illustrates Aquinas’ argument against the idea of assisted suicide. The good, as Aquinas saw it, was constructed to be a ‘good’ of the community, and not a ‘good’ of a specific individual or what perhaps most individuals want. The ‘good’ that s. 251 seeks may be in the pursuit of fruitful living available to the community through the preservation of the act of child-bearing.
Alternatively, s. 251 guides Canadian society to preserve all future lives. Thus, Aquinas would disagree with the liberal changes the Supreme Court of Canada strived for in the judgment. The common good, as the impugned law sets out, is to see that pregnant women go full term, unless they receive proper and authorized procedure to abort their pregnancy. Aquinas may suggest that the common good in his medieval time would be the sanctity of life and propagation, not solely the safety and protection of the pregnant woman. Every female person, being pregnant is but a vehicle to further the common good.
Does s. 251 follow a practical reason?
As per Aquinas, the law must provide the practical reason that serves as a guidance mechanism for the common good. The rational, reasonable connection for common good is explored in this case by applying the Oakes test. The court determines the objective of s. 251 and whether the means chosen in overriding the right or freedom are reasonable and demonstrably justified in a free and democratic society. The Oakes test is the modern concept of the practical reason because it can be seen as the logical method of steps to follow in order to understand the common good.
If the common good is the security of the pregnant woman, then it may not guide us towards the common good. The numerous restrictive procedural elements present within s. 251 (the requirement for the procedure to be preformed in "accredited" and "approved hospitals", the arbitrary authority of the therapeutic abortion committee to set the standards it chooses for authorizing abortions (excluding married women, refusing access to second abortion unless the woman agrees to sterilization, etc) show that this law causes a temporal lapse between the request for abortion and the actual procedure. The longer that it takes for the procedure to be approved, the more invasive the procedure will be, with a greater threat to the pregnant woman's health. According to a study (used as evidence by the majority) “anything that contributes to delay in performing abortions increases the complication rates by 15 to 30%, and the chance of dying by 50% for each week of delay.” This seems counterintuitive to the common good as described.
Is s. 251 made by a valid lawmaker?
Section 251 is a part of the Criminal Code, made by Parliament. Within Canada, Parliament holds an authoritative position. Acquinas would argue that a valid lawmaker is less concerned about a democracy; it is not about the wishes of the community, but about a ruler by reason of the natural order. This requirement is fulfilled.
According to Aquinas, it is a matter of nature that some people rule and other people are ruled. The impugned law demonstrates this principle: the Canadian Parliament made a law to prohibit the abortions that do not follow just procedure. It is presumed that Canadian lawmakers know what is best for the nation, and accordingly rule to pursue that goal.
Is s. 251 promulgated?
Section 251 is in the Criminal Code; it is public, written and proclaimed. The Criminal Code is legislation that is known to the public and the public in turn is able to follow the laws. In applying the naturalistic perspective, the Criminal Code embodies general principles applicable to everyone. Judges take those general principles and apply them to specific cases using their judgment. McIntyre and La Forest in the dissent express a similar concern in their judgment, and accordingly suggest that “the courts must confine themselves to such democratic values as are clearly found and expressed in the Charter and refrain from imposing or creating other values not so based.”
However, Aquinas may not agree in the Canadian Parliament’s medium of broadcast, so to speak. The purpose of a valid law is to compel people to obey such laws. Logically, as TA insists, the very persons potentially affected by such laws must know of these laws. As such, the impugned law is lost in the mess of the disorganized Criminal Code. This law is lost among the other more ‘expected laws’, and out of the purview of females who become pregnant.
Aquinas, due to his context, would most likely not have supported any law that permitted abortion. However, if we look at the law in its abstract sense (removing the abortion context and leaving the common good of the security of the woman intact), it is most likely that Aquinas would support the majority decision to strike down the law, as it fails to follow the rules of practical reason and therefore is invalid by his own reckoning. It is a fair argument to say that Aquinas may also view the protection of the unborn as the common good, and therefore would support the dissenting viewpoint on the grounds that the law does meet the requirement of practical reason by barring women from aborting fetuses except in the most necessary of circumstances (should they convince a committee of the necessity).
The Positivist Response: Law as Command (Austin)
Although natural law theorists would combine the essence of s. 251 and morality, the positivist response rejects the teleological concept of moral good and considers law as a matter of social convention. The law tells us what we can and cannot do. What the law is and what it ought to be are separate concepts.
Is s. 251 valid law? Is it justifiable?
Positive law theorists would suggest that law is valid when a superior issues a command to an inferior that is backed by a sanction. In Morgentaler, the superior that issued the command under s. 251 would be the legislature, which codified the command in the Criminal Code. In this case the sanctions would apply to both the pregnant woman who does not seek a hospital committee’s approval as well as any doctor that assists or performs an unauthorized abortion. The impugned legislation, then, would meet the positivists’ test of a valid law.
Positivists would separate law from morality, and subsequently disregard the ethical question of whether abortions are moral. Similarly, the judges in Morgentaler exclude the discussion of whether an abortion is moral.
Morgentaler focuses on the scope of s. 7, specifically the security of the person, which in this case are the pregnant woman and the foetus. According to positive law theorists, s. 251 would fall under positive law as opposed to positive morality because the law is backed by a sanction. Positivists would likely argue that there is value in obeying s. 251; however where it is considered immoral to follow the law, positivists would argue it is acceptable to deviate from law. The example discussed in Morgentaler is that if a woman were denied the approval because the (rural) hospital does not have the capacity to perform the treatment, from a positivist’s perspective, it would be justifiable if she travelled to the US and had it done.
Bentham would argue that the statute passes the social utilitarian aim, as it is meant to provide a higher quality of medical attention for pregnant women. By requiring more than one doctor to approve the abortion, Bentham would likely argue that this furthers social utility because women are getting adequate medical evaluations and this is a greater good for all of society. According to Bentham’s perspective, there would be a high utility in ensuring that women across Canada face the same process of approval. The case-by-case committee evaluations would benefit society because the risks in each pregnancy are unique. Greater medical attention, then, would be something that Bentham would consider an adequate utilitarian aim.
On the other hand, Bentham may look at the short-term projection and argue that the case-by-case committee evaluations are a good created for the individual seeking that approval and are instead using up public resources. It may be debatable whether using public health care resources in this way further the greater good for the greatest number of people.
Raz would evaluate s. 251 by looking at its service conception. Raz would agree with the majority decision because there was evidence that the statute set out inefficient services that were not coordinated with each other, between the health minister and hospitals. By obtaining doctors' approval for the abortion, Raz would agree that this helps pregnant women “act better” because they would have medical opinions that support their decision for the abortion. This coordinated action (i.e. hospital committees) would further social and individual good of precise and justified medical advice.
Hart would likely agree with the majority decision that s. 251 violates the Charter. The abstract nature of the law resulted in an inconsistent application of the law, specifically in reference to the abortion committees and their inconsistent standards for permitting an abortion. There was evidence presented in this case that a significant number of women went to the US to obtain abortions. Hart would respond that this may support a lack of recognition of the law, in which case Hart would be supportive of striking s. 251 down.
The law is a social construct, and this statute meets the (empirical) checklist that is required of a valid law. On the other hand, our group discussed that Austin may agree in part with the dissent, arguing that the majority should not second guess the sovereign that made the law (legislature). Regardless of the judge’s role, Austin would likely conclude that s. 251 is valid and should stand.
Through the lens that legal positivism as a social construction based on what is practiced and tolerated within society, then Austin must agree with the majority decision that the law necessarily needs to change to meet society’s changing tolerance and needs to allow for greater protection of pregnant women.
The Separation Thesis
H.L.A. Hart’s “separation thesis” is intertwined with the positivist legal system, but denies the law is understood because it is teleologically moral. He contends: “the existence of law is one thing, its merit or demerit another…” Under this perspective, the law and morality are necessarily separate from one another. The law does not give due consideration to the moral compass, but it does not supplant it either. In this this respect, some of Aquina’s mal prohibita laws may be taken as valid law under the positivist system. Law may be law, but if it is too evil the law need not be obeyed. Nevertheless, if there is a a clash - where the legal rules do not survive moral rules - individuals must decide whether the obligation to follow the moral rule is more important.
The court’s reasoning can be understood as incorporating Hart’s separation thesis because the issue arising in s. 251 would not be considered a trivial matter or within the settled meaning. Rather, it falls within this ‘penumbra’ of uncertainty. It is an unsettled matter which requires discretion by the judiciary.
As this case can be seen as falling into the realm of the penumbra, Hart would argue that the proper approach of the court is to settle the issue using the terms of the rule governed practice. The terms of of the rule governed practice have legal legitimacy because they are part of the law that has passed the rule of recognition. By using these terms, judges are making law an acceptable manner, rather than using morality, social policy or personal discretion. They are using these elements of law to make the law, giving their decisions legitimacy.
Although naturalists would incorporate the morality aspect by appealing to the common good, the court chooses not to engage in the morality argument surrounding the issue and choice of abortion. The judgment, then, can be seen to separate law from morality. This coincides with Hart’s notion of the separation thesis. Since there is uncertainty surrounding s. 251, according to Hart, it is not a matter of logical deduction, or "slot machine justice". For Hart, the legal arguments and decisions made on s. 251 should be made rationally. Judges make rational decisions if the social policies and purposes that they appeal to are part of the law. This concept is applied in this case with the court applying s. 7 and then s. 1. The application of Charter provisions can be seen as a modern application and embodiment of Hart’s ‘rule-governed practice’. Further, since the Charter is part of the law, Hart would argue that it is rational for judges to consider the principle of life, liberty, security of the person in reference to s. 251.
Application of section 7
The majority judgment considers s. 251 as violating the principles in s. 7. The state is essentially interfering with the bodily integrity of a woman. It does not allow women access to safe medical procedures. It also further imposes stress by delaying a women’s access to medical procedures. The majority judgment argues that there is arbitrariness in the application of the law - there are gaps in s. 251 and the provision contains terms that make their open texture and meaning uncertain.
Wilson J separated the law and morality question, arguing that if it was unconstitutional for a woman to carry the foetus full term against her will, then it made little sense to explore the debate further. Concurring with the majority, Wilson J, expressed that if a pregnant woman could not be compelled to carry the baby full term then it was pointless to evaluate the legislation. Wilson J argues that it is simply pointless for the Court to try and decide the legislation’s effectiveness if there was little assurance that it would result in creating a valid criminal offence. Wilson J separated the debate into two steps, concluding that if limiting a woman’s decision whether to choose to have an abortion was unconstitutional then what significance was there in examining what the law said? The validity of the law, according to Wilson J, depended on whether the issue was constitutional. Since the moral and ethical aspect of abortion was not a legal issue in this case, this question was masked with whether a pregnant woman should have the right of security of the person, per s. 7 of the Charter.
The judges separated the morality of abortion from this case, but s. 251 still had to be read in the context of the abortion issue because the effects of allowing an abortion are serious and irreversible. The effects of an abortion are such that it invariably requires the provision be read in the context of abortion. In other Morgentaler cases, the issue arose that if this provision concerned some other medical treatment, such as tonsillitis, then the debate would be one of equal access to health care and less contentious. In other words, while law and morality were separated in this case, the backdrop and context of abortion cannot be disregarded.
The concurring judgment engages with s. 7, which guarantees every individual a degree of personal autonomy over important decisions affecting his or her life. Since s. 251 enforces criteria for lawful abortions, it is taking that decision away from women.
In contrast, the dissent argued that s. 7 did not include the right to have an abortion, therefore, s. 251 could not be in violation of s. 7 because there was no right to abortion in existence. Hart would agree with the logic that if the right to have an abortion is not within the social aims, then it is not rational to include it.
Hart would agree with the judges in separating the law and morality in women getting approval for abortions. A positivist would also acknowledge that not all women and medical practitioners will obey this law. While morality cannot be completely ignored, morality would influence a woman’s perspective in weighing whether to have an abortion. It would come as no surprise to a positivist that some women travel to the US to get the medical treatment done.
In considering whether s. 251 violates s. 7, the judges focused the argument on the "security of the person". Morgentaler brought to light an additional interpretation of s. 7: the security of the person includes physical and psychological integrity of a pregnant woman. As a woman waits for a hospital committee to approve the abortion, the risk and complications to her increase, deeming it a violation of her access to treatment. Further to this point, by having a process which arbitrarily decides whether a woman will be approved for an abortion, this takes away from the woman’s autonomy to decide whether she should carry the baby to full term. In restricting the circumstances under which a woman would be approved for an abortion, it is compromising her autonomy by limiting her choice in the situation. The judges did not place as much weight on the life and liberty aspects of s. 7 because that would initiate the abortion debate, which the judges do not consider at issue in this case.
Hart contended that a law imposes limits only our choice and not the choice itself. Section 251 instructs Canadians that the only legal means to have an abortion would be at accredited and approved hospitals. Society follows this law because they have a deep psychological willingness to obtain abortions legally; imported into that belief is an assurance that the procedure will be conducted safely in the hands of qualified physicians. Thus, this “rule of recognition” does not endorse back-alley or self-induced abortions. Indeed, these are reprehensible choices the sovereign does not recognize. Moreover, s. 251 does not impose limits on the choice itself. That is where the law and morality are separate. Morality does not determine what is lawful; it is merely an external factor to which Canadians can compare the law.
The Morality of Law
Lon L. Fuller rejects the legal positivist approach to law. Unlike legal positivists like Hart, who contend that laws have no moral content, Fuller asserts that morality influences laws to the extent that immoral actions can be deemed illegal. To Fuller, morality is inherent in laws.
In his discussion in “Positivism and Fidelity to Law – A Reply to Professor Hart”, Fuller asserts the purpose of law is to effect good order in society, and in order to achieve this purpose, law must be grounded in external and internal morality. Rules are grounded in external morality, which is a shared common morality. Morality is law’s means to an end. To achieve purpose and to function within an effective society laws must have certain characteristics, which have the effect of making laws not only effective but also good and right. This is the internal morality of law. He suggests that rules will be followed when they appeal to a moral standard.
Under Hart’s approach s. 251 is likely recognised by women as deeply immoral. Nonetheless, it will be up to the women to balance this morality and make a decision accordingly. Fuller may have criticised this idea because it gives no direction to women. Even more, based on Hart’s rule of recognition, s. 251 is a part of the Criminal Code, which infers that it ought to be obeyed. However, to Fuller laws purportedly have necessary no moral content but exert this ‘ought claim’ on us, which makes them rules, so there may be circumstances where a law is considered an ought claim or is properly created, but still may be immoral. In these circumstances, we may not have to follow the law even though we may think it is immoral. The individual has to make a choice in these circumstances.
If s. 251 is considered immoral, according to Fuller, this law offers no direction or systematic advice about how people will respond or importantly how Canadian women will respond. For Fuller, a law cannot produce good order unless it is grounded in external morality. In Morgentaler, Fuller may agree with the majority's position on the grounds that s. 251 falls outside the scope of external morality. This is because the law violates s. 7 of theCharter. The Charter is the highest shared social morality in Canada, and any law that contravenes it would not be grounded in the external morality and would be incapable of producing good order as a consequence.
However, the dissenting argument could also make a fair argument that the law does fall within the external morality. The dissent determines that the law protects the unborn, a historically established Canadian value, and that the effects of the law that the majority judges regard as violating s. 7 are not significant enough to qualify as true infringements. In this manner, Fuller's support could potentially go to either side. Should there be a side taken at this step?
Even if the law is found to be grounded in the external morality, the test for internal morality must be satisfied. For a principle to become acceptable law that people will follow it must fulfill certain criteria of Fuller’s “inner morality”. Rules of society will fail to be classified as law:
1) when decisions are ad hoc.
In this case, the committee decisions surrounding the granting or disapproval of abortion certificates are ad hoc procedurally. This patternless system lacks the desired “internal morality” which legal principles should possess.
2) where rules are not public or knowable.
Under this principle there is internal morality with the law being promulgated in the Criminal Code. Further, the legal maxim of that ignorance of the law is no excuse secures this principle.
3) when application of the rule is retroactive.
This principle is not at issue in Morgentaler 1988.
4) where rules are not understandable, so a person’s duty of action or inaction is unclear.
The law is clear as to what course of action must be taken in order to obtain a legally authorized abortion. However, there is a lot of discretion on the part of the hospital committees. Certainly where this principle fails for want of internal morality is on the issue that “health” is not defined and universally understood to further the law’s application.
5) where rules are contradictory and inconsistent.
The majority held that the purpose and effect contradict each other: to protect the foetus and mother but to compromise the aborting mother’s safety by delayed procedures. However, on its face the legislation is not contradictory. The concurring judgment said the Court cannot evaluate the legislation based on the effect.
6) when rules cannot be obeyed because they are beyond a person’s ability.
This principle strongly lacks internal morality. There is potential that the hospitals and the women can obey s. 251, by for instance not undergoing an abortion procedure. However, obeying the law raises questions of access. Realistically, evidence pointed to a sufficient lacking of hospitals which have the requite approval and adequate committees within the hospitals. Even if the women can access the hospital, there were insufficient resources to offer the treatment.
7) when there are frequent changes to rules, a repugnancy to the notion of stare decisis.
The actual rule of s. 251 does not apply differently to women or change. Only the delegated authority and discretion of the hospital committees varies. The fact that certain hospitals within Ontario had changed their approval criteria to only admit women within the vicinity by its very nature has a deleterious impact upon the women who could formerly adhere to the law. This principle fails for want of “internal morality.”
8) when the proclamation of the lawmaker is not enforced, so the rules are not actually administered.
This principle was an underlying point of contention in this case. The criteria each hospital’s administration applied to grant the abortions made it seem like s. 251 applied differently to each candidate.
Contrary to Dworkin’s theory of a law working with the weight of principles, Fuller has not indicated any weighting or ranking system. In whole, when a law lacks the above principles it lacks “internal morality”.
Fuller against other theorists
Fuller ascertains a nuanced version of the natural law theory. While he believes there are moral constraints on law making power, he substitutes the idea of “higher law” from an independent moral source under Aquinas’ theory, for the role of judges and their diligence in logical legal reasoning. Likewise, contrary to the abhorrent methodology of American Realist judges, who believe they should first decide whether a law is valid and then rationalize their decision, Fuller sees the role of judges to rationally work their way through the law before coming to a decision. The courts derive an inner morality of law by paying deference to the constitution and going through judicial reasoning.
According to the realist perspective, judges would first decide whether s. 251 is valid and then use the law (s. 7 and s. 1) to rationalize their decisions. On the other hand, Fuller’s idea is that judges should interpret jurisprudence and the rules of law using a purposive approach, which includes not only a respectful deference to the legislatures, but also a willful effort to “us[e] a set of beliefs about what the rule or precedent was designed to do, what purpose it was designed to serve, and what good it was meant to accomplish.” In light of the failed principles, the majority of the Supreme Court of Canada correctly interpreted s. 251 in the context, with reference to the purpose of the provision and the ‘good’ it was to accomplish.
Through the application of the Charter the rationale that supports the judges’ conclusion is a necessary part of the judgment and process. Dickson CJ was compelled to explain, justify and give reasons for the decision to strike the offending section from the Code. The abortion law was in fact deemed arbitrary and unconstitutional, so according to Fuller would not be law nor followed. By virtue of this process, the judges fulfilled their roles and the conclusion reached on s. 251 was a ‘good conclusion.’
Law as a System of Rights (Dworkin)
Where HLA Hart advocated for a system based on rules, Dworkin determines that this approach is in error. For Dworkin, the true basis of law is in principles which are infused within the law and inform the rules.The priciples are based on fundamental principles of justice and fairness that support certain rights and duties.
The Stream of Principles
Dworkin's primary position is that the law is based upon principles. These principles operate in a form analogous to a forward following stream. The structure of this stream is in a state of never ceasing fluctuation; the stream bends, turns, shallows and deepens all the time in accordance with changes in the political and cultural structure. This in turn results in the alternation in the weight and significance of certain principles, and the addition or removal of other principles from the stream as events alter the structure of the stream. In this manner, a legal decision made in the past is valid in the time that it is made, but a contrary legal decision which is in accordance with the principles of the period in which it is made is equally valid; the changing of principles alters what is valid.
In Morgentaler, Dworkin would recognize that when it was passed into law, s. 251 of the Criminal Code was a valid law. However, as time passed, the stream of principle fluctuated, which resulted in a new determination of what the principles are. This results in a determination from the majority that this law, which violates the security of the person in regards to a woman being forced to go through stressful procedures to procure an abortion and liberty to choose to have and access an abortion is not longer in accordance with the principles of law and therefore no longer valid. The dissenting opinion, however, would hold that the principle that gave validity to the law in its inception (the protection of the unborn) has remained a consistent principle. It is more likely that Dworkin would side with the majority, determining that since there can only be one "right" interpretation of the principles that the majority has likely made this determination (since they have established the rules, they must be in accordance with the principles of the time as the principle can never lead to a wrong decision). As such, Dworkin's support in this area of the theory would most likely go to the majority decision which determined that the principles in accordance with maintaining the integrity of s. 7 of the Charter must be respected, hence s. 251 of the Criminal Code needed to be sturck down.
Another element of Dworkin's theory is the Rights Thesis. This concept determines that judicial decisions are enforce existing political rights. The political nature of these rights is inherent in their nature as a product of history and morality. While judges make new decisions, they must always make these decisions in consideration of the political decisions of the past and the implications of their decisions on the future.
In this regard,Morgentaler would be a case of of contention of these political rights. Previous judicial decisions clearly determined that women were not absolutely bared from abortions, yet they were not absolutely free to pursue them. The previous decisions were argued to have been made under the objective of the protection of women from harm that could occur in a unrestricted abortion system. However, the current court considering this legislation decided that the enforcement of the existing political rights under s. 7 required new decisions to be made. While to objectives of those that came be for them were still areas of consideration, the majority ruled that in the interest of the political rights of women in regards to historical objectives and going forward, the proper enforcement of these political rights would be best served by striking down the legislation, as is was interpreted to infringe upon these political rights of women as enshrined in s. 7 of the Charter. The minority decision, however, determined that the political rights in regards to the historical decisions already were being respected, and no violations of the existing political rights had occurred. It is more likely that Dworkin would side with the majority on this point, due to the progressive analysis that they performed regarding the present context of these political rights.
The Fabric of Law
This element of Dworkin's theory sees judicial reasoning as consistently interpretative. It always looks into the past and to the future to inform decisions in the present. It is a chain novel with an overarching theme: that the law is good and that it is the best that it can possibly be. Our "chapters" are bound by what our colleagues have previously written. It is not totally hampered, as changes can be made, provided that they are consistent with the overall theme of the novel. This legal romantic notion essentially determines that the law that is decided upon in light of the theme of previous decisions is the best law possible.
In the light of this concept, the decision of the majority would most likely find Dworkin's favour. The majority judges did look to the past to inform their decisions. In light of the present effects of this law (the violations of of s. 7) they determined that the theme of protection of women was best served through the severing of the impugned provision and allowing women to seek abortions without this level of restriction. By Dworkin's romantic view, this next chapter in the novel of this form of law would be the best law possible.
Ronald Dworkin's view of Law as Morality, in great contrast to HLA Hart's legal positivism, would support the progressive moves taken by the majority of the court inMorgentaler. He would determine that the fluctuation of principles since the creation of s. 251 would make the ruling of the court in this case the only right decision that could be made under the influence of the present principles of the law in this area.
While other theorists trade contrary opinions on the role of morality in law, Mill disregards this as a factor of consideration. He departs from the question of what law is (and its connection, if any, to morality) to ask when and why the law should interfere with private choice; essentially asking when are restrictions on individual liberty justified?
Mill - When should s. 251 interfere with a woman’s private choice of seeking an abortion?
At the centre of liberalism, according to Mill, is the idea that a person’s core independence is true autonomy. This autonomy can be restricted when it is justifiable to do so. This question explores at what point s. 251 is needed to restrict the liberty of pregnant women seeking abortions and having them apply to a hospital committee for approval. Since the presumption is in favour of liberty, this interference by s. 251 must be justified; placing the onus on the legislature for justifying its interference. Mill would argue that implementing s. 251 is necessary to prevent serious harm to others, in this scenario – the foetus. This harm principle would depend on Mill’s characterization of a person, hinging on whether Mill considers a foetus a person. Legal moralists would build on this argument, establishing that regulating abortions is a justified restriction where actions of individuals undermine social or community morals.
Given the time in history when these philosophers were writing, it is likely that an abortion would be considered a socially repulsive wrong. Provided this, it is likely that legal moralists would be in favour of regulating abortions in order to discourage and restrict them. Legal moralists would build credibility of this restriction by resting on the offence principle in order to ensure that others are not unduly offended by the medical procedure. Even though the justices in Morgentalerset aside the question of whether abortion is moral, Mill would argue that there is a risk of the tyranny of the majority. If a majority of the population feels that abortions are a matter of choice then restricting approval for the procedure in this way would undermine the majority. On the other hand, if a majority felt that abortions should be approved in the means laid out in s. 251, then the women who want an abortion would need to succumb to the views of the majority. The judiciary is independent of public opinion but the legislature is arguably swayed by the politics of the day when passing legislation such as s. 251. This is evidence of a tension between the legitimate interference of collective opinion with individual independence.
Is the pregnant woman who opts for an abortion harming a social core?
Mill would also argue that a pregnant woman has autonomy over her body. This argument is based on the premise that all pregnant women are considered persons of mature faculties. According to Mill, every pregnant woman should have the choice of whether she wants to give birth or opt for an abortion. To explore this notion further, Mill would explore the question of whether and how an abortion would affect others, besides the woman and the foetus. Mill would consider damage to those effected but not of the damage of the abortion itself. Pregnant women who choose to have an abortion should be abandoned in their choice, because Mill would argue that these women have made choices regarding their own bodies, because they are the best judges of themselves.
The harm principle of the law must also be addressed. It is divisive because we cannot know whether Mill would support or decry abortion. The key issue for this conception is whether foetuses are regarded as persons. The harm principle determines that the liberty of the individual should not be interfered with unless their exercise of liberty harms another person. If a foetus is a person and therefore requiring protection of the interference of the law, then the principle determines that the mother/doctor should not be able to perform the abortion (dissent). However, if they are not, and the foetus is an extension of the mothers body, the law that limits their autonomy is invalid (majority).
In determining whether a paternalistic outlook would support s. 251, it is important to first characterize the provision’s objective. Is the objective to improve regulation of a medical treatment? Or is the objective more along the line of curtailing a social behaviour that is considered socially unacceptable?
From a paternalistic perspective, s. 251 would be supported because the hospital committees help identify circumstances in which interference with individual liberty will be justified, where the purpose of interference is prevention of harm to the pregnant woman. The provision would help doctors approve an abortion where there is a risk to the woman’s health and life. In such medical cases, a paternalistic interference would be justified because its aim would be to prevent long term, irreversible damage to the woman’s autonomy.
On the other hand, regarding JS Mill’s legal moralism and Gerald Dworkin’s paternalism, we think the dissent is favourable to restricting individual liberty where the actions of individuals undermine “community” morals/values. The objectives of the legislation were arguably to further society’s welfare, needs and interests. s. 251 reflects Parliament’s view, which is essentially the view of the voting public. In that vein, this law does not offend society’s notion of justice, according to Mcyntyre.
The law is tyrannous in that it imposes the views of the majority. In its wickedness, it imposes restrictions on the “sole end for which mankind is warranted” which is “self-protection”. Dworkin may justify interference because the impact of abortion is “far-reaching, potentially dangerous and irreversible” (p321). However, the argument fails because the law is characteristically a double-edged sword: the law’s operational delay forces harmful and grave procedures on the approved women, while disproportionately failing to protect the remaining women who could not obtain approval.
The legislation carries out its damage by indirectly interfering with the liberty of the class of persons affected by the law. s. 251, analogous to the temperance in the United States and Canadian liquor regulations, where the “prohibition of their sale is in fact, as it is intended to be, prohibition of their use.” (p317). This law on abortion regulation invades a woman’s right of equality, and endangers her right to security by impeding her path to the Canadian health care system.
The law restricts pregnant woman’s autonomy, which is central to humanity. Moreover, the central objective of the law should not be to protect the foetus’ autonomy. The foetus is of nonage. In fact, the Canadian government does not recognize a foetus to be a person, thus, foetus is not even of nonage.
The doctor's liberty is being restricted by not being allowed to perform abortions, and women are restricted from receiving them. They are clearly rational adults by Mill's conception, capable of exercising their liberty. Section 251 restricts their liberty through paternalistic interference (determining what these parties must do to exercise their autonomy) which Mill condemns if slavery and nonage individuals are not involved. It is not saved by Dworkin's conception of paternalism, because the law does not prevent the compromising of the autonomy of either of the effected parties. The law is inherently paternal, as it sets standards by which the autonomy of the individual must be exercised (telling them they can use their autonomy). Furthermore, the execution of the law results in communities that make further arbitrary decisions that restrict how those affected can exercise their liberty (paternalism breeding further paternalism). In this manner, the law is invalid via both Mill and Dworkin.
Law and Economics: Law as Efficiency
Applying the law and economics theory, we can consider the competing values at issue and explore whether s. 251 works to facilitate or produce the most efficient outcome. The law and economics theory is the opposite of naturalism and takes the moral aspect out of the discussion.
We can regulate the process through the mechanism of the Charter and the mechanism of rights. The competing values at issue include the security of the woman (s. 7), liberty of the woman (s. 7), proportionality (s. 1) and according to Wilson J, freedom of conscience (s. 2(a)). We can assess the ‘social costs’ with respect to not just minorities, but for society at large that suffer costs and damage as a result of this exercise of liberty.
Approaches to Law as Efficiency
Does s. 251 create the greatest value for the greatest amount of people? What are the motivating reasons behind adopting s. 251? If the answers are reasons based on efficiency, then perhaps we can understand the provision as a tool for wealth-maximization in society. According to the law and economics theory, one ought to follow s. 251 if the efficient outcome maximizes wealth, social wealth in particular. It is arguable that by standardizing the committee process and procedure leading up to a women’s abortion, s. 251 is imposing an efficient standard by which to compare different abortion procedures. The human actor as a rational economic man may value and protect the interests of the woman. Law, then, (s. 251 in particular) acts as a tool to facilitate and ensure that this process of protection runs smoothly.
An efficient allocation of resources (application, committee process, committee accreditation, committee composition- doctors, etc.) puts each resource in the control of the person who values it most - the woman. The value of the abortion process is determined either by how much the woman would be willing and able to pay to obtain an abortion absent this procedure or by what a woman would ask for to give up this procedure, given that it exists.
Wealth in this respect is beyond the monetary. It was mentioned in the case that there are some problems with the existing approval process. Dickson CJ considers efficiency, and finds that the Therapeutic Abortion Committee requirements cause delay in the procedure, forcing some women to carry the foetus to term, regardless of her aspirations. If wealth is based on “measurable satisfactions” then perhaps the uniformity and supposed efficiency can be offset by the impact of certification delays and excessive requirements preventing smaller hospitals from providing abortion services. The cost of obtaining this procedure would be much more for a woman who lives in a more remote area, who has access to fewer resources.
Economists prefer voluntary transactions in the market and ensure that wealth is maximized. However, s. 251 is not used to promote voluntary transactions of abortion- it restricts and controls the abortion procedure. Therefore, s. 251 may not be considered a wealth-maximizing transaction in this respect.
Market failure in the Pareto sense may come from inaccessibility and committee restraints. The majority judgment comments on the market failure concepts. Such a delay increases complication and mortality rates during an abortion, as well as having a psychological impact upon those going through the process. There may be women who are not necessarily party to the transaction, or have not yet contemplated the process. These women, then, would be considered ‘third parties’ under the Pareto analysis (outliers).
Applying the Kaldor- Hicks criteria, we may still engage in the abortion approval process under s. 251 provided that the benefit of doing so outweighs the costs to others. However in applying the Coase theorem, the delay to the woman would be considered a transaction cost associated with the market deal- they are prohibitive to individual parties and unless these delays can be overcome, they make beneficial trade impossible under s. 251.
Women are assumed to be rational, adopting these committee standards to meet ends, to maximize personal satisfactions. If law is considered a ‘pricing mechanism’ then, s. 251 would be an abortion procedure control mechanism, whereby one can alter the approval process (or the price) by making it more or less stringent. The law can motivate women to either engage in more or less of the abortion process.
Law and economics theorists may favor s. 251 since it is rational and efficient to criminalize this behavior. Rules on restricting the abortion process are designed to protect the women, promote market transactions, providing women with assurances of a standardized process, by ensuring that non-wealth maximizing transfers (illegal abortion, or not up to par with committee standards) do not happen and do not take away resources from the accredited hospitals and committees that have the responsibility of carrying about the process. Women should be willing to pay substantial resources for these protections - this may mean payment in the form of a slight delay in the approval process.
There is also an economies of scale argument. If women were left to provide their own protection against any arbitrary abortion, they would achieve their end less effectively. It would be more costly and the system in place for s. 251 can achieve much more. We cannot achieve protection of the women’s safety in these procedures individually, or though free market processes.
When is it efficient to use criminal sanctions as opposed to some other form of behavioural control? When should we make something a crime? According to the wealth-maximization approach, we should support the operation of the market. The overall expense would be efficient if it is rational and efficient to criminalize this behaviour. The penalty under s. 251(1) and s. 251(2) is a severe indictable offence, liable to imprisonment for life. There is no information on the likelihood that the penalty would be inflicted on a female person with intent to procure her own miscarriage. From an economic perspective, it is valuable to explore the cost of enforcement. There is no indication of enforcement levels, so it is difficult to assess whether the existing penalties are optimal. Perhaps the optimal penalty for such a crime should not be as severe as criminal punishment under the Criminal Code.
Criminal law prohibition is costly, and therefore there must be efficiency (greater overall benefit than cost)in criminalization. The costs borne by society in order to maintain the criminalization of the dangerous practice must be exceeded by the benefits that society gains from said criminalization. In this case, the perspective of the judge influences the efficiency analysis. For the majority, the costs exceed the benefits. It is determined that s.251 acts to violate security of the person through harms being incurred to the physical and mental wellbeing of women desiring abortions (the parties that bare the external costs of this criminal legislation (externalities because they are costs that are a result of the criminal legislation but fall outside the costs that must be borne by the party creating the cost; the state.)) Unlike other determinations of the externalities structure, the perspective of these judges determines there is no need to try to internalize the costs (providing clinics.) This because they determine that there are no benefits actually procured by the legislation, only costs. As such, the legislation is less a factory and more a facility of pure pollution. Their solution essentially removes the cost-implementing structure; wealth is maximized because the costs are eliminated, allowing the women gain the benefits of gaining access to this service.
The minority takes an alternative view; they ruled that the law is efficient because it produces the benefit of protecting historically maintained value of protection of the unborn. They determine that the costs the legislation impose are incidental costs to the obtaining of these benefits which are outweighed by the benefits secured for Canadian society at large. Since Canadian society has desired these protections, they must be willing to shoulder their costs.
What are the alternatives to the existing state control over abortions? Posner would explore the alternatives, the one that is the most efficient earning his support. He would likely recognize the high costs associated with s. 251 in regards to the Charter violations and personal damages to the mental, emotional and physical well being of the women. However, he would also likely see the benefits of protecting this historical Canadian value in the protection of the unborn. However, a middle ground may be the preferred alternative. Along this line of reasoning, a regulatory approach and lower level of enforcement and penalties may ensure compliance. There may be more efficient outcomes besides the existing government interference. If we focus on the larger picture, and assess this issue as an overall medical procedure issue the relationship between doctor and patient (pregnant woman) may be more efficient if there was less direct governmental involvement. If morality is taken out of the issue, then this alternative arrangement may create the ‘greatest wealth’ for all parties involved, and earn the support of Posner.
Feminist Jurisprudence: Law as Patriarchal Institution
Feminists are concerned with the historical and contemporary disadvantages of women in society. Feminist theorists would reject the separation theory, arguing that the male dominated legislature is painting s. 251 to exclude the inevitable moral and ethical issues associated with abortion. Feminists theorists would arguably reject the separation theory and instead say that the legislature was trying to make this a case which separates the social stigma of abortion from women’s rights over their body. Feminist theorists fall along a spectrum, with liberal feminists on one end who see individuals as the fundamental building block of society and are concerned about injustices to individuals. Radical feminists, and post-modern feminists occupy the other end, and see groups as the fundamental building block and encourage the governments to intervene to protect the interests of disadvantaged groups such as women.
Liberal Feminist Analysis
Morgentaler illustrates the feminist movement against the systematic and systemic domination of women by men. This case is about deconstructing a social norm, which disapproves of single women who are pregnant and yet restricts the liberty of those very women. Justice Wilson’s concurring decision is most in line with the liberal feminist approach. It is ultimately the women’s choice whether or not to have an abortion, and not up to the legislation or doctors to meddle in this decision. This is captured in her reasoning at para 226:
The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence. (emphasis added).
Radical Feminist Persppective
Radical feminists would also affirm the judgment that carried the day, primarily because the judiciary dismantled a law that allowed the patriarchy to violate one of the embodied areas of the female sex - childbearing.
Marxist/Socialist Feminist Perspective
Marxist feminists would not agree with Justice Wilson’s metaphor but would endorse her final decision. Socialist feminists desire the break down the fences, so to speak, to ensure no economic class is exploited by another. Immunizing women from state intervention only perpetuates the dependency and marginalization women experience on the capitalist patriarchy.
Our group posits that the rights of the foetus, or “yet to be born” child, would be taken into account especially under this legal theory. And specifically by Marxist feminists. We suggest the rights of the foetus are inseverable from the mother since the woman is necessarily characterized based on her child-bearing capabilities. Any Marxist feminists who possibly endorsed the criminal sanction may have found merit in the protections the legislature attempted to provide. Pregnant women are in an incredibly vulnerable state when they are deciding whether or not to go ahead with the procedure. Although, this argument would likely be overridden by the inherent oppression of the women who are not approved for abortions, or who have to wait so long before obtaining approval making the procedure drastically unsafe. But of course, under Fuller's Morality of Law theory, these women bear the ultimate burden of deciding if they want to go ahead with the procedure and where or how they should obtain it if they cannot obtain it safely and legally.
Relational Feminist Perspective
Dickson CJ took a more relational feminist approach to his decision, albeit arriving at the same conclusion as Wilson J. His view is well illustrated in para 56-57 of the decision:
Not only does the removal of decision making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 clearly interferes with a women’s bodily integrity in both a physical and emotional sense. Forcing a women, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a women’s body and thus a violation of security of the person.
In that vein, relational feminists would support the majority decision in this judgment. Both the security of the person and liberty to access abortion takes into account the context of the women and the feelings and experiences they go through over the whole abortion process. Relational feminists, unlike Marxists, would not support the adherence the dissent took to the “protection of the unborn”, as it disregards the female experience and instead relies on historical social perspectives of Canadian society (rooted in the patriarchy).
Post-modern Feminist Perspective
Post-modern feminists may have endorsed the majority decision to strike down the legislation because the legislation infringed with the autonomy of the women’s body away from her. The fact that child-bearing and birth is unique to women is what why women are portrayed as “the other”. This may very well be the root of the s. 251 sanction, and oppression of autonomy. Under other light, this uniqueness is something to be celebrated by the “others”, but we do not believe post-modernists would go so far as to “force” the child-bearing upon the women. Important and distinct to this perspective is the rejection of a single solution to the female oppression. In the macro-scheme, our group argues that the judicial action of finding a violation is but one solution from Canadian society. The Supreme Court of Canada acted responsibly and within their means to contribute to the “solution”.
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Postmodernist feminists would likely argue that women should be able to choose whether they want an abortion, regardless of the medical reasons. Women who want an abortion should be able to get one based on choice and not medical approval. Further to this point, postmodernist feminist would reject the single solution that s. 251 offers and encourage the legislature to actually offer options to women. By constraining pregnant women to apply to hospitals (possibly several of them) in order to obtain approval, postmodernist feminists would argue that this does not respond to the actual lives of actual women. Lengthy wait times and an uncertainty increases the stress and risk to women and s. 251 perpetuates this risk because it does not account for nearby hospitals that may not have the resources for the medical committees.
MacKinnon takes the stance that the male dominated views subordinate female sexuality. She asserts that sexuality is the division of sexes between male and female. Sexuality is the very mechanism that perpetuates female subordination; the keystone of male dominance in society. Following MacKinnon’s wisdom in how women find their voice as part of the changing state’s relation to women and women to men, first women need to stop pretending there is true equality between the sexes. The Morgentaler decision offers dialogue on the formal inequality of abortions (the women’s “concrete reality”). Second, the women need to recognize that male power over women is embodied as individual rights. The Chief Justice and justices in Morgentaler were more progressive than what MacKinnon likely expects: rather than acquiescing to the entrenchment, the decision created a brighter line around women’s rights and protected it within the Constitution. Dickson CJ paid recognition to the women’s unique security of the person; while Wilson J went further to emphasize the need to protect their liberty.
Taking an opposite stance is Ronald Dworkin, who would assert the only way to protect women’s rights is to have the judiciary and legislatures create positive laws with state obligations and omissions. The judges will construct the right kind of law to achieve a protectionist-type law by weighing the right principles over the course of their legal reasoning. As mentioned in the Dworkin section, he would agree with the majority line of reasoning as they considered the most relevant principles available at the time of the decision.
Ultimately, the feminists strive to give the individual, the pregnant woman, the freedom to choose how to exercise her rights. The majority judgment is appropriate because it snuffs the sexual stereotype that women have no choice over their person, recognizing and promoting autonomy and dignity of women. This decision places value on the woman’s right to control her sexual activities and reproductive choices.
Critical Legal Studies & Critical Race Theory
Critical Legal Studies
Ronald Dworkin's theory determined that all people are neutral rights bearers; all people are equal in the exercising of their rights. However, Critical Legal Theory advocated by Duncan Kennedy counters Dworkin's position by determining that equality of the law is a control mechanism to maintain the interests of the powerful.
A key element of the Critical Legal Study that Kennedy helped to establish is that the law does not apply to all people equally; it is intended to benefit those in power. Therefore, to understand how the law developed in this manner, one must ask how the law in question benefits the powerful. In Morgentaler, s. 251 can be seen to benefit the powerful because it reflects the morality and sensibilities of the WASPs (White Anglo Saxon Protestants) that make up the powerful within Canada. This law, which restricts access to abortions and makes obtaining one difficult, falls directly into the interests of the powerful, who disapprove of freely accessible abortions because of these conservative values. It keeps their interests in power, and keep those without power (women who desire abortions) in a powerless state, as they have no control of whether they will actually be successful in attaining an abortion. All of this occurs while concealing the law in an benign, purely logical protection of the interests of women. In this manner, s. 251 can be recognized as serving the interests of the powerful.
Kennedy would recognize this position of the powerful, and therefore support the judgement that counters the trend within society of maintaining the control of the powerful. In Morgentaler, the majority judgement and concurring majority judgement, through their analysis of how s. 251 violates s. 7 of the Charter, recognize how the law has violated the rights of women and in this manner kept them in a perpetual state of powerlessness over their own reproductive fates. Kennedy would support the abolishment of this law, as it furthers a societal transition away from the law serving the interests of the powerful. It grants power to the women who were formerly deprived of it, which allows for a social shift that begins to move away from maintaining the status quo of power. Contrary to this position would be the finding of the minority in Morgentaler. In this case, the minority determine that the law should be respected out of deference for historical Canadian values (the protection of the unborn.) This adherence to the justifications for the legislation would likely be seen by Kennedy as the effect of society attempting to maintain the status quo and keep the law that benefits the interests of the powerful in force. As such, he would not support the minority decision.
Critical Race Theory
The critical race theory, like feminist legal theories, studies and scrutinizes the injustices of disadvantaged groups in the Canadian law context. Whereas feminist legal theories explore sexist views of the legal system, the critical race theory analyses how legal colour blindness perpetuates social and institutionalized oppression based upon race or colour.
Some critical race theorists likely regard the Canadian legislature’s rationale to draft and proclaim the abortion law as flat, taking a rightist, White or internalized White perspective to resolve the issue that was unsettling to 'their' group. The Supreme Court of Canada in Morgentaler were the gatekeepers between the rightists and the feminists. Critical race theorists would suggest that the judiciary failed to recognize the crucial racial element to the debate and do not discuss it anywhere in their analysis.
The focus of critical race theory is upon the historical and contemporary discrepancies in the justice system and society. Morgentaler does not appear to address the issue of race in regards to the constitutional validity of s. 251. However, this omission would likely be the key point of argument for the critical race theorist. By placing the experiences of all women that were effected by the offending legislation while seeking abortions under a single umbrella, critical race theorists would likely argue that the struggles unique to women in racial minorities are being excluded from the discussion (as the generalized "woman" that is being discriminated against is the caucasian woman). Under this line of reasoning, the critical race theorists would likely claim that the Supreme Court of Canada failed in its responsibility to its racial minority female populace by not considering their struggles, which would be distinct from those of the Caucasian racial majority.
In terms of the ruling, the critical race theorist would likely support the majority judgement in principle, as it is relieving women of a burden that violated their rights under s. 7 of the Charter. However, they would also likely comment that the analysis made by the Supreme Court of Canada is incomplete, and does not accurately reflect the context of racial minorities within the same issue.