Double Aspect

I’ve written a fair bit already about Quebec’s Bill 1, which includes a maybe-sorta-not really entrenched provincial constitution and assorted other nonsense: here and here, in an op-ed for The Line, and in a submission I made to the committee studying the bill (which has kindly invited me to present — in February). Bill 1 generally, and the proposed Quebec constitution in particular, have a hundred problems, and that may be undercounting them. But you know what isn’t one? Undermining abortion rights. And yet there are people who firmly believe otherwise, as for example Alexandre Sirois’s column in La Presse recounts with obvious sympathy.

Clause 29 of the Quebec Constitution, which is part of a chapter on the “founding principles” of the “national state of Quebec”, no less, would provide that “[t]he State protects women’s freedom to have recourse to a voluntary termination of pregnancy”. My own take on it, in my submission, is that, like much else in the proposed Constitution, this is basically fluff. As I point out, it is

too vague to produce concrete effects even within the scope of its application, i.e. on the policies of the province. It has, needless to say, no effect on federal law, and would give way to a Criminal Code provision limiting access to abortion in the most unlikely case of such a provision being enacted and found to be compatible with the Canadian Charter of Rights and Freedoms. (I translate.)

But others do not think clause 29 is insignificant, let alone benign. As Mr. Sirois explains, their reasoning is that any mention of abortion in law, let alone in a constitutional provision, undermines the view that, as the president of Quebec’s medical association put in a letter Mr. Sirois quotes, abortion is no different from “any other medical procedure” (I translate here and below). A law professor he also quotes says that legislative quiescence about abortion provides “the best protection” for women’s autonomy, by “taking abortion out of the realm of social issues and making it into a medical question … [l]ike having a tooth pulled out”. Moreover, mentioning abortion in law would, in their view, open the door to an eventual constitutional challenge or to an amendment of the legislation.

The one argument here to which, at least in principle, there is something is the concern with a constitutional challenge. Recall that in R v Morgentaler (No. 2), [1988] 1 SCR 30, the Supreme Court struck down the then-existing provisions of the Criminal Code that ostensibly criminalized abortion, subject to signicant, but very unevenly applied, exemptions. The uneven, not to say chaotic, application — or non-application — of the exceptions was the reason for the majority’s decision; there was no holding that there was a constitutional right to access abortion. Shortly thereafter, the Supreme Court decided Borowski v Canada (Attorney General), [1989] 1 SCR 342, in which the abortion provisions were being challenged from the other side, as it were: not for being (in practice, at least) too restrictive, as in Morgentaler, but for being too permissive. The decision in Morgentaler upended Borowski: with the provisions that were being challenged declared unconstitutional, there was nothing left to challenege. And so the Supreme Court duly found the case to be moot, but also, more to my present point, held that Mr. Borowski no longer had standing to pursue his case.

As Justice Sopinka explained for the unanimous court, he initially had standing to pursue his challenge, even though his own rights were not at issue, because the courts should take a more liberal approach to standing in cases where the constitutionality of legislation or government action is at issue. But the relevant law having been invalidated in Morgentaler, “[t]he appellant in this appeal challenges neither ‘a law’ nor any governmental action so as to engage the provisions of the Charter.” (367) His standing is thererfore gone.

The argument against Clause 29 is that enacting it would resurrect the standing of a latter-day Mr. Borowski, who could direct a challenge against this provision. The Quebec constitution would, of course, be subject to that of Canada, including the Canadian Charter of Rights and Freedoms (and, is it now stands, it does not invoke the Charter’s “notwithstanding clause”). So one could, in theory, resurrect Mr. Borowski’s agruments about the Charter protecting the foetus’s rights to life and to equality and use them to attack an abortion-rights provision of the Quebec Constitution.

But I don’t think that there is all that much to this concern. It’s not the lack of headline legislation permitting abortion that is preventing a Borowski-style constitutional challenge anyway. Abortion is not, and hardly could be, altogether a stranger to the law, even if it were indeed a medical treatment no different from having a tooth pulled, least of all in a system where medical treatment is not only highly regulated but also financially controlled by government. One could, if one wanted to, challenge the various forms of regulation and funding arrangments that affect abortion providers in the hope that the courts would declare them unconstitutional violations of the right to life. One would just be mad to do so, because Canadian courts think that actual censorship of claims that abortion is killing is just fine because such claims are “hateful”, “extreme”, and carry “potential for harm”: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 154, at [91]. Hell will freeze over long before they accept that this position is entailed by the Charter. Anti-abortionists can recognize that as well as anyone.

As for the rest of the anti-anti-abortion argument against clause 29, it really is rather difficult to take seriously. It would no easier to introduce legislation restricting access to abortion if the clause is enacted than it is now. The reason has nothing to do with what it is already in the law, and everything to do with the state of public opinion, which is also why Parliament never legislated in response to Morgentaler even though the decision quite obviously left it considerable room to do so. (A good test of whether a journalist or politician is a hack or a liar is whether they tell you otherwise. Many do.) Enacting a provision affirming the majority’s preference for abortion rights won’t create a political demand for its repeal through some dark magical mechanism.

What we are left with is the suggestion that abortion must not be mentioned in law at all, because doing so, even in the name of protecting it as a “founding principle” of a “national state”, whatever those things actually are, implicitly acknowledges its significance as a “social issue”. This is the constitutional law version of the Voldemort effect, which the Font of All Knowledge helpfully defines as

a social phenomenon where people are fearful of naming someone, to speak of something or acknowledge it exists, and therefore derail any attempt to confront it. The phrase takes cue from the line associated with Lord Voldemort in the Harry Potter series: “he who must not be named”, because they are terrified to name him or they deny his existence.

If only we pretend that all those people who think that abortion is a moral or social issue don’t exist — even though by no means all of these people think this means abortion should therefore be banned — then we needn’t worry about the who do want to limit or even ban it.

This is pretty similar to, and certainly no better than, the opposite camp, the anti-abortionists who say they shouldn’t have to debate their view because it is as self-evidently correct as opposition to slavery. That analogy is misleading and offensive, because it deliberately denies the woman’s moral significance by equating her to a slaveholder. But analogizing a foetus or even embryo to a sick tooth is every bit as misleading and offensive, and for exactly the same reason, namely the denial of moral significance by means of a comparison with something that has none. I wrote about the anti-abortionist crowd here, not long ago, arguing that their rhetoric is

very much akin to the sorts of arguments the woke left is in the habit of making … because of the way it relies on word-games, trading on the emotional strength of the question-begging assertion that what is being destroyed in an abortion is a baby, albeit “pre-born”. One can—and should—acknowledge that the other side of this debate plays very similar games with its obstinate insistence on referring to abortion as “reproductive healthcare”, but that’s the point. It’s games whichever side plays them. 

Q.E.D. (And, incidentally, aversion to word games is why I am using the word “abortion” in this post, rather than a euphemism like “voluntary termination of pregnancy”, or indeed “reproductive healthcare”.)

I wrote, further, that

it will not do to treat issues that are, as a matter of fact, contentious as if they were settled. Lincoln did not have the luxury of doing so with slavery in the 1850s, and the common-good crowd doesn’t have the luxury to do so with abortion today. If they want to make it undebatable, they first have to win the debate. Then, and only then, can they take a break.

That goes both ways of course. The anti-abortionists shouldn’t pretend that they have won the argument, but the pro-abortion-rights people shouldn’t either, even in the places where, as in Quebec, they are closer to winning it than their opponents. It only makes them look arrogant at best, and delusional at worst. (That said, the common-good crowd’s ability to pretend they have already won in situations where they a teeny-teeny minority is an especially striking form of self-delusion; only the craziest representatives of the woke left can match it.)

After the US Supreme Court held that the US Constitution does not protect abortion rights, I suggested that the reason for the often intemperate attacks to which it was subject was that “to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion”. But this is an unwarranted belief. Whether a constitution protects a given right is a function of what it says, and not of what people think constitutions ought to do. The framers of the Quebec Constitution wanted to make their position clear, and that’s fair enough, so far as that goes.

As I also wrote in that post, “[i]f some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides”. I would take the advice one of Heinlein’s characters gives to constitutional framers:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation.

That, of course, is precisely what the Quebec Constitution doesn’t do. Indeed, it’s quite the contrary: when it comes to pretty much every other right, it seeks to put majoritarian concerns first, and individual claims second, when it does not allow for them to be ousted or prevent them from being made. No involuntary taxation? No interference with freedom of religion or of instruction? Not in the Belle Province, non merci!

Like the Quebec Constitution as a whole, the abortion provision is a publicity stunt, an exercise in political point-scoring rather than the sign of any profound commitment to rights and liberties. It does deserve to be denounced, but for what it is, not what it is not and cannot be.