Abortion and Democracy for Women:
A Critique of Tremblay v. Daigle
Donna Greschner
Chantal Daigle’s ordeal before the courts in
the summer of 1989 culminated
in the
Supreme Court of Canada decision of
Tremblay v. Daigle. This decision, along with
the Court’s prior decisions in Morgentaler and
Borowski, has forced politicians to address the
abortion issue.
The author argues that the exclusion of women
in framing the terms and the vocabulary of the
abortion debate predetermines its outcome.
She believes that courts must recognize the
power relations at play and address the lack of
democracy for women. Courts must not only
encourage women to speak, but must also
encourage the speech of women.
The author urges the Court to state unequivo-
cally that foetuses have no constitutional
rights. She argues that such a decision is nec-
essary to bring women into the public debate
and is consistent with the principles of consti-
tutional adjudication.
La d6cision de la Cour supreme dans Tremblay
c. Daigle marqua la fin d’un 6t6 de peines et
d’angoisse pour Chantal Daigle. Cette d6cision
se range aux c6t6s de Morgentaler et Borowski
et force nos reprsentants politiques A adresser
Ia question de l’avortement.
L’auteur soutient que l’issue du d6bat sur
l’avortement a 6t6 ddtermin~e d’avance car les
femmes n’ont pas choisi ses termes, nile Ian-
gage dans lequel il se d~roulera. Les tribunaux
doivent, selon elle, reconnaitre les forces en
jeu et tenir compte du manque de d~mocratie
pour et par les femmes. Ils doivent non seule-
ment encourager les femmes
s’exprimer,
mais surtout encourager l’expression des
femmes.
L’auteur affirme que la Cour doit prendre posi-
tion et d6clarer clairement qu’un foetus n’a pas
de droit constitutionnel. Elle soutient qu’une
telle ddclaration est conforme aux principes de
droit constitutionnel et est n6cessaire pour per-
mettre aux femmes de prendre part au d~bat
sur l’avortement.
* College of Law, University of Saskatchewan, Saskatoon. Thanks to Rosanna Langer, Ken
Norman and Wanda Wiegers for comments on an earlier draft; special thanks to Martha Shaffer and
Colleen Sheppard for conversations, contributions and corrections; and very special thanks to
Debra Greschner for all of the above and much more.
McGill Law Journal 1990
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 35
Synopsis
The Undemocratic Context of Abortion Regulation
I.
IE. Silences and the Dominant Discourse
I. The Daigle Decision: Toward Democratic Adjudication
IV. Democracy and Power
Women have had the power of naming stolen from us. We have not been free to
use our own power to name ourselves, the world, or God. The old naming was not
the product of dialogue –
a fact inadvertently omitted in the Genesis story of
Adam’s naming the animals and the woman. Women are now realizing that the
universal imposing of names by men has been false because partial… It would be
a mistake to imagine that the new speech of women can be equated simply with
women speaking men’s words. What is happening is that women are really hear-
ing ourselves and each other, and out of this supportive heating emerge new
words.’
…the courts are and will remain allies of Canadian democracy, strengthening any
weaknesses of democracy by providing a voice and a remedy for those excluded
from equal and effective democratic participation in our society.2
I. The Undemocratic Context of Abortion Regulation
talking with, not talking to –
Democracy begins with talking. Democratic talking requires listening, too
and a discourse that not only allows all to
–
speak but has been equally created by everyone. The ordeal of Chantal Daigle
in the summer of 1989 provokes questions about democracy’s meanings in the
context of women’s silences and men’s speech. Historically and generally, the
practise of democracy has been gendered, men talking to each other and telling
women what to do. Women have not been able until recently to participate
legally and directly in the democratic process.’ The institutions of formal dem-
‘Mary Daly, Beyond God The Father (Boston: Beacon Press, 1973) at 8 (emphasis in the
original).
2R. v. Holmes, [1988] 1 S.C.R. 914 at 932, Dickson C.J.C., 50 D.L.R. (4th) 680.
3Women (more precisely, mostly propertied European-Canadian women) were first granted the
right to vote and hold office in Manitoba on January 28, 1916, with enfranchisement at the federal
level occurring on May 24, 1918, and in the last province, Quebec, on April 25, 1940. See
1990]
COMMENTS
ocratic practise, all of which were implicated in Jean-Guy Tremblay’s attempt
to stop Chantal Daigle from having an abortion, remain heavily dominated by
men.4 How ironic that the institution which allowed her to decide for herself
whether to have an abortion, the Supreme Court of Canada, has the highest per-
centage of women of any branch of the state –
one third of the judges are
women –
yet is the pinnacle of a branch of government often regarded by con-
ventional constitutional wisdom as anti-democratic in theory and practise.’
Women’s exclusion and lack of voice within democratic practise seems partic-
ularly unjust and dictatorial with respect to abortion laws. Not only do restric-
tions on abortion affect women far more than men; the debate about the regu-
lation of abortion is a debate about the role, status and value of women, about
the meaning of women’s lives and our freedom to determine the course of our
own lives.6 Yet the Canadian democratic system, a legislative, executive and
judicial triumvirate, continues to deny women equal participation, no longer by
formal exclusion but through the highly effective means of economic disadvan-
tage, socialization, electoral structures and party politics.7 Contemporary
Catharine Cleverdon, The Woman Suffrage Movement in Canada, 1st ed. (Toronto: University of
Toronto Press, 1950).
41n 1988, thirty-nine women were elected to the House of Commons, comprising a mere 13.2
percent of the members. Twenty-seven women had been elected in 1984, constituting 9.6 percent
of the House. At this rate, the percentage of women members will only reflect women’s percentage
in the population in the year 2050. In July, 1989, the Quebec National Assembly had 17 women
members, comprising 13.9 percent of the members. In 1986, less than 5 percent of Canadian judges
were women. See Peter H. Russell, The Judiciary in Canada: The Third Branch of Government
(Toronto: McGraw-Hill Ryerson, 1987) at 165-166.
5See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge:
Harvard University Press, 1980); Michael Mandel, The Charter of Rights and the Legalization of
Politics in Canada (Toronto: Wall and Thompson, 1989).
6Frances Olsen, “Unraveling Compromise” (1989) 103 Harv. L. Rev. 105; Kristin Luker,
Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984), espe-
cially 158-191. The debate is as much between women as between women and men, as illustrated
by the rise of anti-abortion, anti-feminist, women’s groups. See Karen Dubinsky, Lament For a
“Patriarchy Lost”?: Anti-Feminism, Anti-Abortion and R.E.A.L. Women In Canada (Ottawa:
CRIAW/ICREF, 1985).
7Sylvia Bashevkin, Toeing the Lines: Women and Party Politics in English Canada (Toronto:
University of Toronto Press, 1985). Barry Kay et al., “Feminist Consciousness and the Canadian
Electorate: A Review of National Election Studies 1965-1984” (1988) 8(2) Women and Politics
1, conclude that the participation of women, but not men, in traditional political activities (e.g.
elections and party politics) is adversely affected by the presence of children and that overall par-
ticipation rates have not been affected by a rise in feminist consciousness, thus indicating the exis-
tence of systemic barriers to women’s participation. Active involvement with political parties,
especially the party in power, remains an influence on judicial appointments: Report of the
Canadian Bar Association Committee on the Appointment of Judges in Canada (Ottawa: Canadian
Bar Foundation, 1985) at 56-57. Countries with a high involvement of women in formal political
structures, such as Norway’s record-breaking participation (over 30 percent women at all levels and
44 percent of Cabinet in 1987) have relatively open, participatory electoral systems that constitute
REVUE DE DROIT DE McGILL
[Vol. 35
Canadian practise provides a specific example of Carole Pateman’s condemna-
tion that, for women, “democracy has never existed: women have never been
and still are not admitted as full and equal members and citizens in any country
known as a ‘democracy’.”‘
Democratic practise, i.e., the operation of democratic mechanisms by the
men who comprise the state, was intricately incriminated in Daigle’s9 ordeal by
either acts or omissions. The efforts of Tremblay, the ex-boyfriend and potential
father, to stop Daigle from having an abortion met with the approval and sup-
port of the Quebec courts. Even though judges in Manitoba and Ontario” had
rejected similar claims by men, Tremblay found judges willing to ensure that a
man could exercise control over a woman’s body.” Only the Supreme Court of
Canada refused to use its coercive power against Daigle. Its judgment restores
but does not, however, proclaim her freedom, focusing instead on the failure of
the legislative assembly to grant the specific rights asserted by Tremblay. 2 The
Quebec National Assembly did nothing to help Daigle, 3 nor did the executive
an important ingredient of increased participation. See Jill Bystydzienski, “Women in Politics in
Norway” (1988) 8 (3/4) Women and Politics 73.
8Carole Pateman, “Feminism and Democracy” in G. Duncan, ed., Democratic Theory and
Practise (Cambridge: Cambridge University Press, 1983) at 204.
9Hereinafter, Chantal Daigle will be referred to by her surname, to accord her the same respect
given to judges, scholars and politicians whose surnames are traditionally used in legal journals.
‘0Diamond v. Hirsch (6 July 1989), (Man. Q.B.) [unreported] 3, Hirschfield J. (“a human being,
that is, the Respondent, has an absolute right, subject to criminal sanctions, to the control of her
body.”); Murphy v. Dodd (11 July 1989), Toronto 1566/89 (Ont. S.C.). An injunction granted by
O’Driscoll J. was set aside by Gray J. because of insufficient notice to Barbara Dodd. This case
was the first of the irate boyfriend cases; Dodd had her abortion then rejoined Murphy and began
campaigning against abortion, to the distress of her family and friends who considered her to be
under the control of Murphy. “Dodd Regrets Decision, Becomes Anti-Abortionist” The
[Saskatoon] Star-Phoenix (19 July 1989) 1; Kirk Makin, “Dodd Feels Insulted, Denies
Manipulation by Anti-Abortionists”; Kirk Makin, “Woman’s Perplexing About-Face Causes
Shock, Happiness” The [Toronto] Globe and Mail (20 July 1989) 4.
“Mr. Justice Richard of the Quebec Superior Court granted a provisional injunction on July 7,
1989, without providing reasons and without notice to Daigle, who learnt of the injunction on her
way to Sherbrooke, Quebec, for an abortion. On the application of Tremblay, Mr. Justice Viens of
the Quebec Superior Court upheld the interlocutory injunction on July 17: Tremblay v. Daigle,
[1989] R.J.Q. 1980. The Quebec Court of Appeal heard Daigle’s appeal on July 20 and rendered
judgment on July 26, 1989: Tremblay v. Daigle (1989), 59 D.L.R. (4th) 609, [1989] R.J.Q. 1735.
Mr. Justices LeBel, Nichols and Bernier dismissed the appeal, while Mr. Justice Chouinard and
Madame Justice Tourigny, one of two women on the Quebec Court of Appeal and the first woman
to be in a position of exercising state power in the spate of litigation in three provinces, would have
allowed the appeal.
12Tremblay v. Daigle, [1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634 [hereinafter Daigle cited to
S.C.R.]. The Court heard and granted the leave application on August 1, 1989, and the entire Court
heard and allowed the appeal unanimously on August 8, 1989, releasing its reasons on November
16, 1989.
13Neither The [Montreal] Gazette nor The [Toronto] Globe and Mail record any statement by
a Minister of the Quebec National Assembly voicing support for Daigle or Canadian women gen-
1990]
CHRONIQUE DE JURISPRUDENCE
branch of the provincial government. The Attorney General of Quebec inter-
vened before the Supreme Court to argue for the province’s legislative jurisdic-
tion over certain aspects of abortion, refusing to assert or accept Daigle’s free-
dom.’4 Neither did the Attorney General of Canada argue for women’s freedom
in its intervention before the court. Its argument for allowing the appeal was
jurisdictional, that Parliament possessed the power to regulate women’s deci-
sions about abortion without interference from the provinces.'” A momentous
litigation from the perspective of Canadian women was cast by the executive
branch of government as a commonplace federal-provincial fight over legisla-
tive power. The federal government also bowed to some public pressure gener-
ated by the litigation (or opportunistically used the pressure as a justification)
to introduce legislation recriminalizing abortion, directly exerting again
Parliamentary control over women’s reproductive decisions. 6
emily. The government had ample opportunity, between the time of the injunction and the decision
of the Supreme Court, to indicate its position and take action. It could have introduced a law clearly
stating that a foetus has no status nor legal rights until birth, and retroactively apply the amendment
to cover Daigle’s situation. It did not. A call by the leader of the Opposition, Jacques Parizeau, to
reconvene the National Assembly and amend the province’s law to allow for unrestricted access
to abortion up to the point of viability, was met with silence from the government: Alexander
Norris, “Parizeau Wants Quebec to Pass Own Abortion Law” The [Montreal] Gazette (28 July
1989) 7.
“‘See Mgmoire du Procureur Gincral du Quebec (on file with the author).
‘5See Factum of the Attorney General of Canada (on file with the author).
16During the summer of 1989, many people called for new federal criminal legislation as a
means of ending injunction applications. See, e.g., Jeffrey Simpson, “A Policy on Abortion” The
[Toronto] Globe and Mail (20 July 1989) 6; William Johnson, “Need for Abortion Law Becoming
More Apparent” The [Saskatoon] Star-Phoenix (20 July 1989) 4; John Yorston, “Editorials Call
For Federal Abortion Law” The [Montreal] Gazette (21 July 1989) 3. Overlooked was the fact that
injunction applications can only be stopped by a clear court ruling that foetal and potential fathers’
rights constitute a violation of women’s constitutional rights. If new criminal legislation was pas-
sed, its effectiveness in stopping injunctions against women would be dependent on judicial deter-
minations of the law’s conformity with the Charter. As pointed out by several commentators, new
federal criminal law would invite further litigation, not stop it. See, e.g., Don McGillivray,
“Ex-Boyfriends not Evoking Sympathy” The [Saskatoon] Star-Phoenix (14 July 1989) 4. The
Minister of Justice’s initial hints after the first injunction application that the government would
still avoid recriminalization were quickly superseded by a governmental commitment to criminal
legislation: “New Abortion Law Needed to Fill Legislative Void: PM” The [Saskatoon] Star-
Phoenix (21 July 1989) 1; Susan Delacourt, “Abortion Law May be Needed For Stability,
McDougall Hints” The [Toronto] Globe and Mail (25 July 1989) 3.
McGILL LAW JOURNAL
[Vol. 35
In moving for second reading of Bill C-43 7 on November 7, 1989, the
Minister of Justice explained that recriminalization was necessary in order to
give women the entitlement to have abortions”8 , conveniently forgetting a basic
principle of our free and democratic society that a person is free and entitled to
do anything not specifically prohibited by law. Or was the message from
Parliament that only men enjoy this basic presupposition of freedom and that
women exercise freedom only with the permission of men?
In short, the predominant stance of democratic institutions was that ‘Father
knows best’, an attitude and position that continues to be foisted upon women.
Parliament’s proposed legislation, another strategic attempt at de-politicization
of abortion restrictions,
is deeply paternalistic. Every woman is prohibited
17Bill C-43, An Act Respecting Abortion, 2d Sess., 34th Par]., 1989. It adds two new sections
to the Criminal Code:
287. (1) Every person who induces an abortion on a female person is guilty of an
indictable offence and liable to imprisonment for a term not exceeding two years,
unless the abortion is induced by or under the direction of a medical practitioner
who is of the opinion that, if the abortion were not induced, the health or life of
the female person would be likely to be threatened.
(2) For the purposes of this section, “health” includes, for greater certainty, phys-
ical, mental and psychological health;
“medical practitioner”, in respect of an abortion induced in a province, means a
person who is entitled to practise medicine under the laws of that province;
“opinion” means an opinion formed using generally accepted standards of the
medical profession.
(3) For the purposes of this section and section 288, inducing an abortion does
not include using a drug, device or other means on a female person that is likely
to prevent implantation of a fertilized ovum.
288. Every one who unlawfully supplies or procures a drug or other noxious thing or
an instrument or thing, knowing that it is intended to be used or employed to
induce an abortion on a female person, is guilty of an indictable offence and liable
to imprisonment for a term not exceeding two years. (emphasis in original)
‘8Canada, Debates of the House of Commons at 5640 (7 Nov. 1989). “However, the events of
this past summer illustrated a clear need for a national position on the issue of entitlement to abor-
tion…only by using the criminal law power, however, can the federal government ensure a national
approach to the issue of entitlement of abortion…What we can do, and what we are doing, is pro-
posing legislation which will establish a national standard for entitlement to abortion in Canada.”
(emphasis added). In the same breath, the Minister acknowledged that the federal government
could not prevent applications for civil injunctions and that such applications had been possible
under the old criminal law.
‘9’De-politicization’ redefines abortion decisions as technical matters requiring the judgment of
experts, specifically as health issues to be decided by medical doctors. Joni Lovenduski & Joyce
Outshoorn, “Introduction” in J. Lovenduski and J. Outshoorn, eds, The New Politics of Abortion
(London: Sage, 1986) 1 at 2. This strategy passes responsibility for political decisions, i.e. the con-
tinued control of women, to another group. Although the first prohibitions in North America
against abortion were generated by the powerful medical associations (see Rosalind Pollack
Petchesky, Abortion and Woman’s Choice: The State, Sexuality and Reproductive Freedom
(Boston: Northeastern University Press, 1984) at 78-84, doctors are now more reluctant to exercise
legal decision-making power, in part because of fear of prosecution. The largest doctors’s associ-
1990]
COMMENTS
from having an abortion unless a doctor consents to the abortion by deciding
that a woman’s life or health would be threatened without it. With the added
power to define health according to their professional standards, doctors will
remain one of the gatekeepers of women’s autonomy.” Having passed second
reading and with Cabinet committed to its support, Bill C-43 seems fairly cer-
tain of passage.2′ Violations of Bill C-43 will be enforced by prosecutors,
bureaucrats and judges who will be mostly, if not almost overwhelmingly, men.
Many provincial legislative assemblies and governments will continue their
efforts to restrict women’s access to abortion services, such as Nova Scotia’s
concerted efforts to close down Dr. Morgentaler’s clinic.’ In addition, legisla-
ation in Canada, the Canadian Medical Association, is opposed to any recriminalization of abor-
tion. “Abortion Law Would Force Women To Lie, CMA Says” The [Toronto] Globe and Mail (7
February 1990) 9.
20Bill C-43, supra, note 17. No woman, at any moment after implantation, is able to decide for
herself whether to terminate a pregnancy. That only the opinion of one doctor is required does not
detract from the fact that women are not recognized as moral agents with the capacity to make deci-
sions, but must still have their decisions approved or vetoed by someone else. That the definition
of health is broad does not obviate the fact that a male-dominated profession will define it, not
women.
21However, predictions are difficult; in February, 1990, it was estimated that 151 Members were
opposed to the legislation and 138 were in favour, a figure which led the Minister of Justice, Kim
Campbell, to warn that if Bill C-43 failed, no new legislation could be expected: Deborah Wilson,
“If Federal Abortion Bill Defeated, New Law ‘Unlikely’, Minister Says” The [Toronto] Globe and
Mail (28 February 1990) 1. If Cabinet solidarity is imposed, as expected, for the first time in recent
history government legislation on abortion will not be subject to a completely free vote by gov-
ernment members. The free vote, a favourite strategy concerning abortion legislation in western
countries, has usually ensured the continuation or passage of repressive regulation. See Lovenduski
& Outshoom, supra, note 19 at 4. The notable Canadian exception was the free vote in July, 1988,
which resulted in the continuation of decriminalization. Merely having a free vote defines abortion
as an essentially moral issue, which it is not, except from a religious perspective, rather than as
a political issue requiring party solidarity. It permits elected representatives to justify voting against
their constituents’ wishes because of their individual consciences. Individual members become the
subject of lobbying efforts in which the anti-abortion forces have the financial upper-hand. In the
free vote held on July 28, 1988, almost half (105 of 223 voting members) voted for an amendment
outlawing virtually all abortions, an anti-abortion faction far out of proportion to the segment of
the Canadian population that holds such views. Only the voting bloc of women parliamentarians
prevented the passage of the amendment.
DAfter the decision in R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 [hereinafter
Morgentaler cited to S.C.R.], all provinces except Quebec and Ontario sought to restrict women’s
access to abortion services. For a discussion of the decision and the immediate governmental reac-
tions, see Judy Fudge, “The Public/Private Distinction: The Possibilities of and the Limits to the
Use of Charter Litigation to Further Feminist Struggles” (1987) 25 Osgoode Hall L.J. 485 at
536-549. In 1989, Nova Scotia passed the Medical Services Act, S.N.S. 1989, c.9, the regulations
of which require that abortions be performed only in provincially approved hospitals (even though
a similar restriction had been struck down by all majority judgments in Morgentaler) in an attempt
to stop Dr Morgentaler from operating a clinic in Nova Scotia. That Nova Scotia’s action is moti-
vated more by a desire to stop abortions rather than a concern with private clinics is shown by its
rejection of Dr Morgentaler’s offer to sell the clinic to the province and disbelief of his statistics
REVUE DE DROIT DE McGILL
[Vol. 35
tors may attempt to prohibit or restrict abortions by demarcating either a ‘foe-
tus’ or ‘unborn child’ within a pregnant woman and giving it statutory rights
superior to its mother’s rights. The courts will almost certainly be asked to settle
the issue of the constitutional status of the foetus’ and the constitutionality of
any new federal and provincial legislation.
The continuing political regulation of abortion by itself raises questions
about the legitimacy of democratic practise. The regulation of reproduction will
affect women far more than men24; the experiences of pregnancy, abortion and
birth are ones for which men have no analogy’; and women’s decisions about
whether to continue a pregnancy or have an abortion are significant in our
lives.26 Yet the voices of women remain muted and anomalous within the
forums of democracy. Democratic practises permit the enactment of legislation
with profound impact upon a subordinate group, women, while excluding us
from equal participation in the legislative, administrative and judicial processes.
How democratic is a system which reduces women to another lobby group
showing that large numbers of women travel to Montreal for abortions. Kevin Cox, “Morgentaler
to Appeal N.S. Abortion Injunction” The [Toronto] Globe and Mail (14 November 1989) 9.
Abortion restrictions provide a perfect example of Sandra Burt’s conclusion, in examining the
quest for women’s equality, that “the most significant structural characteristic of the political sys-
tem is the division of powers between the federal and provincial levels.” Sandra Burt, “Legislators,
Women and Public Policy” in Sandra Burt, Lorraine Code & Lindsay Domey, eds, Changing
Patterns: Women in Canada (Toronto: McClelland and Stewart, 1988) 129 at 153. Victories won
at one level of government can be neutralized or thwarted by another level. See Ian Urquhart,
“Federalism, Ideology, and Charter Review: Alberta’s Response to Morgentaler” (1989) 4
C.J.L.Soc. 157.
23An application for an injunction against a woman based solely on s.7 of the Charter has
already been attempted, unsuccessfully: Peter Moon, “Judge Denies Man Bid to Halt Abortion”
The [Toronto] Globe and Mail (14 February 1989) 3.
24It is not necessarily the case that laws regulating reproduction must affect women far more
than men, but historically all of the laws have been aimed at women, not men, because, as Francis
Olsen eloquently argues, women’s lives have not been valued as much as men’s lives, “[One]
means to reduce abortion would be for the state to outlaw the act of impregnating women who do
not wish to become pregnant. States could require a man to obtain informed consent from a woman
before he risked impregnating her, and could consider whether to impose a mandatory waiting
period before such consent would become effective. This approach would seem no less practical
than banning abortions except for the male domination of our society.” Olsen, supra, note 6 at 130.
25″It is probably impossible for a man to respond, even imaginatively, to such a dilemma not
just because it is outside the realm of his personal experience (although this is, of course, the case)
but because he can relate to it only by objectifying it, thereby eliminating the subjective elements
of the female psyche which are at the heart of the dilemma.” Morgentaler, supra, note 22 at 171,
Wilson J.
26″This decision is one that will have profound psychological, economic and social conse-
quences for the pregnant woman…It is a decision that deeply reflects the way the woman thinks
about herself and her relationship to others and to society at large. It is not just a medical decision;
it is a profound social and ethical one as well. Her response to it will be the response of the whole
person.” Ibid., Wilson J.
1990]
CHRONIQUE DE JURISPRUDENCE
attempting to exert influence on democratic institutions from the outside?27 Can
it be claimed that laws have legitimacy for women when women’s experiences
and interests do not form the basis of the laws? If legitimacy is derived from
consent and acceptance, where is the legitimacy for and from women when we
protest the law and defy it, if possible, whenever disobedience is necessary for
self-determination?
But there is a further democratic objection to the continued regulation of
abortion by male-dominated institutions that cannot be cured by simply requir-
ing that all institutions have a fifty percent female membership.’ Women have
not only been excluded from full participation in the debates about the regula-
tion of abortion, we did not create the language of the debate in the first place.
The public discourse on pregnancy, abortion and birth has been primarily cre-
ated by men. It fails to reflect women’s experiences, erases our presence and
causes pain in our lives. Lucinda Finley’s description of the linguists of law fits
perfectly and specifically the makers and enforcers of abortion laws, and per-
fectly and more generally the originators and monopolists of the public lan-
guage on reproduction:
Throughout the history of Anglo-American jurisprudence, the primary linguists of
law have almost exclusively been men – white, educated, economically privi-
leged men. Men have shaped it, they have defined it, they have interpreted it and
given it meaning consistent with their understandings of the world and of people
“other” than them.2 9
Women have not been allowed to speak in public about our experiences of sex-
uality and reproduction, central aspects of our lives that have been contemptu-
ously, erroneously and tragically dismissed or misrepresented by the linguists of
27Lobbying efforts to decriminalize abortion or at the least reduce the inequities of s.251 of the
Criminal Code, which included the abortion rights caravan in 1970, were uniformly unsuccessful
from the time s.251 was enacted in 1969 until its invalidation by the Supreme Court in 1988; Anne
Collins, The Big Evasion: Abortion, The Issue That Won’t Go Away (Toronto: Lester & Orpen
Dennys, 1985) at 23, concluded that “the House of Commons has never been the place in which
the law it made could be challenged.”
2tThe significance of such a change, however, must not be discounted. Even with the low
number of women representatives, their impact can be measured. On July 28, 1988, the House of
Commons held a free vote on a tri-partite motion introduced by the Conservative government in
an attempt to legislate again on abortion. All twenty-three women from the three political parties
(six women were absent) banded together to defeat the anti-abortion motion. If seven had voted
differently, the motion would have carried. However, solidarity on the impending vote on Bill C-43
is not anticipated because of the anti-feminism of several new women members. See Charlotte
Gray, “The New F-Word” Saturday Night (April, 1989) 17 at 20.
29Lucinda Finley, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature
of Legal Reasoning” (1989) 64 Notre Dame L. Rev. 886 at 892.
McGILL LAW JOURNAL
[Vol. 35
patriarchy.3 When we have talked, men have not listened.3 Almost all of the
vast writings on abortion have been authored by men.32 Only recently have
women recounted publicly our experiences of abortion,3 and the words we use
are not ones we have created. Perhaps part of the reason why the public debate
30Women have indisputably spoken very little in conventional democratic forums. I mean
‘public’ in the broader, everyday sense of the word, as any communication which is not designated
by the speaker as secret, to be shared with a special audience. Women’s lives have been marked,
to use Adrienne Rich’s famous term, by lies, secrets and silence. In this paper the focus is on abor-
tion but silence is a deafening, pervasive feature of women’s lives. See Robin West, “Feminism,
Critical Social Theory and Law” (1989) U.Chi. Legal Forum 59 at 65-78. Until very recently,
women did not talk about their experiences of sexual violence and most women still do not, par-
ticularly not in public. Jeffrey Moussaieff Masson, A Dark Science: Women, Sexuality and
Psychiatry in the Nineteenth Century (New York: Farrar, Straus & Giroux, 1986), could not find
one account of sexual abuse by a woman published in the nineteenth century. The extent of dis-
cussion among women of their reproductive experiences is difficult to assess, since men recorded
history, not women. In the late 1930s, women in the interior of British Columbia did discuss their
birth control problems with each other. See Mary F Bishop, “Vivian Dowding: Birth Control
Activist 1892- ” in Veronica Strong-Boag & Anita Clair Fellman, eds, Rethinking Canada: The
Promise of Women’s History (Toronto: Coop Clark Pitman, 1986) 200 at 204. In the 1950s, doctors
advised women not to talk about their sexual lives with other women, for fear that such conver-
sation would increase the divorce rate. See Wendy Mitchinson, “The Medical Treatment of
Women” in Sandra Burt, Lorraine Code & Lindsay Domey, eds, supra, note 22 at 250. Until 1969,
any sale or advertisement of birth control information or devices, including abortion, was a crim-
inal offence, a prohibition which likely deterred much conversation about reproduction and which
continues today for abortion. See the Criminal Code, R.S.C. 1985, c. C-46, s. 163.
31A pervasive social phenomenon is sometimes best illustrated by example: On May 12, 1982,
many male Members of the House of Commons laughed when Margaret Mitchell raised the prob-
lem of wife battering as a widespread and serious reality for Canadian women. Canada, Debates
of the House of Commons (12 May 1982) at 17734. For a general description of the gendered pat-
tems of speech and the network of laws that have silenced or devalued women’s speech, see Lucie
E. White, “Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of
Mrs. G.” (1990) 38 Buff. L. Rev. 1 at 6-19. But perhaps the only citation necessary here is Sigmund
Freud, who heard women’s complaints about sexual abuse but did not listen, refusing to believe
they were true and inventing a theory that labelled the female victims as ill. See Jeffrey Moussaieff
Masson, The Assault on Truth: Freud’s Suppression of the Seduction Theory (New York: Farrar,
Straus & Giroux, 1984).
32Beryl Lieff Benderly, Thinking About Abortion (Garden City: Dial Press, 1984) at 64: “Great
forests have been felled to permit authors –
to debate the morality of abortion,
but hardly a sapling sacrificed to record what women have actually undergone.” Benderly’s state-
ment that the debaters of abortion morality have been “usually men” is, I would submit based on
my reading, only close to accuracy within the past few years; before that, the debaters of the moral-
ity of abortion were overwhelmingly men.
33See, e.g., Ellen Messer & Kathryn May, Back Rooms: Voices From the Illegal Abortion Era
(New York: St. Martin’s Press, 1988); Canada, Report of the Committee on the Operation of the
Abortion Law (Ottawa: Supply & Services, 1977) at 177-203 (Chair: R. Badgley); Linda B.
Francke, The Ambivalence of Abortion (New York: Random House, 1978); Carol Gilligan, In a
Different Voice: Psychological Theory and Women’s Development (Cambridge: Harvard University
Press, 1982); Amicus Brief for the National Abortion Rights Action League, Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
usually men –
1990]
COMMENTS
about abortion appears intractable is because women’s voices –
the only voices
have not framed nor even participated in the debate. The
of the experience –
significance of women having an equal role in creating the lexicon cannot be
underestimated. Increasing the participation of women in the creation of the dis-
course, adding the formerly excluded voices, will cause the creation of new
words and new ways of thinking. As the women in the novel Native Tongue’
discovered, talking in a new language creates a new reality.
Silence has not been golden nor should it be a posture of democracy.
Whatever the other injustices of the silencing of women –
and they include the
thousands of women who die each year around the world from patriarchy’s laws
the creation of the discourse by men puts into question the results
on abortion –
of the democratic process. If what goes into a democratic process is biased
against women, so too is what comes out. If representatives and officials only
work with concepts and words that have been fashioned by men, from men’s
perspectives, no real equality or democracy is possible for women. In short, it
is not good enough to tell women that they can sing along with men, even form
half the chorus, if men still pick the tunes and determine what counts as music
in the first place.
The unequal participation by women in the creation of the public lexicon
is not merely an issue of political legitimacy but also a legal one. In constitu-
tional adjudication, the courts must be concerned about and consider arguments
that address and mitigate the relative lack of democracy for women. The
Supreme Court has stated several times that the very purpose of the Charter is
to make Canadian society free and democratic, and that the interpretation of the
substantive rights and freedoms, as well as s. 1, must be guided by the values
and principles essential for a free and democratic society.35 Chief Justice
Dickson makes this clear in R. v. Oakes.
Inclusion of these words [a free and democratic society] as the final standard of
justification for limits on rights and freedoms refers the Court to the very purpose
for which the Charter was originally entrenched in the Constitution: Canadian
society is to be free and democratic. The Court must be guided by the values and
principles essential to a free and democratic society which I believe embody, to
name but a few, respect for the inherent dignity of the human person, commitment
to social justice and equality, accommodation of a wide variety of beliefs, respect
for cultural and group identity, and faith in social and political institutions which
enhance the participation of individuals and groups in society. The underlying val-
ues and principles of a free and democratic society are the genesis of the rights and
freedoms guaranteed by the Charter and the ultimate standard against which a
34Suzette Haden Elgin, Native Tongue (New York: Daw, 1984).
35″Free and democratic society” are the last words of the first section of the Charter: “The
Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free and dem-
ocratic society”.
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limit on a right or freedom must be shown, despite its effect, to be reasonable and
demonstrably justified.36
For the Chief Justice, democracy as a concept and aspiration is more than a par-
ticular process of government. As C.B. MacPherson states, “Democracy is now
seen, by those who want it and by those who have it…and want more of it, as
a kind of society –
rather
than simply a system of government.”’37 The democratic process is a means of
implementing the deeper principle of democracy: self-determination. Autonomy
is not a virtue in opposition to democracy but is the foundation of the demo-
cratic system, as recognized by Dickson C.J.C. in R. v. Big M Drug Mart:
a whole complex of relations between individuals –
It should be noted, however, that an emphasis on individual conscience and indi-
vidual judgment also lies at the heart of our democratic political tradition. The
ability of each citizen to make free and informed decisions is the absolute prere-
quisite for the legitimacy, acceptability, and efficacy of our system of self-
government.
38
It is no accident that Justice Wilson, in her path-breaking judgment in
Morgentaler, quotes these statements by Chief Justice Dickson on the substan-
tive meaning of democracy.39 Her judgment is a gentle rebuke to those who call
themselves democrats while denying women the autonomy that forms the well-
spring of democracy.4”
36[1986] I S.C.R. 103 at 136, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200.
37C.B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Clarendon Press, 1973)
at 51.38R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 at 346, 3 W.W.R. 481, 18 D.L.R. (4th) 321,
Dickson, C.J.C. The court ought not to be quickly pegged as committed, by these comments, to
particular political or economic theories. Autonomy is not the exclusive aspiration or property of
liberal democracies, nor does it require capitalism. For arguments from a socialist perspective in
favour of greater degrees of democracy, principally because more democracy leads to more free-
dom, and a conclusion that socialism is necessary for advancing democracy and hence freedom,
see Frank Cunningham, Democratic Theory and Socialism (Cambridge: Cambridge University
Press, 1987). Capitalism may be the antithesis of any democratic system which seeks to secure per-
sonal liberty and render the exercise of power over people socially accountable (see Samuel
Bowles and Herbert Gintis, Democracy and Capitalism (New York: Basic Books, 1986)), at least
corporate capitalism (see Robert Dahl, A Preface to Economic Democracy (Berkeley: University
of California Press, 1985)). I leave to another day the issue of the extent to which an alternate con-
ception of democracy, one which stresses the democratic process as a means of achieving the good
character of the populace or a vision of a good society devoid of freedom, also underlies the
Charter. That s. 1 reads “free and democratic society” may indicate that democracy is not to be
equated with autonomy and equality. Be that as it may, every conception of democracy raises the
issue of who has created the discourse in which the conception is expressed.
39Supra, note 22 at 165-166.
4Her emphasis that human dignity and autonomy are essential elements of democracy provides
a sharp contrast to the judgment of McIntyre J. in Morgentaler, supra, note 22. In holding that
women’s security or liberty were not violated by s.251, he asserts that the court must confine itself
to values that are clearly found and expressed in the Charter. He raises the fear of “Lochnering”
and the inappropriateness of judicial excursions into the legislature’s territory of policy-making.
1990]
CHRONIQUE DE JURISPRUDENCE
The court has also emphasized the importance of freedom of expression to
democracy. “It is difficult to imagine a guaranteed right more important to a
democratic society than freedom of expression”.” Who is talking in the demo-
cratic process determines the substantive result of the process and, as impor-
tantly, the substantive vision of democracy used to design the process in the first
place. What the courts, and academic commentators who advocate a
democracy-enhancing role for them,42 have not yet recognized is the importance
of the question prior to who is talking; who have been the primary inventors of
the language of the talk?
It is this question which I want to highlight. If democracy is for women
too, as it must surely be, then not only must women be able to participate
directly and fully in all branches of government, but our speech must be nour-
ished. Women must not only enter the debates but participate equally in the for-
mulation of the debates’ vocabulary and morphology. The Chief Justice prom-
ised in Holmes that “the courts are and will remain allies of Canadian
democracy by providing a voice and a remedy for those excluded from equal
and effective democratic participation.”’43 Taking this promise seriously will
involve correcting the gender imbalance in the creation of the discourse.
These goals are not abstract but appear sharply before the courts in litiga-
tion involving abortion. The Supreme Court in Tremblay v. Daigle did not
answer the question of whether or not a foetus is included within the term ‘eve-
ryone’ in s.7 of the Charter, and has a right to life that limits women’s rights.”
The question provides a specific context for a consideration of democracy argu-
ments. Arguments against any recognition of foetal rights have been and will be
For the court to interpret s.7 as protecting women’s autonomy or security is considered, by
McIntyre L, to be an undemocratic move.
4’Edmonton Journal v. A.G. Alta (21 December 1989), File no. 20608 (S.C.C.) Cory J. at 5.
42For example, it is not mentioned by Patrick Monahan, Politics and the Constitution: The
Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987) (judicial review
should be conducted to protect existing opportunities and open new avenues for democratic debate)
or by David Beatty in his elegant book, Putting The Charter to Work: Designing A Constitutional
Labour Code (Kingston, Ont.: McGill-Queen’s University Press, 1987) (principle of equal self-
determination mandates, inter alia, workplace democracy).
43Supra, note 2.
44S. 7 provides: “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
argument that a foetus is a separate person with a right to life that is violated by abortion laws was
rejected by the Saskatchewan courts in Borowski v. A.G. Can. (1983), [1984] 1 W.W.R. 15, 29
Sask. R. 16, 4 D.L.R. (4th) 112 (Sask. Q.B.); [1987] 4 W.W.R. 385, 56 Sask. R. 129, 39 D.L.R.
(4th) 731 (Sask. C.A.), but was not addressed by the Supreme Court because the case was moot:
Borowski v. A.G. Can., [1989] 1 S.C.R. 343, 57 D.L.R. (4th) 231.
McGILL LAW JOURNAL
[Vol. 35
made on the basis of women’s autonomy and equality.4″ Women can also make
arguments grounded in democratic principles; arguments to increase the degree
of democracy for women are specifications of the requirements of equality and
autonomy, the praxis of the ideal of liberation. One important step toward the
attainment of more effective participation for women in public discourse would
be for the court to state unequivocally that foetuses have no constitutional
rights.
The full explication of democratic principles in the Charter, and interpre-
tive arguments grounded in redressing women’s exclusion from democratic dis-
course, is beyond the scope of any one paper. The task of honouring the pledge
of Holmes is the continuing project of the Charter. My goal is to map out the
contours of a democratic argument in the specific context of foetal rights and
the Daigle decision. One can point to the approaches that must be developed,
the histories, herstories and current realities of women’s subordination that must
be taken into account, if the courts are to encourage the speech of women essen-
tial for our participation and equality.
Part II will discuss the male dominance of the discourse of reproduction,
to show why recognizing foetal rights would skew the emerging speech by
women in a biased, masculine manner, and will also sketch briefly women’s
emerging discourse on reproduction, reasoning and rights.
Part III will analyze the Supreme Court of Canada decision in Daigle to
assess the extent to which it is a step toward fulfilling the promise of Holmes.
From women’s perspectives, no ground has been lost, since the court concluded
without qualification that neither foetal rights nor potential fathers’ rights exist
in current legislation or precedent. What is as important in the long run is what
the court did not say or do. I argue that the goal of fostering women’s speech,
of letting women speak for ourselves in a language we create, will be helped by
an adjudicative method that is empathic and cognizant of power relations; more-
over the goal can be grounded in long-established principles of constitutional
adjudication.
H. Silences and the Dominant Discourse
some/men
have no language that doesn’t hurt
a language that doesn’t reduce what’s whole
to some part of nothing
– Ntozake Shange”
45Catherine Tolton, “Medicolegal Implications of Constitutional Status for the Unborn:
“Ambulatory Chalices” or “Priorities and Aspirations” (1988) 47 U.T. Fac. L. Rev. 1; Factum of
the Women’s Legal Education and Action Fund, Borowski v. A.G. Can (on file with author).
46 A Daughther’s Geography (New York: St. Martin’s Press, 1983) at 37.
1990]
COMMENTS
Women have always struggled to find a voice of our own but our discourse
has been muted, incomplete and certainly not public. The language used by
legal linguists to conceptualize and control sexuality, pregnancy, abortion and
birth, has been heavily influenced by two powerful and male-dominated insti-
tutions: organized religion and the medical profession.47 Their language, not
women’s experiences, has framed the laws about women’s bodies. The essential
first step toward the understanding and unfolding of a women’s language, con-
cepts, theories and morality, is to hear every woman’s story. We will not achieve
freedom and equality unless we listen very, very carefully to what women are
saying, unless we begin with a phenomenology of women’s lives. No one can
say how women will talk about conception, pregnancy, abortion and birth once
we are allowed to speak freely, to converse with each other and with men about
the meaning of our lives. Our stories will be different, in part because of the
oppressions that have cut into women on the basis of race and class. But our
bodies, with their shared biological characteristics and processes such as men-
struation, provide a common foundation of experiences and knowledge. Our
bodies have been the primary site of our oppression and have been ignored
within moral traditions based on religious thinking4
; yet they will provide the
basis of our language and our liberation. As Adrienne Rich implores us to do,
“thinking through the body” will cause new meanings and “thinking itself will
be transformed”.49
A few examples will illustrate the misogyny and partiality of the dominant
discourse. Consider first the word ‘reproduction’. It derives from the word ‘pro-
duction’, which implies a mechanical process. Production describes the making
of commodities. The metaphor of production is the dominant medical metaphor
to describe the process of menstruation, pregnancy and birth: women are the
machines that must produce a perfect product, a healthy baby.5″ Just as machines
47The two institutions often worked closely together, as with the witch hunts conducted by
church leaders which were aimed at killing all of the women healers and wise women in commu-
nities. See Barbara Ehrenreich & Deirdre English, For Her Own Good: 150 Years of the Experts’
Advice to Women (Garden City, N.Y: Doubleday, 1978) at 33-39.
48Beverly Wildung Harrison, Making the Connections: Essays in Feminist Social Ethics
(Boston: Beacon Press, 1985) at 129-130. (“I want to stress, then, that we have no moral tradition
in Christianity that starts with body-space, or body-right, as a basic condition of moral relations.
(Judaism is far better in this regard, for it acknowledges that we all have a moral right to be con-
cerned for our life and our survival.) Hence, many Christian ethicists simply do not get the point
when we speak of women’s right to bodily integrity. They blithely denounce such reasons as
women’s disguised self-indulgence or hysterical rhetoric”).
49Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (New York: W.W.
Norton, 1976) at 284-286.
5Gena Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to
Artificial Wombs (New York: Harper & Row, 1985); and see the insightful study of the contrast
between women’s experiences and medical understanding by Emily Martin, The Woman in the
Body: A Cultural Analysis of Reproduction (Boston: Beacon Press, 1987).
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[Vol. 35
are separate from their products, so too are women separate from their ‘pro-
the product and improve its
ducts’, children. Doctors, not women, ‘deliver’
quality. Mothers, like machines, have no control over what they produce but are
programmed by managers and technicians.5 The medical model of production
overlaps and supports the notion that birth is a ‘natural’ event. Women menstru-
ate, become pregnant and give birth because that is what their bodies are
designed for; women themselves are simply living through a biological process
into which they have no input. The political purpose of such a depiction is plain:
“[T]he tradition of describing birth as a natural event has served the normative
purpose of discounting the value of women’s experiences and activities.””
The label of ‘reproduction’ adds insult to injury for it implies that the prod-
uct is mass-produced in the same way as copies of papers are reproduced on
Xerox machines, with all copies being identical. No word could be more inap-
propriate to describe the process by which a unique woman creates another
unique individual. The language used in artistic endeavour –
creation, imagi-
nation, originality –
that recognizes each painting or book as unique and
requiring mental effort/physical labour, is far more appropriate than the lan-
guage of commodities. What if the term ‘reproduction’ was replaced with ‘crea-
tion’ or ‘human creation’? This would emphasize another meaning of the word
‘pregnancy’ –
“imaginative, inventive”.5 3 Would this not help us remember
constantly that all women and men are born of women, that all exist of/within’
a woman for months, that all life is impossible without the work of women? The
word ‘creation’ is used in the Biblical myth of a supreme male God creating the
planet and the species, but the derogatory term ‘production’ is used to refer to
what women do. The closest word is procreation, which is heavily laden with
religious connotation and retains the root of production. Maybe we need a new
word altogether, a word like ‘freation’. The ‘f’ signifies female, the rhyme to
creation connotes the work and imagination involved, and the first syllable,
‘fre’, reminds every speaker that the action/process should only be done under
conditions of freedom.
Consider next the language used to describe the unity of egg and sperm.
The vocabulary of ontology – of being and existence – has no word that ade-
quately expresses the phenomenon of emerging life of/within a woman. The
terms ‘zygote, embryo, foetus’ are not women’s words, they are the labels of
5’And hence the physician’s inability or refusal to listen to women patients, for machines of
course do not need to be consulted. See Sue Fisher, In the Patient’s Best Interests: Women and the
Politics of Medical Decisions (New Brunswick, N.J.: Rutgers University Press, 1986).
52Virginia Held, “Birth and Death” (1989) 99 Ethics 362.
5 3The Concise Oxford English Dictionary, 6th ed. (Oxford: Oxford University Press, 1976) at
872.
called “me/not me.”
541 say “of/within” because no preposition expresses the feeling of pregnancy, what women have
1990]
CHRONIQUE DE JURISPRUDENCE
649
science and its production model. The root of foetus is ‘fe’, meaning ‘to pro-
duce’. Many women have appropriated the terms for at least two reasons: as a
foil against the morally-charged terms popularized by the anti-abortion move-
ment of ‘unborn child, baby’, with their premise of discrete and isolated human
beings; and because the three science terms at least acknowledge that a process
is taking place. Moreover, medical terminology is chosen by default because no
women’s language exists. Women judging the metaphors and concepts of lan-
guage to see what fits with their experiences find an ontological omission or
void. Marie Ashe reveals the depth of the chasm: “Even to speak of the pre-birth
period as one of mother-child “interdependence” does not begin to do justice to
the experiential reality of pregnancy as a state of being that is neither unitary
nor dual, exactly; a state to which we can apply no number known to us.
Pregnancy discloses the truth of paradox.”’55
One old and influential ontological model, but so anomalous as to be com-
prehensible only by faith, may at first glance seem analogous; on closer exam-
ination however, it epitomizes the patriarchal core of Western religious thought.
The Holy Trinity posits three persons in one: God -the Father, God the Son and
God the Holy Spirit. The three persons are in one, just as the model behind call-
ing a foetus a ‘person’ from conception is that of one separate person inside
another, with the mother as a mere container. The three persons of the Holy
Trinity are male persons and have been posited by men, perhaps explaining why
faith, not experience, is essential for comprehension. The role of the mother is
obliterated in the same way as the anti-abortion rhetoric and imagery erases the
mother.56 Patriarchy, through both religion and medicine, took pregnancy and
subverted the process into a model of separate persons within one person,
imposing its way of thinking about human life on women. Unsurprisingly, the
foetus is visualized as a miniature man, more precisely of late as a male astro-
naut inside a uterine spaceship.57
A phenomenological account of pregnancy should make us wary of
adopting anything other than processual language. Women use processual lan-
guage to describe their experience: “‘My period is late’; ‘I am pregnant’; ‘I am
going to have a baby’.”” When a pregnancy is wanted, a woman may use the
words of ‘baby and child’ at an earlier stage and tells her family and friends that
she is going to have a baby. She says she is going to have a baby, she doesn’t
say that she already has a baby, thus reflecting in her language the process of
New Eng. L. Rev. 521 at 551.
Reproduction” (1987) 13 Feminist Studies 263.
55Marie Ashe, “Law-Language of Maternity: Discourse Holding Nature in Contempt” (1988) 22
56Rosalind Pollack Petchesky, “Fetal Images: The Power of Visual Culture in the Politics of
57For a cogent analysis, see Zoe Sofia, “Exterminating Fetuses: Abortion, Disarmament, and
58Benderly, supra, note 32 at 5.
Sexo-Semiotics of Extraterrestrialism” (1984) 14 Diacritics 47.
McGILL LAW JOURNAL
[Vol. 35
her body. The vernacular of the anti-abortionists does not recognize the process
of the woman’s body. Calling a foetus a child from the moment of conception
submerges the woman and the absolute necessity of a woman’s body for pro-
gression through the stages of foetal development. The label ignores altogether
the reality that pregnancy is a process of a woman’s body, not something which
simply happens inside a woman’s uterus like a pacemaker working inside a
woman’s heart.
The different language which women use to describe their experiences,
depending on whether they are happy or sad about the pregnancy, and the stage
of pregnancy they are in, point to fundamental problems with traditional struc-
tures of thought. The contextualization of how a woman thinks/feels/acts about
a pregnancy depending on her circumstances (for a woman may be very upset
about one pregnancy but very happy about another) is a rich contrast to the
objective, universalizing, absolutist reasoning that constitutes the methodology
of the anti-abortionists. Their argument that the product of conception has an
absolute right to life, an absolute right to use the mother’s body, does not permit
any attention to the context of the mother’s emotions/experiences. Indeed, it
does not even permit recognition of the existence of a mother.5 9 It is a single-
focus, abstract and alienating form of reasoning –
alienating in the classic
sense of separating a person from what she is doing, for the woman is divided
into parts, her foetus removed from the rest of her mind/body. The reasoning is
deeply religious, even when cast in non-religious terminology, for it posits abso-
lute, intrinsically wrong actions that must be proscribed by rules because of
human weakness and immorality.’ Our tendency to sin once cast out of the
Garden of Eden (because of Eve’s folly) can only be controlled by absolute
Commandments.
591n many of the books which I have read that support the Right-to-Life position, women are
either barely mentioned or denigrated. For example, in John Powell, Abortion: The Silent
Holocaust (Allen, Texas: Argus Communications, 1981), the word ‘woman’ does not even appear
in the first third of the book except in a summary of Roe v. Wade. John T. Noonan Jr, A Private
Choice: Abortion in America in the Seventies (New York: Free Press, 1979) expunges women by
referring to us almost exclusively as “the gravida” (a Latin term meaning ‘pregnant one’) or “the
carrier.”
6Luker, supra, note 6 at 158-191; Harrison, supra, note 48 at 115-134; Randall Lake, “The
Metaethical Framework of Anti-Abortion Rhetoric” (1986) 11 Signs 478. The religious grounding
of the suppositions of anti-abortion arguments (and laws) supports Wilson’s analysis in
Morgentaler, supra, note 22 at 174-180, that to force a woman to carry a foetus to term is a vio-
lation of s.2 (a) of the Charter, freedom of conscience and religion; not because, as she argues,
the decision is a moral one and protected by freedom of conscience (for it is too early to tell if
women will primarily cast their decision as moral ones once free of subordination) but because
freedom of religion protects freedom not to have a religion and in this context not to have one’s
life determined by religious modes of thinking.
1990]
COMMENTS
The use of absolute rules corresponds and connects to the ‘Big
Dichotomies’ 6′ which characterize Western thought, such as mind/body, reason/
emotion, public/private. Women’s reproductive experiences uncover the falsity
of dichotomies. How women think about their bodies during pregnancy, for
instance, is very much influenced by how they feel about being pregnant.62 The
practise of mothering involves thinking that unifies intellectual and emotional
fields.6″ As Colleen Sheppard has suggested, we need a word to signify
thinking/feeling that transcends the reason/emotion categories.’ Dichotomies
mask the truth that life is about ambivalences and compromises, more hours of
dusk and sunrise than the seconds of high noon and midnight. Absolute rules are
grounded in dichotomous thinking, for they signify that something is either right
or wrong, with nothing in between.
Perhaps the pervasiveness and danger of dichotomous thinking is best
revealed by a fundamental one, the person/thing dichotomy.’ The pro-life
movement argues that either the foetus is seen as a person with full moral status
or it is a thing like a chair or table.66 Since it is not a chair, it must be a person.
As with other dichotomies, the first category is good but the second is bad, like
6 1The term first popularized by Alice A. Jardine, Gynesis: Configurations of Woman and
Modernity (Ithaca, N.Y.: Comell University Press, 1985) at 71.
62See Robin West, “Jurisprudence and Gender” (1988) 55 U. Chi. L. Rev. 1 at 29-32; Finley,
supra, note 29 at 900-901:
If a pregnancy is wanted, many women may feel an ecstatic connected wholeness with
the wonder of their growing body. The developing fetus is not just part of her, it is her
and part of a seamless web. Whatever is done to or for it, is done to her, not just through
her. If the pregnancy is unwanted, conflict with an opposed autonomous rights holder
still does not encapsulate what many women feel. The feelings may be of terrifying
annihilation, of invasion by and surrender of self to the pregnancy –
not of a fight
against a separate being. After terminating an unwanted pregnancy, a woman does not
feel as though she has vanquished an enemy, but as ‘if she has been given herself back.
Overwhelming relief, a sense of autonomy restored –
but sometimes a sense of part
of herself lost as well.
63Sar Ruddick, Maternal Thinking: Toward a Politics of Peace (Boston: Beacon Press, 1989)
(maternal thinking is a unity of reflection, judgment and emotion).
64N. Colleen Sheppard, “”A Way of Strength”: Caring and Relations of Equality” (1990) at 1
(paper presented at the Faculty of Law, University of Victoria, March 1990, on file with author).
651 say ‘person/thing’ and not the approximate formulation of ‘subject/object’ even though it is
often used to divide those who are doing from those who are having things done to them. The
phrase ‘subject/object’, although it nicely captures the symbiosis of language and reality (for it also
appears in grammar texts on parsing sentences), is too removed from living, breathing women and
men who are persons. Moreover, the word ‘subject’ has another connotation, that of someone ruled
by a monarch (as in the Oscar Wilde quip, “the Queen is not a subject”), implying precisely the
opposite of the hierarchy in the phrase: subjects rule, objects are ruled upon.
66For example, the dichotomy was starkly put in the Daigle litigation in the Factum of the
Intervenor R.EA.L. Women of Canada at 3: “[Either] women conceive and bear children whose
lives have inherent dignity which is recognized from the moment of conception or they conceive
and bear entities disposable like property prior to birth.”
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reason/emotion and mind/body. The dichotomy of person/thing is often broken
down into one of two sub-categories. The opposite of persons can be cast in at
least two ways, as machines or animals. The person/machine dichotomy labels
the foetus as a person and its mother as the machine, the ambulatory incubator
that must be managed to deliver its product. The dichotomy perfectly reflects
the medical model of life-creation as production. The person/animal dichotomy
again labels the foetus as the person, its mother as engaging in natural, that is,
animalistic acts of carrying and dropping her offspring.67 Since one part of a
dichotomy can only exist with its opposite, when the anti-abortionists call a foe-
tus a person, they are calling its mother a thing, a vessal, incubator, carrier.
Things do not even need to be acknowledged; hence their visual imagery which
rubs out the mother.68 “The binarist logic of masculinist thought is stumped by
contextual relations like that of the fetus to the woman’s body, and on the sub-
ject of reproduction, it still employs an Aristotelian model which accords all of
the transformative, generative power to males and reduces females to mere nur-
turant vessels for male seeds.”’69
The masculine language and concept that permeates and has especial sig-
nificance in legal discourse on creation is rights. The traditional, male-stream
formulation of rights is that of trumps attaching to separate individuals. A per-
son is separate from and independent of all others, possessing rights as a means
of stopping others from infringing upon his space, his autonomy, his freedom
to do what he wants. Visualizing the foetus as a miniature man fits perfectly and
circularly with the ascription of rights to the foetus: if the foetus is a separate
man, he must have rights, and if a foetus has rights he must be a separate man.
Either way, the foetus has rights that always override, or must at least be bal-
anced against, the conflicting rights of mothers.
The notion of separate individuals that underlies the conventional concept
of rights is not the way women generally think about themselves7″ and is utterly
inappropriate as a description of a woman who is pregnant. The mother is cre-
ating the foetus, with her mind and her entire body involved in the labour. The
foetus requires her labour in order to develop; it is neither separate nor inde-
pendent. To talk about autonomy of the foetus, which is necessary to give the
foetus rights, is nonsensical speech because foetal autonomy can exist only as
part of a woman’s freedom. For the law to ascribe rights to the foetus which
must then be balanced against a woman’s rights is also a completely inaccurate
67Held, supra, note 52.
68Petchewsky, supra, note 56; Sofia, supra, note 57.
69Sofia, ibid. at 55.
70West, supra, note 62. (The separation thesis of human nature underlies masculinist legal the-
ory, while the connection thesis underlies feminist legal theory). The ovarian work is, of course,
Gilligan, supra, note 33, which has helped birth a rich literature on the differences between
women’s and men’s sense of self and moral development.
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CHRONIQUE DE JURISPRUDENCE
depiction of how women think about being pregnant and how they decide
whether to continue the pregnancy or have an abortion. I have yet to read any
description of a woman facing an unwanted pregnancy who used the cold cal-
culus of competing rights as her method of decision-making. As many feminists
have pointed out, women think more in terms of caring rather than in terms of
competing rights. Their decision-making strategies are more contextualized and
relational, concerned with the well-being of the people they love and the respon-
sibilities they labour under.7 A caring approach does not mean that women will
always be concerned with maintaining relationships and accordingly will never
have abortions. For one thing, pregnancy is a relationship a woman has with
herself, and caring for herself may necessitate an abortion. As well, pregnant
women care for others, their children and other loved ones. Decisions about
what is best for the children, and the child that will be born if the pregnancy is
continued, may also lead a woman to conclude that an abortion is the best
option. Moreover, for caring not to degenerate into victimization and passivity,
it must always include the possibility of severance of relationships.
Women have begun a reconceptualization of rights discourse to reflect bet-
ter our experiences and identities as women. The notion of autonomy must be
rethought,7” as must the intentionality and deliberateness that underscore and
animate autonomy. “How might the plot of human subjectivity be recon-
ceived…if pregnancy rather than autonomy is what raises the question of delib-
erateness?”.73 If women’s equality means anything, or if we are ever to achieve
it, the very definition of rights must not continue to be done by men.
Thus, women’s needs and aspirations are only now being translated into protected
rights. The right to reproduce or not to reproduce which is at issue in this case is
one such right and is properly perceived as an integral part of modem women’s
struggle to assert her dignity and worth as a human being.74
These words and perspective of Madame Justice Wilson in Morgentaler apply
with equal cogency to the interpretation of all Charter words and with particular
relevancy to the ordeal of Chantal Daigle.
Yale J. of Law and Feminism 7.
71See Ruddick, supra, note 63; Gilligan, supra, note 33.
72Such as the path-breaking work by Jennifer Nedelsky, “Reconceiving Autonomy” (1989) 1
73Barbara Johnson, “Apostrophe, Animation and Abortion” (1986) 16 Diacritics 29 at 33.
74Morgentaler, supra, note 22 at 172. In her non-judicial writings, Madame Justice Wilson has
also emphasized the need to incorporate women’s perspectives within legal principles and the legal
process. Not only do some areas of substantive law show a distinctly male perspective, the adver-
sarial process is a more typically male method of dispute resolution which inhibits attention to the
context of the case and prevents judges from doing what they must attempt to do –
“enter into
the skin of the litigant”. See Madame Justice Bertha Wilson, “Will Women Judges Really make A
Difference?”, The Fourth Annual Barbara Betcherman Memorial Lecture, Osgoode Hall Law
School, York University, Feb. 8, 1990.
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[Vol. 35
In summary, even this brief and superficial foray into the silences of
women, and the masculinity of language and concepts surrounding reproduc-
tion, illustrates the partiality of discourse. It is profoundly anti-democratic to
impose a discourse upon members of a subordinated group, a discourse which
is not their own, and then tell them they must achieve equality within that dis-
course. The language of foetal rights, with its dichotomies, absolutes and
abstractions, will stymie, thwart and regress women’s emerging discourse and
will have real, physical and psychological consequences for women.
To reply that foetuses should also have voices, and that the concept of foe-
tal rights permits a foetus to be heard, is to miss the depths of patriarchal bias
in discourse. Even to say that a foetus is independent with its own voice is to
accept one traditional, religious, medical viewpoint of women. Moreover, the
very best person to speak for the foetus is its mother, for the two are inseparable.
We do not allow whites to speak for blacks, even if the whites think that they
know what is best for blacks. In the same way, we must not let anyone speak
for women, for that is what speaking for the foetus is about: speaking for the
foetus ofiwithin a woman is to speak for the woman. The argument also ignores
the historical, current and pervasive reality that women have been speaking for
and protecting foetuses for a very long time. It is not the case that foetuses do
not have a voice; it is simply that their voices – mothers’ voices –
are ones
that patriarchy does not want to hear.
I. The Daigle Decision: Toward Democratic Adjudication
The litigation over Chantal Daigle’s decision to have an abortion brings to
the surface the question of women’s power over discourse, the realities shaped
by discourse (our bodies and lives), and the institutions of democracy that sanc-
tion discursive and physical coercion. What must be analysed is the extent to
which the judgment moves toward fulfilling the promise of Holmes.
Chantal Daigle’s story is both typical yet exceptional. Like many women,
she found herself in a relationship with a domineering and abusive man. When
she became pregnant after reluctantly acceding to his request to go off the pill,
his abuse escalated, a common pattern with violent men. 5 She left him and did
not want any further involvement with him. 6 She did not want his child, nor did
75Pregnant women have an usually high risk of being abused: Kathleen Waits, “The Criminal
Justice System’s Response to Battering: Understanding the Problem, Forging the Solutions” (1985)
60 Wash. L. Rev. 267 at 287, n.102. Tremblay did not see himself as a violent man, stating he never
hit her “hard enough to leave marks…We had disagreements, maybe I pushed her around a
bit…that’s normal for any couple.” Andr6 Picard, “If Daigle Does Give Birth, Ex-lover Wants the
Baby, but not Father’s Duties” The [Toronto] Globe and Mail (26 July 1989) 1-2.
76Contrary to popular opinion, women who suffer violence from their spouses try frequently and
often unsuccessfully to leave. Most women call the police, consult lawyers and rely on friends for
emotional and financial support; when they manage to get away, their former spouses often track
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she wish to have a child at the present time: “I want to provide for a child in
a serene stable family environment in which there is no violence”.”
Unfortunately he discovered her plans to have an abortion and went to court to
stop her, a move Daigle saw as an attempt “to maintain his control over me”.”
At this point, her story becomes exceptional, yet it is still every woman’s story
of resistance. Trying to free herself from the domination of one man, she also
had to free herself from the Quebec courts and from other pressure brought to
bear upon her to continue the pregnancy.79 Her courage, strength and determi-
nation to make her own decisions about her life shone through the barrage of
media attention in the summer of 1989. Women followed every move of
Tremblay and the courts, anguished with her, talked amongst ourselves late at
night about the pain and horror she must be feeling, concurred with each other
that she should ignore the court injunction, and participated in some of the lar-
gest pro-choice demonstrations ever held in Canada as a sign of our support.8″
We imagined ourselves in her position; her ordeal was one of our nightmares
made real.
Tremblay’s ability to obtain the injunction, have it upheld by another judge
and further upheld by the Quebec Court of Appeal, severely tested our new-
found, still shaky faith in the responsiveness of the judiciary to women’s con-
cems and to our equality. In 1989, two earlier applications by ex-boyfriends to
prevent women from having abortions had been dismissed by the courts, one in
Manitoba, summarily, as a violation of a woman’s rights and the other in
Ontario, albeit only after the judge of first instance had granted the boyfriend’s
request for a veto.8′ But here stood a provincial court system which, with the
them down to inflict more violence and sometimes death. See Ann Jones, Women Who Kill (New
York: Fawcett Crest, 1980) at 314-320. (“If researchers were not quite so intent upon assigning the
pathological behaviour to the women, they might see that the more telling question is not “Why
do the women stay?” but “Why don’t the men let them go?” at 318).
77Daigle’s affidavit, setting out her reasons for seeking an abortion: Daigle, supra, note 12 at
537.78Ibid. Daigle’s assessment was confirmed by Tremblay’s statements to the press. He did not
wish to raise the child himself; at one point he said he would ask his father to raise it because “I
don’t have time right now”: Andr6 Picard, supra, note 75. After winning in the Quebec Court of
Appeal, he stated that “I’m going to raise the baby and I’m going to raise it with her, with my
wife.” “Tremblay Proclaims Work Successful in Abortion Case” The [Saskatoon] Star-Phoenix (19
July 1989) 16.
79″Woman Offered $25,000 to Carry Fetus to Full Term” The [Saskatoon] Star-Phoenix (13 July
1989) 6.
81n Montreal, over seven thousand women and men demonstrated on July 27, 1989, to protest
the Court of Appeal decision, and similar demonstrations were held across Canada. Elizabeth
Thompson & Tu Thanh Ha, “7,000 Stage Pro-Choice Rally in Montreal” The [Montreal] Gazette
(28 July 1989) 1. Men participated in the demonstrations and were outraged by the injunction,
proving again that just as some women accept patriarchy, some men reject it. “‘Well-Known’ Men
Back Daigle” The [Saskatoon] Star-Phoenix (5 August 1989) 14.
8 Diamond v. Hirsch; Murphy v. Dodd, supra, note 10.
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exception of two appeal court judges in dissent, seemed impervious and disre-
spectful of Daigle’s personhood, disdainful of her reasons for seeking an abor-
tion and willing to endorse and enforce Tremblay’s exercise of power against
her.8 2
Our hopes rested with the Supreme Court. After the Morgentaler decision
which struck down iniquitous abortion laws against which women had been
fighting for years, we began to believe that maybe the judicial branch of gov-
ernment was becoming somewhat more attuned to women’s interests and expe-
riences. The Supreme Court had also recently ruled that sexual harassment was
sex discrimination and had finally overturned the notorious Bliss decision, hold-
ing that pregnancy discrimination was sex discrimination. 3 Moreover, it had
recently received its third woman judge, Beverly McLachlin. The court did not
disappoint us in terms of the result. Although it was told during argument that
Daigle had had an abortion a few days earlier, it decided to continue to hear the
appeal in order to clarify the position of women. From the bench, after hearing
arguments, the judges unanimously announced the lifting of the injunction, with
reasons to follow.
Tremblay argued that under Quebec law a foetus has a right to life and a
potential father has a right of veto over a woman’s decision to have an abortion.
Because both alleged rights would be denied if Daigle had an abortion, an
injunction against her was the appropriate remedy to protect the rights. In rea-
sons issued in the name of the court and not attributed to any one judge,
Tremblay’s arguments were dismissed. Injunctions only protect substantive
821In the Quebec Court of Appeal, the three majority judges all considered her reasons for want-
ing an abortion and found them unacceptable. As Olsen points out, supra, note 6 at 123, n.82, the
exercise of examining a woman’s reasons for wanting to terminate a pregnancy is based on the
assumption that women naturally have babies and that their choice not to procreate requires expla-
nation. In the Quebec Court of Appeal, supra, note 11 at 613, Bemier J.A. explicitly articulates
his reliance on this assumption: “Pregnancy is not in itself an infringement of the physical integrity
of a woman, an interference with her body, but a function which is a fundamental part of her nature.
The rule of nature is that a pregnancy must be carried to term.” Bernier J.A. considered Daigle to
be relying only on her decision to break off her living arrangements with Tremblay, a reason he
found to be insufficient. Nichols J.A. did not look at her reasons but used his own standard: the
pregnancy was desired, the life and health of the mother were not in danger and the child was nor-
mal. For LeBel J.A., Daigle wanted to have an abortion because of her split with her companion
of several months and her apprehension of unspecified psychological troubles; needless to say, he
also found his articulation of her reasons to be inadequate grounds for an abortion.
83Brooks v. Can. Safeway Ltd, [1989] 1 S.C.R. 1219,59 D.L.R. (4th) 321 (discrimination on the
basis of pregnancy is sex discrimination, overruling Bliss v. A.G. Can., [1979] 1 S.C.R. 183, 92
D.L.R. (3d) 417); Janzen v. Platy Enterprises Ltd, [1989] 1 S.C.R. 1252, 95 N.R. 81 (sexual
harassment is sex discrimination). Both cases involved bringing the interpretation of a provincial
human rights statute in line with clear legislative developments across the country. The Court was
not initiating change but preventing the Manitoba Court of Appeal, from whose decision both cases
were on appeal, from stopping change. Even so, the different tenor of Bliss and Brooks is
remarkable.
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CHRONIQUE DE JURISPRUDENCE
rights and neither the right to life of the foetus nor the potential father’s rights
could be found in Quebec legislation.
The Quebec Charter of Human Rights and Freedoms provides that every
human being has a right to life and a right to assistance when its life is in peril.’
Tremblay argued that the term ‘human being’ was linguistically capable of
including a foetus. The court dismissed a dictionary approach to statutory inter-
pretation: “A linguistic analysis cannot settle the difficult and controversial
question of whether a foetus was intended by the National Assembly of Quebec
to be a person under s.l.””5 What was important was the intention of the Quebec
National Assembly. The Quebec Charter as a whole failed to display any clear
intention on the part of its drafters to consider the status of the foetus and such
intention could not be inferred from ambiguous language. Tremblay also argued
that the Quebec Civil Code recognized the foetus as a juridical person. The court
rejected the argument, stating that the articles of the Code treat a foetus as a per-
son only when necessary to protect its interests after it has been born.
Tremblay’s argument that he had rights as the father –
in the court’s terminol-
ogy, as the potential father – was dismissed as being without jurisprudential
basis. The court could find no court decision nor any Quebec legislation to sup-
port the assertion of potential father’s rights.
Although the court held that a foetus was not a person within the meaning
of the Quebec Charter, it refused to rule on the question of whether a foetus was
in s.7 of the Canadian Charter of Rights and
within the term ‘everyone’
Freedoms. The Canadian Charter only applies if state action is impugned and
Tremblay could point to no ‘law’ of any sort that was infringing someone’s
rights.
The result of the appeal can only be applauded, for the court lifted the
injunction and tried to put a stop to similar applications across the country. The
judgment maintained the legal position of women as it existed before the flurry
of injunction applications in the summer of 1989. But to what extent does the
judgment improve the position of women and move toward fulfilling the prom-
ise of Holmes? Several positive steps are contained in the reasoning. First, the
court is empathic toward Daigle’s plight and accords her the dignity of not
assessing her actions, either her reasons for having an abortion or the fact that
she did not wait for its ruling to take action. Second, it recognizes that the ques-
tion of foetal personhood is a normative one, not to be settled by the genetic and
biological factors that constitute the mainstay of anti-abortion arguments. Third,
in several comments about rights asserted by Tremblay as the father, the court
suggests that women and men are not in identical positions regarding reproduc-
tion. All three aspects advance self-determination for women.
8R.S.Q. 1977, c.C-12, ss 1-2.
85Supra, note 12 at 553.
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The judgment, however, is not unproblematic. The first puzzling feature is
the overall generality and abstraction in which it is couched. This generality is
in place of fuller empathy toward Daigle; the empathy shown toward her and
women is too thin, omitting any delineation of the consequences to women and
the political purposes of the concept of foetal rights. It is indisputable that empa-
thy toward Daigle is required. The court was faced with litigation (a woman
being forced to continue a pregnancy by court order) that none of the judges had
encountered before and a circumstance (an unwanted pregnancy) that six of the
judges could biologically never experience. The case is perfectly suited for,
indeed demands, the exercise of empathic sensibilities to understand the conse-
quences of a legal decision on the person most affected by the ruling, Daigle.
If the court is to be an ally of democracy, it must comprehend, not merely hear,
the voices of those who are in court, who have traditionally not been listened
to in democratic forums.8 6 Accordingly, empathy for the ‘Other’ must be an
integral aspect of adjudication if the court is to deliver on its promise to provide
an effective voice and remedy to those excluded from the democratic process.
The ‘Other’, the member of a group lacking linguistic and legal power, was
Daigle. Empathic adjudication does not invariably necessitate equal empathy
for both parties. To say that an equal amount of empathy must be bestowed on
everyone is another attempt to impose formal equality on people who are in fun-
damentally unequal positions in an unequal society, a device which can perpet-
uate inequalities. Moreover, in this case the Supreme Court of Canada was faced
with a situation where the lower courts (except for the dissents) had been exclu-
sively empathic toward Tremblay and the foetus as an entity separate from
Daigle, unwilling to hear Daigle’s voice at all. 7 Empathy toward Daigle had to
offset what had been an almost automatic identification with the foetus and
Tremblay.
On a couple of pages, but slipped almost into the margins, appear empathy
and sensitivity toward Daigle’s plight of being dragged into the courts and
ordered to continue a pregnancy against her will. Less than three pages, at the
beginning of the judgment, contain what the court calls ‘facts and procedural
history’, consisting of the affidavits of the parties and a doctor and a summary
by the court of the abuse she suffered and the process she was dragged
86For a general discussion of the role of empathy in constitutional cases, see Lynn N. Henderson,
“Legality and Empathy” (1987) 85 Mich. L. Rev. 1574; for discussion of the aspects of emotion
that improve judging, see Martha L. Minow & Elizabeth V. Spelman, “Passion For Justice” (1988)
10 Card. L. Rev. 37.
87Henderson, ibid. at 1620-1638, concludes that the American judges, in Roe v. Wade, 410 U.S.
113 (1973) and in their subsequent decisions on abortion, were far more empathic toward foetuses
than toward women, and that it has been the lack of empathy toward women from the beginning
that has rendered Roe so vulnerable. The fate of Roe shows the potential dangers of winning a
result by inappropriate methodology.
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through.” Later, in stating why it would deal with the question of the statutory
rights of the foetus, the court’s language displays empathy with women and with
Daigle.
Second, if this question is not addressed then, assuming one of the appellant’s
other two arguments is accepted, it will remain unclear whether another woman
in the position of Ms. Daigle could be placed in a similar predicament through the
use of a different legal procedure. In order to try to ensure that another woman is
not put through the ordeal such as that experienced by Ms. Daigle it is important
for this Court to give the guidance it can.8 9
After rejecting the argument that a foetus has rights before birth under the
Quebec Civil Code, the court considered the legal status of a foetus in the other
provinces in order “to avoid the repetition of the appellant’s experience in the
common law provinces.”‘ The language hints at empathy with Daigle’s trial by
judge and media: the negative descriptions of “predicament” and “ordeal” are
used, with the court viewing the experience of being taken to court as so neg-
ative that it must not be replicated for other women. But other than these com-
ments, the judgment is in formalistic tones even though unlike the earlier two
decisions involving abortion regulation, an individual woman was before the
court.9’
The generality and abstraction likely arise in part from how the court
framed the question. For the court, the issue was “the validity of an interlocutory
injunction prohibiting Chantal Daigle from having an abortion.”’92 With respect
to the primary statute relied upon by Tremblay, the Quebec Charter, the issue
was “the legal question of whether the Quebec legislature has accorded the foe-
tus personhood”.93 The questions could have been framed more precisely and in
a way which was immediately attuned to their importance for women; for exam-
ple, ‘can a woman be forced by court order to continue a pregnancy against her
wishes, and can a legislative assembly grant rights to foetuses which require
women to continue pregnancies against their wishes?’94 The court likely framed
88Supra, note 12 at 535-538.
891bid. at 550, emphasis added.
9Ibid. at 565.
9 1Unlike the situation in Morgentaler, supra, note 22, or in Borowski, supra, note 44.
92Daigle, supra, note 12 at 535.
93Ibid. at 552.
94The importance of framing the question for the direction of reasoning cannot be underesti-
mated. In Morgentaler, supra, note 22 at 161, Justice Wilson sets out the issue in a manner which
highlights the importance of the case to women: “At the heart of this appeal is the question whether
a pregnant woman can, as a constitutional matter, be compelled to carry the foetus to term.” In con-
trast, McIntyre J., ibid. at 138, begins his dissent by stating that the task of the Court is “to measure
the content of s. 251 against the Charter”, an abstract formulation which leads him to conclude
that since a general right to an abortion cannot be found in the words of s.7, s. 251 does not violate
the Charter.
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the questions as it did in order to avoid the broader debates about foetal
personhood.
The Court is not required to enter the philosophical and theological debates about
whether or not a foetus is a person… Metaphysical arguments may be relevant but
they are not the primary focus of inquiry. Nor are scientific arguments about the
biological status of a foetus determinative in our inquiry. The task of properly clas-
sifying a foetus in law and in science are different pursuits. Ascribing personhood
to a foetus in law is a fundamentally normative task. It results in the recognition
of rights and duties –
a matter which falls outside the concerns of scientific clas-
sification. In short, this Court’s task is a legal one. Decisions based upon broad
social, political, moral and economic choices are more appropriately left to the
legislature.
95
The recognition by the court that the question of foetal rights is a normative one,
which is also true of potential father’s rights, is a welcome step. It would have
been a larger step had the court directly considered more of the general context
of the debate. For what the court fails to address, other than implicitly through
its comments on the “ordeal”, are the consequences for women of bestowing
constitutional or statutory rights to foetuses or potential fathers. Foetal rights are
discussed without any attention to the context in which they would operate if
recognized: the specific, material and immediate context of an individual
woman’s body and the general pervasive context of the subordination of
women. The court does see the inseparability of the woman and her foetus: “A
foetus would appear to be a paradigmatic example of a being whose alleged
rights would be inseparable from the rights of others, and in particular, from the
rights of the woman carrying the foetus.”96 Yet the court does not set out the
negative ramifications for women of enforcing a concept of foetal rights. A
more empathic approach would likely have led the court to openly consider the
impact on women of the concept of foetal and potential father’s rights.
Connected to this failure to consider consequences for women is the sec-
ond troubling aspect of the judgment, the court’s use of legislative intention and
precedent to decide the case. The reliance on legislative intention to dismiss the
argument based on the Quebec Charter fits uneasily with the purposive method
of interpretation for human rights statutes consistently adopted by the court in
the past few years. In Ont. Human Rights Commission v. Simpsons-Sears,
McIntyre J. for a unanimous court stated the general approach:
The accepted rules of construction are flexible enough to enable the Court to rec-
ognize in the construction of a human rights code the special nature and purpose
of the enactment…and give to it an interpretation which will advance its broad pur-
poses. Legislation of this type is of a special nature, not quite constitutional but
95Supra, note 12 at 552-553.
96Ibid. at 554.
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CHRONIQUE DE JURISPRUDENCE
certainly more than the ordinary –
and give it effect.9 7
and it is for the courts to seek out its purpose
A line of cases has developed which applies the purposive method of interpre-
tation to human rights legislation.9” Yet the court does not even mention
Simpsons-Sears or its progeny, relying instead on the discredited, narrower lan-
guage of legislative intention. The purposive approach to the Quebec Charter
would have led as easily to lifting the injunction against Daigle. Women are
indisputably protected by all human rights legislation and a dominant purpose
of the legislation is to end the historic subordination of women. Interpreting
‘human being’ in the Quebec Charter as including the foetus would not help
but, rather, positively hinder the attainment of equality for women and, accord-
ingly, would not be consistent with the purposes of the statute.99 Yet rather than
assessing the assertion of foetal rights from the perspective of adopting the pur-
posive method and ending the inequality of women, the court is remarkably for-
malistic, parading precedents and engaging in statutory interpretation as if the
legislation before it was an ordinary statute and the litigation a run-of-the-mill
commercial case.
Why did the court do this? If it had adopted a purposive interpretation, or
directly considered the consequences to women of declaring that foetuses are
within human rights legislation, it would have had to face squarely the political
significance of the concept of foetal rights. Placed in an historical context, the
concept of foetal rights is revealed clearly as a method of controlling women.
It is a purely political device designed to allow other people, mostly men and
usually legislators, doctors or husbands, to exercise power over women. The
English Court of Appeal recognized this purpose when it was asked to extend
97[1985] 2 S.C.R. 536 at 547, a judgment building on Ins. Corp. of B.C. v. Heerspink, [1982]
2 S.C.R. 145, 43 N.R. 168, Lamer J., and the unanimous judgment in Winnipeg School Division
No. 1 v. Craton, [1985] 2 S.C.R. 150, 6 W.W.R. 166, 21 D.L.R. (4th) 1.
98C.N.R. Co. v. Can. (Can. Human Rights Comm.), [1987] 1 S.C.R. 1114, 76 N.R. 161, 40
D.L.R. (4th) 193; Robichaud v. Can. (Treasury Bd), [1987] 2 S.C.R. 84, 40 D.L.R. (4th) 577;
Brossard (Town 0) v. Que. (Comm. des droits de lapersonne), [1988] 2 S.C.R. 279; Brooks v. Can.
Safeway Ltd, supra note 83; Janzen v. Platy Enterprises Ltd, supra, note 83.
“Brooks, ibid. at 1238, provides a very close analogy. Dickson C.J.C., writing for a unanimous
court, stated that to view the respondent’s plan as not discriminating on the basis of pregnancy
“goes against one of the purposes of anti-discrimination legislation. This purpose…is the removal
of unfair disadvantages which have been imposed on individuals or groups in society….a refusal
to find the Safeway plan discriminatory would undermine one of the purposes of anti-
discrimination legislation. It would do so by sanctioning one of the most significant ways in which
women have been disadvantaged in our society. It would sanction imposing a disproportionate
amount of the costs of pregnancy upon women. Removal of such unfair impositions upon women
and other groups in society is a key purpose of anti-discrimination legislation.”
In the same way, in the Daigle case, to create foetal rights would not remove the unfair disad-
vantages suffered by women, but exacerbate them; the concept of foetal rights would sanction one
of the most significant ways in which women have been disadvantaged, i.e. the control of our
reproductive decisions and actions during pregnancy.
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its wardship jurisdiction to foetuses. “[Tihe only purpose of extending the juris-
diction to include a foetus is to enable the mother’s actions to be controlled.”‘ 0
The idea of foetal rights and personhood only entered political discourse when
women began to achieve some control over our lives, when we gained a mea-
sure of freedom from the rule of fathers and husbands, when we could exercise
some self-determination. With the rise of the women’s movement has come, as
a counter-attack, the concept of foetal personhood to guarantee women’s tradi-
tional role in the patriarchal family.” Abortion restrictions can no longer be
overtly justified in order to ensure that women fulfil the function of mothers
subject to the control of men. Hence laws are rhetorically justified as necessary
to protect the foetus.0 2 Consider, for instance, that while all advocates of foetal
rights state that someone must represent and speak for the foetus, they refuse to
allow the mother to be that representative, proving the point that foetal rights
are a method of controlling, not empowering or valuing, the women who create,
nurture and deliver foetuses. Foetal personhood is the latest weapon in the battle
to deny women’s personhood (I choose the military metaphors deliberately), a
relationship understood by the theologian Beverly Wildung Harrison:
First, the historical struggle for women’s personhood is far from won, owing
chiefly to the opposition of organized religious groups to full equality for women.
Those who proclaim that a zygote at the moment of conception is a person worthy
of citizenship continue to deny full social and political rights to women…To equate
a biologic process with full normative humanity is crass biologic reductionism,
10In re F. (in utero), [1988] 2 W.L.R. 1288 (C.A.) at 1306, Balcombe J. Pregnant women have
been assaulted and imprisoned under the banner of protecting their foetuses. See Isabel Grant,
“Forced Obstetrical Intervention: A Charter Analysis” (1989) 39 U.T.L.J. 217.
m’0 Rosalind Pollack Petchesky, “Antiabortion, Antifeminism and the Rise of the New Right”
(1981) 7 Feminist Studies 206; Dubinsky, supra, note 6 at 31 (“R.E.A.L. Women…oppose no-fault
divorce, universal free child care, enforced affirmative action, equal pay for work of equal value,
and prostitution… They support all policies which uphold the Judeo Christian view of traditional
marriage and the family”). Reading these and other academic studies of the rise of what one com-
mentator has called the “cult of foetal personhood” did not prove the thesis as forcefully to me as
reading some volumes of the leading anti-abortion journal from the United States, the Human Life
Review. A recent issue contains articles which condemn feminists in words so hateful they left me
shaking (Frank Zepezauer, “The Masks of Feminism” (1988) 14 Human Life Rev. 28); denounce
human rights for gays and lesbians and describe them as perverted and incapable of lasting love,
in words that refuelled my shaking (Michael Levin, “Abortion, Homosexuality and Feminism”
(1988) 14 Human Life Rev. 35; Joseph Sobran, “Voting Your Vice” (1988) 14 Human Life Rev.
16; Ellen Wilson Fielding, “Love and Marriage” (1988) 14 Human Life Rev. 70); and bemoan the
rise of no-fault divorce, cohabitation and sexual activity outside marriage, and single motherhood,
at which point I put aside the remaining three issues of volume 14 (Carl Anderson, “The Supreme
Court and the Economics of the Family” (1988) 14 Human Life Rev. 44; Bryce Christensen, “The
Costly Retreat From Marriage” (1988) 14 Human Life Rev. 62). All this and an attack on news-
papers, too (Marvin Olasky, “Pulpits For Abortion” (1988) 14 Human Life Rev. 77).
’02Walter Dellinger & Gene B. Sperling, “Abortion and the Supreme Court: The Retreat from
Roe v. Wade” (1989) 138 U. Penn. L. Rev. 83 at 109-111.
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and such reductionism is never practised in religious ethics except where women’s
lives and well-being are involved. 0 3
At one point the court does recognize that the question of personhood for
the foetus is political: “Decisions based upon broad social, political, moral and
economic choices are more appropriately left to the legislature.”‘” The political
nature and uses of foetal rights is of course shared by every set of rights –
women assert and use rights to end male domination – but the court has skirted
acknowledging the political basis of rights except for language rights.’ The
court is troubled by any explicit awareness of the political origins and context
of rights; hence its comments, oft-repeated in the early days of Charter litiga-
tion, that it decides legal not political questions, that it does not question the
wisdom of laws or the merits of public policy because such political questions
are for other branches of government. 6 Separating rights from politics allows
the court to see itself as protecting interests that are beyond politics. In this case,
the application of the purposive method, with its necessary inquiry into the pur-
poses of foetal rights, would have required an admission by the court that it was
refereeing a power struggle hiding behind the language of rights. Tremblay was
using the concept of rights to control a member of a group, women, that the leg-
islation clearly did protect.
The aspiration expressed in Holmes, that the courts be allies of democracy
by giving a voice and a remedy to those excluded from democratic participation,
seems to render the court’s unease with political issues misguided.” Indeed,
taking Holmes seriously compels the court to consider the entire political con-
text in order to know who has been excluded, silenced and ignored in the dem-
ocratic process generally; and to examine the impugned legislation with a view
to determining the interpretations, if any, which promote the participation of
103Harrison, supra, note 48 at 127. She also argues strenuously, ibid., at 120-121, against the
view of Christian history as always having opposed abortion and asserting an absolute value in foe-
tal life: “Christians opposed abortion strongly only when Christianity was closely identified with
imperial state policy or when theologians were inveighing against women and any sexuality except
that expressed in the reluctant service of procreation. The Holy Crusade quality of present teaching
on abortion is quite new in Christianity and is related to cultural shifts that are requiring the
Christian tradition to choose sides in the present ideological struggle under pressure to rethink its
entire attitude toward women and sexuality.”
14Daigle, supra, note 12 at 553.
t05MacDonald v. Montreal [City of], [1986] 1 S.C.R. 460 at 500, 27 D.L.R. (4th) 321, 67 N.R.
1, Beetz J (“Language rights…are based on a political compromise rather than on principle”);
Socijtj des Acadiens du N.-B. Inc. v. Assn of Parents for Fairness in Education, [1986] 1 S.C.R.
549 at 578, 177 A.P.R. 271, 27 D.L.R. (4th) 406, Beetz J. (“Language rights…remain nonetheless
founded on political compromise”).
106See Patrick J. Monahan & Andrew Petter, “Developments in Constitutional Law: the 1985-86
Term” (1987) 9 Sup. Ct L. Rev. 69 at 70-78 and 83-87.
’07Perhaps this is one reason for relative absence or mutedness of such claims from 1986
onwards; see Andrew J. Petter & Patrick J. Monahan, “Developments in Constitutional Law: The
1986-87 Term” (1988) 10 Sup. Ct L. Rev. 61 at 68.
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groups who have been shut out and disadvantaged. In other words, the court will
not know who to help, whose ally to be, if it does not examine distributions of
power, as it did in Brooks, if it does not cut beneath the rhetoric of rights to
uncover the power struggles. For instance, determining the merits of a general
claim of ‘father’s rights’ in abortion decisions is aided by a broader contextual
analysis of power relations. Men assert rights as fathers against the backdrop of
the general subordination of women in society, as a means of ensuring their con-
tinued control over women and children. The court’s terminology of “potential
father’s rights” represents one step forward, for it implicitly appreciates that a
man’s contribution of sperm in the act of conception does not make him a father
in the same way as the woman becomes a mother with her physical labour and
nurturance of the fertilized egg from the moment of conception.” 8 As in Brooks,
the court perceives the asymmetrical position of women and men in the process
of reproduction; what is necessary as well is a clear articulation of the asymmet-
rical position of women and men within society.
The lack of a direct engagement with the political purposes of either foetal
or fathers’ rights constitutes a failure to develop an adjudicative method that
will realize effective democratic participation by women. Moreover, the method
the court relied on in place of a contextual, political analysis to dismiss
Tremblay’s claim, that of legislative intention, may have consequences that
bode ill for women. The court leaves it open to any legislative assembly to state
explicitly that foetuses are to be accorded personhood, rights or other forms of
legal protection superior to that of their mothers. By throwing the issue of foetal
recognition back to the legislatures, inviting repressive legislation and further
litigation, the court leaves women at the mercy of legislatures dominated by
patriarchal views.” 9 The court could have increased certainty in the lives of
‘SForgetting that pregnancy involves the psychological, physical, emotional and intellectual
energy of women was an error made by Bernier J.A. in the Quebec Court of Appeal, supra, note
11 at 613: “[The father’s] legal interest is based on the very fact of conception which both the father
and the mother were the cause. It is as much his child as it is the mother’s, neither more, neither
less.” It is also a common error of fathers’ rights advocates, even those who also support generally
women’s right to autonomy. For example, George Harris, “Fathers and Fetuses” (1986) 96 Ethics
594, argues that fathers (men who contribute their sperm) have an autonomy interest in “their” foe-
tuses that may outweigh the autonomy interests of mothers (women who are pregnant). He ignores
almost completely the work done by pregnant women, nor does he explain why the contribution
of sperm makes the foetus “his”.
1gSuch laws are increasingly common in the United States, such as the Missouri statute at issue
in Webster v. Reproductive Health Services, 109 S. Ct 3040 (1989), which declared in its preamble
that the life of every human being begins at conception, that unborn children have protectable inter-
ests in life, health and well-being, and that all state laws must be interpreted to give unborn chil-
dren the same rights as other persons. Every provision of the statute, save for one, then imposed
restrictions on women’s ability to obtain abortions, all of which were upheld by a plurality of the
court. In Canada, Parliament has thus far declined the invitation by the Law Reform Commission
of Canada to pass proposed legislation which imputes legal personhood to the foetus and crimi-
nalizes conduct of pregnant women while, like the Missouri statute, not banning all abortions: see
1990]
CHRONIQUE DE JURISPRUDENCE
women by recognizing that foetal rights are about controlling women and by
refusing to give the device judicial legitimacy.
The court also maintains uncertainty for women by not dealing with the
issue of whether a foetus has constitutional fights. This question had not been
addressed in Borowski, for the court held that Borowski’s appeal had been rend-
ered moot by the Morgentaler decision.11 The court would not exercise its dis-
cretion to hear a moot case because the law would be rendered uncertain if an
affirmative answer to the question of foetal fights was given in the abstract,
without a factual context.”‘ But although this litigation provided a factual con-
text for the question of foetal rights, the court considered that a legislative con-
text was missing. Tremblay had argued that the Charter provided an independ-
ent basis for the injunction because a foetus had the fight to life under s.7.
However, because he could not point to a “law” infringing anyone’s fights, the
ruling in Dolphin Delivery precluded any application of the Charter.”2
The court could have considered the Charter question for the same reason
as it examined the question of substantive rights under Quebec legislation,
namely to give guidance and ensure that other women are not put through sim-
ilar ordeals.”‘ A negative answer to the question of whether a foetus has con-
stitutional personhood and rights would have gone a great way toward increas-
ing certainty for women. In order to answer the question, the court could have
said, after holding that neither the Quebec Charter nor the Civil Code protected
foetuses, that it would assume the opposite and accordingly consider whether
the legislation would be incompatible with the Canadian Charter. The court
would have had to deal with the claim of constitutional rights for the foetus in
Law Reform Commission of Canada, Crimes Against the Foetus (Working Paper #58), 1989. The
Commission’s report can only be described as deeply misogynistic, for it either ignores women
altogether as if foetuses existed without their mothers, or it depicts women in a condescending,
patronizing and demeaning manner. Women are portrayed as capricious, whimsical creatures who
are the prime enemy of their foetuses, rather than as the primary protectors of foetuses. The dom-
inance of men in even this minor branch of government cannot go unnoticed. Four of the five com-
missioners were men, the project coordinator and the two principal consultants were men, and four
of the eight non-principal consultants were also men. For a comprehensive and compelling critique
of the report, see National Association of Women and the Law, A Response to Crimes Against the
Foetus, the Law Reform Commission of Canada’s Working Paper #58 (Ottawa: NAWL’s Working
Group on Health and Reproductive Issues, November 1989).
“After the decision in Morgentaler struck down s. 251, the sole remaining question in
Borowski’s appeal was whether a foetus was a person within the term “everyone” in s.7. The ques-
tion could not be separated from the rest of the moot appeal and hence no answer was given:
Borowski, supra, note 44.
I”In Borowski, ibid., Sopinka J., writing for a unanimous court, does not recognize that a neg-
ative answer to the question of foetal rights would have produced certainty for women’s legal
position.
“12Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986]
2 S.C.R. 573, 33 D.L.R. (4th) 174, 1 W.W.R. 577 [hereinafter Dolphin Delivery].
“3Daigle, supra, note 12 at 551.
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[Vol. 35
the context of the constitutional rights of women. Moreover, even if it was wise
to avoid deciding a constitutional issue, it could have referred to women’s
Charter rights in examining the Quebec laws. Even where no Charter challenge
is involved, statutes are to be interpreted so as to give preference to Charter val-
ues.” 4 The court’s decision in Daigle is one that gives preference to the Charter
values of the equality and autonomy of women, yet the court does not use the
Charter to buttress its result.
Since the court again refused to rule on the question of the status of the foe-
tus under the Charter, anti-abortion groups will likely initiate further litiga-
tion. 5 For instance, they may challenge Bill C-43, once enacted, as a violation
of the alleged rights of the foetus, on the basis that foetuses are within ‘eve-
ryone’ in s.7 and have a right to life that is infringed by abortion laws. What
the court avoided in Daigle, examining the purpose of the concept of foetal
rights, cannot be skirted in future cases on s.7Y6 In defining the scope of s.7,
as with any other Charter provision, the court must begin not merely from the
standpoint of men but also from the standpoint of women.” 7 Taking women’s
equality seriously requires an interpretation of every word that is informed by
the experiences, interests, aspirations and problems of women. Madame Justice
Wilson’s decision in Morgentaler is instructive in showing how to begin to
incorporate women’s experiences of historical subordination and their aspira-
tions for equality within the meaning of a Charter right.”8 For the court not to
do so would violate a principle of adjudication –
that
everyone must be equally heard in the process of establishing their rights and
a democratic principle –
“4Hills v. A.G. Can., [19881 1 S.C.R. 513 at 558, 48 D.L.R. (4th) 193 at 227; Dolphin Delivery,
supra, note 112.
“5Litigation has already been attempted: supra, note 23.
“Reliance on intention is not possible because Charter methodology is not oriented toward the
intentions of the framers but, since R. v. Big M Drug Mart Ltd, supra, note 38, toward the overall
purposes of the provisions and the Charter as a whole. Purposes are determined by examining the
historic and linguistic contexts. The context of the impugned legislation is also critical in assessing
its purpose and, especially, its effects for constitutionality. Madame Justice Wilson’s recent artic-
ulation of a comprehensive contextual approach to Charter interpretation in the Edmonton Journal
case, supra, note 41, does not preclude a conclusive negative answer to the question of the con-
stitutional status of the foetus; indeed a negative answer is required on consideration of the context
of women’s subordination.
“7In other words, it cannot decide the question of foetal rights with no attention to women’s
experiences and interests, and only turn to women’s interests and experiences in a second stage of
balancing foetal rights against women’s rights.
” 8Supra, note 22. Her judgment is only a beginning, however, as it reflects a controversial boun-
daried view of individuals and insufficient analysis of the purported state interest in foetuses. See
Hester Lessard, “Rethinking Liberty: Reproductive Rights and Section 7 of the Charter” (1989) (on
file with author).
1990]
COMMENTS
duties.”9 Equality for women generally, and s.28 of the Charter specifically,
demand no less.
Women have not yet fully and publicly articulated their experiences and
the speech that has occurred has been under conditions of subordination.’
Because men have talked far more than women, from positions of power, the
court will not find a dictionary of women’s words or an encyclopedia of
women’s knowledge from which to define s.7. But the court need not fall back
upon men’s language and concepts by default. The promise of Holmes is the
promotion of the conditions of a truly equal discourse. Women are beginning to
talk in public about their experiences of reproduction. For the Court to consti-
tutionalize, and thus legitimate, the language of foetal rights will have an
adverse impact upon the emerging discourse. It would be an anti-democratic
move by the Court, skewing the language of constitutional law and politics even
further toward a male-dominated view and controlling the discussion in a way
antithetical to the free and full discourse that is part and parcel of democracy.
Nor will women’s speech be promoted by the court continuing its refusal to
answer the question of constitutional rights for the foetus. Nothing a court does
is neutral, including a refusal to answer a question; ‘neutral’ is a word that only
accurately describes the gears of an automobile. Even refusing to answer the
question gives credibility to the language of foetal rights and places the spectre
of constant control and surveillance over women. The Daigle litigation itself is
proof of the consequences to one woman of the court’s earlier refusal to answer
the question. The only way for the court to ensure that more women talk and
more men listen, to correct the gender imbalance in conversation and govern-
ment on the topic of reproduction, is to decide that foetuses have no constitu-
tional rights. Moreover, it must be stressed again that the impact is not only at
the level of discourse. Creating rights for foetuses would profoundly affect the
lives of women, both individually and as a group, not only in terms of abortion
decisions but throughout all stages of a pregnancy and for the remainder of their
lives.
For the court to consider the relative lack of democracy for women, our
unequal role in creating the lexicon spoken in democratic forums, is not a rad-
ical departure from accepted judicial doctrines. It is simply an extension, or dif-
ferent articulation, of concerns that courts have always had. To further democ-
” 9 This principle underlies the rules of natural justice, enshrined within s.7 through the phrase
‘principles of fundamental justice’. It would be odd if several parts of s.7 (‘everyone’, ‘liberty’,
etc.) were interpreted in a manner that violates the rationale and deep principle of the second part
of s.7, the principles of fundamental justice.
120Conditions of inequality affect directly what is said, how it is said, and how listeners react.
The powerful (men) speak differently than the powerless (women) from the time they are children.
The ovarian work by Robin Lakoff remains instructive: Robin Lakoff, Language and Woman’s
Place (New York: Harper & Row, 1975).
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[Vol. 35
racy for women by refusing to sanction constitutionally foetal rights can be
formulated as a variant of the principle that courts will not hear abstract ques-
tions. The question of foetal rights will remain at an abstract level until women
have said more, far more, and have talked in public about the meaning of repro-
duction in their lives. Foetal rights will remain abstract because the discourse
will continue to be masculine discourse and as Madame Justice Wilson points
out in Morgentaler, men can only abstract and objectify a woman’s decision
about whether or not to continue a pregnancy.’2′
The democracy argument is also a deeper version of the rationale for stand-
ing. For example, s. 24 of the Charter gives standing to those whose rights are
affected personally. 2 S.24 is a democratic provision –
it states that those who
challenge laws should be those who are affected by them. The rationale for such
a rule is not only, or even primarily, judicial economy but is a democratic one:
affected persons should be able to speak for themselves, to tell the courts how
the impugned laws affect their lives. No one should be allowed to speak for
them. Those who say they can speak for others show a profound disrespect for
them. It was this rationale, that women be allowed to speak for ourselves, that,
after all, was behind the movement toward extending the franchise to women.
The democracy argument can also be appropriately framed as one of ripe-
ness. Only when women can speak as equals about reproduction under condi-
tions of equality will the question of the constitutional rights of the foetus be
ready for judicial determination. Women and men living in a truly equal society
may decide to accord foetuses a measure of personhood from conception
onwards; until that future time, when the dialect and silences of subordination
have long been replaced with a common language, similar action will be prema-
ture. In the same way, the democracy argument is similar to the rationale behind
the non-justiciability principles, i.e. a question not yet amenable to judicial res-
olution. However, unlike traditional standing, non-justiciability and ripeness
arguments, where the court refuses to answer a question, the question of foetal
rights should be answered in the negative by the court. A negative answer is the
best means of promoting the necessary discourse by women.
IV. Democracy and Power
Democracy may begin with talking but it is about power; not only the
physical and legal exercise of power but linguistic and ideological power.
121Supra, note 22 at 171.
122S.24 states that everyone whose rights and freedoms are infringed or denied may apply to the
court for an appropriate remedy. Public interest standing, an exception to the general rule of stand-
ing, requires a litigant to have a serious interest in the matter and that there be no other reasonable
and effective method to test the constitutionality of the law: Minister of Justice of Can. v. Borowski,
[1981] 2 S.C.R. 575, [19821 1 W.W.R. 97, 130 D.L.R. (3d) 588.
19901
CHRONIQUE DE JURISPRUDENCE
“Whoever controls our languages has the greatest power of all.”‘ What must
be examined is not only the discourse but who has produced it and who has been
silenced. For women, silence, not speech, has been the major product of patri-
archy. Daigle became the object of patriarchal power and fought back, but her
struggle was not an unqualified victory for democracy for women. The Court
missed an opportunity to promote the discourse necessary for women’s full par-
ticipation in democracy. Parliament decided to speak again on abortion, from a
position of power that translates its words into physical power and maintains the
power of the medical profession over women’s lives.
An argument from democratic principles against giving rights to foetuses
considers the broader context within which the question arises. It takes account
of power inequalities and histories of subordination, placing constitutional ques-
tions in the broader societal context of patriarchal control. For the Court to fulfil
the promise of Holmes, of helping to ensure a voice for those excluded, requires
it to pay attention to who is exercising power in framing the discourse. It is this
form of power that is the most insidious, the least visible, and the most conse-
quential; the power to frame the very debate in such a way as to determine the
outcome before most people speak and the votes are counted.'”
Because of the court’s power, any determination by it that foetuses have
rights is not a mere contribution to the discourse. The court is not like women
and men who participate in the debate, for adjudication is not solely conversa-
tion. A decision of the court that foetuses have rights will have a direct and
immediate impact upon women’s lives. It would restrict abortions, impose con-
ditions and cause torts to be committed on women who are pregnant. If the court
wants to promote women’s equality and women’s voices, it will refuse to tilt the
discourse even further against women and will answer the question of foetal
rights in the negative.
When Barbara Dodd, after having an abortion, returned to Gregory
Murphy and spoke out against abortions,”z she described herself as his student.
“He knows a lot of words and he teaches me about business, politicians and the
world”. 26 It is time for women to create our own words, to teach ourselves
about the world; only then will we stop speaking primarily in men’s dialect and
achieve
for our
self-determination.
‘dream of a common
the
language’ necessary
123James Boyd White, “Law and Literature: ‘No Manifesto”‘ (1988) 39 Merc. L. Rev. 739 at
747.
124Steven Lukes, Power: A Radical View (London: Macmillan, 1974).
125Supra, note 10.
126Anne Walmsley, “A Change of Heart” Maclean’s (31 July 1989) 18.
