Updated: May 23
The controversy over the Summer Jobs Program continues, fuelled in part by confusion over the government’s insistence that it is merely protecting established rights for women. But in saying so, the Prime Minister, Employment Minister, and others are blurring a very important distinction in our use of the term “rights.”
On the everyday, popular level, we speak of “rights” in the same way we speak of “freedoms.” I am free to wave my hand around, or sing loudly in the privacy of my home, or wear clashing colours (although my students normally object to that, and rightly so).
Likewise, Canadian women are not barred from having abortions, they are free to obtain one, so they have the “right” to do that–since nothing legal currently stands in their way.
That “right,” however, is just a description of a current situation. Should the law change, that right would disappear. My right to drive at 110 km/h on the nearby Trans-Canada Highway would be altered as soon as the pertinent government lowers the speed limit.
Then there is a “right” as sanctioned explicitly by law. The right of women to vote in Canada, for instance, didn’t exist until the twentieth century, and then it did. Again, however, should the law change, that right would disappear again.
What is being discussed in the conversation over “reproductive rights” is something else. It is a “right” in the sense of “something you are owed” per the Constitution, or the United Nations’ Universal Declaration of Human Rights (UDHR), or the Bible, or some other overarching moral standard. Such rights are not mere descriptions of what the laws happen to allow, or even mandate.
They are more fundamental and are used by the courts to evaluate the “rightness” of the laws themselves. Such rights are just “right,” we might say—at least, they are according to whatever our group has decided is our ethical authority.
Thus, Canadian women do not (yet) have the "right" to an abortion per the Constitution, Charter, or any other such document. The Supreme Court in R. v. Morgentaler (1988) discovered and declared no such right.
When, therefore, the current Liberal government declares that women have reproductive rights in Canada, they are either merely stating the obvious--that women currently can legally obtain abortions, since there is no law saying otherwise--or they are making a specious claim--since the Supreme Court has inferred no such right from the Constitution or any other moral authority.
And that is troubling, for either the ministers do not actually know the difference between the two definitions of “right”--which is a serious problem for a legislator--or they are cynically equivocating.
Prolifers arguing against abortion therefore are not in fact challenging a law, since none exists in Canada. They certainly are not challenging a "right" that the Supreme Court has agreed doesn't exist.
The most that can be said about them in terms of this language of "rights" is that they are challenging the current freedom Canadian women have to undergo abortion at will. Abortion, of course, pretty directly challenges the right of the foetus to keep living--and there's the rub.
Some Canadians argue that the latter right is of the transcendent sort, one implicit in the Charter, in the UDHR, and in other moral authorities (such as the Bible) such that the unborn child’s right to life trumps any mere law to the contrary and any right (of the lower sort) authorized thereby.
That’s the discussion about rights we need to have, even as the current government seems to think, quite wrongly, that that’s all behind us.