gilbert: we must shift the abortion conversation — it's about equality rights, pure and simple
friday's u.s. supreme court decision casts an ominous shadow that reaches into canada too.
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abortion rights activists hold a moment of silence outside the white house as they protest in washington, dc, after the u.s. supreme court scrapped half-century constitutional protections for the procedure.
samuel corum
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afp via getty images
by: daphne gilbert on friday, the united states supreme court officially did what we have known was coming since the leak of a draft decision in roe v. wade: it ended constitutional protections for abortion. this decision casts an ominous shadow over the united states but the devastating reach of a victory for pro-life activists reaches into canada too.
as we prepare for an unwelcome conversation that revisits an issue well-settled in this country, we should move forward with a new paradigm to define abortion rights.
in canada we have described a right to abortion as a right to make decisions based on one’s own values and interests. under our charter of rights and freedoms, abortion has so far been located within the bundle of interests under section 7: bodily integrity and individual decision-making. we must shift the narrative: reproductive rights are equality rights for women and trans-men.
one of the chilling aspects of justice samuel alito’s demeaning decision in dobbs v. jackson women’s health organization is his casual dismissal of the argument that abortion is an equality rights issue for women. according to him: “ … a state’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.” he proclaims “ … the goal of preventing abortion does not constitute invidiously discriminatory animus against women.” this is a shocking and ridiculous conclusion. how can it be plausibly asserted that denying women access to a medical procedure that fundamentally affects their physical and psychological health and forces them to carry a pregnancy to term with no control over their future plans, is anything but discriminatory against women (including trans-men with female biology)?
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restrictions in accessing abortion directly impact the full participation of women in public life, forcing them to be mere vessels for childbirth. indeed, in dobbs, the dissent poignantly acknowledges that the court’s decision meant that “ … from the very moment of fertilization, a woman has no rights to speak of.”
seeing a woman’s value as primarily associated with motherhood perpetuates an invidious stereotype that a woman’s place is in the home. the result of forcing pregnancies to be carried to term is that women bear the physical, emotional and economic cost of being born with a uterus. this cost is not shared equally by men, who can fully participate in public life without fear of being pulled from the workforce or physically altered in profound ways for months because of their male biology. it is inherently unequal to punish one half of the conception partnership with a profound consequence while the other half has none.
canada’s roe v. wade is the 1988 decision in r v. morgentaler. it was not argued as an equality rights case. however, justice bertha wilson, the only woman on the bench when the case was decided, understood the sex discrimination inherent in abortion restrictions: “the more recent struggle for women’s rights has been a struggle to eliminate discrimination, to achieve a place for women in a man’s world, to develop a set of legislative reforms in order to place women in the same position as men.”
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framing abortion rights as equality rights for women takes the conversation in new directions. we can discuss ways to improve the conditions of sex education, contraception, fertility treatments, pregnancy, childbirth, child care, family supports and a host of other matters related to raising children. the conversation doesn’t have to only be about abortion, but it cannot happen without an acknowledgment that abortion rights are necessary equality rights.
daphne gilbert is a professor of law at the university of ottawa and serves on the board of two international reproductive justice organizations: women help women and fòs feminista canada.
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