Morgentaler Honoured

In light of Canada Day, discussion of the recipients of the Order of Canada has been brought up on CBC.ca. Amongst this year’s recipients there is a bit of a controversy surrounding one Dr. Morgentaler, the man who basically legalized abortion in Canada. From the site:

Gov. Gen. Michaëlle Jean has named a leading abortion rights crusader as a member of the Order of Canada, news that has outraged anti-abortion groups.

Dr. Henry Morgentaler is one of 75 Canadians receiving honours for their contribution to the country. The Governor General announced the new inductees to the Order of Canada on Tuesday, after the names were recommended by an advisory panel.

However, the doctor isn’t unanimously hailed as a hero, unsurprisingly. This apparently was represented on the cabinet that put forth his name, as well, and one Alberta MP commented on that fact:

“This is a pretty divisive issue,” he said. “I think we can all agree on that, so why would we have the highest honour in the country being issued when there is obviously a strong difference of opinion about it?”

And to demonstrate his point, the strongly opposed spoke up:

“If Morgentaler had any integrity, he would refuse the medal,” Mary Ellen Douglas of the coalition said in a news release. “This presentation should be given to people who have made Canada a better place to live and the elimination of thousands of human beings who would have contributed to the future of Canada is a disgrace, not an honour.”

I must agree with the MP that it’s an unusual decision, considering the political tension over the affair. But then, the fact that the decision is being criticised for being “undemocratic” seems to follow with the entire process that has brought Morgentaler to this point, anyways.

The process, not entirely unlike the one in the States, saw abortion legalized through a series of court processes rather than through any democratic political process. To add to that, in Canada, judges are appointed, never elected… although the counter-argument would be that the top dogs (the Supreme Court) are chosen by the government, which, of course, is elected. Still, the issue of abortion has never been raised on a political front, since most candidates are wary of choosing a side… since either way they would likely loose approximately half of the electorate.

Still, it’s also amusing to hear the anti-abortion faction speaking out and saying that he should “have integrity” and refuse the award. There’s a disconnect here, which makes me wonder why their comments were chosen to represent the faction. They clearly fail to realize that Morgentaler believes that abortion is the higher moral that should be sworn by.

On that note, I’ll bring this to an end with one comment. In the film from which the image above was taken (Democracy on Trial), Morgentaler states during a trial that the young woman before him had no one to support her, and no money to feed herself, and so when she came to him he had to give her an abortion.

I think it’s pretty revealing when our solution has so very little to do with the problem itself, and the proposers of those solutions are hailed as national heroes (although the thought process in the mind of those selecting may be altogether different than Morgentaler’s).

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6 Comments (+add yours?)

  1. Stephen
    Jul 02, 2008 @ 07:18:33

    I agree with you about Henry Morgentaler. I certainly don’t regard him as a great Canadian who should be honoured by the state.

    Odd that this is happening under the Conservatives. Whatever committee selected him must be operating at arms length from the government, or it never would have happened.

    But I disagree with you about the role of the courts. I am not sympathetic to those who describe courts as “activist” and “undemocratic”. The courts operate they way they do for good reason.

    First, some decisions should not be arrived at by majority vote because the majority can carelessly trample on the interests of minorities. The decision about same sex marriage is a case in point. That isn’t an issue that should be put to a vote, any more than you would tolerate a vote that would outlaw interracial marriages.

    Again, some decisions should not be taken within a political process, or should at least be scrutinized by someone outside of the political process. For example, the decision to listen in on the private conversations of citizens may be justified in the interests of national security, but politicians could also use it as a tool for decidedly political ends. Hence the Bush administration was supposed to provide for court and/or congressional oversight of its wiretapping activities.

    It is also the case that Canadian legislatures have ultimate control, via the “notwithstanding” clause in the Charter. If a government thinks the court has made an intolerable decision on the basis of the Charter of Rights and Freedoms, legislatures can override the decision (for a period of five years, which can be renewed thereafter). To date, governments (outside of Quebec) have been unwilling to do so because they would pay a political price were they to override the Charter. (Thus, it ultimately comes back to democracy — voters wouldn’t approve.) Nonetheless, the safeguard has been built in to ensure that control is ultimately in the hands of the legislatures.

    More fundamentally, the Charter was itself established via a democratic process. Parliament, with the support of the provincial legislatures, gave this power to the courts in 1981/82. The political actors knew full well how that power would be applied in practice, since the example of American Supreme Court decisions was familiar.

    Finally, specifically re the Morgentaler decision: the court objected to then-existing legislation on procedural grounds. Abortion was available, but through a process that presented serious obstacles for women living in certain areas (e.g. rural areas) or provinces (e.g. PEI).

    The court struck down the legislation regulating access to abortion because, in effect, it discriminated against some women because of where they lived. The court explicitly left the door open for Parliament to pass other legislation that would be more equitable in practice.

    And indeed, Parliament came extremely close to enacting such legislation at one point:

    When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.

    (You should ask Paul Racine about that result: he was working on Parliament Hill at the time, and he was directly involved in the proposed legislation in some capacity.)

    In sum, there’s a reason why courts operate independently of politics. But they are not “undemocratic”, since the manner of their operation was established via democratic processes. And the Constitution Act, 1982 ultimately permits legislatures to override court decisions, if they believe there would be democratic support for them to do so.

    Moreover, the Mortgentaler decision explicitly left the door open for a legislative solution. So, although I am disgusted to learn that Henry Morgentaler is receiving the Order of Canada, it’s misguided to blame the courts for Parliament’s failure to enact legislation that would at least limit access to abortion. (For example, by outlawing late-term and partial-birth abortions.)

    Reply

  2. nebcanuck
    Jul 02, 2008 @ 10:23:19

    Makes sense. There’s not much need to debate most of those points — and indeed, I was aware that the legislation that made the courts so powerful was a democratic process, although some would argue it has moved beyond what was reasonably foreseeable (the argument about the US court is a new one to me) — although I would say that the beginning of your argument is, at its core, undemocratic.

    When you argue that the majority would trample the rights of the minority, and thus the minority should be protected, you’re arguing against “true” or “pure” democracy, in which elites have some sort of decision power above and beyond the electorate. And yes, they may lose votes for doing so, but ultimately when there are so few veritable choices for citizens, one would have to ask just where voters would turn to in order to condemn the parties or courts for making decisions like this. However, I think that in Canada we have a pretty interesting balance of democracy, where most of us really don’t believe in pure “rule of the mob”, as some of the ancient philosophers referred to democracy. There seems to be a perspective that majorities needs checks, too, and should not be the be all to end all of decisionmaking. And I don’t disagree.

    Healthily undemocratic seems to be the term that comes to mind. It’s just a pity that the democratic portion of the process seems to be sleeping at the switch when it comes to something like abortion.

    Reply

  3. Bill
    Jul 04, 2008 @ 14:46:43

    Good debate guys. This is probably one of the more level responses I have seen to the whole issue over the last few weeks. I am no fan of either side of the abortion issue. I do not know if Henry Morgantaler really deserves the order of Canada, I lean toward not, and I think Bishop Larre in (partially – not the certificate or letter just the medal) sending back his order of Canada really had no impact. Larre’s protest would have had impact if he was styill deserving of it by todays standards for members of the order. His past two criminal convictions would have seen his order revoked had it not been for the fact that he recieved it before 1996 and so was subject to the anti-conviction clause preventing the government from stripping him of it.

    I just wish that politicians in Canada would grow some back bone and take on the abortion issue. Although I am not unhappy with the status quo (personal opinion that I won’t debate), I would like to see the issue dealt with both in the courts and the house of commons.

    Reply

  4. Zayna
    Jul 05, 2008 @ 15:28:18

    “I think it’s pretty revealing when our solution has so very little to do with the problem itself”

    Well said Stephen.

    Reply

  5. Zayna
    Jul 05, 2008 @ 15:31:08

    Sorry Nebcanuck, just realized you wrote that one.

    Great post.

    Reply

  6. nebcanuck
    Jul 07, 2008 @ 13:50:54

    Zayna: Thanks for the kind words! 🙂

    Bill: I’d say that the government’s indecision is the real deciding factor when it comes to court movements. Ultimately, the reason that it seems that so many decisions are based on the courts rather than the government today is because there are too many parties looking out for “number one”, without any real conviction.

    The best way to win the vote in Canada is to toe the line, trying to appeal to that 5% of the votership that isn’t already head over heels in love with a specific party. And since these people tend to be middle of the pack regarding left-versus-right issues, the best way that the government can appeal to them is by refusing to comment on these issues. Rather, they build their campaign around looking good or, more commonly, making the opponent look bad, and generally over issues that don’t even matter.

    That’s frustrating as a student of politics. Because, while I believe that the courts may be a good check to the government, I deny that they should be the primary political battleground. Open debate in public forums is a far better means than ajudication when it comes to an exchange of ideas, which is really the heart of democracy.

    Reply

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