Public Policy, Rights, and Abortion Access in Canada

Abstract

The Supreme Court of Canada's 1988 decision to invalidate federal criminal law restrictions on abortion is often portrayed as paving the way for unregulated “abortion on demand” in Canada. This depiction belies the patchwork of regulatory barriers to access in place at the provincial level and obscures a host of litigation for improved funding and access across the country. This article explores the policy and legal landscape surrounding abortion access since 1988. Our findings suggest that provincial policies and lower court judgments have shown considerably different interpretations of what the Court's landmark ruling requires. In part, this is a result of a problematic distinction that the Court's reasoning makes between “negative rights,” which are protections against state interference, and “positive rights,” which would require the state to take action or provide funding to ensure access. We examine the implications of this distinction from both a rights and policy perspective, ultimately arguing that courts are not the only, or best, body through which to realize positive rights. Instead, we argue that legislatures need to take seriously their obligations under the Canadian Charter of Rights and Freedoms.