Letter to Alan Borovoy of Canadian Civil Liberties Association

The following is a letter I sent on February 12, 2009 to Alan Borovoy, General Counsel for the Canadian Civil Liberties Association (CCLA). There was no response to the letter. (I have made minor edits and corrections, and added clarifications for a public audience.)
– Joyce Arthur

February 12, 2009

Dear Mr. Borovoy,

I’ve read your position on anti-choice clubs being denied club status and funding by student union groups (in a letter you sent to the Canadian Federation of Students). I disagree with your analysis on a number of levels.

This is not fundamentally a freedom of speech issue. Anti-choice groups are not being banned or censored. They are free to disseminate their views, organize, hold events, etc., just simply not on the student union’s dime. With limited resources, student unions have every right to limit disbursement of funds. Recently, some anti-choice students were charged with trespassing at the University of Calgary. In that case, the anti-choice students had been asked to arrange their display so people would not be forced to look at it (the right of free speech does not include the right to a captive audience), in order to mitigate the safety risk. The anti-choice students had themselves told the university their display would “likely trigger violence”. They were only charged with trespassing after refusing to do anything to mitigate the admitted safety risk.

Ensuring public safety in the face of anticipated violence becomes a higher value than freedom of speech in certain circumstances. I’m sure you’re familiar with Section 1 of the Charter, which allows some infringement of rights to protect other rights. For example, even though the BCCLA has come out against BC’s bubble zone law (the Access to Abortion Services Act) based on free speech principles, the BC Court of Appeal found that the Act justifiably limited the protesters’ right to free speech (only in that particular place and manner) in order to protect women’s right to access a necessary health service. This was perceived as a higher competing value, and the protesters’ freedom of speech was only minimally impaired. So the BCCLA was wrong, and now the CCLA is also wrong, since public safety is surely at least as high a priority as accessing necessary medical services.

After reading your position, I believe the real issue is that you are unclear on the pro-choice position and the importance of legal abortion access to women’s basic human rights. For example, you state: “The arguments against abortion engage the vexing issue of when life and/or personhood begins and the balance between the protection of such ‘persons’ and the autonomy of women.”  But these are NOT the key issues in the abortion debate at all, the first is irrelevant and the second is logically impossible. Women need and have abortions anyway, and when life begins or what the moral status of the fetus is, does not generally enter into a woman’s abortion decision. Second, you can’t have two beings enjoying rights in the same body, so it’s impossible to “balance” rights. The woman must retain 100% of her rights, and the fetus none, otherwise women’s established constitutional rights are compromised. Fetuses are not legal persons deserving of rights anyway; legal precedent is quite clear on this. For more details on these positions, please see my article The Fetus Focus Fallacy.

You argue that any organization advocating the enactment of laws could take away some peoples’ rights. But all the examples you give are not fundamental constitutional rights, so they are not relevant to the abortion debate. Women need safe and legal abortion to protect their lives, health, and liberty, which makes it a fundamental right. Further, since only women need abortion, laws restricting abortion amount to discrimination against women (because the restrictions apply only to women). That’s why these laws are unjust and should be struck down as unconstitutional in democratic countries, at least those that guarantee women’s equality. This is explained in more detail in my article here: Canada does not need an abortion law.

You also state: “As for the comparison with the Ku Klux Klan, it is simply inappropriate. … Suffice it to acknowledge that anti-abortion organizations are not remotely similar to the KKK.”  This gives the impression that you have never encountered a rationale for the comparison, leading you to dismiss it out of hand. I believe this analogy first came up in the 1990’s, when the campaign of violence and terror against abortion providers was at its height. I refer you to a few articles that will give you some background on this, and which advance the KKK/anti-abortion comparison:  

Although the violence has abated quite a bit since the 1990’s, it’s important not to forget this very recent history, and to remember that anti-choice terrorism still happens and is still greatly feared by clinics and doctors. I strongly believe all anti-choice groups bear some complicity in this terrorism because of their inflammatory language and harassing tactics. Much of what anti-choice groups do, including the university groups with their GAP displays, is a form of harassment against women and/or providers. I also believe it’s hate speech against women, a kind of “emotional terrorism” if you will. But since women are not a protected group under Canada’s hate propaganda laws, I realize it’s not illegal. Perhaps that’s why GAP displays are generally allowed at universities. Because of their hateful and inflammatory nature and the resulting safety risk, however, universities have every right to put limits on how the displays can be shown.

Finally, here is a link to a speech I gave at the University of Victoria in 2005, in support of a vote by the student council to not give an anti-choice group club status. This explains a human-rights rationale for the argument that anti-choice groups should not have the right to host events or displays at a university at all, at least not with the support or permission of the administration or student council. The viewpoints promoted by anti-choice groups are anti-democratic, anti-human rights, sexist, and discriminatory. Their events and propaganda amount to hate propaganda against women and minorities (such as in GAP displays), and can even constitute harassment of women. Most universities and student councils/unions have policies against discrimination and harassment, so they have no obligation to extend freedom of speech, let alone funding and logistical support, to anti-choice groups.

Even if you don’t agree with the points of view I have presented, I hope you will at least have a better understanding of WHY the universities and pro-choice students have reacted the way they have, and that this is not strictly speaking an issue of freedom of speech as you have described it, but primarily a safety and human rights issue. Insofar as it does involve freedom of speech, Section 1 of our Charter would likely allow the limitations as reasonable—IF the Charter even applied to universities, which it apparently doesn’t—certainly not to student councils and unions at least.

Thank you very much for your time.

Joyce Arthur
Coordinator
Abortion Rights Coalition of Canada
www.arcc-cdac.ca

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