Dealing the Death Blow to the “Justice Bertha Wilson Wanted to Restrict Abortion” Argument

by  Joyce Arthur

An argument that is very dear to the hearts of Conservative MP Stephen Woodworth and other anti-choicers, is that former Supreme Court Justice Bertha Wilson, a judge with “impeccable feminist credentials”, said that abortion should be restricted in the second trimester (in the 1988 R. v. Morgentaler ruling), and therefore, Parliament has a duty to restrict abortion accordingly. Woodworth has repeated this argument several times now, most recently in a leaked letter to his parliamentary colleagues. Here is the single Wilson quote that he and his fellow anti-choicers keep quoting over and over again:

“The precise point in the development of the foetus at which the state’s interest becomes ‘compelling’ I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester.”  Justice Bertha Wilson, R. v. Morgentaler, January 28, 1988, Supreme Court of Canada (page 113).

But anti-choice pleading on this issue is unconvincing and futile on multiple levels:

  • Wilson was simply explaining that it’s the jurisdiction of Parliament to make laws, not the Supreme Court’s. The Supreme Court often notes this fact, across many cases on different issues. Regardless of Supreme Court advice, Parliament has no duty to act on the abortion issue.
  • While it’s true that Parliament could enact an abortion law, no government has wanted to touch the issue since 1990, when a Mulroney government bill failed to pass. Twenty-five years later, not even today’s majority Conservative government wants to touch it.
  • Over 25 years, Charter rights and case law have evolved to the point where the inherent conflict with women’s rights is now very clear. It’s highly unlikely that any law restricting abortion or granting rights to fetuses would withstand constitutional scrutiny because of women’s established rights to bodily security, life, liberty, conscience, and equality. Wilson’s statements that seem to encourage Parliament to pass another abortion law were from another era and would not likely be said today by Supreme Court justices.
  • It was inconceivable in 1988 not to have any abortion laws, when they had been ubiquitous and accepted around the world for decades or even centuries. From unrepentant old hippie:  “Of course, much is made of the fact that Justice Bertha Wilson was a woman of impeccable feminist cred: she was.  But her decision in 1988 assumed there would always be a law in some form or other, because there always had been. In 1988 not even a woman of Justice Wilson’s brilliance could have imagined that Canada would embark on an incredibly successful 24-year experiment in leaving this medical decision to doctors and patients, and the state’s interference proven to be utterly useless.”
  • Indeed, Canada has proven that no abortion law is necessary. Dammit Janet! explains: “…Canada has done quite well thank you without any abortion law atall atall. Canadians and their healthcare providers have worked out a practice that involves no panty-sniffing, slut-shaming, privacy-invading law.” Not only has Canada’s abortion rate leveled off and declined since the late 1990’s – approaching the low rates of western Europe – over 90% of abortions are performed in the first trimester. In the United States with its hundreds of often-onerous abortion restrictions, the teen birth and abortion rate is over 50% higher than in Canada, and the overall abortion rate about 25% higher. Moreover, when medical treatment is criminalized, people die.
  • Wilson’s comment was more like a passing aside that reflects her subjective opinion. It was not a significant statement from the ruling that establishes citable jurisprudence on an issue, as were other key statements (see page 2) that Justice Wilson made. Indeed, if you Google chunks of Wilson’s comment, virtually all of the sites are anti-abortion, and none are legal citations.

As aptly put by this wise writer, the anti-choicers’ Bertha Wilson argument is “A tale told by an idiot, full of sound and fury. Signifying nothing.”