An Equality Approach to Reproductive Choice: R. v. Sullivan

is more easily (though inaccurately) characterized as involving already privileged women who simply want to "have it all." Further, cases such as 35. R. v. Turpin, [1989] 1 S.C.R. 1296, 1331. 36. Id. at 1331-32. 37. The Medical Practitioners Act, R.S.B.C. ch. 254, § 72(2)(d) (1979) defines the performance of midwifery as the practice of medicine. It is an offense to practice medicine if not registered under the Act. Id. § 72(1). 38. 53 D.L.R.4th 69 (B.C.S.C. 1988). 39. While the judge determined that pre-birth "apprehension" is invalid, the woman in the case had "consented" to the Caesarian after being told that her foetus was apprehended. 40. Veronika E.B. Kolder, Janet Gallagher & Michael Parsons, Court-Ordered Obstetrical Interventions, 316 NEW ENo. J. MED. 1192 (1987). For an analysis of the Canadian jurisprudence, see Isabel Grant, Forced Obstetrical Intervention: A Charter Analysis, 39 U. TORONTO L.J. 217 (1989). [Vol. 4: 93 Equality Approach to Reproductive Choice Baby R. involve something that could happen to men (forcible surgery, being locked up, being refused food or intoxicants) whereas abortion cases do not. It requires a greater act of imagination for a man to put himself in the position of a woman who is pregnant and does not wish to be, than for a man to put himself in the position of, say, a patient in a hospital who is forced to undergo medical treatment without consent. Therefore, in the case of forced obstetrical intervention it is easier to see not only that there is a violation of individual rights, but also that a class of persons who lack these rights is a dominated and devalued class. Third, there are issues about access to abortions and to other reproductive health services. The existence in Canada of publicly funded universal medical and hospital care schemes is a relevant factor. Because abortion is a medical procedure, there is in effect a presumption that abortions, at least when performed within the context of the ordinary practice of hospital-based medicine, should be state funded.41 But there are systemic access issues arising from actions by the medical profession, hospitals, and provincial governments. Some reproductive rights litigation is aimed at improving access to reproductive health care, and to meaningful choice about reproduction, both in the public and private spheres. For example, there are moves to compel governments to fund abortions in free-standing clinics rather than in hospitals alone.42 Fourth, there has been some success in obtaining legislative remedies for pregnant women who suffer discrimination in employment, for example, through exclusion from coverage under employee disability plans. The Supreme Court of Canada decision in Brooks v. Canada Safeway Ltd. , establishing that pregnancy discrimination is sex discrimination, supports the proposition that women should not be penalized for being pregnant. The Court pointed out that society as a whole benefits from women's child-bearing 41. Legislation removing coverage for abortions from the provincial health care scheme was struck down in British Columbia (although on a narrow procedural ground). See British Columbia Civil Liberties Ass'n. v. British Columbia (Attorney General), 49 D.L.R.4th 493 (B.C.S.C. 1988). For a fuller discussion of the effect of the Canadian health care scheme on this issue, see SHEILAH L. MARTIN, CANADIAN ADVISORY COUNCIL ON THE STATUS OF WOMEN, WOMEN'S REPRODUCTIVE HEALTH, THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND THE CANADA HEALTH ACT (1989). 42. See R. v. Morgentaler, 83 D.L.R.4th 8 (N.S.C.A. 1991) (leave granted to appeal to S.C.C. October 7, 1991, No. 22578), in which Dr. Henry Morgentaler was charged with 14 counts of performing unauthorized abortions contrary to provincial legislation which restricted the performance of abortions (and certain other medical procedures) to approved hospitals and prohibited payment for such procedures under the Health Services and Insurance Act unless performed in approved hospitals. The legislation was held to be ultra vires the province since in pith and substance its purpose was criminal law (a matter for the federal Parliament). See also Everywoman's Health Centre Society (1988) v. Minister of National Revenue, Federal Court of Appeal, A-129-90, 26 November 1991, Dicary, J.A. (as yet unreported), in which the Court ordered the federal Minister to reconsider his deemed refusal of charitable tax status to a freestanding abortion clinic, since the Court held the clinic met the definition of "charitable organization" required by law. 43. [19891 1 S.C.R. 1219, overruling the Court's own earlier decision in Bliss v. Attorney General of Canada, [19791 1 S.C.R. 183. 1991] Yale Journal of Law and Feminism activities, yet women are customarily expected to bear the entire burden." Viewing women's reproductive work in this way could have far-reaching effects. The Court's Reasons were consistent with LEAF's intervention in the case, which highlighted the circumstances of all women who, in their own communities, face struggles at every stage in reproduction beginning with control over sexual access to their bodies, through pregnancy, childbirth, and childrearing. III. BACKGROUND TO THE SULLIVAN CASE