Sunday 25 March 2012

Mme Justice Wilson Would Be Amused

They are so creative, the anti-feminist Fetus Lobby. In the US, they named their fund to elect anti-choice legislators the Susan B. Anthony List for the famed suffragist and feminist. (They claim she was anti-abortion, but historians dispute this, saying rather she said nothing about abortion.)

Now in a similar brain-dead attempt at appropriation, they have come up with their own name for Woodworth's Wank, M-312, intended to reopen the abortion debate.

They want to call it the Bertha Wilson Motion.


Bertha Wilson, for the history-impaired, was the first woman Supreme Court Justice and a fierce feminist, who definitively and irrevocably shook up the old boys' club that was the law in Canada.
One of Wilson's most important decisions on the court was a family law case involving the division of property. After breaking up with her common law partner, with whom she had built a beekeeping business, Rosa Becker was left with 40 beehives and $1,500.

Wilson said the trial judge had grossly underestimated the value of Becker's contribution and awarded Becker a one-half interest in the business capital and revenue.

Later, in her nine years on the Supreme Court, Wilson helped her colleagues understand the "feminist critique" of equality law, which was that seemingly neutral laws often operate to the disadvantage of women and minorities, said Toronto legal scholar Peter Hogg.

The landmark 1990 case of Angelique Lavallee, for example, considered self-defence from a battered woman's perspective. Wilson, writing for the court, upheld the acquittal of Lavallee, who had shot her common law partner in the back of the head.

In the 1988 Morgentaler ruling striking down Canada's ban on abortion, Wilson's reasons focused on a woman's right to choose.

Roach thinks Wilson was affected but not embittered by barriers she encountered. "This was never a person who was ever in anyone's old boy's club."

In 1994, Wilson chaired a Canadian Bar Association task force on gender equality in the legal profession. Its highly critical report stressed the difficulties faced by women lawyers with children, urging the profession to measure a lawyer's performance by standards other than hours billed.

Ultimately, because Wilson "was such a highly respected member of the Court, it became much easier for governments to appoint women to the Court," said Hogg.

The Fetus Lobby's reason for naming Woodworth's Wank after such a stalwart feminist? Two sentences Mme Justice Wilson wrote on the landmark R. v.Morgentaler case that effectively struck down abortion law.
Wilson J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates two rights: liberty, and security of person. She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life. To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well. By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce.

Wilson goes on to agree with the other Justices that section 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a) of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice." The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs. With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity".
She also stated that

The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.

In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test.

Nothing anti-abortion there, right? Here are the two sentences they've seized on from section 258 here.
The precise point in the development of the foetus at which the state's interest in its protection 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.

None of this is a surprise to those of us who know a thing or two about law and history and feminism. But the Fetus Lobby has fastened on it and think they have found a real gotcha.

Mme Justice Wilson left it to the legislature, which with one unsuccessful exception, has run screaming from this third rail of Canadian politics.

Meanwhile, in the 24 years since that was written, 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.

Here is a Canadian doctor who works in the Excited States laying it out. The title is 'What happens when there is no abortion law'. She compares abortion in Canada and the US.
So how does lawless Canada stack up against regulated America?

In Canada, the teen birth and abortion rate is 27.0/1,000 women between the ages of 15-19 versus 61.2/1,000 in the United States.

The abortion rate among all women of reproductive age (15-44) in Canada is 14.1/1,000 versus 20/1,000 in the United States.

Put another way, the teen birth and abortion rate is more than 50% higher in the United States versus Canada and the abortion rate is about 25% higher in the Unites States.

Canadian women also have something else. They have access to health care and sex education is widely taught in the schools.

Laws, cost, and indignities don’t reduce abortion, knowledge and contraception do.

To go back to the Bertha Wilson Motion. Sure, call it that if you want. I'm sure Mme Justice Wilson would be amused. And we are amused too that a great feminist will be honoured by morans unfit to shine her shoes.


Niles said...

People are going to be asking 'Bertha who?'.

Thanks, anti-women forces, for bringing a strong feminist role model back into the awareness of young women all across Canada! That was so sweet.

I am going to meanspiritedly presume they 'named' the motion pre-emptively, knowing there was a mockery naming campaign afoot from the eeeevul feminazis.

Likely the anti-women contingent will use 'their' name for the motion as a bizarre soapbox for chiding feminists and pro-women's autonomy voices as being 'against' Bertha Wilson. It's how these maleficents roll.

CanNurse said...

Fantastic piece, Fern! Shared widely! Btw, I knew Bertha Wilson b4 & during her time on the SCC. She'd be more horrified than amused to hear them naming the bill after her. Idiot men.

fern hill said...

Thanks, CanNurse. I have no idea how Mme Wilson would react, but thought amusement would piss off fetus fetishists more.

fern hill said...

It's all good if more people find out about Mme Wilson and her role in Canadian history.

Godel Noodle said...

I'm a little embarrassed to admit that I'm one of the history-impaired people you mentioned, and likely even a worse case than you might have anticipated. I've never even heard of Bertha Wilson--but then again, I couldn't give you the name of a single (other) Canadian Supreme Court Justice. I know of Scalia; that's about it (and he's not Canadian).

Bertha Wilson sounds great! I'm particularly interested in this part:
Wilson helped her colleagues understand the "feminist critique" of equality law, which was that seemingly neutral laws often operate to the disadvantage of women and minorities
I'd really like to read those arguments sometime because this is something that seems correct to me at a gut level, but I wouldn't be able to argue articulately about it. Is there an online resource to which you could refer me?

Even if there isn't (or you don't have time to find one), thanks for the mini-history lesson, Fern Hill!

fern hill said...

Well, there are the links in the post. And a book.

And here's a list of her decisions.

Godel Noodle said...

Sorry, I can't tell which link in the article specifically outlines her arguments about why seemingly neutral laws often operate to the disadvantage of women and minorities.

I'm hoping to find out about that issue, specifically, rather than general biographical information about Bertha Wilson. If you don't know of one, no problem. It just sounds like I may not have been clear about my request. Thanks.

deBeauxOs said...

The National Association of Women and the Law did produce some documents useful in understanding how laws are not "neutral" since they tend to reflect the bias of those who write them. One decision from the SCC regarding provisions for maternity leave (before Justice Wilson was appointed) said something to the effect that it wasn't the law in question that discriminated against women, but nature (because only women get pregnant).

Here is a document that may be helpful in locating those arguments that interest you.

Godel Noodle said...

"it wasn't the law in question that discriminated against women, but nature (because only women get pregnant)."

Ahahahaha! Ohhhh, -puke-.

So it's like if all doors were designed for the height of children. The adults keep bumping their heads, but it's not the door design that discriminates against the taller adults; it's that *nature* discriminated against them by making them too tall. Oh! Or in "Better Off Ted," there's a company that installs motion detectors to shut off the lights when no one is present. But the detectors fail to detect black people. Again, nature discriminated against them. Riiiiight. :-D

Anyway, the document looks awfully dry and heavy (or maybe that's just the font and the formatting), but it looks like it's got exactly the stuff I was hoping to see. So thanks, deBeauxOs! I wonder if I can get it on my Kindle somehow...

Godel Noodle said...

Whoops! That was supposed to be in reply to deBeauxOs's comment above. I lose at blog commenting. :-(

Anyway, I read a few pages of that document, and it is *exactly* what I was looking for. The formatting is also merely deceptive. It's easy to read, but it looks at first glance as though it will be rife with inscrutable legal jargon.

Kayvee1000 said...

She was the MJ of the SCC (1988) that swayed the vote with an astute insight into women's issues, by overturning Canada's Abortion from Criminal Law. Being a second waver, I protested for this right in 70s/80s and will do the same for my daughter's generation. All second/third wavers must unite on this issue.

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