More than 20 years ago on January 28, 1988, the Supreme Court of Canada handed down the decision in R. v. Morgentaler. Despite being a criminal case, the case examined a women's rights in the context of the Charter of Rights and Freedoms. The Morgentaler case found that the criminal legislation governing abortions in Canada was unconstitutional. The reasoning for the unconstitutionality of Canada's abortion laws was that it interfered with section 7 of the Charter which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprieved thereof except in accordance with the princples of fundamental justice". Part of the reasoning for striking down Canada's abortion laws was the delay in obtaining therapeutic abortions that the was caused by the mandatory procedures for procuring an abortion at the time - the delay resulted in a higher probability of complications and greater risk which infringed upon a woman's section 7 charter right. (Judges Dicson and Lamer). Judges Beetz and Estey reasoned that section 7 of the Charter must include a right of access to medical treatment for a condition that represents a danger to life or health without fear of criminal sanction. Judge Wilson also agreed that the abortion laws were uncontitutional as it "takes a personal and private decision away from the woman and gives it to a committee which bases its decision on "criteria entirely unrelated to the pregnant woman's own priorities and aspirations." Judge Wilson also found that s.7 of the Charter should protect both the physical and psycological integrity of the individual and that section 251 was deeply flawed by subjecting women to considerable emotional stress and unnecessary physical risk and that putting woman's capacity to reproduce in the control of the state was a direct interference with the woman's physical person. (Note: Information on the Morgantaler case is from the University of Alberta's law website: http://www.law.ualberta.ca/centres/ccs/rulings/rvmorgentaler.php.
A woman who cannot procure an abortion in a timely way without fear of criminal sanctions, has been deprived of her right to life, liberty and security of the person. This is settled law.
Yet, in British Columbia women who are giving birth may have their access to medical intervention limited because of decisions made by the BC Government, the Health Authorities, the BCMA and BC Anaesthesiologist Society. Have these women been deprived of their section 7 charter rights?
I'll take my own personal experience as an example. I wished to procure a c-section without medical reason. My motivations were primarily psychological and included a desire to avoid an emergency c-section, desire to avoid damage to my pelvic floor, desire to avoid the pain of labour, desire to avoid serious harm to my child including the risk of brachial plexus injury, and cerebral palsy. I had throughly researched the issue, I was aware of the risks and benefits of both modes of delivery and I had made a choice. I found a care provider who was supportive of that choice and we booked a delivery date (July 9, 2010). Due to resource limitations (that the government and health authorities were well aware of) - I could not access timely medical care (a pre-labour c-section) and was for all intents and purposes - forced to give birth vaginally.
Similarly, access to epidurals is also constrained in BC.
Inability to access c-sections and epidurals in a timely way (39 weeks for elective, scheduled c-section, 2 hours for urgent c-sections, 30 minutes for emergency c-section and 2 hours for epidural) strikes me as a violation to a woman's section 7 rights, particularly when the only choice a woman has for giving birth is the public health system.