SARC on abortion

The Scrutiny of Acts and Regulations Committee’s report into the Abortion Law Reform Bill has now been tabled in parliament and is available on the Committee’s website. Because of the Minister’s view that Charter s. 48 ruled out the application of Charter s. 28 to this Bill, SARC’s report will be the only official analysis of the Bill’s compatibility with the Charter that will be available for this week’s parliamentary debate. SARC noted some opposing considerations on this question:

The Committee observes that:

  • Charter s. 48 is limited to ‘any law applicable to abortion or child destruction’. The Bill is not (yet) law.
  • Charter s. 48 provides that nothing in the Charter ‘affects’ a law. Statements of compatibility have no legal effect.
  • Clause 10, in extending the definition of ‘serious injury’ in the Crimes Act 1958 to cover destruction of a foetus, goes beyond the current definitions of abortion and child destruction (which are presently limited to intentional conduct) to cover reckless destruction, threats to destroy, conduct causing danger of destruction, negligent destruction, and dangerous driving causing destruction of foetuses.

SARC, in any case, has a Charter reporting function under s. 17 of the Parliamentary Committees Act, which is not part of the Charter itself and therefore is not affected by Charter s. 48.

SARC’s report identified four issues of Charter concern with the Bill:

  • Decriminalisation of abortion: The Commitee observed that compatibility depends on whether or not foetuses have Charter rights (i.e. whether they are ‘human beings’ under Charter ss. 3(1) & 6(1)) and, if so, whether or not decriminalisation is a reasonable limit on any right of foetuses to have their life protected by the state under Charter s. 9. These questions are discussed by Germany’s Federal Constitutional Court, notably when unification raised the question of the constitutionality of East Germany’s very liberal abortion laws.
  • Potential criminalisation of late abortion: The Committee was concerned that the combination of: (1) provisions permitting late abortions ‘only’ where two doctors have a ‘reasonable’ belief that abortion is appropriate in the circumstances; and (2) a provision extending the criminalisation of intentional serious injury without ‘lawful excuse’ to include foetal destruction that was not in accordance with the Bill; might mean that doctors face the spectre of liability to serious prosecution if they make an unreasonable decision about the appropriateness of a late abortion. This may potentially be an unlawful interference in the right of patients to privacy under Charter s. 13(a).
  • Mandatory referrals: The Committee thought that a provision requiring doctors with a conscientious objection to refer patients seeking an abortion to doctors without such an objection might be incompatible with those doctors’ right not to be coerced away from practices informed by their beliefs under Charter s. 14(2).
  • Exemptions from the Charter: The Committee was also concerned that the extension of the definition of serious injury in the Crimes Act to include some abortions or child destructions may have the effect of exempting a number of major crimes from the Charter (pursuant to Charter s. 48).

It’ll be interesting, perhaps, to see whether the Charter features in the coming free debate and vote.

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