The power of law

  • June 11, 2019
  • Jennifer Taylor

NOTE: This article originally appeared on The Lawyer’s Daily website, published by LexisNexis Canada Inc., on May 30, 2019.

A story about free tampons can say a lot about what a legal system values.

Last month, British Columbia’s Minister of Education issued a Ministerial Order requiring school boards to make menstrual products available to all students (of all genders) who may require them. In a news release, Minister Rob Fleming said, “This is a common-sense step forward that is, frankly, long overdue,” noting that one in seven students have missed school because they did not have access to menstrual products, and haven’t been able to participate in sports or other extra-curricular activities either.

This story is a good example of how feminist aims — here, the goal of barrier-free access to period products — can be embedded into our legal system, by something as simple as a ministerial order.

The federal government may now follow BC’s example by providing free menstrual products in government workplaces. (It’s not just PM Trudeau’s feminist government that has delved into period policy – Stephen Harper’s Conservatives were in power when the GST was removed from menstrual products back in 2015, although this policy change began with an NDP motion.)

These government actions reflect an understanding that citizens need control over their own bodies to live the lives they want to lead, and that the law is a valuable tool to achieve this objective. We need governments to legislate, and courts to make decisions, in ways that give real meaning to rights – and to ensure people can access the services that are necessary to exercise this control, without shame or stigma. Sound familiar?

Yes, I’m talking about abortion now. (Every conversation these days comes back to abortion. How can it not?)

Over the last few years, there has been a positive trend of Canadian governments increasing access to abortion. Since 2016, abortion has once again been available on PEI, following a constitutional challenge to the province’s longstanding refusal to provide the service. In 2017, the Nova Scotia government admitted there was no legal basis for the physician referral requirement for abortion, and started a self-referral hotline. In April 2019, Health Canada lifted the requirement for an ultrasound to be performed before Mifegymiso (the combination of two medications used to terminate pregnancy) could be prescribed.

Just last week, the Court of Appeal for Ontario upheld the College of Physicians and Surgeons “effective referral” policy, which ensures that physicians who have religious objections to providing abortion and other (allegedly controversial) medical services must refer patients to a willing provider.

And yet, it’s hard to celebrate for too long. These gains feel too fragile.

That’s because, in many parts of the United States, the law has been weaponized against reproductive rights. Alabama, as we know, has just passed legislation that would ban virtually all abortions in the state (fingers crossed a court will grant injunctive relief to block the law from coming into force). Several states have passed statutes that will outlaw abortion after the six-week mark, when most folks don’t even know they’re pregnant (don’t fall into the trap of calling these “heartbeat bills” unless you think an entity the size of a pomegranate seed can have an actual functioning heart).

The list goes on – and on, and maddeningly on. The anti-abortion legislators and activists behind these laws know they’re all unconstitutional as U.S. law currently stands, but hope their efforts will trigger litigation all the way up to the U.S. Supreme Court, where they think the court will overturn Roe v Wade and Planned Parenthood v Casey.

I mean, the Handmaid’s Tale comparisons write themselves. As Jill Filipovic has recently argued in Vanity Fair, abortion bans reveal that what these state governments really value is controlling women.

But, as a simple Canadian story about free period products can show us, the law doesn’t have to be a force for evil. Government policy doesn’t have to be a front for misogyny. Court decisions should reinforce rights, not purport to take them away.

We are lucky in Canada to have relatively robust protections for reproductive rights. But there’s a federal election around the corner, and there are politicians and groups in this country who want to make Canada the new Alabama. We can’t let that happen.

If there is a common thread to these stories from both sides of the border, it’s that the law is what we make it. So let’s make it feminist.

Jennifer Taylor is a research lawyer with Stewart McKelvey