Tremblay v. Daigle (1989)
-Lived together 5 months; separated partly because of Tremblay’s violence
-Daigle 18 weeks pregnant; wanted an abortion
    -went to Que Sup Ct to request injunction to stop abortion.
    -Argued fetus is “human being” under Que Ch of HR & Frs, and under Que Civil Code
-Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence
-Daigle appealed to Que Ct of Ap & lost.
-At 21 weeks pregnant, applied for lv to ap to SCC.  SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8
-4 intervenors on each side
-just after lunch break, D’s lawyer announced D had just had an abortion.  Even though moot, wanted ct to continue
-Ct continued.
-Court announced decision “from the bench” after hearing:  Daigle won.  Reasons came later
-Decision “of the court.”  All 9 judges participated
-even though Que civil code provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive.
-A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter
-Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses.
-Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion.
-Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action.

Gavigan article

-Critical legal theory:  law and the courts are instruments of oppression and tend to protect the status quo.  The law should not be relied on to promote progressive social change.
-Michael Mandel; Judy Fudge
-different feminist perspectives (liberal, socialist, critical)
-Carol Smart:  British feminist legal theorist who is also a critical legal theorist, but Gavigan notes some moderation.  Smart advocates avoiding using law to promote women's equality, because law tends to preserve unequal power relations that subordinate women.  However, she admits that "the state" includes a variety of "interests and regimes."

Gavigan argues that when feminists use the law to achieve certain objectives, they often find themselves in contradictory positions.  In Morgentaler, the feminist groups that supported Morgentaler took the position that the criminal law ought not to regulate abortion.  Their position was that abortion ought to be a matter regulated by the provinces as a health matter, and that no criminal law could pass Charter muster.  Although Morgentaler won, this was not really a victory for feminists, because the majority were of the opinion that a criminal law, properly framed, could comply with the Charter.

Even provincial regulation did't always help the feminist cause that supported a woman's right to an abortion.  In B.C., Alberta, Nova Scotia and New Brunswick the provincial governments created regulations that restricted access to abortions so that the situation wasn't really any different than before Morgentaler, and sometimes worse.  These restrictions were challenged in court, with the support of feminist groups that intervened.  But they were forced to argue that the provincial regulations were ultra vires because they trenched on the federal government's criminal jurisdiction.  In other words, in order to win the cases, they had to argue something they didn't believe in -- that only the federal government could regulate abortions through the criminal law.

There's an important lesson here.  When human rights issues are taken to court, they have to be framed in purely legal terms.  In the debate about abortion, many relevant aspects are not legal issues.  They relate to moral issues, or issues related to access, poverty, or responsibility in relationships.  However, they have to be framed as legal issues, and that framing often distorts the issues themselves.

Gavigan seems to argue that feminist groups wishing to pursue legal issues through courts can sometimes be successful, but they need to be aware of the potentially contradictory positions they might end up taking.  As well, they should never devote all their energy to the courts, and forget about trying to change public opinion in other ways.  While the feminist groups were focusing on litigation, groups opposed to their views were focusing more on public opinion campaigns, and making headway.  In the end, it's elected legislatures that need to act, and arguably they react more to public opinion than to (possibly contradictory) court decisions.