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.