ADVOCACY & POLICY ADVICE
A Legal Victory Is Not Enough:
The "G" Case Ruling
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PROGRAMS & SERVICES: ADVOCACY & POLICY ADVICE A Legal Victory Is Not Enough: The "G" Case Ruling |
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This article originally appeared in WOMANLY TIMES, the Women's Health Clinic newsletter, Winter 1997/8 issue. A Legal Victory Is Not Enough:The "G" Case Ruling The Supreme Court is a traffic light. Its function is to prevent rights from colliding, to navigate legal intersections, and ensure smooth travel on the road of life. On October 31, 1997, the Court pushed the red light when it refused to grant Winnipeg Child and Family Services the right to detain pregnant women in drug treatment programs. Seven of the nine judges rejected the appeal; two dissented. What the Court said is that the problem of how to get pregnant addicts into treatment is not an issue for courts, but an issue for legislators. The case is a clear victory for the reproductive rights movement because the court didn't side with the Alliance for Life, the Evangelical Fellowship of Canada, and the Catholic Group for Health, Justice and Life and other anti-abortion groups who wanted the court to set a legal precedent that could be used to stop women from having abortions. "A pregnant woman and her unborn child are one," noted Justice Beverley McLachlin, speaking for the 7-2 majority, "and to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be." What is less clear is what we, as a society, do with a ruling that seems to give pregnant women the right to use sniff or other addictive substances during pregnancy. This ruling didn't provide a remedy; it merely stopped CFS from doing the wrong thing for the right reasons. The ruling won't create province-wide prenatal programs for high-needs women, it won't eliminate waiting lists at treatment programs for people addicted to sniff or anything else, and it will do nothing to address the effects of generations of cultural genocide on aboriginal people. On the other hand, giving CFS the right to force pregnant women into treatment wouldn't have done those things either. This case is, in many ways, a symbol of society's failure. Though it was clear that Ms. G's life was the epitome of neglect and poverty, the only issue the court could rule on was Child and Family Services' quest for the power to force a pregnant addict into treatment. It was also clear that CFS's past remedy for Ms. G's addiction - removing her children from her care - failed to deal with the problem. Other notable failures included the fact that Ms G had attempted to get treatment in the past but was refused or put on a waiting list. What we are left with is a ruling that has told us what we already knew - that the fetus and the woman are inseparable as far as their rights are concerned. The court also said that it wasn't clear whether forcibly detaining addicted pregnant women would prevent injuries to their fetuses or cause further injuries. We did learn a few things though. We learned the effects of solvents on pregnancy: low birth weights, developmental delays, increased miscarriages and premature births. We also found out that less low-class substances - like alcohol and tobacco - pose as great or greater threats to fetuses than sniff. Many aboriginal women were ambivalent when CFS first sought to detain Ms. G. On the one hand, many resented the intrusion of Child and Family Services, but they also wanted treatment programs so that women with addictions could deliver healthy babies and be prepared to care for them. Ms. G is a courageous woman who chose to take control of her addiction and not rely on the court to determine her life. The Court has wisely returned the issue to the public policy agenda. Now, the Women's Health Rights Coalition - a coalition made up of the Native Women's Transition Centre, Metis Women of Manitoba and the Women's Health Clinic and others that intervened at the Supreme Court - has vowed to pick up where Ms. G left off. The coalition asked the Court to recognize the responsibility of legislators to provide adequate addiction services, in effect, asked it to fix the appalling road conditions that brought Ms. G to its doorstep. The Court didn't go that far, but it did leave it to the legislatures to "arrive at a solution" to the problem of harm caused by addictions during pregnancy. An enlightened legislature will read this as a signal to fund province wide prenatal and addictions services for poor women until there are no waiting lists. Penni Mitchell is Co-ordinating Editor of Herizons Magazine and a former member of the Board of Directors of Women's Health Clinic. This article appeared in her weekly column in the Winnipeg Free Press. Quotes from the majority decision of the. Supreme Court
"…If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women." " further problem arises from the fact that lifestyle "choices" like alcohol consumption, drug abuse, and poor nutrition may be the products of circumstance and illness rather than free choice capable of effective deterrence by the legal sanction of tort...Treating pregnant substance abusers as fetal abusers ignores the range of conditions that contribute to problems like drug addiction and lack of nutrition, such as limited quality pre-natal care, lack of food for impoverished women, and lack of treatment for substance abusers…" The full text of the decision can be found on the Web site of the Supreme Court of Canada: www.lexum.umontreal.ca/csc-scc/en/rec/index.html. The factum/brief presented by the Women's Health Rights Coalition is available from the Web site of the Women's Health Clinic: http://www.womenshealthclinic.org/ or at the Women's Health Clinic Resource Centre. For further background see "Considering the G Case: What are the Costs of Compulsory Treatment Orders for Women, their Families and Society?", Womanly Times, Spring, 1997. |
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