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Informed Consent

[ 0 ] May 8, 2007 |

Just to be clear, I’m not claiming that there’s any right answer to balances of aesthetic (or other) pleasures and health risks, that drawing broad inferences based on consumption patterns common among very different people is a sensible thing, that feminism mandates particular fashion choices, etc. It does seem that this demonstration of the effects of heels on a woman’s body is something that it worth knowing, though.

Smart and Good Lookin’

[ 0 ] May 8, 2007 |

As Rob notes below, TAPPED has completed a spanking new re-design, so check it out. I have a post about Rudy and the NRO up.

Take That Emm-Ess-Emm!

[ 0 ] May 8, 2007 |

One thing I don’t understand about the right-blogger gnashing of teeth about impoverished-homeless-man’s Erma Bombeck Jim Lileks’s column being spiked by the Strib (the best line among the many funny counter-reactions, in response to someone comparing Lileks to E.B. White (!): “I say, imagine E.B. White writing endlessly about his trips to the hardware store and the cute things his widdle girl says, and trying to get that past Harold Ross”) is why we’re supposed to care about someone losing their gig in the “horse and buggy” Old Media? Why, think of the countless opportunities waiting out there in the New Media Paradigms For Opinion Leaders And Tipping Point Type Audiences!

Take, for example, Pajamas Media. (Yes, it still exists; I’m as surprised as you are.) Apparently, they’ve decided that “60 tiresome I used to consider myself a Democrat, but thanks to 9/11, I’m outraged by Chappaquiddick‘ right-wingers who staked their credibility on a disastrous war plus Marc Cooper and some guy who reviews movie posters for signs of Liberalthink” is not in itself a winning strategy for an exciting media project. Not only have they finally taken a blog that had one post after Februrary 2006 off of their main site, check out this cutting edge gem providing things you’ll never find in the Dead Tree MSM or in 8 million Live Journal sites for free:

However, just because Peapies Design has bit the dust over in Pajamas Land, don’t think for a moment that Roger has stopped being stupid. Oh, no. My evidence? Now we have The Gleeson Blogomerate, one of Pajamas Media’s ‘new bloggers’ to remind us of what New Media is really all about…

And remember, Pajamas Media is paying for this!

The Gleeson Blogomerate ( is an amalgamation of the three separate blogs of the Gleeson family of Oklahoma City, Oklahoma. The three are as follows:

There’s the blog of Sean Gleeson (, who appears to be Pappa Bear in this story. Sean professes to be about ‘humor, art, politics and sundry’, although not all that often. He hasn’t posted since December 31, 2006.

Then there’s feebeeglee (, aka Phoebe Gleeson, who seems to be playing the role of Mama Bear. She’s doing ‘mothering, knitting, and family living’. To her credit, she’s far more industrious than Papa Bear, but unfortunately most of her posts appear to be rants about Jenny McCarthy and photos of small children with runny noses.

Finally, there’s holy family school (, the blog of Faith, Abby, Bede, Gil and Trixie Gleeson. I’m betting these are the Baby Bears. The site ‘is the homeschool of the Gleeson family in Oklahoma City, Oklahoma’.

Here’s the nitty: The Gleeson Blogomerate’s first post was on February 6, 2006. Between February 6 and May 15 of that year, the blog accumulated a grand total of 7 posts, at which time all posting ceased until December 23, 2006. Then, between December 23 and December 31, 2006 came another 7 posts. Either the entire family went into hibernation or took a very long walk while their porridge cooled, because blogging didn’t resume until April 27, 2007. All posts since then have come from Mama Bear.

Now don’t misunderstand me. I’m sure the Gleeson family are all very fine folks. Their family blog is no worse than hundreds of others just like it all over the internet. But what I can’t figure out is why anyone, much less the supposedly hard news and in-depth analysis providing Pajamas Media, would pay them for the product they have. Maybe it’s simply that The Raj hasn’t set foot in flyover country for 100 years: The Gleeson Family is like the My Own Antfarm kit he got back when he was swindling the other kids in 1st Grade… Something to stare at and attempt to understand while you drool on your pants.

So, can somebody lend me some cute baby pictures so I can slap ‘em up along with some rants about Daisy Fuentes and get some of that sweet, sweet venture capital? Given this business model, it’s not going to last forever…

Cooling Off

[ 0 ] May 7, 2007 |

I discuss this a bit in the post below, but I think this part of Jill’s post is worth emphasizing. She proposes a narrowly tailored remedy that that avoids the overbreatdth of Garance’s in a way that I think gets at the heart of the problem:

As Ezra points out, there are ways to combat that exploitation without focusing on the age issue. He suggests implementing some sort of informed consent standard, so that if an 18-year-old wants to be in a GGW video, she can be — she just has to consent to it when she’s sober and not being pressured in the heat of the moment. Someone elsewhere suggested some sort of 24 or 48-hour consent window — anyone who participates in the making of pornography (male or female) would have to sign a consent form 48 hours before or after filming, in addition to the release that they sign at the time of filming. I don’t see anything problematic about requiring that consent be given while sober and without pressure, either by having what Ezra describes as a “no recruiting for same-day porn videos at bars” rule, or a waiting period for consent. Several states have a waiting period for marriage licenses. Many states require some sort of waiting period for a birth mother to consent to adoption (generally three days, but as long as 15).

The idea of a “waiting period” raises red flags for me primarily because I associate it with abortion — but a waiting period for a medical procedure, which places substantial burden on individuals, is a little different from a pornographic image waiting period. Waiting periods, as far as I can tell, serve two purposes: (1) to guard against spur-of-the-moment decisions which may have extremely negative consequences if binding, and (2) to allow people time to think about a decision when the circumstances surrounding that decision change. Waiting periods for a valid marriage license make sense to me — they still let you get married, don’t impose a huge burden, but put guards in place against people who want to get married because they’re drunk and/or stupid. Waiting periods for adoption allow a birth mother to reexamine her situation when the circumstances of that situation change — i.e., when she gives birth and is faced with the reality of handing over her real live baby to another person/s. Abortion doesn’t fall into either of those two categories — people don’t get wasted and decide to abort for fun; nor are abortion waiting periods contingent on some sort of situational change. A waiting period for consent to have your image used or captured for pornographic purposes seems to fall under the first model of waiting periods — to recognize that the decision is a significant one, and should be made with a clear mind and without situational pressure. So it makes more sense to me than simply upping the age of consent, when 18 is already widely established as the age of adulthood for practically everything.

The correct analogy here is not to abortion waiting periods, which are 1)targeted towards a particular class of people assumed to be irrational, 2)are usually not really about informed consent but are part of broader regulatory schemes trying to prevent some classes of women from obtaining abortions altogether, and 3)biology makes time delays burdensome when it comes to abortion, whereas people’s private parts generally don’t vanish if people have to wait to photograph them. The right analogy is to the “cooling off periods” that are often applicable to high-pressure, seller-initiated transactions like telemarketing and door-to-door sales. These don’t necessary assume a priori that any class of people are irrational, but rather recognize that under pressure people will do things they will not do when given time to reflect. Combine with other measures like permitting people to void contracts to appear in sexually explicit material made when intoxicated or with otherwise impaired consent, this basically calls the bluff of the Joe Francises of the world. If this is simply women making a free choice–if not an “empowering” choice–it shouldn’t be necessary to ply women with alcohol, pressure them to sign unbreakable contracts under duress, etc. And if after 48 hours to reflect a woman still believes a contract signed with informed consent to be in her interest, that’s her right.

Good News!

[ 0 ] May 7, 2007 |

Bean has a good account of the successful push to stop a bad Oklahoma abortion regulation. Obviously, pro-choicers can’t just rely on the courts; every veto point needs to be put into play wherever possible.

The Readers Speak

[ 0 ] May 7, 2007 |

An excellent comment threads here. To respond to some points:

  • First, from the left, Mithras has some good points. He’s right, of course, that this policy involves “censorship”; what I meant is that it wasn’t general censorship of sexually explicit materials per se. (He was also right that I shouldn’t have used the term “age of consent”; to be clear, I certainly don’t advocate a 21-year-old age of consent, and neither does Garance; like Amanda, I read her as wanting to increase the ability of young adults to experiment sexually without worrying about consequences. We should attack these consequences, but they’re there for now.) I also don’t think that it would necessarily violate the First Amendment, unless the 18-year old limitation on distributing materials also violates it.
  • I do agree with Anderson that Garance’s specific defense of her remedy is far too close to Kennedy’s reasoning in Gonzales for comfort. (It’s not quite the same because it’s not exclusively applicable to women, but under current restrictions mostly male producers and female participants will be involved.) I don’t think it’s the best argument for her policy, but I do think that any policy premised on the idea that adult women have to be prevented from doing things they’ll later regret is unjustifiable. If there was actual evidence that women in this particular age group were significantly more likely to be harmed by contracts they didn’t give informed consent to, this might be different. But absent such evidence, I reiterate my belief that Garance’s remedy is overbroad and not sufficiently justified by evidence.
  • Meanwhile, from the right (or, more accurately, from the left-communitarian) flank, RAF questions both halves of my argument that if the “censorship of porn is necessary it won’t work and if it would work it’s not necessary.” I should say that my argument, like the Canadian Supreme Court, assumes that a liberal democratic state cannot violate free speech merely because sexually explicit materials offend traditionalist mores.
    It can protect harms that may come to particular individuals, but in the kind of patriarchal society that would produce large amounts of objectionable porn it is extremely implausible to think that government officials determining what materials are “dehumanizing” would be free from the patriarchal assumptions that largely structure the porn industry, and I believe that the Canadian case bears this out (and why Andrea Dworkin maintained that censorship was a bad remedy.) In a society sufficiently just that we could assume that government officials were immune from such assumptions, it is unlikely that sexually explicit materials would pose enough of a problem to justify state action. Moreover, Atrios is correct that censorship is particularly prone to arbitrary and abusive enforcement because (particularly if the standards are crafted in a way so as to exclude serious literature and scientific works) the standards will always be extremely vague. On that issue, I completely agree with Roy that “[e]xploitation, alas, exists. But this is no reason to fold the tent of liberty.”

…I think this remedy from zuzu is a better one: “Enforce the liquor laws, enable women who regret signing these things while drunk to void the releases later on the basis of being impaired, and require some minimum compensation for the use of their images. IOW, put the onus on Francis, et al. to ensure that the women appearing in his videos did so free from coercion, impairment or a raw deal.” Right. If women are choosing to do these things freely, there’s no reason they have to be drunk or there can’t be “cooling off” laws, etc. More from her colleague Jill.

Consent and Censorship

[ 0 ] May 7, 2007 |

There has been a lot of interesting discussion of Garance’s WSJ op-ed about raising the age of consent in the porn industry. I should say that I share Avedon and Roy‘s general libertarian perspective on the issue and probably end up in the same place as they do, but I think they’re being a touch unfair to Garance’s argument. Certainly, I agree (even leading aside the question of whether obscenity should be excluded from First Amendment protection, which has never been very persuasive to me) that if the censorship of porn is necessary it won’t work and if it would work it’s not necessary. Canada’s experience with R. v. Butler–in which a Supreme Court decision permitting censorship of sexually explicit materials only on explicitly feminist grounds was used primarily harass gay and lesbian and feminist bookstores–is instructive. Roy also makes a good point about how “[p]opular R-rated giggle-fests from Porky‘s to the American Pie movies are, to me, dirtier than a typical porn film, because they posit sex as something you get away with, like theft or vandalism,” although as Neil reminds us a lot of porn (which simultaneously celebrates and punishes female sexual expression) has a similar ethos.

Still, while I agree with these arguments on their own terms I think they’re a little unfair to Garance’s argument. She is not, after all, really advocating censorship; even the most hardcore civil libertarian, I think, recognizes the need for an age of consent, and whether this (inherently somewhat) arbitrary line should be drawn at 18 or 21 is surely debatable without threatening a slippery slope to Comstockery. The fact that Garance would exempt people whose images are sold from punishment would avoid the obvious problems that make, say, bans on prostitution so counterproductive. I’m still not convinced by Garance’s argument–I would need to know more about how much more likely 18 year-olds are than 22-year-olds to regret decisions to appear in sexually explicit material, whether it could be effectively and non-arbitrarily enforced (I would definitely oppose the policy change if Garance was right that it would be observed in the breach), and I would also prefer to try to more narrowly regulate coercive commercial exploitation before taking a larger step–but I don’t think increasing the age of consent for commercial use of sexual images is an attack on fundamental civil liberties.

Iraq Is A Big Elephant

[ 0 ] May 6, 2007 |

Henry, I think, has the best take I’ve read on Jon Chait’s netroots article. Chait’s take is actually pretty good in many respects, but is also marred by his unwillingness to believe that people might disagree with the positions of Democratic centrists for substantive rather than political reasons. In particular, Chait’s argument to a remarkable extent ignores the Iraq War, which as Henry correctly notes was “the most egregious example of the echo chamber that I’ve seen in recent history.” Atrios links to a Chait op-ed from 2003 that exemplifies the intellectual errors that Chait seems to attribute to the “netroots.” First, we have some strawman construction amid grossly premature triumphalism:

In the lead-up to the war against Iraq, liberal doves all made pretty much the same point, with some variation: However successful the conflict itself might be, the long-term diplomatic costs of alienating much of the world would outweigh any benefits. This prediction, while questionable, at least had the benefit of playing out over such an extended period of time that it could not be conclusively disproved until its adherents were all long dead. Alas, after the campaign hit a snag, many doves were unable to resist the temptation to crow over the supposed overconfidence of the war plan — and as a result looked silly a few days later when Saddam Hussein’s regime collapsed, to the apparent delight of most Iraqis.

This is quite remarkable. To state the obvious, “the diplomatic costs” are not the only potential costs here, and most critics didn’t doubt our ability to quickly defeat Iraq’s twelfth-rate military and depose Hussein. Rather, the most obvious potential cost was the cost of installing an Islamist quasi-state riven by civil war in Iraq, and the wholly predictable quagmire for American troops and resources (and the net negative for national security) that would ensue. To believe that a more liberal and similarly stable state would result from the invasion requires the belief that the Bush administration was capable of creating such a state ex nihilo from a country riven by sectarian conflict and with little in the way of civic institutions. Evidently, anybody who would trust the Bush administration to accomplish this would trust Lt. Frank Drebin to build a nuclear reactor. Anyway, it’s not just that Chait made an egregious misjudgment, but he wasn’t even asking the right questions, or engaging with anything like the strongest arguments of the critics. “Disarming” Hussein would not serve American security interests if anarchy resulted from the invasion, and so even a defense of the war that didn’t hinge on daydream believing about Iraqi democracy couldn’t avoid questions about Iraqi reconstruction.

Atrios has already highlighted his claim that the lack of evidence of WMDs prior to the war could not be considered a lack of evidence of WMDs. (As I’ve pointed out before, Chait also uses the grossly overinclusive “WMD” category to avoid explaining how, exactly, Hussein possessing some mustard gas would posed a significant threat to American national security.) We’ll return to this shortly. And finally, we have him ascribing motives to opponents of the war straight out of the Republican playbook:

Perhaps the most disheartening development of the war — at home, anyway — is the number of liberals who have allowed Bush-hatred to take the place of thinking. Speaking with otherwise perceptive people, I have seen the same intellectual tics come up time and time again: If Bush is for it, I’m against it. If Bush says it, it must be a lie.

Again, it’s not that people disagreed with Chait on the merits, it’s that they’re blinded by irrational Bush-hatred. He also fails to grapple with the most obvious problem with his assertion: the fact that most American liberal critics of the Iraq War supported the war in Afghanistan, which suggests that the mere fact that Bush supported something was not dispositive. Moreover, the implicit argument here that the competence and honesty of the Bush administration are somehow out of bounds when evaluating a preventative war whose desirability depended on either 1)claims about Iraqi weapons capacity that were not borne out in pre-war inspections or 2)assertions that the Bush administration could make Iraq a pro-American democratic model in the middle east is foolish. To once again return to d-squared:

Fibbers’ forecasts are worthless. Case after miserable case after bloody case we went through, I tell you, all of which had this moral. Not only that people who want a project will tend to make innacurate projections about the possible outcomes of that project, but about the futility of attempts to “shade” downward a fundamentally dishonest set of predictions. If you have doubts about the integrity of a forecaster, you can’t use their forecasts at all. Not even as a “starting point”. By the way, I would just love to get hold of a few of the quantitative numbers from documents prepared to support the war and give them a quick run through Benford’s Law.

Application to Iraq. This was how I decided that it was worth staking a bit of credibility on the strong claim that absolutely no material WMD capacity would be found, rather than “some” or “some but not enough to justify a war” or even “some derisory but not immaterial capacity, like a few mobile biological weapons labs”. My reasoning was that Powell, Bush, Straw, etc, were clearly making false claims and therefore ought to be discounted completely, and that there were actually very few people who knew a bit about Iraq but were not fatally compromised in this manner who were making the WMD claim. Meanwhile, there were people like Scott Ritter and Andrew Wilkie who, whatever other faults they might or might not have had, did not appear to have told any provable lies on this subject and were therefore not compromised.


The raspberry road that led to Abu Ghraib was paved with bland assumptions that people who had repeatedly proved their untrustworthiness, could be trusted. There is much made by people who long for the days of their fourth form debating society about the fallacy of “argumentum ad hominem”. There is, as I have mentioned in the past, no fancy Latin term for the fallacy of “giving known liars the benefit of the doubt”, but it is in my view a much greater source of avoidable error in the world. Audit is meant to protect us from this, which is why audit is so important.

I’m not convinced about the usefulness of generalizing about “the netroots” in general, but certainly any argument that fails to account for the Iraq War and the fact that so many idiosyncratic, independent liberal pundits fell for it because of the same failings they attribute to the “netroots” is inevitably going to have a huge hole in its center.

"It’s come to my attention that some people believe martinis are made with vodka."

[ 1 ] May 5, 2007 |

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Above: A drink that is not a martini.

Who says the Emm-Ess-Emm can’t tell hard, necessary truths?

Before we discuss the findings, though, we need to clear up a little matter. It’s come to my attention that some people believe martinis are made with vodka. I hate to get snobbish about it, but a martini should be made with gin or it’s not a martini. Call it a vodkatini if you must, but not a martini. Gin and vodka have as much in common hierarchically as a president and a vice president. Vodka can fill in for gin from time to time and might even be given certain ceremonial duties of its own, but at important moments you need the real thing. Vodka generally makes a poor substitute for gin in a martini or any other gin cocktail.

Certain truths are self-evident and among them are 1)drinks made with vodka are not martinis, and 2)Americans who pay 11 bucks a shot to drink a deliberately tasteless alcohol straight are wankers. Vodka’s place is solely as a mixer for drinks that don’t taste like drinks. I also like the fact that Asimov gets the minor premises right: if a drink has no vermouth in it, it’s not a martini. If only he had been covering the Iraq War

Legitmate Thee-yater Reporting

[ 1 ] May 4, 2007 |
  • I saw the much-raved-about, almost certainly Tony-winning Spring Awakening last night. The first half was objectively pretty awful–as you would expect based on the composer rather than the reviews, the Duncan Sheik music was third-rate generic mush, the high-density-of-cliches book little better–but for some reason (the will and energy of the cast, just being at the theater in good seats) I wanted to like it. My friend was less optimistic, and her instincts were much more sound. The second half was remarkably dire, featuring an embarrassingly flaccid and pretentious closing ballad and a forced attempt to rock out with carefully enunciated “fucked”s. Any goodwill I had vanished with the old suicide-as-an-inorganic-plot-device scam; like the undertones of sexual violence, it carried no emotional weight at all. It was appropriate that the same two actors played all of the repressive adult figures, since they were all indistinguishable anyway (although New York theatergoers unsure about where they stand on the great healthy sexuality vs. philistine late 19th century German repression question will I’m sure learn a Valuable Lesson.) Seriously, it was like Dead Poet’s Society: The Musical! except (if such a thing is possible) even less soulful and more crudely overdetermined. The puzzle for me is what on earth the slobbering critics saw in this crap. Are they just incompetent? Is there only experience with contemporary music in dentist’s offices and the occasional Starbucks? I don’t get it.
  • Seeing the bizarre gap between review and accomplishment also makes me upset about the lukewarm, imperceptive review the Times gave to Julian Shepard’s Los Angeles, which featured as part of the Flea‘s fine company of actors some obscure blogger. I would have written about it earlier, but I thought I had seen it on the last night; fortunately, is was extended another month, so it seems as if audiences found it anyway. Admittedly, the coke-fueled-decline-in-LA premise is scarcely more original, but it did something with it. Adam Rapp’s direction was imaginiative–Amelia Zirin-Brown’s torch song commentary was a particularly nice touch, and the deconstruction-of-the-Nice-Guy (TM) ending was a nice touch, particularly since endings in art about addiction is always difficult. Katherine Waterston–daughter of Sam–was in every scene, and she will be very interesting to watch. The play was structured as a series of individual scenes with someone who feels protective of the insecure lead character but can’t help exploiting her vulnerabilities anyway–which placed demands on the actor to implicitly provide the information about the character we learned or will learn but wasn’t evident in that particular interaction. She did this very well; Roy told me that her performances gave something more powerful to react to as the show ran on, and I believe it; it was a thoughtful, detailed performance. Seeing this as a tiny TriBeCa theater is certainly a better part of the NYC theater experience than the white elephant musical.

The Problem With the Anti-Choice Ultrasound Policy

[ 0 ] May 3, 2007 |

To follow-up on my recent post about William Saletan running interference for anti-choice ultrasound policies, NTEW explains in further detail why the moral inferences Saletan draws from ultrasounds don’t actually follow, a persistent problem with his arguments on the subject. One is reminded of another recent definitive episode in wingnuttery, in which the fact that Terri Schiavo’s involuntary movements and facial expressions were erroneously treated as evidence of consciousness:

Of course, nothing is morally significant about squirming — ours or the fetus’. What is significant is whether the fetus has a mind like ours. If it has no mind, or a mind of such a primitive level that it can’t even feel pain, there’s no reason to have attitudes of moral concern for it. The neural hardware for pain perception only starts to show up around week 23, and isn’t in place until week 30 of the pregnancy. So having moral concern for a first-trimester fetus on the basis of the squirming you see in an ultrasound is a mistake.


For my part, I think there’s room in the world for paternalism, but if you’re going to be a paternalist you need to be better-informed and more rational than the people you’re trying to impose your paternalistic requirements on. By letting his own squirming get the better of him and push him to support a useless and expensive procedure, Saletan fails this test. Instead of requiring ultrasounds before abortions, perhaps we should require him to reread the medical research on fetal pain before he does any more punditry.

I would also add that if paternalism is to be acceptable, it cannot treat men and women differently as a class, so it should also be common for male-exclusive surgeries (like vasectomies, say) to be subject to a wide array of regulations premised on the idea that most people who obtain them are irrational and should be dissuaded from obtaining the surgeries in question. Needless to say, this is unlikely to happen.

Of course, Saletan claims that he favors only voluntary, state-funded ultrasounds, which are in theory much less objectionable (whether or not Neil or I think that ultrasounds provide useful information, women can certainly look at them if they choose to do so.) But there remain two problems. First of all, he never bothers to ask why these proposed regulations generally don’t come with funding attached, and are also part of a wide array of regulations which make abortions more expensive and time-consuming to obtain and/or provide. (He always seems to accept the good faith of anti-choicers, no matter what the evidence, in ways he would never dream of doing for pro-choicers.) And even if his magical pony plan rather than the regulations that might actually pass were enacted, we still need to know how this fits into the scarce resources of our medical system. What medical services does Saletan propose to cut, or taxes Saletan propose to increase, in order to pay for this very expensive and largely useless information? These are questions to which I’m not anticipating answers.

Buy maybe I’m being too harsh. He has, after all, shown signs of recognizing that when American “pro-lifers” are presented with a conflict between preventing unwanted pregnancies (and hence fetal life) and regulating female sexuality they will almost always choose the latter, even when they’re presented with the innovative pro-contraception policies Saletan originated only 60 years after the founding of Planned Parenthood. Maybe in a year or two he’ll briefly realize he’s being played for a sucker yet again.

Bertha Wilson (1923-2007)

[ 0 ] May 2, 2007 |

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The feminist Canadian jurist Bertha Wilson passed away last week. Wilson was the first woman appointed to the Supreme Court of Canada (by Pierre Trudeau in 1982, the same year the Charter of Rights and Freedoms was ratified.) See also Pithlord and zuzu. I discussed her concurrence in the 1988 case R. v. Morgentaler, which struck down Canada’s federal statute criminalizing abortion here. A quote from the case would seem a fitting epitaph:

Given then that the right to liberty guaranteed by s. 7 of the Charter gives a woman the right to decide for herself whether or not to terminate her pregnancy, does s. 251 of the Criminal Code violate this right? Clearly it does. The purpose of the section is to take the decision away from the woman and give it to a committee. Furthermore, as the Chief Justice correctly points out, at p. 56, the committee bases its decision on “criteria entirely unrelated to [the pregnant woman's] own priorities and aspirations”. The fact that the decision whether a woman will be allowed to terminate her pregnancy is in the hands of a committee is just as great a violation of the woman’s right to personal autonomy in decisions of an intimate and private nature as it would be if a committee were established to decide whether a woman should be allowed to continue her pregnancy. Both these arrangements violate the woman’s right to liberty by deciding for her something that she has the right to decide for herself.


I agree with my colleague and I think that his comments are very germane to the instant case because, as the Chief Justice and Beetz J. point out, the present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.