4 Yale J.L. & Feminism 93 (1991-1992)
An Equality Approach to Reproductive Choice: R v. Sullivan

handle is hein.journals/yjfem4 and id is 99 raw text is: An Equality Approach to
Reproductive Choice: R. v. Sullivan
Lynn Smith
I. INTRODUCTION
The regulation of women's sexuality and reproduction is best
approached as a fundamental arena of gender conflict in which women
and men have competed for the control of women's bodies.
Reproduction of the species has traditionally been seen as women's primary
function, to be exercised for the benefit of men or for society as a whole, as
defined by men. The legal treatment of women with respect to reproductive
issues has both reflected and perpetuated that traditional view. One approach
that challenges the hegemony of the traditional view is based on an individual
woman's right to choose, whether the choice relates to termination of
pregnancy or to medical treatment and personal habits during pregnancy. This
approach is founded upon considerations of liberty and privacy. Another
approach is based on women's right to equality, founded on considerations of
the economic, political, social and overarching cultural contexts in which
women become pregnant, are pregnant, require termination of pregnancies,
carry pregnancies to term, give birth and raise children. This approach may
challenge the hegemony of the traditional view in more fundamental ways than
does the liberty approach, and therefore may be more effective. For the same
reason, it may be more difficult to argue successfully in a society which places
strong emphasis on individual liberty and less emphasis on social equality.
In Canadian Supreme Court reproductive rights cases, arguments based on
equality have been presented with some measure of success. R. v. Sullivan2
is one such case. The issue in Sullivan was whether two women who were
t  Lynn Smith is Dean of the Faculty of Law at the University of British Columbia. She is a founder
and former President of the Women's Legal Education and Action Fund (LEAF), a national organization
devoted to litigation and law reform initiatives to promote equality for women. She has published
extensively on the impact of the Canadian constitutional guarantee of equality rights for women. At the
Conference Feminism in the 90s: Bridging the Gap Between Theory and Practice, Ms. Smith spoke on the
Reproductive Issues panel about the equality argument for reproductive choice in Canada. The equality
argument is articulated in the factum LEAF filed in the Canadian Supreme Court case R. v. Sullivan,
reprinted here with a comment by Ms. Smith.
1. Sheilah.L. Martin, The Control of Women through Gender-Biased Laws on Human Reproduction,
in CANADIAN PERSPECTIVES ON LEGAL THEORY 291, 293 (Richard F. Devlin ed., 1991).
2. 63 C.C.C.3d 97 (1991) (Can.).
Copyright 0 1991 by the Yale Journal of Law and Feminism

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