Federalism and Pregnancy Benefits: Dividing Women
40 Pages Posted: 2 Jan 2007 Last revised: 30 Apr 2015
The author argues that the doctrine of federalism has frustrated women's identities as citizens. Identifying exclusivity as the prevailing doctrine of federalism and concurrency as the exception, the author shares her view that neither doctrine is acceptable because both divide women. Should judges decide they do not want the responsibility for dividing women, she claims, they should adopt a doctrine of federalism based on equity that shapes women's identities as national and provincial citizens.
The author reviews three Supreme Court of Canada decisions to illustrate what she labels as the Court using the doctrine of federalism to shape women's citizenship. Each case was decided according to the doctrine of exclusivity. R. v. Westendorp, Bell Canada v. Québec (Commission de sante et de la sécurité du travail du Québec) and R. v. Morgentaler demonstrate the impact of the doctrine of exclusivity on the regulation of street prostitution, the protective reassignment of pregnant workers and the privatization of abortion services respectively.
A particular focus is placed on a Supreme Court of Canada decision known as the EI case. The Quebec government unsuccessfully challenged, under the federal-provincial division of powers, the pregnancy and parental benefits provisions of the federal Employment Insurance Act. The doctrine of exclusivity, by precluding concurrency, prevented Quebec women from taking advantage of the superior benefits available under Quebec's legislation. Relying on federalism, the Court incorporated women as national rather than provincial citizens. The author then explains how the prevailing doctrine of federalism conceives pregnancy as dividing women and describes what she calls the Women's Accord, which seeks to award jurisdiction to governments that have proven responsive to women's claims. She advocates developing a new, more encompassing doctrine of "equity federalism" that would allow any statute enacted by either level of government to be upheld as constitutional provided that the legislation benefits women or another equity group.
Keywords: federalism, pregnancy benefits, women
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