Canada: The Civilized Outlaw
By Joyce Arthur

The following is based a presentation given by Joyce Arthur, Director and Spokesperson for Canada's Pro-Choice Action Network, at the FIAPAC conference (www.fiapac.org) in Vienna Austria, on September 10, 2004. In it, the author draws attention to the benefits of the unusual legal context for abortion in Canada.

Introduction

Canada is one of only four countries in the world that have no laws restricting abortion. (The other countries are China, North Korea, and Vietnam.) I am very proud that Canada has no laws, because it has resulted in pretty good access to abortion services for Canadian women in a fairly short period of time, and it has also increased public support for abortion. Abortion is considered to be a settled issue in Canada. I will provide a very brief history of why Canada has no law on abortion, and what the positive results of that have been. Then I will discuss what is wrong with laws that restrict abortion.

Canadian abortion law history

• Prime Minister Pierre Trudeau passed liberalized abortion law in 1969.
• Committee of doctors approved hospital abortions if woman's life or health in danger.
• Resulted in poor and unequal access for women, arbitrary obstacles, and delays.
• 1968 to 1988 - Dr. Henry Morgentaler performed illegal abortions, opened clinics, arrested many times.
• He was acquitted by juries four times, but a judge sentenced him to jail anyway.

Pierre Trudeau was one of our greatest Prime Ministers, best known for giving Canada its constitution, which guaranteed equality for women. That equality clause has helped a lot to protect women's right to abortion. This liberalized abortion law meant that abortion was still not a woman's decision. She still couldn't get one at most hospitals, unless she lived in a big city. Abortion clinics were illegal. Dr. Henry Morgentaler is a brave individual who through his practice as an abortion doctor almost single-handedly, gave women the right to abortion on request.

Supreme Court ruling

• Jan. 28, 1988 - Supreme Court of Canada repealed the abortion law.
• The Court said abortion is a constitutional right based on women's:
• "security of the person"
• "right to life"
• personal "liberty"
• "freedom of conscience"
• Court did not cite women's "right to equality", but later court decisions on abortion did.

In 1988 the Supreme Court of Canada threw out the entire abortion law because it discriminated against disadvantaged women, many of whom were unable to access abortion services.

Some of the Supreme Court judges wrote some very nice language in that decision. For example, one said: "The right to liberty…guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives. ... Liberty in a free and democratic society does not require the state to approve the personal decisions made by its citizens; it does, however, require the state to respect them." Shortly after, the Canadian government tried to pass a new law against abortion, one that would put doctors in jail for two years for performing abortions. There were massive protests by women across the country, with the slogan "No New Law!" The new law failed to pass, and the government said it would not try to legislate abortion again.

Access improves with no legal restrictions

• Abortion services are managed under the Canada Health Act.
• Abortion is "medically required" and funded.
• Abortion services are less isolated from mainstream medicine.
• Many doctors integrate abortion into their general practice.
• Many new abortion clinics - about 45% of abortions now done in clinics.
• High public support for abortion rights.

The Canada Health Act is a law that guarantees to Canadians fully-funded health care. Abortion is managed under that Act, which means that abortion must be provided in the same way as any other necessary health service. For example, it must be performed by a doctor, it must be accessible to all Canadians, anywhere in Canada, and it must be funded.

Support for abortion has been growing since 1988. A survey taken in 2002 found that 78% of Canadians agree that: "Women should have complete freedom to decide to have an abortion."

Abortion availability

• In 1988, Canadian Medical Association recommended abortion on request up to 20 weeks after conception.
• Today, abortions on request performed to 22 weeks LMP (last menstrual period).
• Abortions available to 24 weeks LMP for genetic abnormalities, desperate social circumstances, and to protect maternal health.
• Abortions available after 24 weeks LMP for lethal genetic abnormalities, and for compelling maternal health reasons.

The reason that the Canadian Medical Association prefers that doctors do not perform abortion on request after 20 weeks, is because the fetus might be viable then. But there are no penalties for doctors who do not comply with this policy. There is very little demand for late abortions.

Abortion statistics

• 105,104 abortions in 2002
• 15.4 abortions per 1000 women (15-44)
• 32 abortions per 100 live births
• 90% by 12 weeks gestation, 98% by 16 weeks
• About 30% of all Canadian women have at least one abortion in her lifetime
• About 75% of all women use contraception (not counting abstinence)
• Maternal mortality rate of 0.01%

Canada's abortion rate compares reasonably well to other western countries. It is higher than countries like Holland, but lower than the United States. Abortion rates have increased since the old law was thrown out in 1988, but that's because of better access and less social stigma.

It is important to have an abortion as early as possible of course. Almost all abortions in Canada are performed early because there are no legal barriers to quick access. In the United States, many states have waiting period laws and parental consent laws. This simply delays the procedure, causes unnecessary stress to the patient, and increases the medical risk

Canada has a very low complication rate for abortion, about 1-2%, mostly minor complications. We don't need criminal laws to force doctors to practice good medicine! In fact, such laws are more likely to foster bad medical practice. For example, a law prohibiting a particular abortion technique might mean that the doctor must use a procedure that is riskier for that patient

Outstanding problems

• About 80% of hospitals don't perform abortions.
• Several private abortion clinics still not fully funded.
• Anti-abortion harassment and violence
• Some hospitals have:
• long waiting lists
• requirement for doctor referrals or approvals
• quotas or gestational limits
• anti-abortion staff who misinform or judge

Women still have problems accessing abortion, because abortion is still somewhat politicized.

Having no laws against abortion helps a lot, but active government that supports improving services is needed. However, most of our current problems are gradually being solved - and they are NOT caused by having no laws against abortion. Our progress would be much slower if we had abortion restrictions.

Judicial protections

• Women's equality guaranteed under Canada's constitution.
• Canadian courts have consistently protected women's right to abortion.
• Many court cases by anti-choice protesters have failed to give rights to fetuses.
• Fetuses are not legal persons until they completely exit from birth canal, alive.
• Male partners cannot force a woman to have a baby.

Over and over again, the courts have upheld women's complete right to abortion; women are legal persons, fetuses are not. One court decision ruled that a woman and her fetus are considered "one person" under the law.

Judges have said they cannot give any rights to fetuses, because that would infringe on women's established equality rights under the constitution.

The trouble with laws

• Restrictions against abortion are leftover artifacts from the days of criminal abortion.
• They institutionalize the stigma of abortion.
• They stop abortion from being fully integrated into the healthcare system.
• They breed hypocrisy and disrespect for the law.
• Laws against abortion are fundamentally unjust:
• They reduce access in various ways
• They violate the human rights of women

Abortion was a criminal act in most countries not too long ago. It takes time for the stigma of abortion to go away. But as long as there are continuing restrictions against abortion, that stigma will never go away. No other medical procedure carries with it the threat of criminal punishment. Abortion is singled out for special treatment - or I should say "shameful" treatment

Laws restrict access by…

• Creating arbitrary obstacles and delays
• Marginalizing abortion services
• Isolating abortion providers outside the medical mainstream
• Shifting focus away from basic healthcare
• Disrespecting professional medical judgments made in the patient's best interests
• Threatening health workers with prosecution
• Making abortion a political target for legislators, anti-abortion lobbyists, and extremists

Laws against abortion have many negative and cruel consequences. Laws take the abortion decision and the abortion procedure out of the hands of women and doctors, and give it to legislators. In other words, women and doctors cannot be trusted. Laws imply that abortion must be restricted because it is wrong and bad, and the people who need or perform abortions are also wrong and bad.

These laws produce hypocrisy and disrespect for the law, because women and doctors are forced to find ways around the laws. They will often skirt these laws, or even disobey them. Because no law will change the fact that a woman desperately needs and wants an abortion, and a doctor wants to help her.

Laws hurt women by…

• Violating women's equality rights, because only women can get pregnant
• Affecting disadvantaged women the most
• Rejecting women's moral reasoning
• Distrusting women to make their own decisions about their lives
• Protecting fetuses instead of pregnant women
• Punishing women for having sex for pleasure
• Punishing women for "shirking" motherhood

Women are different than men because of their capacity to bear children. Childbearing has a much more profound effect on women's lives, than for men. To truly achieve equality with men, women must not be disadvantaged under the law because of pregnancy. There should be no laws regulating pregnancy, because that puts a special obligation on women but not men.

Laws against abortion tend to have the worst effect on women who are poor, young, immigrant, uneducated, and so on. Laws end up being discriminatory, even if they weren't meant to be.

These laws are meant to reduce the incidence of abortion, but instead, they put cruel obstacles in front of a woman. Laws turn them into criminals, or state-controlled baby-making machines. These laws also insult women, because they say that women are not capable of making the most important decisions about their own lives. A paternalistic government (or a doctor) has to decide for them.

The way to reduce abortion is to make contraception universally accessible, teach responsible sex education, and give people positive incentives to raise kids, such as financial bonuses and family support programs.

The state has no legitimate interest in protecting the fetus at any stage, except to provide social and medical resources to pregnant women to ensure good outcomes for their pregnancies ("good outcomes" include abortion). It's pregnant women who are in the best position to take care of their fetuses and make decisions on behalf of their fetuses, not the state.

Patriarchal assumptions

• Motherhood is a woman's highest calling.
• All women should be (and want to be) mothers.
• Women must sacrifice themselves to raise kids.
• Women must endure the discomfort and pain of pregnancy and childbirth without complaint.
• Women who have abortions are "bad" or "victims."
• Women are irresponsible - or too emotional. They need direction and guidance like children.
• Women who have abortions suffer psychologically (at least they should).
• To "protect" women, we must restrict abortion.

These beliefs are the root cause of all abortion restrictions, and they form the basis of the anti-abortion viewpoint. The main anti-abortion goal is not to "save babies". It is to keep women in their traditional roles.

Unfortunately, even many pro-choice people hold some of these views to some extent. Such views are not usually stated out loud, or even realized on a conscious level.

Outdated traditions

Laws against abortion rely on tradition:

• Pro-natalism - preference for birth over abortion.
• Right to have babies is unquestioned and unrestricted, but abortion is frowned upon.
• Children are treated like possessions of parents, instead of individuals with rights.
• Church, God, and Bible are anti-abortion.

This traditional thinking no longer works for our modern society with its focus on human rights. Why should we favour birth over abortion when we live in an overpopulated world; when society will never reach agreement on the moral status of the fetus; when we know that unwilling mothers and unwanted children tend to suffer; and when becoming a parent should be the private decision of the woman and her family.

Many people may not be ready or able to provide properly for a child. But children have rights, and they deserve respect, love, and the best chance at a good life. Of course, the right to have a child is fundamental and should not be restricted. But abortion is also a fundamental right on an equal basis.

Churches and religious doctrines should never dictate how we live our lives in a secular society with secular laws. Besides, the Bible is pro-choice! Several passages say it is better to die in the womb than live an unhappy or wicked life.

Solutions?

• Guarantee women's equality in constitution.
• Lobby government against abortion laws.
• Collect evidence of laws' harms, find plaintiffs, challenge laws in court.
• Empower women in society (change public policies).
• Change patriarchal attitudes about women and motherhood (write, publish, speak).
• Change rhetoric: Abortion is a moral and positive choice. It liberates women, saves lives, and protects families. Abortion is not a "necessary evil."
• Prioritize childcare and child-rearing as a universal concern, not a "woman's issue."

Some of these proposed solutions are obviously very difficult and would take many years. But you have to start somewhere.

It is so important that the laws or the constitution of your country give women equal rights, because that can be used to strike down abortion restrictions. When women's equality is guaranteed under the law, then public prejudice against women and abortion cannot be as influential, and will gradually decline.

To conclude, we don't need any laws against abortion at all. We can trust women to exercise their sensible moral judgment; we can trust doctors to exercise their professional medical judgment, and that's all we need to regulate the process.