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It's Time to Talk about Abortion
Alone among developed countries, Canada has no abortion law. Is 'settling' for a non-decision any way for a democracy to behave?

This is not about abortion. This is about democracy.

The furor over Henry Morgentaler's appointment to the Order of Canada, on the other hand, now that is about abortion.

It is about how we decide things, and by what rules, and how we treat each other when we disagree. Indeed, it is about whether we are allowed to disagree; whether dissent on a contentious issue is respected, or even recognized; and whether, in the face of clear evidence over many years that an issue is not settled — that it was never settled — a democracy should be allowed at last to debate and decide it. Like a democracy.

The furor over Henry Morgentaler's appointment to the Order of Canada, on the other hand, now that is about abortion. There may be some who object out of a disinterested concern for fairness, on the principle that an honour bestowed on behalf of all of the people of Canada should not be given to a man whose life's work is, still, so profoundly upsetting to so many Canadians. But for most people, it's about abortion. In honouring him, we are honouring it, normalizing it, stamping it with the seal of approval.

Or rather not abortion, as such, but the legal void that surrounds it, which Morgentaler did so much to bring about: the extraordinary fact that, 20 years after the Supreme Court ruling that bears his name, this country still has no abortion law of any kind. It isn't that abortion — at any stage of a pregnancy, for any reason, and at public expense — is lawful in Canada. It is merely not unlawful. When it comes to abortion, we are literally a lawless society: the only country in the developed world that does not regulate the practice in any way.

Perhaps the members of the Order's advisory council thought the continuance of this legal void, after so many years, signalled a consensus had formed in its favour. Perhaps they thought, by naming Morgentaler, they could impress one upon the country. Either way, the decision was revealing — as was the reaction. The letters pages of the country's newspapers were filled for days with passionate denunciations. Members of Parliament spoke out against it by the dozen. Several members of the Order returned their pins.

One had the distinct impression of a dam bursting. For the better part of two decades, Canadians who confess a desire for some sort of legal limits, however mild, on abortion, have been effectively silenced. They have been told that the issue is settled, that it was decided long ago, that a consensus had formed. Or else they were told it is too divisive a subject, sometimes by the same people who told them it was settled.

So effective was this campaign that anyone who persisted in arguing the point risked being marginalized as extremist, ultra-conservative, outside the mainstream. (For his part, Morgentaler dismissed critics of his Order of Canada as "the usual suspects: the Catholic Church, fundamentalists, women opposed to women's rights.") To be sure, some abortion opponents are extremist, in rhetoric and tactics as much as in substance. But many others were not. And while some were willing to endure this stigma for the sake of their principles, others, particularly in the political realm, were not.

A strange, disturbing quiet thus fell over the issue. Unrepresented by any political party, the Conservatives in particular having issued strict instructions to their members to avoid even mentioning the word, abortion opponents had no hope of seeing their views enacted into law. And with no prospect of it being taken up politically, there seemed little point in raising the subject — which is, after all, touchy enough to begin with. So for a time it, quite literally, disappeared.

Over the years, we have all learned to tiptoe around the issue, to refer to it by elaborate euphemisms — "a-woman's-right-to-choose," in the politicians' dutiful catechism. It isn't that abortion has been accepted, in the way that abortion rights advocates would wish, as just another medical procedure. It simply isn't spoken of. Even the citation on Morgentaler's Order of Canada talks, not of his long and prolific career as an abortionist, or even of his part in the removal of the last legal restrictions on the practice, but merely of his commitment to "increased health care options for women."

How did we get here? An entire generation has grown up since the Supreme Court's January 1988 ruling in Regina v. Morgentaler. Memories grow dim, and myths abound. So it will no doubt come as a shock to many to learn, not only that Canada has no abortion law to this day, but that this was never actually decided — by anyone. That's not what the Court intended. It's not what Members of Parliament voted for. It just . . . happened.

What, first, did the Court decide? Did it establish a constitutional right to abortion? Did it find that any legal restriction on abortion was a violation of women's rights? It did not. It's difficult, indeed, to say what the Court wanted with any precision: the 5-2 decision is split into no fewer than four separate judgments. But what is clear is that no member of the Court intended theirs to be the last word on the subject. It was only the law in front of them they found unconstitutional — Section 251 of the Criminal Code, the 1969 abortion law that, liberally for its time, first set out the conditions for a lawful abortion.

What the court objected to most was the provision requiring that women obtain the assent of a three-member "therapeutic abortion committee" in an "accredited" hospital that "continuation of the pregnancy… would or would be likely to endanger her life or health." As a practical matter, the court found, this often put an abortion out of reach, even where a women's life or health was in danger. Many hospitals did not have a therapeutic abortion committee. Many more were not accredited for the purpose. Committees often took their time deciding, and operated without clear guidelines, notably as to how "health" was to be interpreted.

Two members of the court found this meant the law, on its face a violation of women's constitutional right to "security of the person," did not pass the test of "fundamental justice" that might otherwise have saved it. That is, the process it told women to follow to avoid running afoul of the law was too often unavailable to them. Two other judges found the same provision, with its attendant delays and disparities, put women's health needlessly at risk, and as such did more harm to their rights than was "proportional" to the good achieved — the test under the Charter's "reasonable limits" clause. But the judges were equally clear that another law might pass constitutional muster.

Parliament had a legitimate interest, they wrote, in protecting the fetus, and was "justified in requiring a reliable, independent and medically sound opinion as to the 'life or health' of the pregnant woman." The present law was overbroad, but "it is possible that a future enactment by Parliament that would require a higher degree of danger to health in the latter months of pregnancy, as opposed to the early months" would achieve a more acceptable balancing of interests.

The one judge who came closest to an absolute defence of the right to abortion was Justice Bertha Wilson, whose reliably liberal rulings, particularly in matters of women's rights, made her a feminist icon. Yet even Judge Wilson found the state had "a perfectly valid legislative objective" in seeking to protect the fetus. She agreed with the Crown that "the situation respecting a woman's right to control her own person becomes more complex when she becomes pregnant, and some statutory control may be appropriate."

Like the other judges, Judge Wilson favoured a gestational or developmental approach, one that gives greater legal weight to the fetus as "potential life" at later stages of its development. This view, she wrote "supports a permissive approach to abortion in the early stages of pregnancy and a restrictive approach in the later stages. In the early stages the woman's autonomy would be absolute . . . Her reasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state's compelling interest in the protection of the foetus would justify it in prescribing conditions." The precise point at which the state's interest becomes "compelling" she left "to the informed judgment of the legislature."

Where the old law had required the approval of a three-member hospital abortion committee, under Bill C-43, as it became known, a single doctor's opinion was required.

The Conservative government of the day took the hint. Within weeks of the court's decision, it began the process of feeling out MPs as to what sort of new abortion law they would support. The first attempt was an ungainly three-part motion: one strongly pro-life, one strongly pro-choice, and a third, which the government favoured, requiring only a doctor's opinion "in the early stages" of a pregnancy, but in later stages imposing more stringent tests of risk to life or health.

But the massive Conservative caucus, elected four years before in the Mulroney sweep, contained a large and boisterous pro-life contingent that was disinclined to compromise. The government soon found that none of the options commanded the support of a majority of the House, even its preferred "middle-ground" proposal falling to a strange coalition of pro-lifers and pro-choicers. A second attempt was made that summer, this time with just the government's proposal on the table. It, too, failed. Finally, after a hiatus of a year and the intervention of an election, the government tried again, with a bill modelled on the previous law, albeit in much more watered-down form.

Where the old law had required the approval of a three-member hospital abortion committee, under Bill C-43, as it became known, a single doctor's opinion was required. A broad definition of health was added, to include physical, mental or psychological concerns. That it was the next thing to abortion on demand was confirmed by testimony in committee by the then Justice minister, Kim Campbell. "It is important to see 'health' in terms of the whole human being," she said, adding "the personal aspirations of the woman . . . as well as social factors, could be taken into account" in assessing psychological health.

It was, in short, a fudge. It was messy and imperfect and aroused as much indignation among pro-choicers as it did pro-lifers. Yet in the end, it passed, on a free vote, by a margin of 140-131. After three tries and two years of debate, Canada had a new abortion law.

And then the Senate killed it. They didn't actually vote it down, you understand. It died, miraculously, by a tie vote, 43-43. In the Commons, ties are broken by the Speaker. Under Senate rules, the bill is defeated. Seven Tory senators voted with the opposition. Twenty-three Senators did not bother to vote. Another, who was acting speaker that day, was entitled to vote, but did not realize it. Perhaps he thought he was needed to break a tie.

That's why Canada has no abortion law: not by the decision of a democratic house, but by the non-decision of an un-democratic one. That's how this was "settled." I don't care what you think of abortion. Is this any way for a democratic society to behave?

The bias on any issue is to the status quo. After such a long struggle, and with opinion so divided in the House, it was understandable that no one much wanted to try again, in the short term. But year followed year, and other events consumed political energies — the cataclysm that befell the Conservatives in 1993, and the endless rebuilding process that followed — until in time a layer of convenient myth grew over the discarded facts of legislative failure. If there was no abortion law, it was because "we" had decided there should not be one. And if we had done so, well, presumably we had a good reason.

So an arrangement that was, objectively, at one polar extreme of possible policy regimes — no abortion law of any kind — came to assume the sacred mantle of moderatism, while the slightest suggested limitation on this "right" was greeted with cries of "extremism." Through three consecutive elections in the last decade, the Liberals successfully raised the alarm over a conservative opposition that had not actually proposed any restrictions on abortion whatever, and that indeed disavowed such intention with increasing, almost hysterical belligerence.

In 2004, the Conservative campaign was derailed for a week by the comments of a Conservative MP to the effect that women should be encouraged to seek counselling before having an abortion — as indeed is obligatory before any invasive surgery. By the party's founding convention in 2005, what had previously been the lack of a Conservative abortion policy itself became party policy — their policy was to have no policy. Even that was not enough. In 2006, leader Stephen Harper was promising, not merely that his government would not introduce any law on abortion, but that he would "use whatever influence I have" to prevent his MPs from sponsoring bills of their own. And indeed, no bill on abortion has been forthcoming from any government Member.

That's still not enough. Even a bill that mentions the fetus, such as Bill C-484, known as the Unborn Victims of Crime Act, is enough to send the pro-choice movement rushing to the barricades. The bill would create a separate offence, where a pregnant woman is attacked, for the harm done to the child in utero. There is no implied opposition here between the mother's interests and the child's, nor does the bill make any attempt to define the fetus as a person. Yet, even though the bill makes explicit allowance for abortion, it has been denounced as a "backdoor abortion bill," that could somehow be used to prosecute women themselves. Or as the coordinator of the Abortion Rights Coalition of Canada put it: "If the fetuses are recognized in this bill, it could bleed into people's consciousness and make people change their minds about abortion."

What is taboo in federal politics is the subject of something of an Inquisition elsewhere. Pro-life student groups have been banned on a number of campuses across Canada, including York, Carleton, and University of British Columbia-Okanagan. At Lakehead University, the student union voted to withhold "any and all funds, space, resources and services within its control from any group [that] holds any aim, principle, belief goal etc. that is anti-choice in nature, explicit or implicit."

Meanwhile, a recent billboard by LifeCanada, a pro-life group, was rejected for use by Advertising Standards Canada. The ad contained none of the gory images or over-the-top slogans that have made some pro-life groups notorious. It simply depicted a (fully-clothed) pregnant woman, with the slogan: "9 months. The length of time an abortion is allowed in Canada." Yet this is unquestionably true: abortion is legal in Canada from conception to birth.

Again, whatever your view on abortion: is this how we treat dissent, in a democracy?

Indeed, public opinion remains as stubbornly divided as ever.

Whatever the attempts to bury the issue, it has not gone away. Indeed, public opinion remains as stubbornly divided as ever. The Gallup organization polled Canadians from 1975 to 2001, asking the same question each year. In February of 1988, for example, shortly after the Morgentaler decision, Gallup found that 28 per cent of Canadians felt abortion should be legal "in all circumstances" — the status quo — versus 55 per cent who felt it should be legal "under certain circumstances." A further 13 per cent said it should be "illegal in all circumstances." Thirteen years later, in 2001, the same poll found the public divided much the same way, 32-52-14.

Polls will differ, of course, depending on the question and the methodology. But even if you take last month's Angus Reid Strategies poll, showing 49 per cent support for the proposition that "abortion should be legal under any circumstances," versus 47 per cent in the "legal in certain circumstances" and five per cent in the "illegal in all circumstances" camps, it still doesn't add up to a national consensus in favour of unrestricted abortion.

One wonders what the polls would look like, moreover, were more Canadians aware that the absence of an abortion law, far from the norm, makes Canada the outlier among the world's developed countries. Take our neighbours to the South. A casual observer of American politics might assume that Roe v. Wade, the 1973 Supreme Court decision that touched off the modern-day abortion controversy, made all abortion laws unconstitutional — that the status quo in America, as in Canada, is abortion on demand, at any stage of a pregnancy. But in fact Roe applies only to the period prior to fetal viability, defined as the first 24 to 28 weeks. States may not limit abortion in the first trimester, and may impose only minor restraints in the second. But past that point restrictions are legal, provided they make exception for the life or health of the mother. At present, 36 states bar late-term abortions.

The same picture emerges as you look across Europe. Britain, for example, allows abortion for reasons of physical or mental health up to the 24th week of pregnancy. Thereafter it is prohibited, except to save the woman's life or to prevent grave and permanent injury to her health. Most other countries impose restrictions at a much earlier point. France does so at 12 weeks of pregnancy — on condition that the woman undergoes counselling on alternatives, and with a one-week waiting period. After 12 weeks, two doctors must certify that her health would otherwise be endangered.

Germany, likewise, permits unrestricted abortion only in the first trimester, subject to counselling and a waiting period. And on it goes. Norway permits abortion on demand until the 12th week; Italy, the13th; Sweden, the 18th; the Netherlands, until viability. Typically, these countries define a further period of some weeks in which abortion is allowed in certain circumstances. But none allows abortion in the third trimester, except in extreme cases.

Australia. India. South Africa. Japan. Canada is alone. Can all these other countries be "extreme"? Are they all anti-women, anti-choice — all of them? Was our own Supreme Court? Was Parliament? Are two-thirds of the Canadian public?

Of course, in one sense, even if we did follow other countries' lead, it wouldn't change much. Suppose we set a time limit of 20 weeks. As it is, almost 90 per cent of abortions in Canada take place in the first 12 weeks — 99 per cent in the first 20. The Canadian Medical Association already recommends against performing abortions after viability, but for "exceptional circumstances."

And, even without an abortion law, the incidence of abortion is falling, and has been for a decade. Statistics Canada reports there were 96,815 abortions in 2005, down 15,000 from their peak. At 283 abortions per 1000 live births, the rate was lower than at any time since 1995. If the objective is fewer abortions, perhaps there are other factors, other ways, than the criminal law.

And yet, there are good reasons to want an abortion law, reasons that even a pro-choicer might support. For starters, it would restore the issue to the realm of democratic debate, without which no genuine consensus is possible. It has often been said that Roe v. Wade set back the cause of abortion rights in the United States, inasmuch as it removed abortion from the arena of compromise and negotiation, and turned it into a winner-take-all game of lawyers. Much the same could be said of Canada, post-Morgentaler.

As important, it would open the way to assigning the fetus some rights in Canadian law, even if these were subordinate to the mother's. Recent years have seen the emergence of a number of controversies surrounding the status of the fetus, issues that courts and Parliament alike have hesitated to deal with, either because the fetus had no rights, or for fear of creating them, and thereby "reopening the abortion debate." Take, for example, the glue-sniffer case: the Manitoba woman, addicted to solvents, who had already given birth to two severely deformed children, and was pregnant with a third. All the authorities wanted to do was to keep her away from the glue for a few weeks, to give her child a fighting chance at a decent life. But that implied the fetus had rights, and so the courts refused to intervene. Or take, as another example, the farce that surrounded the last federal reproductive technologies bill.

Would an abortion debate be so scary? Would it be filled with emotions, invective, and gross oversimplifications? Probably. That's true of most democratic debates, if you've noticed. It's not normally an argument against having them. And maybe, just maybe, if we start talking about it again, we might also start listening to each other. Anything's better than the head-shaking, fingers-in-the-ears, nana-nana barracking that goes on now.

Who knows? Maybe, after prolonged reflection and debate, we would decide we didn't need a law, after all. But at least we would have decided — rather than submitting such a vital issue to the vagaries of historical happenstance, and a tie vote of the Senate.

Andrew Coyne is the national editor of Macleans Magazine.

Originally published Macleans Magazine, July 9, 2008.




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