Columnists

Joyce Arthur
Moving forward with the abortion debate

| May 30, 2014
Photo: Nicole Marie Edine/flickr

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Justin Trudeau's statement that any new candidate for the Liberal Party must agree to vote pro-choice on any bills is positive and entirely appropriate. It stirred up a surprising amount of criticism and confusion in the media, however, in addition to the expected histrionics from anti-choice and religious communities.

But what's the big deal? The Liberal Party has had a pro-choice policy since 2012, so this is little more than a confirmation of that. Prospective Liberal candidates are already required to support same-sex marriage and the Charter of Rights and Freedoms. Women have had equality rights for almost 30 years, and the abortion law was struck down 26 years ago as a violation of women's constitutional rights. The legal vacuum has never been a crisis -- far from it. Abortion rates have declined over time and there are no silly women having abortions at 9 months for any reason at all, despite the anti-choice movement's faith-based belief otherwise.

So why is this still an issue? Well, it doesn't help that the mainstream media loves manufacturing controversy, running to anti-choice people for comment whenever something about abortion hits the news. That in turn leads anti-choicers to rejoice, believing that all the attention being paid to abortion by the press and politicians means their cause is in the ascendency, that the "abortion debate" is back on.

But it could mean just the opposite. After all, abortion has hardly ever been out of the news for long, and there's always plenty of media coverage anytime a motion is introduced by a hardline anti-choice MP -- which happens just about every year. It's more likely that the public's frequent exposure to the issue is causing the anti-choice movement to lose support, since the more that Canadians are confronted with the "abortion debate," the more they seem to support abortion rights.

That could be a consequence of our society generally becoming more secular and progressive on human rights issues since the 1980s. But Canadians are also sick of this issue being constantly politicized. For example, the frequency of comments in the media from anti-choicers who disregard women's rights in their fanatical push to recognize full rights for embryos and fetuses (misnamed "children") has surely turned off many Canadians by now. Nevertheless, the anti-choice movement clings to the belief that their views still have credence and that they can still win on this issue.

Trudeau will probably secure more votes with his pro-choice policy, not less. Most Canadians are pro-choice, and about 13,000 people so far have signed his petition explaining the policy. However, I predict that significant numbers of voters won't even notice or care that much. Most people are not single-issue voters anyway. It's only the minority anti-choice contingent that's fulminating from the pulpit and turning molehills into mountains. They do have reason to be concerned, however. Trudeau's pronouncement is the latest setback in a long line of setbacks for the anti-choice movement. An editorial in the Edmonton Journal even suggests it means their cause is "irreversibly being lost."

Abortion is a constitutional right

In reaction to Trudeau's linking of abortion to women's Charter rights, a chorus of social conservatives have been insisting that abortion is not a constitutional right. They are wrong. First, it's irrelevant that the Charter does not actually contain the word abortion. That shows a lack of understanding of how legal precedents shape an evolving interpretation of our laws and human rights. The Supreme Court threw out our old abortion law in 1988 because it arbitrarily restricted or denied access, thereby increasing risks to women's health. Any abortion restriction passed today would not likely pass constitutional muster as it would infringe women's right to bodily security, life, liberty, conscience, privacy and equality. Abortion becomes a de facto constitutional right because the situation of restricted or inadequate access violates women's rights.

Second, the right to abortion has grown stronger with post-1988 jurisprudence. For example, the Supreme Court at that time said that "protection of foetal interests by Parliament is also a valid governmental objective," but two Supreme Court decisions after 1988 denied rights to fetuses because that would compromise the established rights of women (Dobson v. Dobson, 1999; and Winnipeg Child and Family Services, 1997). This undermines any legitimate state interest in fetal rights.

Third, it's no longer meaningful that the Supreme Court said in 1988 that Parliament could try to re-legislate on abortion, or that Justice Bertha Wilson further suggested that abortion could perhaps be restricted sometime in the second trimester. Neither were requirements, and more importantly, society has moved on and so has medical practice. Colby Cosh says:

"...such a law would explicitly infringe on Charter rights; the point of the decision was that Parliament can only do so proportionally and minimally, to serve a pressing objective. That last requirement is a problem, since medical self-regulation already discourages purely elective late-term abortions; an appellate court would demand a factual demonstration that the status quo wasn't working."

Defining the 'abortion debate'

The media and social conservatives are confused about another issue -- the definition of the term "abortion debate." We've all heard Prime Minister Stephen Harper's oft-repeated cry: "We have no plans to re-open the abortion debate." He's talking about the debate that ended in 1991, when Mulroney's Conservative government failed in their attempt to recriminalize abortion. No government has ever tried to restrict abortion again. It bears repeating that Canada has managed just fine without any abortion law for 26 years, which renders null and void any need for a new one. The phrase "re-opening the abortion debate" is also anti-choice code for recriminalizing it. But doing so means unconstitutionally restricting women's rights, and we're never going back there. That's what I call the "backwards abortion debate."

Anytime an MP even whispers the word abortion, no matter what the context, they are accused of re-opening the abortion debate (the backwards one, that is). Niki Ashton's recent Motion 510 is a case in point. It has been withdrawn at least for now, but this motion from the NDP Women's Critic asked Parliament to agree that "a women's right to choose abortion is a fundamental question of equality and human rights, both in Canada and around the world." That statement might be a good start to a "forwards abortion debate" since it would officially affirm women's rights and the current legal reality, and could help put an end to the backwards abortion debate. The motion also calls upon the government to "lift its policy of refusing to fund international programs that support a full range of family planning and reproductive health care options including abortion." I'll let Dr. Dawg answer Ashton's critics on this point:

"Far from pushing to re-open the debate about choice, Ashton wants to build on what we already have. The Harper government has eliminated abortion from Canada's maternal health initiatives abroad. The brunt of her motion is to restore and enhance that funding. Is this not a valid political issue well worthy of vigorous discussion? ... To repeat: debating human rights in the legislatures of our land isn't on. Rights must never be subject to a vote. But surely the matter of how we give rights force and effect is a separate question entirely. Can we not make that crucial distinction and avoid semantic traps?"

What should be up for debate

For too long, political parties have shied away completely from the abortion issue, even while much remains to be done to improve access. Here's examples of issues that Parliament should debate -- from the starting point that the right to abortion is a given:

1. The federal government must start enforcing the Canada Health Act. New Brunswick and Prince Edward Island are both violating the Canada Health Act by restricting or denying access to abortion. The feds should immediately begin withholding health transfer payments from these provinces, as well as enter into negotiations with the provinces to resolve the disputes in favour of women's right to access abortion.

2. The federal government must begin funding safe and legal abortion services overseas, and increasing the amount they spend on contraception. Let's debate how many millions should be earmarked for each program, and which additional countries should receive this funding besides the five countries designated after G8.

3. Canada should be promoting its successful 26-year experience with no abortion law to encourage other countries to repeal their abortion laws. The United Nations has already urged all countries to immediately decriminalize abortion (Special Rapporteur on Right to Health, 2011).

Abortion is a constitutional right that must not be infringed, and indeed must be protected and enhanced, both here and around the world. Let the "forwards abortion debate" begin!

Joyce Arthur is the founder and Executive Director of Canada's national pro-choice group, the Abortion Rights Coalition of Canada (ARCC), which protects the legal right to abortion on request and works to improve access to quality abortion services.

Photo: Nicole Marie Edine/flickr