Canada's pro-choice movement is in good fighting form, and stronger than ever. That's the undeniable conclusion after living through the roller-coaster ride of anti-choice activity over the last three months.
First, we saw the annual March for Life on Ottawa's Parliament Hill on May 9, as well as anti-choice rallies in cities across Canada including Toronto for the first time. Many anti-choice Parliamentarians attended these events and some spoke out, including Ontario MPP Sam Oosterhoff, with his infamous comment, "We pledge to make abortion unthinkable in our lifetime."
Only five days later came the shocking news that Alabama had passed a near-total ban on abortion. But it wasn't just Alabama -- at least nine U.S. states have recently passed laws that prohibit abortion after six or eight weeks of pregnancy.
Then the propaganda film Unplanned hit dozens of screens across Canada in July. Based on the untrue story of former Planned Parenthood staffer Abby Johnson, the film chronicles her journey from clinic worker to anti-choice activist, with plenty of fetal gore, falsehoods, and religious ideology along the way.
Strong pro-choice and media reaction
What was the pro-choice reaction to all this? Counter-protests at the May 9 rallies and events. In response to Sam Oosterhoff's comment, ridicule, retaliation, and rebuttals. Outrage, fear, and anxiety at the U.S. threats. Over 15 theatre protests against the Unplanned film. Boycotts of Cineplex. Federal cabinet ministers calling out Conservative MPs who attended the Ottawa March for Life and slamming the Unplanned movie as "far-right propaganda."
The media helped too. Mainstream coverage of the Marches for Life was hard to find, with one key piece highlighting pro-choice views, not so much the other side. The media took far greater interest in the Unplanned movie, but the coverage consistently pointed out the film's lies and ideology, showed the reality of compassionate and safe abortion care in Canada, and explained why extreme U.S. anti-abortion laws aren't about to happen in Canada because of our strong legal protections. Anti-choice views were rarely quoted.
How real are the threats to our rights?
The flurry of anti-choice actions and the fierce reaction against them say two almost contradictory things: our rights are not safe because right-wing extremists will always fight to remove them, and our rights are safe because we will always fight hard to keep them.
Vigilance is crucial. But if history is any guide, current threats to abortion rights and access in Canada will be fought and defeated, even with delays and setbacks while conservative governments are in power.
For starters, it's extremely difficult to pass anti-abortion laws in Canada. Every conservative government, federally and provincially, has repeatedly said they won't legislate on abortion. They can't for good reasons -- it would risk a media circus and public outrage, and it would be unconstitutional.
In 1988, the Supreme Court struck down Canada's abortion law because it violated women's charter right to bodily security. Subsequent court decisions have established abortion as a charter right in Canada. It's a much stronger right than in the U.S., where the 1973 Roe v. Wade decision was based on privacy rights. That ruling has been weakened over time because the court allowed states to pass restrictions. Canada's anti-choice movement is at a disadvantage because they have no legal base from which to build. Our charter also has a gender equality clause (unlike the U.S.), so any abortion restriction would be discriminatory because it would apply only to people who can get pregnant. Finally, unlike U.S. states, provinces can't pass laws that might tread on the federal jurisdiction of criminal law.
As a result, not only has Canada's anti-choice movement been unable to pass any restrictive law in the last 30 years, they've been on the losing side of all higher court cases related to abortion or fetal rights. Those losses have contributed to increasingly robust case law in favour of abortion rights.
This doesn't stop the anti-choice movement from trying, of course. Groups like RightNow have had alarming success at getting anti-choice candidates nominated and elected in hopes they will pass laws. But RightNow has unrealistic expectations, based on its ignorance of history and legal precedents. All key leaders they've helped elect so far have since backed down from "re-opening the abortion debate," including Andrew Scheer, Doug Ford, Jason Kenney, and Scott Moe.
Some of the main goals of Canada's anti-choice movement are to defund abortion, pass parental consent laws for abortion, pass "conscience" legislation to protect doctors who refuse to help patients who need abortion, and criminalize abortion after 12 weeks. The latter won't happen for the reasons already noted above. As for the other three goals:
- Defunding abortion is a non-starter as I wrote in 2013, and it's even less likely today. Every province has now agreed to fully fund the abortion pill Mifegymiso, even conservative Manitoba and Saskatchewan.
- An Ontario high court ruling on May 15 will likely make it impossible to pass "conscience" laws in other provinces. The court said that physicians who object to assisted dying, abortion, and birth control must offer patients an "effective referral" to another doctor.
- The Abortion Rights Coalition of Canada (ARCC) has already defeated campaigns to pass a parental consent law in Saskatchewan. ARCC had written letters and an evidence-based paper showing why such a law would violate the constitutional rights of minors and increase risks to their health and safety. In Feb 2019, the Saskatchewan Attorney General responded to ARCC to concede the issue, acknowledging the "scope and importance of section 7 of the charter" and noting that several legal opinions shared ARCC's position.
The main concerns for reproductive rights in Canada are not legislative but centre around lack of access, especially in rural areas and the North. We're confident that Mifegymiso will keep making inroads there, as well as telemedicine. Two provinces continue to violate the Canada Health Act by not fully funding abortion, but active campaigns are holding them to account: New Brunswick and Ontario.
The right-wing governments in Ontario and Alberta are posing some threats. Repealing progressive sex-education curriculums and cutting public health funding contribute to reduced access to sexual and reproductive health care, as do attacks on LGBTQ2 rights. Alberta Premier Jason Kenney has appointed a leading anti-choice activist as Alberta's education minister. Both provinces have mandates for campus free speech that may force universities to allow anti-choice and racist speech, and suppress opposing voices.
If the federal Conservatives win the October election, Conservative Leader Andrew Scheer will allow private member's bills that would restrict abortion (but would be unlikely to pass). A bigger worry is that he might cancel the generous foreign aid recently pledged by Prime Minister Justin Trudeau to fund sexual and reproductive health in developing countries.
These threats must be taken seriously and are already being strongly opposed, or will be if they come to pass.
Pro-choice victories and strength
The cause of reproductive rights has made incredible progress since 1988. Let's never forget the strength of the pro-choice movement, working together with our allies in civil society, medicine, law, politics, and the media, which in Canada are largely pro-choice. The past is prologue -- our accomplishments over the last 30 years are the best predictor of our future. Here's a sampling of some major past and current successes:
- We now have about 30 clinics that didn't exist in 1988.
- We achieved full funding for surgical abortion pretty much everywhere (New Brunswick is still the main holdout).
- The abortion pill Mifegymiso was finally approved by Health Canada (in 2015), all restrictions have been lifted, and it's now fully funded.
- We passed safe access-zone laws to protect clinics and patients from anti-choice protesters in five provinces (B.C., Newfoundland and Labrador, Quebec, Ontario, Alberta.). Despite the Ford and Kenney governments, Ontario's law is safe, and it appears Alberta's law is also safe.
- P.E.I. pro-choice groups brought abortion services to P.E.I. in 2017 for the first time since 1982.
- In 2014, New Brunswick activists forced the government to repeal a two-doctor approval requirement.
- Abortion doulas now help pregnant people navigate their abortion, with centres and trainings across Canada.
We should honour our many successes and remember that the pro-choice movement is still working hard and still advancing. In other words, let's not panic at anti-choice bravado and over-confidence -- which is what it is -- because we will keep fighting and keep winning.
Joyce Arthur is the founder and Executive Director of the Abortion Rights Coalition of Canada, a national pro-choice group in Canada.
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