Feminist Organizations Support No New Abortion Law in Canada

Up until the 1980s, Section 251 of the Canadian Criminal Code criminalized abortion unless the person looking for an abortion followed the complicated process it outlined to get the approval of hospitals’ Therapeutic Abortion Committees made up of at least three doctors, who certified that her life or health was in danger if the pregnancy proceeded. Many hospitals did not have these committees, some hospitals’ committees virtually never approved abortions while others did.

In 1988, the Supreme court of Canada struck down section 251 of the Criminal Code in their R. v. Morgentaler decision. The ruling found that the existing rules made access to abortion “practically illusory.” A majority of the Supreme Court of Canada found that it violated women’s personal security in a fundamentally unjust way. Madam Justice Wilson played a critical role in the decision with a concurring opinion that any restrictions on abortion violated women’s right to liberty. 

In 1989, Tremblay v. Daigle was heard by the Supreme Court of Canada. M. Tremblay, Ms. Daigle’s ex-partner, had tried to get an injunction against Ms. Daigle to prevent her from getting an abortion. His case attempted to establish fetal rights and argued that he had a right to protect his “potential progeny.” The Supreme Court ruled that a fetus has no legal status in Canada as a person and as such, a biological father had no legal right to interfere with a woman’s decision to have an abortion. Later in 1991, the Supreme Court ruling on R. v. Sullivan would establish that personhood begins at birth. 

In 1999, the Supreme Court of Canada ruled that a pregnant person is not liable for damages and owes no duty of care to a fetus in their womb in Dobson v. Dobson. The court found that defining legal standards of how pregnant people should conduct themselves was impossible and added in a concurring opinion that trying to do so would violate the privacy, autonomy, and rights of women.
 

Today, abortion is considered and regulated as an insured health service which means it falls under the jurisdiction of the Canada Health Act, the law that sets out the nation-wide principles of the Canadian health care system. While provinces and territories oversee how their health care system is managed, they must be operating within the guidelines of the Act to receive federal government funds. These guidelines include five principles for insured services: public administration; comprehensiveness; universality; portability; and accessibility. The Act’s objective includes facilitating “reasonable access to health services without financial or other barriers.” When provinces fulfill the criteria and conditions of the Act, they are entitled to their full Canada Health Transfer. 

While there are still accessibility challenges to overcome in Canada, abortion is legally protected under this funding framework. 

Anti-choice activists have attempted to restrict abortion through the introduction of private member bills and have been campaigning on the grounds that Canada needs an abortion law. Reproductive rights organizations take the oppositive position and maintain that no federal law is needed with respect to abortion and that Canada serves as a model for other countries for not having any federal law specifying the scope of abortion services. In fact, introducing a law would likely carry the unintended consequence of making it easier for anti-choice politicians and activists to re-criminalize abortion or otherwise restrict abortion and further politicize the issue. 
 

Opening the door to legislation means opening the door to potential restrictions. Many anti-choice activists would claim that if Parliament is establishing a statutory right to abortion, it should impose  “reasonable limits” on this right. Drafting legislation enshrining a right to abortion would give anti-choice politicians an opportunity to attempt to insert exemptions or restrictions that do not currently exist in the name of “compromise”.

For example, anti-choice politicians have already tried to restrict abortion after a certain gestational time through private members’ bills. They could use this opportunity to try and impose gestational limits to abortion during the process of defining the right to abortion. Abortions are always essential health care and restricting access based on gestational age–not on medical grounds but on the basis of people’s individual moral beliefs–can leave already vulnerable people without the care they need. 

If the “debate” were “re-opened” by a progressive government legislating in this area, this development could be used by a future socially conservative government to justify the introduction of restrictive amendments. Subsequent governments could use such a law to bring in amendments that would introduce restrictions such as gestational limits, mandatory counselling, waiting periods, and the banning of pre-natal sex selection, to name but a few possible examples. Even if a court were to ultimately find these restrictions in violation of the Charter, it would take a lengthy court challenge during which individuals seeking abortion care would be impacted.

There is often a great deal of public attention as to whether a government is “re-opening the abortion debate” which distracts Canadians from the real issues of equitable access that remain to be resolved. Amendments to a new law that would limit access could easily be sold to the public as a reasonable balance between political positions on abortion regardless of the realities of people needing that medical care or what science and research tell us about abortion. Spreading disinformation about abortion has been a primary tactic used by anti-choice advocates in Canada for years to distract the public from the facts and to advance solutions that would further get in the way of those seeking abortion care. 

A new law that is then repealed could change the course of judicial interpretation. If a law establishing a right to abortion was created and then repealed by a future Parliament, this could be considered in future judicial interpretations of the Charter with respect to abortion. While it is likely courts would still decide in favour of granting Charter protections for those seeking and providing abortion services, it is not clear whether and to what extent the repeal would affect judicial interpretation of reproductive rights.