It’s an ill wind that blows no good, or so the saying goes. But if the ill wind is the re-energizing and intensifying of the destructive confrontation over abortion in the United States in the wake of the leaked draft of the Supreme Court judgment striking down Roe v. Wade, it is hard to see the good.
Public protests began within hours of the leak, and mass demonstrations on both sides of the issue will inevitably build during this mid-term election year. Recent history has shown how quickly abortion demonstrations can turn to violence. American democracy is facing one of its greatest challenges.
That’s the ill wind in the United States. Demonstrations are bound to spill over into Canada because such fights always do. But the situation here is completely different. Canada is profoundly pro-choice; according to opinion polls, at least 75 per cent of us believe in a woman’s right to choose; we are perfectly content to be a nation without an abortion law. We have not had one since the Supreme Court’s 1988 Morgentaler decision, in which the court struck down the old criminal law, finding it to be a “profound interference with a woman’s body and thus a violation of her security of the person” under Section 7 of the Charter of Rights and Freedoms.
The sky did not fall. Despite dire predictions from right-to-life groups, Canadian women did not rush out for legal abortions; in fact, the abortion rate in this country is lower than it is in the United States, despite the multiple obstacles pregnant women face in an increasing number of states.
Abortion here is treated like any other medical procedure, governed by provincial/territorial and medical regulations (about which more in a moment). There is no chance of abortion being recriminalized, no matter how loudly social conservatives may cry for it.
The ill wind from the United States can, potentially, blow good in Canada, both for the Liberal government and even for the opposition Conservative party.
To start with the Liberals, it is one thing to say there is no longer a legal or constitutional barrier to abortion; it is another thing to make the removal of the barrier a practical reality for thousands of women. Religious and moral reservations carry more weight in provincial than in federal politics; some provincial governments will bend over backward to secure the support of right-to-life groups, or to avoid incurring their opposition at election time.
In the 34 years since Morgentaler, provinces have tried a variety of ways to use their jurisdiction over the delivery of health care to limit access to abortion. One way: controlling availability by allowing abortions to be performed only in hospital operating theatres and forbidding it in non-hospital clinics. Alternatively: permitting clinics to offer the procedure, but refusing to fund it under provincial health plans. Or using geography to limit access; for example, until 2017, Prince Edward Island refused to allow abortions to be performed in the province; it would pay for the cost of the procedure for islanders who obtained it in another province, but it would not cover travel expenses, typically airfare to Halifax; today, PEI does allow abortion, but in only one hospital on the island; the province has no abortion clinics because, its government says, it doesn’t need any.
Meanwhile, New Brunswick permits abortions in three hospitals in Moncton and Bathurst, but none in Saint John or Fredericton; it is the only province today that still refuses to fund the procedure in non-hospital clinics. Lack of funding forced Clinic 554 in Fredericton, New Brunswick’s only non-hospital clinic providing surgical abortions, to go virtually out of business. Prime Minister Trudeau promised in 2019 to ensure that the provincial government live up to its legal obligations to provide funding to Clinic 554 and Deputy Prime Minister Chrystia Freeland repeated the promise last year. So far, their words have produced no money.
Funding strategies aside, various provinces have found imaginative ways to control access by creating sets of eligibility rules that pregnant women are required to satisfy in order to qualify for an abortion.
The Trudeau government has been talking about fixing the access problem ever since it came to office in 2015 but has done nothing. Now, however, distressed by the abortion upheaval in the United States, it is stirring. It is promising to use its spending power in the Canada Health Act to reward provinces that remove impediments and to penalize those that don’t. It is also promising – and this may be trickier – to rescind the charitable status of anti-abortion organizations that provide “dishonest counselling” to women. (What unfortunate soul, one wonders, will be tasked with determining dishonesty?)
As for the Conservatives, this may be a stretch, but the ill wind could present motivation – and the current period of three election-free years opportunity – to get their party’s act together and to recognise that venom spewed over abortion in United States has no place in Canada. This necessarily assumes that Conservatives’ desire to be elected in a pro-choice country will one day outweigh their passion for ranting among themselves.
Cambridge resident Geoffrey Stevens is a former Ottawa columnist and managing editor of the Globe and Mail. His new book, Flora! A Woman in a Man’s World, co-authored with the late Flora MacDonald, is short-listed for the 2022 Writers’ Trust Shaughnessy Cohen Prize for Political Writing. He welcomes comments at geoffstevens40@gmail.com