The beauty of Canada’s system is that our Charter supports access to abortion, and we have no other laws for anti-choice politicians to mess with
As states in America enact their abortion bans, awareness of Canada’s lack of abortion laws has returned to Canadian societal consciousness.
And some people are unhappy, as evidenced by a comment from Progressive Conservative Party of Ontario MP, Sam Oosterhoff, at an anti-abortion rally in Toronto.
“We have survived 50 years of abortion in Canada and we pledge to fight to make abortion unthinkable in our lifetime,” said Oosterhoff, likely causing Dr. Henry Morgentaler, the man who 30 years ago brought the issue of abortion before the Canadian Supreme Court, to turn in his grave.
The 1988 R. v Morgentaler ruling overturned Canada’s abortion law on the grounds that it violated section seven’s charter rights for women. Abortion was decriminalized in 1969, but until 1988 still had to be approved on a case-by-case basis by special committees. No law reflecting the Supreme Court decision ever passed through parliament, so no laws govern abortion in Canada.
This is precisely the number of laws we need.
Contrary to anti-choice propaganda, abortions are entirely humane and ethically managed by the healthcare system. While Canada’s lack of laws makes abortions possible at any stage of pregnancy, they nearly always occur early — before the embryo or fetus has the capacity to be viable outside of the womb or has developed a nervous system capable of feeling pain. Very few abortions occur after 20 weeks, for the common-sense reason that no one has a third-trimester abortion just because they feel like it.
When a late-stage abortion is performed, there is a medical reason to do so — often because the person’s life is threatened or the fetus has a severe abnormality or genetic mutation, like anencephaly or trisomy 18. Most fetal abnormalities or mutations cannot be detected until 24 weeks, making a late-stage abortion the only option for those who want or need to terminate their pregnancy. Even in the third trimester, modern healthcare ensures that any risks associated with abortion are extremely low. Childbirth is more dangerous than a legal abortion.
We have all the laws we need; we simply need to ensure they are enforced.
Not everyone who wants abortion legislation is anti-choice. Some Canadians want laws to protect access to the procedure, but passing that legislation may be less necessary and have more consequences than anticipated.
Unlike states in America, provinces can’t criminalize abortion because determining criminal law in Canada is solely within the jurisdiction of the federal government. Provincial law applies to regulations like speeding and liquor licensing. Anti-choice motions have been consistently struck down, and even federal Conservative leader Andrew Scheer has stated that his party will not reopen the discussion, as was reconfirmed at the Conservative Party convention last August.
Pro-choice Canadians should recognize one very important reason to keep the government away from the female reproductive system — passing abortion laws, even to protect access, would set the dangerous precedent of legislative control over the procedure.
Anti-abortion activists are already under the delusion that restricting the bodily autonomy of women, transgender, and non-binary people on the basis of “morality” is justified. We should not risk encouraging their belief in their right to impose their alleged values on others.
The Canadian Criminal Code does not regulate access to medical procedures, because they are none of the government’s business. Just as tonsillectomies and appendectomies require no legal regulation to restrict or protect access to them, neither should abortion.
Additionally, because abortion laws only apply to women and to transgender or non-binary people who can get pregnant, these laws are inherently discriminatory. Assuming that the government has the right to pass legislation regarding the female reproductive system is a violation of gender equality. The Canadian government does not regulate the male reproductive system — a person who wants a vasectomy can obtain one — nor does it feel the need to legally protect men’s access to reproductive healthcare.
Enshrining access to abortion in law marks it out as “other,” a privilege permitted by a paternalistic, albeit benevolent, government. Pregnancy termination is part of reproductive healthcare, just like vasectomies, tubal ligation, and contraception. The goal should be to normalize and lessen the surrounding stigma.
We have all the laws we need; we simply need to ensure they are enforced.
Section seven of the Charter of Rights guarantees the right to “life, liberty, and security of the person.” As was recognized in R. v Morgentaler, forcing a woman to bear an unwanted, parasitic, and possibly life-threatening fetus to term, and then endure the dangerous trauma of childbirth, violates that right.
The place of government legislation is not in the uteri of its citizens.
Section 223.1 of the Criminal Code defines a child as a human being only once it has “proceeded, in a living state, from the body of its mother,” and is a law that expressly protects those who seek abortions and the doctors who perform them.
A recent Ontario Court of Appeal decision confirmed that doctors who refuse to provide a service due to personal beliefs must provide a referral. This is a step in the right direction, and other provinces should confirm this obligation.
The Canada Health Act mandates public funding for medically necessary procedures and the clinics which perform them. Abortion is medically necessary at all stages of pregnancy for a variety of reasons, including the trauma of rape and incest, health conditions which make full-term pregnancy inviable, severe or fatal abnormalities of the fetus, and to prevent deaths as a result of the dangerous DIY methods that occur wherever abortion is banned. If provinces are made to meet their existing obligations, then accessibility will be improved.
If these laws are not sufficient to stop anti-abortion activists from trying to control other people’s bodies, then more laws are not going to improve the situation. True, there is great appeal in the idea of legally mandating a certain number of abortion clinics per province, protecting them from protesters, and forcing doctors to either provide necessary reproductive healthcare or retire. But that legal battle would be incredibly divisive and inflammatory, and would provide a future conservative government with laws that could be repealed.
As we have seen in the United States, abortion laws can be overturned when a more right-leaning government takes over. The beauty of Canada’s system is that our Charter of Rights and Criminal Code support access to abortion, and we have no other laws for anti-choice politicians to mess with.
We need societal change to further normalize reproductive healthcare. It’s been a long battle, and as long as there is gender disparity in human society, the fight will go on. But rather than trying to enact laws around abortion, we should be fighting to prevent them. The place of government legislation is not in the uteri of its citizens.
