Canada: The Civilized Outlaw
By Joyce Arthur
The following is based a presentation
given by Joyce Arthur, Director and Spokesperson for Canada's
Pro-Choice Action Network, at the FIAPAC conference (www.fiapac.org)
in Vienna Austria, on September 10, 2004. In it, the author
draws attention to the benefits of the unusual legal context
for abortion in Canada.
Canada is one of only four
countries in the world that have no laws restricting abortion.
(The other countries are China, North Korea, and Vietnam.)
I am very proud that Canada has no laws, because it has resulted
in pretty good access to abortion services for Canadian women
in a fairly short period of time, and it has also increased
public support for abortion. Abortion is considered to be
a settled issue in Canada. I will provide a very brief history
of why Canada has no law on abortion, and what the positive
results of that have been. Then I will discuss what is wrong
with laws that restrict abortion.
Canadian abortion law history
- Prime Minister Pierre Trudeau
passed liberalized abortion law in 1969.
- Committee of doctors approved
hospital abortions if woman's life or health in danger.
- Resulted in poor and unequal
access for women, arbitrary obstacles, and delays.
- 1968 to 1988 - Dr. Henry
Morgentaler performed illegal abortions, opened clinics,
arrested many times.
- He was acquitted by juries
four times, but a judge sentenced him to jail anyway.
Pierre Trudeau was one of
our greatest Prime Ministers, best known for giving Canada
its constitution, which guaranteed equality for women. That
equality clause has helped a lot to protect women's right
to abortion. This liberalized abortion law meant that abortion
was still not a woman's decision. She still couldn't get one
at most hospitals, unless she lived in a big city. Abortion
clinics were illegal. Dr. Henry Morgentaler is a brave individual
who through his practice as an abortion doctor almost single-handedly,
gave women the right to abortion on request.
Supreme Court ruling
- Jan. 28, 1988 - Supreme
Court of Canada repealed the abortion law.
- The Court said abortion
is a constitutional right based on women's:
- "security of the person"
- "right to life"
- personal "liberty"
- "freedom of conscience"
- Court did not cite women's
"right to equality", but later court decisions on abortion
In 1988 the Supreme Court
of Canada threw out the entire abortion law because it discriminated
against disadvantaged women, many of whom were unable to access
Some of the Supreme Court
judges wrote some very nice language in that decision. For
example, one said: "The right to liberty…guarantees to every
individual a degree of personal autonomy over important decisions
intimately affecting their private lives. ... Liberty in a
free and democratic society does not require the state to
approve the personal decisions made by its citizens; it does,
however, require the state to respect them." Shortly after,
the Canadian government tried to pass a new law against abortion,
one that would put doctors in jail for two years for performing
abortions. There were massive protests by women across the
country, with the slogan "No New Law!" The new law failed
to pass, and the government said it would not try to legislate
Access improves with no
- Abortion services are managed
under the Canada Health Act.
- Abortion is "medically
required" and funded.
- Abortion services are less
isolated from mainstream medicine.
- Many doctors integrate
abortion into their general practice.
- Many new abortion clinics
- about 45% of abortions now done in clinics.
- High public support for
The Canada Health Act
is a law that guarantees to Canadians fully-funded health
care. Abortion is managed under that Act, which means that
abortion must be provided in the same way as any other necessary
health service. For example, it must be performed by a doctor,
it must be accessible to all Canadians, anywhere in Canada,
and it must be funded.
Support for abortion has been
growing since 1988. A survey taken in 2002 found that 78%
of Canadians agree that: "Women should have complete freedom
to decide to have an abortion."
- In 1988, Canadian Medical
Association recommended abortion on request up to 20 weeks
- Today, abortions on request
performed to 22 weeks LMP (last menstrual period).
- Abortions available to
24 weeks LMP for genetic abnormalities, desperate social
circumstances, and to protect maternal health.
- Abortions available after
24 weeks LMP for lethal genetic abnormalities, and for compelling
maternal health reasons.
The reason that the Canadian
Medical Association prefers that doctors do not perform abortion
on request after 20 weeks, is because the fetus might be viable
then. But there are no penalties for doctors who do not comply
with this policy. There is very little demand for late abortions.
- 105,104 abortions in 2002
- 15.4 abortions per 1000
- 32 abortions per 100 live
- 90% by 12 weeks gestation,
98% by 16 weeks
- About 30% of all Canadian
women have at least one abortion in her lifetime
- About 75% of all women
use contraception (not counting abstinence)
- Maternal mortality rate
Canada's abortion rate compares
reasonably well to other western countries. It is higher than
countries like Holland, but lower than the United States.
Abortion rates have increased since the old law was thrown
out in 1988, but that's because of better access and less
It is important to have an
abortion as early as possible of course. Almost all abortions
in Canada are performed early because there are no legal barriers
to quick access. In the United States, many states have waiting
period laws and parental consent laws. This simply delays
the procedure, causes unnecessary stress to the patient, and
increases the medical risk
Canada has a very low complication
rate for abortion, about 1-2%, mostly minor complications.
We don't need criminal laws to force doctors to practice good
medicine! In fact, such laws are more likely to foster bad
medical practice. For example, a law prohibiting a particular
abortion technique might mean that the doctor must use a procedure
that is riskier for that patient
- About 80% of hospitals
don't perform abortions.
- Several private abortion
clinics still not fully funded.
- Anti-abortion harassment
- Some hospitals have:
- long waiting lists
- requirement for doctor
referrals or approvals
- quotas or gestational
- anti-abortion staff who
misinform or judge
Women still have problems
accessing abortion, because abortion is still somewhat politicized.
Having no laws against abortion
helps a lot, but active government that supports improving
services is needed. However, most of our current problems
are gradually being solved - and they are NOT caused by having
no laws against abortion. Our progress would be much slower
if we had abortion restrictions.
- Women's equality guaranteed
under Canada's constitution.
- Canadian courts have consistently
protected women's right to abortion.
- Many court cases by anti-choice
protesters have failed to give rights to fetuses.
- Fetuses are not legal persons
until they completely exit from birth canal, alive.
- Male partners cannot force
a woman to have a baby.
Over and over again, the courts
have upheld women's complete right to abortion; women are
legal persons, fetuses are not. One court decision ruled that
a woman and her fetus are considered "one person" under the
Judges have said they cannot
give any rights to fetuses, because that would infringe
on women's established equality rights under the constitution.
The trouble with laws
- Restrictions against abortion
are leftover artifacts from the days of criminal abortion.
- They institutionalize the
stigma of abortion.
- They stop abortion from
being fully integrated into the healthcare system.
- They breed hypocrisy and
disrespect for the law.
- Laws against abortion are
- They reduce access in
- They violate the human
rights of women
Abortion was a criminal act
in most countries not too long ago. It takes time for the
stigma of abortion to go away. But as long as there are continuing
restrictions against abortion, that stigma will never
go away. No other medical procedure carries with it the threat
of criminal punishment. Abortion is singled out for special
treatment - or I should say "shameful" treatment
Laws restrict access by…
- Creating arbitrary obstacles
- Marginalizing abortion
- Isolating abortion providers
outside the medical mainstream
- Shifting focus away from
- Disrespecting professional
medical judgments made in the patient's best interests
- Threatening health workers
- Making abortion a political
target for legislators, anti-abortion lobbyists, and extremists
Laws against abortion have
many negative and cruel consequences. Laws take the abortion
decision and the abortion procedure out of the hands of women
and doctors, and give it to legislators. In other words, women
and doctors cannot be trusted. Laws imply that abortion must
be restricted because it is wrong and bad, and the people
who need or perform abortions are also wrong and bad.
These laws produce hypocrisy
and disrespect for the law, because women and doctors are
forced to find ways around the laws. They will often skirt
these laws, or even disobey them. Because no law will change
the fact that a woman desperately needs and wants an abortion,
and a doctor wants to help her.
Laws hurt women by…
- Violating women's equality
rights, because only women can get pregnant
- Affecting disadvantaged
women the most
- Rejecting women's moral
- Distrusting women to make
their own decisions about their lives
- Protecting fetuses instead
of pregnant women
- Punishing women for having
sex for pleasure
- Punishing women for "shirking"
Women are different than men
because of their capacity to bear children. Childbearing has
a much more profound effect on women's lives, than for men.
To truly achieve equality with men, women must not be disadvantaged
under the law because of pregnancy. There should be no laws
regulating pregnancy, because that puts a special obligation
on women but not men.
Laws against abortion tend
to have the worst effect on women who are poor, young, immigrant,
uneducated, and so on. Laws end up being discriminatory, even
if they weren't meant to be.
These laws are meant to reduce
the incidence of abortion, but instead, they put cruel obstacles
in front of a woman. Laws turn them into criminals, or state-controlled
baby-making machines. These laws also insult women, because
they say that women are not capable of making the most important
decisions about their own lives. A paternalistic government
(or a doctor) has to decide for them.
The way to reduce abortion
is to make contraception universally accessible, teach responsible
sex education, and give people positive incentives to raise
kids, such as financial bonuses and family support programs.
The state has no legitimate
interest in protecting the fetus at any stage, except to provide
social and medical resources to pregnant women to ensure good
outcomes for their pregnancies ("good outcomes" include abortion).
It's pregnant women who are in the best position to take care
of their fetuses and make decisions on behalf of their fetuses,
not the state.
- Motherhood is a woman's
- All women should be (and
want to be) mothers.
- Women must sacrifice themselves
to raise kids.
- Women must endure the discomfort
and pain of pregnancy and childbirth without complaint.
- Women who have abortions
are "bad" or "victims."
- Women are irresponsible
- or too emotional. They need direction and guidance like
- Women who have abortions
suffer psychologically (at least they should).
- To "protect" women, we
must restrict abortion.
These beliefs are the root
cause of all abortion restrictions, and they form the basis
of the anti-abortion viewpoint. The main anti-abortion goal
is not to "save babies". It is to keep women in their traditional
Unfortunately, even many pro-choice
people hold some of these views to some extent. Such views
are not usually stated out loud, or even realized on a conscious
Laws against abortion rely
- Pro-natalism - preference
for birth over abortion.
- Right to have babies is
unquestioned and unrestricted, but abortion is frowned upon.
- Children are treated like
possessions of parents, instead of individuals with rights.
- Church, God, and Bible
This traditional thinking
no longer works for our modern society with its focus on human
rights. Why should we favour birth over abortion when we live
in an overpopulated world; when society will never reach agreement
on the moral status of the fetus; when we know that unwilling
mothers and unwanted children tend to suffer; and when becoming
a parent should be the private decision of the woman and her
Many people may not be ready
or able to provide properly for a child. But children have
rights, and they deserve respect, love, and the best chance
at a good life. Of course, the right to have a child is fundamental
and should not be restricted. But abortion is also a fundamental
right on an equal basis.
Churches and religious doctrines
should never dictate how we live our lives in a secular society
with secular laws. Besides, the Bible is pro-choice! Several
passages say it is better to die in the womb than live an
unhappy or wicked life.
- Guarantee women's equality
- Lobby government against
- Collect evidence of laws'
harms, find plaintiffs, challenge laws in court.
- Empower women in society
(change public policies).
- Change patriarchal attitudes
about women and motherhood (write, publish, speak).
- Change rhetoric: Abortion
is a moral and positive choice. It liberates women, saves
lives, and protects families. Abortion is not a "necessary
- Prioritize childcare and
child-rearing as a universal concern, not a "woman's issue."
Some of these proposed solutions
are obviously very difficult and would take many years. But
you have to start somewhere.
It is so important that the
laws or the constitution of your country give women equal
rights, because that can be used to strike down abortion restrictions.
When women's equality is guaranteed under the law, then public
prejudice against women and abortion cannot be as influential,
and will gradually decline.
To conclude, we don't need
any laws against abortion at all. We can trust women to exercise
their sensible moral judgment; we can trust doctors to exercise
their professional medical judgment, and that's all we need
to regulate the process.