How Canada and the U.S. treat abortion differently
Canada is one of the few countries in the world with no legal restrictions on abortion. It's even covered by insurance. By contrast, abortion is still a big fight in the United States. Here, access to abortion is becoming increasingly difficult for some, and unaffordable for others. Why this difference, in neighboring countries that are in many ways so similar, culturally and economically?
Roe v. Wade (1973) was the Supreme Court decision that made abortion legal in the U.S. (at least for the first trimester). Where things get messy is how the Court came to the decision. Its rationale was based on an earlier case, that of Griswold v Connecticut. In 1965, that landmark decision established that married people had a right to buy birth control. The right had nothing to do with health or economics, but was an issue of privacy. Seven years later, that right to privacy was expanded to unmarried people in Eisenstadt v Baird. If people wanted to buy birth control, it was their own business.
And this is where all the trouble started. What Griswold and Eisenstadt did not argue (but should have) was that the 14th Amendment (with its guarantee to equally protect all people under the law) should have protected women and unmarried people as much as it protected married people, since there was nothing legally defensible about giving married people special power when it came to accessing birth control. The lawyers just could not imagine our Supreme Court justices would accept such a radical argument - that is, that women are people too - and they were probably right.
So when Roe v Wade came along in 1973, instead of arguing that women have the right to be in control of their body just the same as men (an equal protection argument), the Supreme Court used the "right to privacy" as grounds to allow first-trimester abortions. That opened the door to the second finding, that somehow, mysteriously, the right to privacy was not absolute, and that states could place their own restrictions on abortion as a pregnancy advanced. I know. It makes no sense medically or legally. I'm scratching my head too.
So that's where the U.S. law stands today. Since the Roe decision positively invites intervention, the anti-abortion camp has been empowered to restrict women's health care for nearly a half century. Conservative states have steadily made inroads that would never be tolerated if a man's access to medical treatment was threatened. In many states, abortions are virtually impossible to get. People defending access to abortion, on the other hand, are stuck defending a dumb Supreme Court decision that clearly was a weaker argument than could have been made. Even dead people have an undisputed right to decide what happens to their body. If one doesn't choose to become an organ donor, no one can make you save someone else's life, even if you are no longer using your kidneys yourself.
The Canadian trajectory was quite different, despite also initially treating abortion as a criminal offense. In 1968, Canada's Parliament moved away from such a harsh policy with the Criminal Law Amendment Act 1968-9. Yet, women still had to get the approval of a Therapeutic Abortion Committee. If they failed to get that agreement, the abortion was still criminal. Committees were notoriously variable in their sympathy to the pleas of women.
In short, U.S. and Canadian decisions made in the 1960s and 1970s both refused to treat women equally. But Canada, cleverly or by accident, waited until 1988 to change that state of affairs when times were different. Canada's Supreme Court found in R. v Morgentaler (1988) that the existing abortion law violated a woman's section 7 rights to bodily integrity under the Charter of Rights and Freedoms. By that time, arguments about women's equality in the workplace were well-advanced, and women's rights to be free of marital rape were also firmly established. Hence, lawyers could effectively argue that women are indeed people too. Since then, access to abortion in Canada has been a non-issue, because the legal basis is the obvious one: if men have autonomy over their bodies in medical matters, so do women.
Still, Canadian women's health care isn't as good as it could be. Many provinces in Canada do not offer access to Mifegymiso (also known as RU-486), the effective pillbased abortion option, useful during the first quarter of a pregnancy. In this one small area, the U.S. is more progressive. RU-486 is widely available in the U.S. without a prescription at all. Fortunately, Nova Scotia recently changed its approach and will make Mifegymiso available for free starting in November.
Advances in access to contraception and reliability of contraception have been game-changers. Abortions in the U.S. have finally fallen below the 1973 numbers, when abortion was legalized, and they continue to drop. Canada's attention to women's health has paid off even more handsomely, with rates of abortion falling even faster than in the US.
Paying attention to women, as humans in their own right, surprisingly works.
Dr. Helen Delfeld holds a doctorate in political science, specializing in women/gender studies and international politics. She worked as a human rights activist and professor for over a decade before turning to public education and writing. She currently teaches political theory to inmates at a maximum security prison.