How Canada and the U.S. treat abor­tion dif­fer­ently

The Victoria Standard - - Health - HE­LEN DELFELD

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.

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