Canada lags on abortion

Ottawa has yet to clarify the legal conditions while access remains inconsistent

From a distance, the Texan legislative initiative to prohibit abortion after six weeks appears oddly and uniquely American. But we Canadians shouldn’t feel too smug. The U.S. was ahead of us in fully decriminalizing abortion: Roe v. Wade in 1973 was followed 15 years later by R. v. Morgentaler here. Since then, neither country has passed federal legislation to clarify the legal conditions for abortion, or a legislative guarantee of accessibility to the procedure.

Since the 1988 Morgentaler ruling, abortion has been legal in Canada at any stage of pregnancy. In fact, Canada is one of the most liberal countries in the world when it comes to abortion: our criminal code offers no legal protection for fetuses.

We follow the “born alive” rule of common law, which does not consider a fetus to be a person (with rights) until it is fully birthed. We default to this principle because our Parliament has not passed legislation to specify the conditions under which abortions are permitted, and our Supreme Court has offered only vague opinions suggesting that late-stage abortions should be assessed by different standards than early-stage pregnancies.

In contrast, the Supreme Court of the United States has offered more specific views. Rather than “born alive,” American law focuses on viability — when the unborn fetus is able to survive outside of the womb.

In 1992, Planned Parenthood v. Casey clarified that a woman has the right to abort her fetus prior to its viability, after which a state can intervene by introducing restrictions.

While more nuanced than “born alive,” the test of viability is subject to a wide spectrum of interpretation — such as the new Texas legislation, which is based on the earliest point that a heartbeat can be detected.

In Canada, the federal government has the power to invoke the Canada Heath Act, which guarantees that all insured health services (of which abortion is one) be provided “on a basis that does not impede … reasonable access.” But our government’s use of the act to enforce access to abortion has been weak and sporadic, resulting in inconsistent access, particularly in rural communities.

One of the most liberal abortion jurisdictions in the world is also home to one of the most ambiguous and poorly enforced set of protocols. Granted, balancing the mother’s right to liberty with the fetus’s right to life is fraught, but “born alive” is too blunt a doctrine on its own, and the inherent ambiguity of the viability test can be distorted to serve political agendas.

Science provides us with insight on a fetus’s developmental milestones, but science cannot offer a solution to the conundrum of when a fetus has rights that should supersede the mother’s. The line that separates a morally acceptable abortion from one that is not can only be defined by a collective, societal judgment.

Five years ago this November, a report by the UN’s Committee on the Elimination of Discrimination against Women (CEDAW) indicated that lack of access to abortion in Canada should be addressed.

Approval in Canada of the drug mifepristone has expanded accessibility to medical abortions, but the drug is only prescribed within the first nine weeks of pregnancy; it is not the sole solution to accessibility. Successive governments have implicitly relied on the dictum “If it ain’t broke, don’t fix it.” But the system is broken for the many women who do not have reasonable access to the procedure.

While the Canada Health Act puts our federal politicians in a stronger position than their American counterparts, we share their legislative failure to clarify the conditions for abortion, and to ensure access for a procedure to which all women are entitled.

Prime Minister Justin Trudeau made some encouraging comments on the campaign trail about improving access. At the very least, let’s hope his government makes substantive progress on securing consistent and reliable reproductive health for all Canadian women.

Even better, let’s learn from the American experience and acknowledge that the question of abortion should not be left to the courts to wrestle with. Rather, it should be governed by a clear legislative initiative to secure the right to abortion in statute.

One of the most liberal abortion jurisdictions in the world is also home to one of the most ambiguous and poorly enforced set of protocols