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The Case for Repealing Anti-Abortion Laws

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The Case for Repealing Anti-Abortion Laws by Joyce Arthur www.arcc-cdac.ca [email protected] First published November 2006 Revised January 2009 The Case for Repealing Anti-Abortion Laws No country needs to regulate abortion via criminal or civil law. Only when abortion has the same legal status as any other health procedure can it be fully integrated into women’s reproductive healthcare. The repeal of abortion laws is supported by guarantee of women’s equality can be used to evidence from Canada, the only democratic overturn abortion laws, and ensure that country in the world with no laws restricting abortion is funded by the healthcare system abortion since 1988. Abortions have since as a medically-required service. Freedom of become earlier and safer, and the number of religion, the right to privacy, and the right to abortions has become moderate and stable. self-defense can also be used to strike down Current abortion care reflects what most laws. All anti-abortion restrictions are unjust, Canadians are comfortable with, and women harmful, and useless because they rest on and doctors act in a timely and responsible traditional religious and patriarchal manner, with no need for regulation. foundations. Laws kill and injure women, violate their human rights and dignity, Several legal arguments help build the case impede access to abortion, and obstruct for abortion law repeal. A constitutional healthcare professionals. Table of Contents Abortion Politics and Practice in Canada ................................................................. 2 History .................................................................................................. 2 The Morgentaler Decision ......................................................................... 2 Abortion Access Improves After 1988......................................................... 3 Abortion Availability and Statistics in Canada .............................................. 3 Still Some Access Problems ...................................................................... 4 Judicial and Constitutional Protections.................................................................... 4 Protecting Equality Rights......................................................................... 4 Protecting Abortion Funding...................................................................... 5 Protecting Religious Freedom .................................................................... 6 Protecting Right to Privacy........................................................................ 6 Protecting Right to Self-Defense ................................................................ 7 The Trouble with Laws ......................................................................................... 7 Laws Reduce Access and Obstruct Doctors .................................................. 8 Laws Hurt Women ................................................................................... 8 Laws Rest on Patriarchal Assumptions ........................................................ 9 Laws Rest on Outdated Traditions.............................................................. 9 Solutions for Repealing Anti-abortion Laws ............................................................10 Abortion Politics and requirements substantially increased the risks to the health of pregnant women, both Practice in Canada physically and psychologically, especially in certain locations.1 This was found to violate History women’s “security of the person” (bodily Canada implemented a integrity) by a majority of the judges. strict anti-abortion law in 1869, In a concurring opinion, one judge, Bertha prohibiting abortions Wilson, also said that abortion is a Charter except to save the right based on women’s “right to life,” woman’s life. In 1969, then- personal “liberty,” and “freedom of Prime Minister Pierre Trudeau liberalized conscience.” Justice Wilson said: the abortion law by allowing a committee of doctors to approve hospital abortions if the “The right to liberty…guarantees to every woman’s life or health was in danger. individual a degree of personal autonomy However, abortion was still not a woman's over important decisions intimately decision, and was often unavailable unless a affecting their private lives. ... The woman lived in a big city. Most hospitals decision whether or not to terminate a didn’t have abortion committees and many pregnancy is essentially a moral decision, that did refused permission for most and in a free and democratic society, the abortions. Abortion clinics were illegal. The conscience of the individual must be law resulted in poor and unequal access for paramount to that of the state." women, unnecessary obstacles, and delays. Wilson also said: From 1968 to 1988, Dr. Henry Morgentaler of Montreal performed illegal abortions, opened “Liberty in a free and democratic society several illegal clinics across Canada, and was does not require the state to approve the arrested many times. He was acquitted by personal decisions made by its citizens; it juries four times, but a judge sentenced him does, however, require the state to to jail anyway. Dr. Morgentaler was a brave respect them. A woman's decision to terminate her pregnancy falls within this individual who almost single-handedly gave women the right to abortion on request. class of protected decisions. It is one that Eventually, his case made it all the way to will have profound psychological, the Supreme Court of Canada. economic, and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and The Morgentaler Decision her relationship to others and to society at large. It is not just a medical decision; it is On January 28, 1988, the Supreme Court of a profound social and ethical one as well."1 Canada repealed the abortion law in its entirety, a ruling now known as the In the Morgentaler decision, the court “Morgentaler decision.”1 The judges said that actually invited Parliament to pass a new law enforcement of the law resulted in against abortion, one that would pass inequitable access and arbitrary obstacles for constitutional muster. So in 1990, the women, thereby violating their constitutional Canadian government tried to pass a law that rights under Canada’s Charter of Rights and would put doctors in jail for two years for Freedoms (the “Charter”). In particular, the performing abortions. There were massive law discriminated against disadvantaged protests by women across the country, and women—such as poor, young, and rural the new law failed to pass. The government women—many of whom were unable to said it would not try to legislate abortion access abortion services. The Supreme Court again. Today, even though Canada currently also found that the law’s unreasonable January 2009 www.arcc-cdac.ca/action/repeal.pdf Page 2 has a conservative government, the Prime indicated under exceptional circumstances.” Minister has vowed not to re-open the Today, abortions on request are performed abortion debate. up to 22 weeks LMP (last menstrual period). In practice, abortions are available up to 24 weeks LMP for genetic abnormalities, Abortion Access Improves After 1988 desperate social circumstances, and to With no legal restrictions in place, abortion protect maternal health. After 24 weeks LMP, services began to be managed under the abortions are available for lethal genetic Canada Health Act as a “medically required” abnormalities.5 service. This federal law guarantees fully- funded healthcare to Canadians. Under the Here are some Canadian statistics that Act, abortion must be provided in the same indicate responsible abortion practice by way as any other necessary health service. women and doctors, in the absence of any For example, it must be performed by a regulations:6,7,8 doctor, it must be accessible to all Canadians in all areas of Canada, and it must be 97,254 abortions in 2005. funded.2 The quality of abortion care is 14.1 abortions per 1000 women (15-44). adequately monitored through the provincial 28 abortions per 100 live births. Colleges of Physicians and Surgeons, the 90% by 12 weeks gestation. same as any other healthcare procedure. 98% by 16 weeks. Less than 2% between 17 and 20 weeks. As a result, abortion services have become 0.4% after 20 weeks gestation. less isolated from mainstream medicine. About 25% of all Canadian women have at Many doctors have integrated abortion into least one abortion in their lifetime. their general practice, and many new About 75% of all women use contraception abortion clinics have been established. (not counting abstinence). Today, about 45% of abortions are done in Maternal mortality rate of 0.1% per clinics. 100,000 legal abortions. There is also strong public support for Canada's abortion rate compares favourably abortion rights, and this support has been to western Europe’s rate of 12, the lowest growing since 1988. A survey in 2002 found abortion rate in the world. In contrast, the that 78% of Canadians agree that: “Women American rate is 20, and U.S. women must should have complete freedom to decide to navigate through a thicket of abortion have an abortion.”3 It’s reasonable to assume restrictions. (The global average rate is 29 that such high support for abortion rights is per 1,000 women9, with the highest number at least partly a consequence of the of abortions occurring in countries where it's Morgentaler decision. When laws and social illegal, and in countries with poor access to policies change, public opinion often follows
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