Canada Does Not Need an Abortion Law
By Joyce Arthur, Abortion Rights Coalition of Canada
First published October 2008 • Revised August 2019
(Note: This article addresses why we don’t need a restrictive or criminal law, not whether we need a progressive law that enshrines abortion rights into law. For 2022 updates on these two topics, please see Position Paper #64 and Position Paper #66), respectively.)
Anti-choice activists frequently call for a new abortion law, claiming that Canada is “way out of line with international counterparts” by not having a law.[1] Canada’s previous criminal abortion law was thrown out as unconstitutional in 1988 by our Supreme Court.
But laws have never stopped abortions, or even reduced them. Reports from the United Nations and the Guttmacher Institute have found that abortion rates are higher in developing countries where abortion is illegal, compared to rates in developed countries where abortion is legal. In other words, restrictive abortion laws are not associated with a low abortion rate, and result in high numbers of unsafe abortion. In countries where abortion is widely available – including Canada – there has typically been a decline in abortion rates over time because of increased contraception use.
Canada’s abortion rate is very low compared to other countries in the world, and has been decreasing more or less steadily since 1997. The most recent statistics (2017) from the Canadian Institute for Health Information (CIHI) show a 12% decline since 1997 (StatsCan, see page 10). Out of 1,000 women of childbearing age, 13.1 had an abortion in 2017 (ARCC, page 4). That compares very favourably to western Europe’s average rate of 16 (from 2010-2014), where abortion rates are as low as 10.3 in Finland and 9.2 in Lithuania (see page 42). In contrast, the American rate is 14.6 (as of 2014), and U.S. women must navigate through a thicket of abortion restrictions. Meanwhile, the global average rate is 35 per 1,000 women, with the highest number of abortions occurring in countries where it’s illegal and/or have poor access to contraception.
It’s ironic that abortion laws are designed to limit abortions, yet one of the best ways to reduce abortion is to liberalize or repeal anti-abortion laws. That’s not the only factor of course. The real key is to promote women’s rights, with particular attention to their reproductive rights. Most countries in western Europe enjoy a more pragmatic attitude towards sexuality and contraception (with full or partial funding for contraception in some countries), and strong support for women’s equality. Also, most abortions occur because people can’t afford to have a child, so governments can significantly reduce abortion numbers by building a more stable, prosperous society and making child-rearing economically feasible. There is no need for societies to defend fetal interests directly, as the best way to protect fetuses is to provide resources directly to pregnant people. When a pregnant woman is safe and healthy, so is her fetus.
Many people talk of “balancing” the rights of the woman with the fetus. But it is impossible for two beings in the same body to both enjoy rights. The Supreme Court of Canada stated in Dobson vs Dobson (1999, 2 SCR 753) that the physical unity of a woman and her fetus precludes the imposition of a duty of care on her, because that would be a profound compromise of her privacy and autonomy. Legal precedents over the last 20 years have more firmly established not only the full rights of pregnant women (and pregnant transgender people), but the necessary lack of fetal rights. The Criminal Code says that a fetus does not become a human being until it has completely exited the birth canal, alive. This definition has withstood the test of time and several legal challenges brought by anti-abortionists.
Most anti-abortionists confidently state as “scientific fact” that human life begins at conception and therefore embryos deserve legal protection. The question of when life begins is a philosophical issue, not a scientific one, and there can be no consensus. The moral value of a fetus is also a matter of personal opinion, so it must be left up to individual women to decide what their fetus means to them, if anything. But even people who believe abortion is murder often need abortions, so the nature of the fetus and its moral status are ultimately beside the point. Women’s lives, health, and basic human rights depend on the availability of abortion, and those are the only factors necessary to justify abortion.
A common anti-abortion claim is that there’s no difference between a newborn and a 9-month fetus; therefore a fetus should have legal rights. But a fetus is inside the woman and completely dependent on her, which makes all the difference in the world. A pregnant woman or transgender person cannot hand over their fetus to someone else to take care of, like they could with a newborn. Further, pregnancy has a major effect on a person’s body and emotional state, and every pregnancy carries some risk of serious complication or death. The crucial decision to take on that risk—no matter how small—can only be decided by the pregnant person themselves.
Anti-abortionists tend to assume that without restrictions on abortion, Canadians are lining up for last-minute abortions during their 9th month of pregnancy, and doctors are obligingly doing them. This irrational claim is insulting to both women and doctors, and has zero basis in fact. The number of abortions after 20 weeks has always been extremely low, as it is in every country with legalized abortion, and that did not change after 1988. According to 2017 statistics, only 0.66% of abortions were performed after 20 weeks. Almost all of these occur between 20 and 22 weeks, mostly for serious maternal health reasons or fetal anomalies. The number of abortions done after 24 weeks in Canada amounts to a tiny handful, and virtually all are done for cases of lethal fetal abnormality, where the fetus cannot survive after birth. Only a handful of doctors in Canada are even trained and willing to do abortions after 20 weeks. Further, it’s impossible for any doctor to undertake this more complex operation without a dedicated medical team and the full backing of an institution.
Another anti-abortion assumption is that a criminal law is needed to regulate abortions, even though the medical profession normally regulates itself through provincial health acts and internal codes and policies. Why do we need an abortion law when the Canadian Medical Association has had a policy on induced abortion since 1988, which doctors follow? The policy allows abortion on request up to fetal viability (over 20 weeks or 500 grams), as well as “elective termination of pregnancy after fetal viability…under exceptional circumstances.”
Anti-abortion activists like to point out that the Supreme Court justices who penned the 1988 Morgentaler decision “invited” the legislature to pass a new law to regulate abortion. But the only attempt failed in 1990, and every government since then, including the Conservatives, has explicitly stated they would not re-open the abortion issue. There is no Parliamentary obligation to pass a new law, after all. The interpretation of the Charter of Rights and Freedoms, only six years old in 1988, has evolved to the point that it would be extremely difficult for any abortion restriction to pass constitutional muster. We do not live in the same legal world we did over 30 years ago. Women and transgender people now have well-established constitutional rights to life, liberty, conscience, security of the person, and equality. Such rights cannot be easily removed or compromised, and all are directly implicated in the abortion issue. In fact, access to safe and legal abortion has become a Charter right due to subsequent legal precedents that built on the 1988 Morgentaler decision.
Some commentators simply presume that since all other developed nations have abortion laws, Canada should have one too. But this ignores the historical context. Legal restrictions in liberal countries are a relic of patriarchy and religious tradition – they evolved from total abortion bans that were in place earlier in the 20th century. Canada is lucky, in a sense, that the revised abortion law we had in place from 1969 to 1988, was so bad that our Supreme Court threw it out as unconstitutional. Other countries took a different path, with legislatures tinkering with the original abortion law. For most of the 20th century, people could not comprehend the idea that women should or could exercise a right to abortion on request. As a result, existing abortion laws were revised on the unquestioned and false assumption that some kind of abortion law was necessary.
Laws were initially liberalized in most countries for public health reasons, when it became apparent that women could not be stopped from seeking out abortions, regardless of any law or risk to their lives. Illegal abortions were killing and injuring large numbers of people every year around the world. It was often doctors who fought hardest for legalization, because they were the ones who witnessed the daily carnage. The anti-choice movement is forced to ignore or discount the death toll of illegal abortion in order to advocate re-criminalizing abortion. But overwhelming evidence exists to support the fact that illegal abortion is still widely practiced and that it’s dangerous, especially for poor women in developing countries. Reputable organizations like the Guttmacher Institute and the World Health Organization use a range of methods to carefully calculate and cross-check the rates of illegal abortions in various countries. (Also see here and here.) It’s impossible to arrive at a highly accurate number when abortion is illegal, but in most cases, the number is at least somewhat under-reported.
Almost half of the 56 million abortions in the world each year are unsafe and generally illegal. As a result, at least 22,800 women die every year and 7 million are admitted to hospitals with complications. About 8% of maternal mortality is due to unsafe abortion. Abortion laws are not only harmful to women’s health, they are generally unworkable or onerous. Even seemingly minor restrictions violate the rights of pregnant people, interfere with medical discretion, and compromise the quality of care. Since the laws were not written with women’s health in mind, healthcare professionals are often put in the position of skirting the law in order to do their jobs of saving peoples’ lives and health. The sheer range and inconsistency of abortion laws around the world proves they are unrelated to good healthcare, and are politically motivated. This helps explain why developed countries like Canada enjoy very low maternal mortality rates from abortion, while the most obscenely high mortality rates occur in African countries where abortion is totally banned. Of course, healthcare services are usually superior and more accessible in developed countries, but it’s clear that anti-abortion laws kill women, while repealing the laws saves their lives. Having no abortion restrictions also helps to integrate abortion care into the healthcare system, facilitate early access, and improve women’s health in general.
The abortion debate will probably never be resolved on a philosophical level, because the anti-choice movement is strongly motivated by religious ideology. Their fixation on the fetus, with their foregone conclusion that fetuses are full human beings with rights, cancels out any competing claim for women’s rights. Underlying all the pro-fetus rhetoric is the unquestioned assumption that women were made to have babies, this is their God-given natural role, and the law must enforce that. A logical extension of this view is that any woman who has an abortion must be a victim of coercion, or too ignorant or desperate to understand what she’s doing. Since abortion is assumed to be bad for women, they must be “protected” from abortion by criminalizing it. (Needless to say, the anti-choice movement refuses to recognize the rights of transgender people.) Some anti-choice leaders in Canada want to jail women for having abortions, although many anti-choicers disagree, apparently on the basis that pregnant women can’t be held responsible because they are incapable of making wise moral decisions. However, virtually all anti-choicers agree that abortion providers should be jailed for murder—even though doctors are only responding to a steady and urgent demand from women.
This speaks to the unbridgeable divide between the pro-choice and anti-choice movements. While the former is concerned about protecting the safety and rights of women and transgender people, the only goal of the latter is to establish fetal rights, with no concern about throwing women under the bus. For example, anti-abortion commentator Andrew Coyne has said an abortion law would be a good thing just to “restore the issue to the realm of democratic debate.” In other words, he thinks nothing of compromising women’s rights before the debate even begins, which reveals just how insignificant those rights are to anti-choicers. But access to safe and legal abortion is a fundamental human right, not something that should even be up for debate, let alone negotiation or compromise. This is not about “a woman’s right to choose,” which just trivializes the issue. It’s about a woman’s right to life. Because the right to life means more than just mere physical survival, it must be backed up by democratic rights and freedoms, including the right to pursue happiness on one’s own chosen path.
On the abortion issue, Canada has shown that women and doctors act in a timely and responsible manner, without punitive criminal laws to control them. Canada enjoys a low abortion rate compared to the rest of the world, and most Canadians support rights and equality for women as well as transgender people. This gives Canada a special responsibility to be a role model to the world. Let’s demonstrate that abortion practice can be successfully managed as part of standard healthcare, and that having no law is better for pregnant people.
1. A number of other countries have decriminalized abortion, including Australia (six states with NSW expected to follow soon), Sweden, Cuba, Vietnam, and China. However, except for China, all these countries/states have civil abortion laws or regulations that impose some restrictions or criteria, and most also retain some elements of criminalization. (North Korea used to be an example of a country with no abortion law, but it reportedly imposed a total ban in 2015 on abortion and contraception.)
