Prime Minister Justin Trudeau says his government is looking at using legislation to ensure a woman's right to a safe and legal abortion will be permanently protected in Canada.Adrian Wyld/The Canadian Press
I wonder if Americans understand just how significantly their culture and politics imbue the national discussions we have here in Canada. It’s usually clumsy and misapplied – we sometimes talk about firearms here as if you can just walk into a Montreal Walmart and grab a semi-automatic weapon – but the impulse persists because, as a general rule, we tend to mistake proximity for likeness when we compare the American experience to our own.
In reality, Canada’s laws, politics, judiciary and overall culture are wholly distinct from the U.S.’s – and, while far from perfect, arguably superior in the most critical ways. Yet we persist in importing our neighbour’s anxieties as if they translate cleanly across the border, and as if that pointless exercise doesn’t distract from the very real problems we have here at home.
Access to abortion in Canada, for instance, is flawed in serious ways – women in rural communities or in provinces such as New Brunswick face considerable barriers to accessing abortion services. But the existential threat around the legality of the procedure, which has loomed over women in the United States ever since Roe v. Wade was decided in 1973, is not present in Canada.
There has been the odd private member’s bill on matters such as sex-selective abortion, but no governing party has endeavoured to reopen the abortion debate since Brian Mulroney’s Bill C-43 was defeated in the Senate in 1991.
And yet, during every recent federal election, and every time the issue crops up in some manner in the United States, Canadian political discourse is swallowed by “what ifs” about what the next government might do to restrict access. The leak of a draft U.S. Supreme Court opinion that suggests that Roe v. Wade will be overturned was of course no exception.
After first issuing a memo instructing her caucus to stay silent on the matter, interim Conservative leader Candice Bergen released a statement saying “the Conservative Party will not introduce legislation or reopen the abortion debate.” Foreign Affairs Minister Mélanie Joly nevertheless accused the Conservatives of “deafening” silence on the matter, while Prime Minister Justin Trudeau repeated a favourite line about how his party will “never back down from protecting and promoting women’s rights in Canada and around the world.”
Every time, it’s the same warning, either implicitly or explicitly, from Canada’s political left: The abortion situation in Canada is terribly precarious, so you better make sure to keep the right people in power.
So let’s explore that for a second. Let’s say the Trudeau government genuinely doesn’t believe the Conservatives know it would be politically fatal to try to introduce restrictions on abortion – that the Tories inexplicably do not recognize the heaps of polling that shows that Canadians of all political affiliations don’t want to reopen the abortion debate, and that they would likely punish leaders who try. Let’s say the Liberals also don’t trust that the Supreme Court of Canada would follow its own years of jurisprudence on matters involving Section 7 of the Charter of Rights and Freedoms, and that it would fail to uphold the right to “life, liberty and security of the person” if it had to rule on the matter.
So then why wouldn’t the government take the opportunity, right now, to fill the legal chasm that is the current state of abortion in Canada, and actually enshrine the right to abortion in federal law?
The Trudeau government made a series of promises on abortion last election, including to remove the charitable status of so-called “crisis pregnancy centres” that attempt to counsel women out of abortions, to invest $10-million for an educational online platform about reproductive health, and to see some sort of amendment to the Canada Health Act to protect abortion access. These promises remain unfulfilled. But if there is indeed a risk that overturning Roe v. Wade will invigorate anti-abortion activists in Canada, as some have claimed, this government should start acting now.
But there are a few reasons why a government as ostentatiously pro-choice as this one would be reluctant to do so. For one, the issue of abortion has proven to be a valuable political wedge to haul out during election campaigns; creating a legal framework to protect abortion access would deprive the Liberals of a useful and effective political scare tactic.
For another, legislating abortion access would basically mean reopening the abortion debate; the R. v. Morgentaler decision of 1988 struck down the Criminal Code provision on abortion, but it did not make abortion access a legal right. To do so would require legislation to define who could obtain an abortion and when, akin to how the government had to draft a law about medical assistance in dying after the Supreme Court struck down its prohibition under the Criminal Code in 2015. And that would surely be fraught with controversy.
But if the state of abortion access in Canada is as frail as we are implored to believe during every election – if things are really as bad as they’re made to seem whenever a private member’s bill is tabled, or when a truly regressive and dystopian state of affairs actually unfolds in the U.S. – then those reasons shouldn’t matter. This government should stop talking about how abortion is a right in Canada, and actually legislate it.
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