By Richard Forbes.
Justice minister Jody Wilson-Raybould tabled a bill last week in the House of Commons to cull the Criminal Code of so-called ‘zombie laws’ – laws that have been found unconstitutional and effectively nullified by courts in the past but remained on the books unenforced without repeal. One of these zombie laws that the government’s new bill hopes to repeal, Section 287 rather, is the criminalisation of abortion – which of course hasn’t been enforced since the Supreme Court found it unconstitutional in 1988.
The choice of day for the bill’s first reading, International Women’s Day, was made in recognition of the significance of this particular zombie law for women’s rights. But while the minister touted the prime minister’s hard pro-choice stance, saying they “without equivocation recognize and acknowledge the constitutional rights of women,” and were “taking the courageous step” of removing the old law from the books, Wilson-Raybould also said “we’re not opening or reopening the abortion debate,” downplaying the significance of the decision as mere bookkeeping.
A cynic might say a decision cannot be both courageous and cosmetic. Worse still, a cynic might say the government is attempting to have its cake and eat it too: taking praise for standing up for reproductive rights from one side while denying to the other that their actions should be interpreted as the preface to a new debate.
Make no mistake, the minister’s bill, C-39, will receive a second and third reading, it will go to committee – and it will, whether the minister likes it or not, generate considerable debate about reproductive rights and access to abortion in Canada. One would hope, however, that the level of debate the topic receives isn’t as acrimonious as the debates that left abortion in its current zombie legal vacuum to begin with: the then Mulroney government failed with five open votes in 1988, in the wake of the Supreme Court’s ruling in R. v. Morgentaler, to fill the legal void – its final attempt, C-43, was infamously vetoed by the Senate in a tie vote in 1991.
For their part, the Liberals certainly haven’t shied away from the topic. Trudeau made it clear that he supports a woman’s right to choose, even whipping a vote on the subject while in opposition. Earlier this month, his government pledged $20 million in aid for global “sexual health and family planning initiatives” to help make up for the shortfall expected from Donald Trump’s decision to ban funding to abortion-related projects. Meanwhile, Mifegymiso, an abortion pill, was finally approved by Health Canada this year after much delay; Mifegymiso, a medical rather than surgical option for abortion, is expected to improve wider availability.
But despite the government’s activism on the file, the minister’s tone this past week in the conference seemed to suggest the federal government isn’t willing to push the needle forward and fill the legal void that the Mulroney government left. Which begs to question what the Liberals are afraid of? They have a majority in the House of Commons – MPs elected with the understanding they would be whipped on votes related to abortion – and they have a public that is by and large on board with a woman’s right to choose an abortion.
You would be hard pressed to find a better time to secure reproductive rights in Canadian law than right now.
For years, the biggest hurdle to pursuing action on the abortion file were the provinces and the risk of interfering in local debates with a heavy hand. Until last year, abortion services hadn’t been performed in a hospital in thirty five years in the garden province, forcing an increasing number of PEI women seeking an abortion (102 in 2013, up from 66 in 2007) to pursue services off the island in hospitals in Moncton, Fredericton and Halifax where public reimbursement and access was restricted by byzantine and limited coverage especially in terms of the old referral regime. In its Medical Services Payment Act, New Brunswick stated that it would only cover the costs of the operation if it was deemed a medical necessity by two physicians and done in a hospital – a policy which drowned the private Morgentaler clinic in debt, forcing it to close in 2014.
The cost of an abortion in a clinic like that one in Fredericton before it closed was $700-$850 – and with the cost of travel and accommodations included, the total cost often amounted to over a thousand dollars for patients, many of whom were poor, young or both. A steep price to pay to exercise choice over one’s own body.
But the light at the end of the tunnel is near in terms of these provincial fights: in PEI, Premier Wade MacLauchlan capitulated to a legal challenge from activists, admitting if the province were to go to court fighting a woman’s constitutional right to receive an abortion, it would lose – that admission led to the creation of the Women’s Wellness Centre which performed the first surgical abortion in years in PEI earlier this year. When speaking with Maclean’s on the historic turnaround, medical director Lianne Yoshida was keen to emphasize the range of services provided at the women’s health clinic and also stressed the important role activists had played in forcing the province’s hand. Indeed, research suggests that women prefer seeking abortion services in clinics like PEI’s new wellness centre rather than in a hospital – sometimes even traveling a far greater distance to seek treatment in a clinic over a hospital.
In New Brunswick, Premier Brian Gallant was elected on a platform promising “the New Brunswick government respects a woman’s right to choose.” That platform included a promise to “identify all barriers to a woman’s right to choose and eliminate them.” Gallant did remove one of the most onerous restrictions: the requirement for two physicians to deem a surgical abortion a medical necessity, but the failure to cover the costs of abortion services in private clinics (namely, ‘Clinic 554’ in Fredericton) has activists calling for Gallant to meet his campaign promise. Since then, New Brunswick’s health minister has said, despite the high use of Clinic 554, the province has no plans to cover such services.
Nevertheless, this still marks an unprecedented consensus among the provinces to support a woman’s right to choose – and with that consensus comes an opportunity for the federal government to entrench our status quo into Canadian law, especially the Canada Health Act. For decades, provinces, the Maritimes especially, have flouted the Canada Health Act on the subject because of ambiguities in the text. Now would be a perfectly good time for Ottawa to update the Canada Health Act with regards to women’s health and, yes, abortion: clarifying the text to ensure it’s clear there is an expectation that (1) these services are to be provided in all provinces, (2) with respect to portability, one can seek treatment out of province, (3) coverage should apply to both clinics and hospitals, especially given the former is the prevailing choice among women.
In some ways, the Trudeau Liberals missed the boat with the health agreements they’ve signed with the provinces – the most recent being Ontario, Quebec and Alberta. That would have been as good of time as any to provide targeted funding for women’s health issues, especially for western and atlantic provinces and Ontario which have fallen behind Quebec and British Columbia in terms of the presence of such clinics. Those health agreements – which featured targeting funding for shared priorities of the federal government and provinces, including home care, mental health and fighting the opioid crisis – didn’t discuss women’s health despite the current patchwork of services, which, without federal intervention, will probably remain fragmented and uneven.
Looking back on history, it’s impressive to see how far the provinces have come with regards to reproductive rights since the Morgentaler decision left a legal void (and a zombie law on the books) – but as we move forward, we should ensure Canada can’t slide backwards. Consolidating what progress we’ve made means entrenching the current consensus in law: interpretations of the Canada Health Act which were at one time hotly debated that now seem commonplace. The successes of pro-choice activists in pushing for breakthroughs in the Maritimes should do nothing but encourage them to continue to hold our public servants to the mark. There our existing gaps in the services available, gaps which in the future ought to be closed at the hands of either level of government – a decision they’ll ultimately make, possibly pro-actively, but if history is any indication, reluctantly, under pressure and three decades late.
Richard Forbes studied Political Science and Philosophy at the University of Waterloo. Winner of the Peter Woolstencroft Prize in Canadian Politics (2015).
When asked what ‘one does exactly’ with said degree, he laughs and politely declines to answer. A perfect night for him involves a cup of Lady Grey, writing and a re-run of Yes Minister.