Abortion and America: The great divide

Canadian pro-lifers are talking up American legislation that bans or severely restricts abortion, raising the question of whether American abortion debates will travel north of the border.

“The short answer is yes,” said Campaign Life Coalition national president Jeff Gunnarson. 

“Even if we don’t necessarily agree with the (U.S.) legislation being proposed in terms of it might have too many exceptions, allows too many loopholes and therefore really doesn’t do much to stop abortion — but to have the conversation…. It’s certainly good to use as a sort of conversation piece, a door opener.”

Among 16 states that have recently passed or proposed severe restrictions, Alabama’s abortion ban has attracted the most attention. Gov. Kay Ivey signed into law an abortion ban that begins at about six weeks, when a heartbeat can be detected — and before many women know they are pregnant. There are exceptions if a woman’s life is at “serious risk” and in the case of a “lethal fetal anomaly.” The law proposes no penalties for women who have abortions, but doctors who perform them could get up to 99 years in prison.

Alabama Republicans who control the state legislature have made no secret of their true intention. They hope the law ends up before the Supreme Court and that it will be used to overturn the 1973 Roe v. Wade decision that legalized abortion in the United States.

On the flip side —  and in some cases as a direct reaction to Alabama’s move — other states have liberalized abortion laws, most notably New York, which allows abortion anytime during pregnancy and also allows non-doctors to perform the procedure.

Gunnarson thinks the Alabama legislation doesn’t go far enough. He says “there’s nothing in the States” that he would “want to copy or emulate” in Canada. 

“This Alabama one, for example, we would go a step further and just say no physical anomalies. Once you start having exceptions in the initial bill, it’s going to get worse from there.”

Seeking common ground or compromise or incremental change isn’t the job of pro-life groups like Campaign Life, Gunnarson said.

“Strategically, tactically, whatever you want to call it, it’s important that the pro-life movement put the ideal on the table and let the politicians work at it,” he said.

In 31 years since the Morgentaler decision, Canadians have become more receptive to abortion, although polling results can be conflicting based on how the question is asked.

According to 2017 Ipsos polling, more than three-quarters of Canadians (77 per cent) say abortion should be permitted and a majority (53 per cent) favour no restrictions at all, compared to 24 per cent who want some limits. But when Angus Reid asked in 2018 if Canadians supported a law to regulate abortion, 61 per cent said yes and 39 per cent said there should be no limitations at all. 

The Ipsos poll also showed Canadians are far more tolerant of abortion than Americans. Only 12 per cent of Canadians told Ipsos abortion should not be permitted under any circumstance, compared to 22 per cent in the United States.

Under the shadow of those numbers, abortion in Canada remains political kryptonite. The Liberals and NDP parties do not allow pro-life candidates running for office. Conservative backbenchers have made several attempts to move toward an abortion law, without the backing of party leadership or much success. 

During the Conservative government of Prime Minister Stephen Harper, a 2012 motion to study the legal definition of a human being was voted down 203-91. A 2013 attempt to have the House condemn sex-selective abortions was blocked by Harper.

Harper’s successor, Andrew Scheer, is vowing that a Conservative government will steer well clear of abortion.

“As I’ve said many times before, a Conservative government will not reopen this debate,” Scheer, a Catholic, told the press May 22.

Meanwhile, pro-abortion activists actually enjoy seeing the pro-life movement in court.

“Every case has been lost, at least at the higher levels. This only helps to solidify abortion rights more and more,” said Abortion Rights Coalition of Canada founder and executive director Joyce Arthur. “They just set themselves up for failure.”

While Gunnarson on the pro-life side is talking about the American abortion bans, so is Arthur. For the pro-abortion activist, the American debate is a warning against complacency. She doesn’t want anybody thinking the Canadian pro-life movement can be ignored.

“They’re definitely a concern,” she said. “They may not have the power to pass laws at this point in time, but there are so many other things that they are doing that are, from our point of view, harmful. They reinforce abortion stigma, they spread a lot of misinformation about abortion and its supposed harms.”

The official pro-life agency of Canada’s bishops embraces the American conversation.

“In referencing American legislation, the Canadian pro-life movement is pointing out a change in attitude with regard to abortion,” Catholic Organization for Life and Family executive director Michel MacDonald said in an e-mail. 

“The legislation in the States has passed because a majority of people elected pro-life legislators. Clearly there are more and more people who recognize abortion for what it is — a grave evil.”

MacDonald isn’t wavering from the pro-life goal of the past 31 years to put abortion back in the criminal code.

“I don’t know if some of the criminal code restrictions on abortion would stand up to a court challenge,” he said. “But that is not a reason not to try to have legislation passed regarding abortion in Canada.”

The legal landscape in Canada is different from the United States. While the American debate is all about Roe v. Wade, Canada’s courts have ruled in multiple ways and on multiple occasions that abortion is legal. Which is precisely why criminal code restrictions are the only legal way of preventing abortion, according to Tabitha Ewert, legal counsel for We Need A Law.

“This is a criminal law matter. So the province can’t restrict it. That has to be done by the federal government under criminal law,” Ewert said.

In its 1988 decision in favour of Henry Morgentaler, the court deferred the question of how abortion should be regulated back to Parliament. Brian Mulroney’s Conservative government tried but failed twice to pass a law in the teeth of fierce opposition from both the pro-life and pro-abortion camps. 

Ewert believes Canada’s politicians have unfinished business they must take up.

“I hold that the jurisprudence clearly leads to — we’re waiting for — Parliament to pass a criminal law,” she said. “That’s what was expected. That’s what the court has ever since then expected to happen.”

Ewert isn’t a fan of confusing American abortion politics with Canada’s absence of law on abortion. “Yes, the conversation is going on because of Alabama. But the conversation is happening in Canada for very Canadian reasons,” she said.

She doesn’t think Canadian pro-lifers will be able to completely ignore the U.S. “Events in the States have always impacted the Canadian conversation to some extent,” she said. But whether it’s the Canada Summer Jobs controversy or the forced referral policy of the College of Physicians and Surgeons of Ontario, Canadians have their own issues to talk about.

Canada’s pro-life movement has ties to the well-financed, politically engaged pro-life movement in the United States. Gunnarson attends quarterly meetings with American pro-life leaders and Campaign Life sends a delegation to Washington every year for the U.S. March For Life. He also travels to Europe to meet with pro-life leaders. 

Gunnarson couldn’t say whether abortion headlines from the U.S. translate into fund-raising and other forms of support for Campaign Life, but he is appreciative of the extra media coverage.

“As soon as abortion gets into the mainstream, people start thinking about it more, including our own supporters,” he said. “They might then be more willing to send some money to their favourite pro-life cause.”

For MacDonald, the fight is about much more than just the law.

“When it comes to abortion, changing laws will definitely help,” he said. “But ultimately we are seeking to change hearts.”

While Ewert hopes for a Canadian law that would block about 15,000 late-term abortions per year, she also believes there’s something more than legal principles and precedents at stake.

“As a culture, we need to grapple at the very least with the wrong reasons to have an abortion, like sex selection, termination for disabilities,” she said. “As a society, we have a duty to say this is a serious ethical question. We need to grapple with it.”

(Note: This article has been updated to correct the spelling of Tabitha Ewert, legal counsel for We Need A Law. The Register regrets the error.)

Shifting Laws on Abortion

Abortion news and debates have been front and centre on the American political scene. Here is a list of some of the activity in states in 2019:

Alabama: Passes bill May 14 banning abortion at all stages of pregnancy unless woman’s life is in danger.

Arkansas: Legislators ban abortions 18 weeks into pregnancy on March 13, with exceptions for rape and incest.

Georgia: Governor signs legislation May 7 to ban abortions once a “fetal heartbeat” (actually more like embryo activity) is detected, usually about six weeks.

Illinois: House passes bill May 28 stating a woman’s “fundamental right” to abortion and that the fetus has no rights.

Kentucky: In February, state bans abortion after fetal heartbeat detected, but federal judge blocks implementation.

Louisiana: House approves “heartbeat bill” May 29, banning abortions after as early as six weeks except to prevent pregnant woman’s death.

Mississippi: “Fetal heartbeat” law approved March 21 to ban abortions.

Missouri:  Legislators vote May 17 to ban abortions after eight weeks of pregnancy. Doctors who perform abortions after eight weeks face five to 15 years in prison. 

New York: Statute enacted Jan. 11 allows abortion anytime during pregnancy and allows non-doctors to perform procedure.

North Dakota: New law makes it a crime for a doctor who is performing a second-trimester abortion to use instruments such as clamps, scissors and forceps to remove the unborn child from the womb. 

Ohio: Law passed April 11 makes it illegal to carry out an abortion once a fetal heartbeat is detected, but is being challenged in court.

South Carolina: House approves abortion ban on heartbeat detection, though not likely to come into force this year.

Utah: 18-week limit on abortion approved March 13 with exceptions for rape, incest, fatal fetal defects or life in danger.

Vermont: Bill approved May 10 creating a “fundamental right” to abortion.

Virginia: Federal judge ruling May 6 allows non-doctors to perform first-trimester abortions in the state.

ELSEWHERE: Florida, Maryland, Minnesota and West Virgina have all introduced “fetal heartbeat” bills.