The abortion law black hole

by Lorraine Weinrib    

This commentary was first published in the Law Times on April 24, 2006.

Opinion polls and public sentiment during the last two election campaigns suggest strong opposition to legislation on moral questions. This opposition includes many social conservatives. Stephen Harper says he won't support abortion law reform. These considerations may stay the hand of backbenchers anxious to open up an intense debate. It has not stayed the hand of several newspaper columnists, however.

They call for legislation to restrict and regulate access to abortion. Why? They say the Canadian legal system presents an intolerable vacuum -- it does not reflect our national moral consensus on abortion. Such a consensus, we are told, demands legal rules, regulation, and -- presumably -- enforcement.

The most detailed proposal to date would include open access to early abortions -- until fetal viability or higher brain function -- as well as in cases of rape, incest, or health risks. Late abortions would be banned except in extraordinary, unspecified circumstances. Upon analysis, these proposals appear arbitrary and beside the point.

According to recent reports from Statistics Canada, the number of abortions continues to decrease, down one per cent in 2003. The main decline was for women under 20, the group that has the most abortions. For those under 25, the trend is also down. In contrast, for women over 30 the trend is slightly up. Other sources fill out this picture: 85 per cent of abortions occur within the first trimester; nine per cent from 12 to 20 weeks; and .04 per cent after 20 weeks. 

This data does not emerge in a vacuum. We do not lack restrictions and regulatory apparatus in this area. On the contrary, provinces and individual hospitals set up a bewildering patchwork of rules and regulation.

The bottom line is that these policies restrict access and cause delay, sometimes of many weeks. 
Clinics provide an increasing share of abortion services, especially in the five provinces where provincial healthcare programs cover the cost. Clinic abortions alleviate delay problems because
of ease and speed of access, cost-effectiveness, and counselling.

Consider the proposed rape and incest criteria as grounds for access to abortion against this background. One might think that these criteria would facilitate access; in fact, they are unworkable. They would set up additional, time-consuming, contentious processes and impose considerable psychological suffering. Moreover, they would compromise the constitutionally mandated fairness of criminal prosecutions.

What about new legal restrictions on mid-term abortions? To what end? Mid-term abortions result from many factors, including the delaying factors noted above as well as the need for women to figure out their options, save up funds, travel (sometimes to another province), and make arrangements for childcare and time off work. These delaying factors affect young, poor, vulnerable, and non-urban women the most.

Not all late abortions are due to delay along these lines. For some, the reasons arise in the third trimester, such as a grave threat to the health of the pregnant woman or the fetus. Advances in medical science make it possible to discover these conditions earlier. Should the state restrict or evaluate decisions in these circumstances?

Good public policy in this area, therefore, does not require new laws imposing more restrictions and regulation; it requires the removal of existing arbitrary restrictions that make access to abortion unnecessarily difficult, costly, and time-consuming.

Good public policy must also be proactive to reduce the number of unwanted pregnancies. One might assume widespread support for such an initiative, especially among those who oppose abortion. This is not the case.

Many abortion opponents also oppose sex education and birth control, including emergency birth control, which are proven strategies for reducing unwanted pregnancies. They regard sex education as encouragement for sexual activity outside marriage, and contraception such as the birth-control pill and morning-after pill as abortion-inducing agents.

These views cannot form the basis of public policy, because they do not serve the best interests of vulnerable and young Canadians who need protection against unwanted pregnancies and sexually transmitted diseases.

Any professional offering health-related services to the public must perform that function according to public, not private, principles. Rules require application to particular individuals and circumstances. Study after study has confirmed that decision-makers in this context tend to impose their own personal moral beliefs.

It would be unfortunate if the real need for reform was obscured by proposals that do not take into account the high cost to women's health and wellbeing under the
current arrangements.