Legislating abortion access in Canada would be a mistake

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Canada does not need an abortion law.

We’ve done fine without one for almost 35 years. In this country, the decision to terminate a pregnancy rests solely with a pregnant person and their health care provider.

As it should.

“We need a law” is a rallying cry of anti-choice activists. If you don’t believe that, check out the web site of the group We Need a Law, a group that wants to protect “pre-born children” by denying women bodily autonomy.

Well-meaning pro-choice activists who are calling for legislative and constitutional protections are being sucked into a trap.

The right to abortion is already constitutionally protected in Canada. The Morgentaler ruling on Jan. 28, 1988, made that clear. And the Supreme Court of Canada is far more respectful of the principle of stare decisis (respecting precedent) than its highly-politicized U.S. counterpart.

Once you have a law, even one that guarantees access to abortion and other reproductive health services, it can serve as a platform for opponents to launch attacks, and protections can be whittled down with restrictions on who has access, when and how.

These issues are summed up brilliantly by the National Association of Women and the Law and Action Canada for Sexual Health and Rights in its response to the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization.

Abortion is a medical procedure like any other. The when, where and how should be determined in a patient-practitioner dialogue, guided by medical codes of ethics, evidence-based guidelines and clinical protocols.

It is a fallacy to say that abortion is unregulated in Canada. There are many rules. All the more reason we don’t need rigid laws.

No criminal law is needed to determine who is eligible for a prostate cancer surgery or a vasectomy, and none should exist to determine who can get a tubal ligation or an abortion.

The legal restrictions that exist, even in the most liberal countries, are an artefact of religious and patriarchal tradition.

If anything, what is unfolding in the U.S., the overturning of the landmark 1973 Roe v Wade ruling, should serve as a cautionary tale about what can happen when legislators stick their noses where they don’t belong.

Despite the lack of legislation, Canada is far from being a model of reproductive health delivery.

While there are no legal restrictions, there are many, many barriers to women getting an abortion promptly.

We have geographic challenges, and clinics are largely in urban centres. Depending on where you live in Canada, abortion is not necessarily covered by publicly funded health insurance, and neither is transport. (The federal Liberal government has vowed to address those issue but has not fully done so.)

Canada dragged its feet for decades on regulatory approval of the abortion pill and access is still far more difficult than it should be.

There is also a lot of disinformation about abortion that skews debate.

The vast majority of abortions are performed in the first trimester. Anti-choice activists like to rail about “late-term abortions” but only tiny fraction of procedures are done after 20 weeks, and in almost all cases the viability of the fetus is in doubt or the life of the mother is in danger.

Officially, there were 74,155 abortions in Canada in 2020, the most recent year for which data are available from the Canadian Institute for Health Information. That number has fallen markedly in recent years, but does not include medication abortions done using the abortion pill Mifegymiso.

What we do know is the procedure, whether surgical or medicinal, is quite safe. In the U.S. (no Canadian data are available), abortion mortality is 0.41 deaths per 100,000 procedures; by comparison, there are 23.8 deaths per 100,000 live births. (That’s 58 times higher.)

That’s a reminder that pregnancy entails some risks, as well as rewards. We should be ensuring that every birth is not only as safe as possible, but wanted. Pregnant people, including those with miscarriages and other complications, deserve good medical care. But those who don’t want to be pregnant also deserve easy access to contraception and abortion.

The last thing we need is forced birthing – which is the ultimate outcome when you ban abortion.

In medicine, the best approach is sometimes to do nothing because the remedy can be worse than the disease: Aegrescit medendo, to use the Latin phrase.

That’s precisely why we don’t need an abortion law.

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