Front Burner - How safe are abortion rights in Canada?

Episode Date: July 14, 2022

The recent decision by the U.S. Supreme Court to overturn Roe v. Wade, which had secured constitutional protections for abortion in the country for nearly 50 years, raises questions about whether something similar could happen here. Canada has its own historic Supreme Court ruling that protects abortion rights: R. vs. Morgentaler. It still stands. But is it ironclad? Or could it be overturned, too? Today on Front Burner, we explore the history of abortion rights in Canada, just how protected they really are, and how much sway the anti-abortion movement has here. We talk to Kelly Gordon, an assistant professor at McGill University and co-author of the book, The Changing Voice of the Anti-Abortion Movement: The Rise of Pro-Woman Rhetoric in Canada and the United States.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Allie Janes, in for Jamie Poisson. The abortion wars are still raging in the U.S. Since the U.S. Supreme Court overturned Roe v. Wade,

at least nine states have stopped nearly all abortions, triggering a fight in state legislatures. A Louisiana judge is temporarily blocked. The state's so-called trigger law outlawing abortion. It is... Abortion services are still available in Kentucky for now. Overnight, a federal judge halted that state's sweeping abortion law. Late last week, President Biden signed an executive order aimed at protecting access. To protect them from intimidation, to protect the right of women to travel from state that prohibits seeking the medical attention that she needs to a state to provide that care.

24 hours later, demonstrators descended on Washington, demanding the president do more. Tonight, thousands in the nation's capital. Two for a day, separate the German state! Demanding more action on abortion rights in front of the White House. Ultimately, Biden says, the fastest way to restore abortion is to codify Roe and make it law.

Fastest way to restore Roe is to pass a national law codifying Roe, which I will sign immediately upon its passage. And while abortion is under siege in the U.S., just how protected is it here? In Canada, we have our own historic Supreme Court ruling that allowed abortion rights, R. V. Morgenthaler. That cold January day in 1988 was vindication, and Henry Morgenthaler would often describe it as the greatest day of his life, the day the Supreme Court threw out Canada's laws against abortion. Bravo for the Supreme Court of Canada. Bravo for the women of Canada. It still stands. But is it ironclad? Or could it be overturned too?

Today, we're going to explore abortion rights in Canada and how much sway the anti-abortion movement possesses. Jamie's on holiday, but before she left, she recorded this conversation with Kelly Gordon, an assistant professor at McGill University and co-author of the book, The Changing Voice of the Anti-Abortion Movement, The Rise of Pro-Woman Rhetoric in Canada and the United States.

Have a listen. Hi, Kelly. Thank you very much for being here. Thanks so much for having me. It's a pleasure. So in the wake of what's happening in the US, I want to start by asking you about just how protected abortion is in this country legally. And I know it's not a simple answer because it's not quite the same as the situation in the US, but maybe you could take a stab at explaining that to me, like what it looks like here. Abortion rights are not very protected in Canada in a lot of ways. And Canada is really interesting because it's the only country in the world that actually has no law or legal regulations surrounding abortion care. So that actually makes Canada this kind of really unique case study for abortion politics in a lot of ways. Unlike in the US under Roe v. Wade,

there isn't a constitutional right to abortion in Canada. What the Morgenthaler decision was, was actually just the overturning of existing abortion laws. And so, you know, in a lot of ways, the Roe v. Wade decision, which came, earlier than the Morgenthaler decision, was a more kind of powerful protection of abortion rights in the U.S. than the Morgenthaler decision was in the late 1980s. Tell me exactly what the Morgenthaler decision did. So prior to 1969, for the hundred years before that, abortion was a crime in Canada. And then in 1969, Papa Trudeau, Pierre Trudeau, decriminalized abortion. And he did this with a big omnibus bill that did a lot of other things. And this is a famous omnibus bill in Canadian politics.

It also decriminalized same-sex relationships. And it was kind of this big social reform brought about by Pierre Trudeau. And in terms of the subject matter it deals with, I feel that it has knocked down a lot of totems and overridden a lot of taboos. And I feel that in that sense, it is new, but it's bringing the laws of the land up to contemporary society, I think. And actually, what Pierre Trudeau was responding to was doctors and lawyers who came together. So the Canadian Medical Association and the Canadian Bar Association came together and kind of petitioned the government. And we're like, look, abortions are happening. And doctors were like, we want to end

our lives as lawbreakers, essentially. And so the abortion law that was passed in 69, it really placed decision-making in the hand of physicians. So it introduced what we call a therapeutic abortion committee system. So these therapeutic abortion committees were committees made up of three physicians. And if a woman wanted to obtain an abortion, she would have to go in front of this committee. And the committee would determine whether the continuation of the pregnancy would put her life or her physical or psychological health at risk. I think this is an area in which the doctors are better than the lawyers to decide when there is real danger to the health or not. And I think this should be the test.

This immediately sort of mobilizes both sides of the abortion debate. And there's lots of problems with this law. And one of the main problems is the way that it's inequitably enacted across the country. So some hospitals have therapeutic abortion committees, some don't. So in this period that, you know, is the Morgenthaler era of abortion politics, a bunch of things are happening, right? We see a growing feminist movement. We see Dr. Dr. Henry Morgenthaler emerge as kind of a key figure of the abortion debate. So there's a cause in which I believe very strongly, which is a cause

which involves tremendous injustice, which I saw, which I felt that I could do something to alleviate. It is a cause which in biblical terms almost I saw as a fight between evil and good, between light and darkness. And maybe I'm a bit self-righteous, but I strongly believe in the freedom of choice. I believe that women should have a right to own their bodies. I believe they should have a right to safe medical abortions when they need them. I think it's one of the great issues of our time. Morgan Tuller is this really interesting guy who, in defiance of the law, is providing women with abortion care, not through the TAC system.

Right, he's not doing the committee thing. That's right, that's right. I mean, he's a really interesting character in himself and gets charged in Quebec. He gets acquitted by a jury of his peers numerous times. Those acquittals actually get overturned by the court in Quebec. He spends time in jail. This is the most tumultuous period of abortion politics in Canada.

There was another skirmish tonight in the abortion battle. This time it was a war of nerves with both pro-choice and anti-abortion forces sharing the square in front of the district court building on University Avenue. The pro-choice demonstrators are angry with the arrests last week of three doctors who perform abortions at freestanding clinics in Toronto. One of the doctors arrested was Dr.

Henry Morgenthaler. He thanked the demonstrators. And it culminates in 1988 with the Morgenthaler decision. And so what the Morgenthaler decision does is just strikes down this therapeutic abortion committee system. And it really does so primarily on the grounds that it violates Section 7 of the Charter, which is security of the person. And so the main argument that the court is making is not that women should have a constitutional right to abortion, but it's that the ways that this system is inequitably being enacted across the country poses a risk to security of the person. Right. They don't like this law. They're not saying,

as you said before, that abortion is protected by our charter, like Roe did by saying that abortion was protected by the Constitution. That's exactly right. And actually, they signal to Parliament that Parliament actually does have an interest in passing a new abortion law, but it has to look different than the one that has been in place. And so in the early 1990s, it's the Mulroney, Brian Mulroney's conservative, progressive conservative government. So it was sort of a different conservative party than we have now. And so they respond to the Morgan Tuller decision and they actually tried to pass a new abortion law. The other, I think, big difference between the U.S. and Canada is the abortion issue is an issue that politicians use to

sort of mobilize their bases. And I think this is especially true for the Republican Party, to sort of mobilize their bases. And I think this is especially true for the Republican Party, that since the kind of late 1970s, they've used abortion to kind of unite and identify Republicans. In Canada, politicians have always been very reluctant to touch the abortion. Actually, I would say like politicians other than the Trudeaus. But typically, politicians see this as a hot potato issue in Canada. They would rather that the courts deal with it and they don't want to touch the issue. So Brian Mulroney tries to pass kind of this compromise law. He doesn't want to piss anybody off.

He doesn't want to piss the anti-abortion movement off or the poor choice movement off. So, Mr. Speaker, I don't seek to change anyone's personal conscientious views on abortions. No, Mr. Speaker, I don't seek to change anyone's personal conscientious views on abortions. Rather, I ask that you consider joining me in exercising leadership, in achieving balance, in finding a workable legislative solution to this problem in the national interest. And so the law in a lot of ways looks similar to the previous law. But instead of having a panel of three doctors decide whether women should have access to abortion, it's just one position. So they debate this in the House. In my estimation, the bill neither addresses the rights of the fetus or the rights of the woman. And as the Citizens for Public Justice said, and I quote, to introduce a pro-life amendment to the criminal code without social policy changes will not adequately protect human life.

It is our duty as legislators to assume our responsibilities to reconcile the often conflicting principles at play, to fill the legal void and to put an end to the vagaries of using particular cases to settle judicial rules. and to put an end to the vagaries of using particular cases to settle judicial rules. It passes through the House of Commons and immediately there's outrage again on both sides of the abortion debate with the anti-abortion movement saying this goes too far in liberalizing abortion and with the pro-choice movement saying, look, we've been having this debate now for 20 years and it should be women who are deciding about whether they want to have an abortion or not. It should not be physicians. That's exactly right.

Yeah. So it's this huge thing that happens. And like, so when I teach Canadian politics, and I'm always like, and this is like the most dramatic moment in Canadian politics history, because we know that the Senate generally in Canada is like, doesn't block legislation. They're like this chamber second thought, but really they don't do much. But there's actually a very lively debate in the Senate, which leads to a tie in the Senate. So everyone's like, oh, right. That does not unprecedented. Yeah. Everyone's like, what happens if it's a tie? And it means that the legislation is blocked. And so it actually doesn't pass through a parliament, which is very unusual.

And ever since then, no sitting government has ever tabled abortion-related legislation. And so this is how we're in this new kind of era, this contemporary post-Morgantaller era, where we have no abortion law on the books. Right. So is it fair for me to say that we can think about abortion in this country kind of like how we think about getting knee surgery or maybe like cataract surgery? Is that a fair comparison? So yes, it's treated more like a medical procedure, albeit a medical procedure that is politicized in ways that heart surgery and knee surgery are not. We still have kind of inequitable access throughout the country. And depending where you live, you know, it depends how far you're going to have to travel

to get a procedure up to what week you can get a procedure. And so I think a lot of the kind of lingering issues that we're dealing with in Canada aren't necessarily related to kind of law and rights, even though we have no law or no constitutional right, but are really kind of more around differential access. So I think that there's really good reasons that the focus of like an abortion rights movement or a reproductive

justice movement in Canada. There is still an anti-abortion movement that does exist here, right? And I'm wondering if you could tell me broadly what it looks like. And I want to get into some of the specific strategies more with you in a moment. But like, what does it look like here? Like all social movements, the anti-abortion movement is multifaceted. So you have those that are more focused

on kind of the politics, so the political arm of the movement. Standing outside the very place where abortion was decriminalized 34 years ago, anti-abortion activists vowed to undo the ruling. We are going to be returning here in Ottawa every year until this human rights injustice is ended. You have kind of educational, culture change people that are like, You have kind of educational culture change people that are like, look, it's not realistic to believe that we're going to be able to overturn legal abortion tomorrow.

So we actually have to work on the level of culture change and try to persuade Canadians to kind of set the stage for some kind of legal change. This is Laura Klassen. Mostly, she prides herself on being an anti-abortion influencer. And we don't just want to be, you know, preaching to the choir of people who are pro-life in Canada. We really wanted to reach the other side. And if we were just going to make a video that was basically abortion is bad, it would never reach a lot of people. And so I had this idea of short, satirical,

colorful, quirky videos. And that was the goal. And then you also have more, I think maybe like recognizable and also controversial groups that use shock strategies with the big graphic imagery. Often actually they mail out postcards during elections. We see them on street corners to draw attention to the movement. I wonder if we could zoom in on the political strategy first, like the political part of it. So look, we just talked about whether or not we need a law that would enshrine protections for abortion. But some of these groups are very focused on the opposite of that, like a law that would restrict abortion, right? And their mission is

to get anti-choice officials elected at various levels of government in order to achieve that, very similar to the US, I guess. And so tell me more about what they're doing there and what kind of success they've had with that to date. Sure. So I think what's interesting about the anti-abortion movement is in the 1980s, this kind of political arm of the movement that was really pushing for a political change or a legal change was the dominant orientation of the movement. But sort of after all of the drama of the Morgenthaler era, I think the reality sort of settled in that the anti-abortion movement is a movement that has been losing for a very long time now, really since the Morgenthaler decision. And what we've seen is, you know, in the US, we've seen the limiting of abortion access and abortion rights. And what we've seen in Canada is, albeit a very slow, but like a slow kind of expansion of access and funding. And generally, the anti-abortion movement has come to realize that it's a losing political movement. Whereas this political arm dominated the movement in kind of the 1980s, where abortion law was being debated support for abortion care in Canada. Some polling has it at sort of 80 to 85%.

And there's also evidence that shows that when Canadians debate abortion, and often we're debating it because things are happening in the US, support for abortion actually increases. So what we see around this decade, we see some parts of the movement almost like pushing back against that focus. And we see a couple of new organizations emerge that are focused more on politics. And so one really interesting example is this relatively new organization called Right Now. And they're interesting because they're like, look, we're probably not going to be able to do this at the level of the general election, going door to door and saying, vote for this party because they'll ban abortion is not

a vote-getting strategy in Canada. So where they have been really focused is on conservative leadership races, on getting their preferred candidates elected to Conservative parties, both at the federal and the provincial levels. Right now, for example, was really supportive of the leadership of Andrew Scheer when he won the leadership. My personal views on this are I've always been consistent. I'm an authentic person. I am pro-life. You know, I've always expressed that and absolutely been consistent on that. But does that mean that the leader of the Conservative Party or the prime minister of Canada should initiate legislation on that to open up that issue when our own caucus is not united on that? And that's where I think that there may be.

And he won the leadership with the support of kind of the social conservative base. And I mean, this also shows the difference between what the anti-abortion movement is able to do in Canada versus the U.S. Right. And the U.S. Republicans are like out there putting kind of abortion on the ballot, whereas in Canada, it's a much more kind of strategic kind of incrementalist strategy. Right, right. There's like a push towards private members bills or maybe even just politicians stating that they themselves are personally anti-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix.

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that kind of fits into all of this. You know, 30 years is the amount of time between the original decriminalization of abortion in 1969 and then the Morgenthaler decision. And so they're kind of drawing from the American playbook. You know, they recognize that tomorrow we're not going to be able to overturn abortion. But the movement is like, we need to be so strategic.

We need to be thinking 30 years ahead. And so this 30-year plan is really this idea, creating a culture change that would really, again, sort of set the stage for some kind of legislative change. Let's talk about what these groups are doing right now when it comes to trying to change the culture, to change hearts and minds. How are they doing this? Yeah, so Canadians have a pretty kind of defined idea of what the anti-abortion movement is. So in our book, we call this the traditional portrait of anti-abortion activism, that they're religious, that they're anti-woman, that they care more about kind of rights of fetus than rights of women, that they're

male, all of these kind of stereotypes that we have about the movement. And at various times in history, I think that this is, you know, proven to be pretty accurate and probably defines some parts of the movement still. But after losing for 30 years, the anti-abortion movement has become self-reflexive in Canada. And they realize that this traditional portrait does not jive very well with Canadians. Canadians are not motivated by religion, mostly to vote or become politically active. Many Canadians find religion and politics to be rather alienating. You know, we've also seen the mainstreaming of feminism in a lot of ways. And so this kind of historical anti-woman orientation of the movement

is also very alienating to a lot of Canadians. So you will very rarely hear anti-abortion politicians or activists ground their arguments against abortion in religion. They use a variety of other arguments, which we can talk about, but religion really is not one of them. And then the second thing that they've done is they've really foregrounded young, smart, telegenic women in their movement. Perhaps the newest group trying to rebrand the movement is called Right Now. Alyssa Galobe is the co-founder. She joins me from Calgary.

So your group focuses clearly on fighting abortion. Why that approach? Well, you know, especially living in such a diverse country, we understand that pro-lifers come in all shapes and sizes and have all different ethnic backgrounds, are diverse. And so we didn't want to exclude anyone who does hold the pro-life position from being involved in the pro-life movement. You'll very rarely see a male anti-abortion activist on TV or speak publicly on behalf of the movement. Perhaps the March for Life on Ottawa is an exception because they often have male politicians speaking on behalf of the movement. Perhaps the March for Life on Ottawa is an exception because they often have male politicians speaking on behalf of the movement. But generally, they really try to kind of present the face of the movement as a young and female one.

And the messaging, well, I don't know what you think, but I've noticed that it's almost grounded in kind of like feminist language. Absolutely. Absolutely. And I mean, this happens in ways that are very explicit and ways that are less explicit. So one of the really explicit ways is some activists in the movement are like, look, the suffragettes, you know, these feminist icons, they were anti-abortion. Right. So the real legacy of feminism is actually opposing abortion. So the real legacy of feminism is actually opposing abortion. Our study of the movement actually found that the dominant argument is something that we call the abortion harms women argument. And they make this in a lot of different ways. Some it's like abortion causes medical harm. It cites largely debunked studies about how abortion causes breast cancer. But then the more powerful and maybe more frequent argument is, you know, women regret their abortions and abortion causes psychological harm for women. The other thing I wanted to ask you about on sort of the culture and care side is the existence of pregnancy crisis centers. And I wonder if you could just briefly explain to me like what these centers are and how the anti-abortion movement fits into them.

Essentially, they're using a lot of these arguments that we were just talking about, that we need to be here to support women, right? That we need to support women so they can have the choice to keep their babies. And, you know, that's kind of the rationale they're using for the clinics is that we're helping women, that women want to keep their children, but they can't. And so we're here to support them. And like, here, here's some diapers and a free ultrasound. In both Edmonton and Fredericton, these crisis pregnancy centers have actually bought up real estate next to or across the street from abortion clinics. And they often call themselves things like, you know, Women's Health or, you know, similar names to the abortion clinics. And they often call themselves things like, you know, women's health or, you know, similar names to the abortion clinics. And their kind of motivation is to like almost try to trick

women to come into their clinics. They're not sort of explicit about the fact that they oppose abortion and essentially sort of persuade them to continue their pregnancies. So given the movement that we have here in Canada, do you think that they're emboldened by what's just happened in the United States? Has that energized the movement here? I think one of maybe the embarrassing things about being Canadian is how obsessed we are with the American context and how often... It is. It's so embarrassing. It's so embarrassing. We sort of mindlessly, we tend to mindlessly import things that are happening in the US to the Canadian context. And sometimes this might work out. But I think in relation to abortion politics and law, it doesn't. We have a very different context in

Canada than we do in the US. Having said that, though, like we could get different politicians. And as we talked about for a lot of these groups, this is a long game. So just how vigilant do you think the pro-choice movement needs to be here? Yeah, that's I mean, it's a really interesting question. And I'm not a fortune teller. I'm only a political scientist. But this is what I'll say about that. Institutionally speaking, to introduce an abortion ban in Canada would be, technically speaking, so easy. Much easier than what the anti-abortion movement in the US was facing, in that criminal law is a federal jurisdiction in Canada. So all it would take is for a majority government with an anti-abortion leader to pass a law, to whip the vote, and there you go. There's your abortion

ban. Right. So on paper, it would be very easy for this to happen. I have real questions about whether an abortion ban would stand up in the courts. I really don't think that it would. I think our Supreme Court, since the Morgenthaler decision and with the Morgenthaler decision, has really signaled a willingness to sort of protect abortion access. And so I don't think that abortion ban would pass through the courts. But I mean, this could absolutely repoliticize the abortion debate in a way that we haven't seen in Canada. But what I would say is it's very, very, very unlikely to happen. And I'm going to say that for a few different reasons. So the Conservative Party,

you know, the progressive Conservative Party that came before it, even the Reform Party under Preston Manning, they've been very reluctant to touch the abortion issue. Stephen Harper kind of got elected by promising not to reopen the abortion debate. Well, as you know, in our party, as in any broadly based party, there are people with a range of views on this issue. But I think I've been very clear as party leader. I think I've been clear as prime minister. And I think our government has been clear, notwithstanding people who may feel differently. We as long as I'm prime minister, we are not reopening the abortion debate. There was a private member.

And that has been the line that the Conservative Party has taken up ever since. Right. And we're seeing it in the leadership debate right now where candidates are either pro-choice, they avoid the issue altogether. Lesley Lewis is, you know, explicitly anti-abortion, but I don't really think she has a hope of winning the leadership. I am pro-life. My policies focus on what unites us.

And really what unites us now is making sure that women who choose to have their babies, they may not have planned for it and they might find themselves in an unfortunate situation, Evan, and they may decide that they want to give their child up to a loving family for adoption. And they may decide that they want to give their child up to a loving family for adoption. We want to make sure... Conservative insiders know that this is a huge liability to touch this issue at all. The Liberal Party knows that. That's why the Liberal Party is always wanting to bring up the abortion issue, because they know, and this is my second point,

that there is really high public support for abortion care in Canada. All of that to say that institutionally, an abortion ban could absolutely be passed with a different leader of the Conservative Party, and abortion is always going to be this contested issue. But there's really not kind of public or political support for an abortion law being passed. Kelly, thank you. Thank you so much for this. I know you were saying outside this interview, that you are a huge nerd on this stuff and we really love nerds here.

So thank you. Thanks. That's all for today. I'm Allie Janes, in for Jamie Poisson. Thanks for listening to FrontBurner and we'll talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.