A brief lesson in the history, reasoning, and
unconstitutionality of abortion access in N.B.
By Beth Lyons
(First published on HereNB.com,
Feb 14, 2008)
Debate has been stirred recently by a billboard featuring the profile
of a woman tenderly cradling her very pregnant belly along with
the text: "9 months. The length of time an abortion is allowed
in Canada. Abortion. Have we gone too far?" Prominently featured
in Moncton and rejected by Fredericton, this billboard has raised
issues of tastefulness, free speech, and private control of publicly
viewed spaces. Rather than address these issues, however, I would
like to speak to the question posed.
The billboard, which is featured across Canada, implies that abortions are
easily available up until the moment of delivery. In actuality, 90 per cent
of Canadian abortions occur within the first trimester and late term abortions
are rare, difficult to procure and primarily done only in cases of medical emergency.
In N.B, however, obtaining an abortion at any point in a pregnancy is difficult
as the province has the most prohibitive abortion access in the country after
P.E.I., where abortions are completely unavailable.
Technically, it's true that there are no legal limitations on abortion. In
1988, the Supreme Court affirmed women's bodily autonomy and established the
legality of abortions as part of women's constitutional right to security: "Forcing
a woman, by threat of criminal sanction to carry a fetus to term unless she
meets certain criteria unrelated to her own priorities and aspirations, is a
profound interference with a woman's body and thus a violation of her security
of the person."
This entrenches reproductive self-determination for women. To make this right
meaningful, the Canada Health Act dictates that abortions be available and paid
for by Medicare -- after all, legality without accessibility is lip service.
The N.B. government understands the importance of access -- it's from this
angle that women's rights have been curtailed for almost two decades. In 1989,
the provincial government implemented a regulation stating that to obtain a
publicly funded abortion two doctors must deem the procedure medically necessary
and it must be performed in a hospital by a gynecologist. These requirements
are unconstitutional and, as a provincial regulation, have also never been subject
to a vote. Additionally, only two physicians in undisclosed N.B. hospitals perform
For those who can't get the necessary referrals, the alternative is the Morgentaler
Clinic in Fredericton, which provides abortions up to the 16th week for $550-750.
However, the N.B. government refuses to foot the bill, while all other provinces
cover part or all of the cost of clinic abortions. In response to this situation,
N.B.'s government is being sued by longtime reproductive rights advocate and
clinic founder Dr. Henry Morgentaler. The Crown is arguing that as Morgentaler
is a man, he has no legal standing in a case concerning women's reproductive
rights (considering that the government itself is an overwhelmingly male entity,
by their own logic they should also have no say in limiting women's reproductive
rights). To date, no decision has been made on whether the court will agree
to hear the case.
The reality is both the hospital and Morgentaler Clinic aren't options for
many women seeking timely, affordable access to abortions. Inaccessible abortion
services do not mean women aren't terminating pregnancies; they're just forced
to do it unsafely. Poor access doesn't merely traumatize and disenfranchise
women -- it kills them.
Kill. That word is what's at the centre of this debate, isn't it? We wrestle
with whether aborting a fetus is killing a person. Many argue yes, and therefore
women's reproductive rights exist within the realm of deciding to have sex and
use contraception, no further. That's the reductive voice of privilege speaking;
women's choices are rarely so clear. We live in a culture where sex is currency,
relationships can be abusive, many basic health insurance options cover viagra
but not birth control, sex education is really abstinence indoctrination, rapes
are perpetrated, and so on. Women become pregnant in tragic circumstances and
in mundane ones; either way, the subsequent decisions to be made are private.
That is what the debate is: not deciding when life begins, but allowing every
woman to answer that question for herself. It is a question of allowing women
the basic human right of self-determination. The restrictive access regulation
is evidence of a paternalistic attitude that says women don't have the capacity
to make decisions for themselves, presumes women wouldn't take the decision
seriously if not forced to, and implies that women don't understand the gravity
of their reproductive capacity. It's frightening that our government is uncomfortable
with the idea of abortion, but is at ease with forcing women to carry unwanted
pregnancies to term. And that's the danger the Supreme Court recognized and
protects women against by giving us the right to choose; too bad N.B. misogyny
trumps the Supreme Court.
So, the billboard offends me. Not because of its anti-choice rhetoric, but
because it's misleading in its facts.
Because it tries to sound understanding, implying that abortions could be reasonable
if they only occurred earlier in pregnancy (a moral paradox, if I've ever encountered
one). Because it pretends to be asking a question while sending a clear emotional
cue by pasting the "abortion" over a full-term belly. But mostly it
offends me by addressing communities in an insultingly paternalistic, manipulative
and misleading manner -- just like our provincial access regulation addresses