Different Foundations, Diverging Futures
The Abortion Climate:
Comparisons Between Canada and the USA
by Joyce Arthur (copyright © March 2003)
Abortion is legal upon request in both Canada and the United States, but the right to abortion has very different foundations in the two countries. Laws and circumstances have diverged to the point where the legal right to abortion is strong in Canada but vulnerable in the USA.
Canada first liberalized its criminal abortion law in 1969, allowing it to be performed in hospitals with the approval of a “therapeutic abortion committee.” But the law resulted in unequal access for women so the Canadian Supreme Court threw out the entire law in 1988. Although the Canadian legislature soon tried to re-criminalize abortion, the bill failed to pass. The government has said repeatedly over the years that they do not intend to revisit the abortion debate. This leaves Canada as the only democratic, industrialized nation in the world with no laws restricting abortion. (Only three other countries have no laws: China, Vietnam, and North Korea). Yet Canada has a relatively low rate of abortion compared to other industrialized countries and one of the lowest rates of abortion-related complications and maternal mortality in the world.
The Supreme Court justices grounded the right to abortion in Canada’s constitution, where the primary protection cited was women's right to “security of the person.” One of the judges also found that the abortion law violated women's rights to “freedom of conscience” and “liberty.” Unlike in the USA, women’s equality rights are enshrined in Canada’s constitution, so courts have been very reluctant to confer any rights on fetuses—to do so would interfere with women’s established constitutional rights. Various court rulings since 1988 have denied fetuses any legal recognition in Canada and no abortion restrictions have ever been passed. That’s partly because of the legal vacuum in Canada—there’s nothing to build from. But Canada also enjoys a relatively liberal climate in which 70%–80% of the population is pro-choice, as well as almost all major political parties.
In the United States, abortion was legalized in all 50 states by the Supreme Court in 1973, in the famous Roe v. Wade decision. The court grounded abortion rights in a constitutionally-derived right to privacy. Although there is no explicit right to privacy in the American Bill of Rights, it was enshrined as a constitutional right in two prior court decisions that legalized birth control (Griswold v. Connecticut in 1965, and Eisenstadt v. Baird in 1972). These precedents made the Roe v. Wade ruling possible.
But the Roe v. Wade decision has led to onerous restrictions on abortion in the USA. Although the ruling freed women to choose abortion for any reason during the first trimester, the court rejected an absolute right to choose, and instead tried to balance women’s and fetal rights with a “trimester framework.” States could regulate abortion during the second trimester only to protect the woman’s health, but during the third trimester (i.e., after "viability"), states could protect fetal life except when abortion was "necessary to preserve the life or health of the mother." Today, 41 states have laws that restrict post-viability abortion.
The trimester framework, plus subsequent Supreme Court decisions that weakened Roe v. Wade, provided a basis on which to craft anti-choice laws (as well as pro-choice ones). Every year in the USA, dozens of anti-abortion bills are introduced in state legislatures. Tremendous amounts of time and money must be spent by the American pro-choice movement to defeat these laws, and too often they are not defeated. Some courts have proved willing to limit the right to abortion, possibly because the privacy rights that underpin it are so new and not viewed to be as fundamental as other rights. A few pro-choice legal scholars have lamented the right-to-privacy basis for Roe v. Wade, arguing instead that women’s right to abortion should be guaranteed under the Constitution’s 14th Amendment “equal protection” clause. This clause could be used to invalidate legal restrictions against abortion on the basis that they penalize only women, not men.
The first major abortion restriction in the USA occurred in 1976, when Congress passed the Hyde amendment prohibiting the use of Medicaid funds to pay for poor women’s abortions. It's estimated that up to one-third of poor women are forced to carry to term in the USA because they can't afford an abortion. For those poor women who do manage to get one, almost half delay their procedure by 2-3 weeks while trying to find money, which usually comes out of basic subsistence funds. Some poor women even resort to theft or prostitution to pay the bill.
Further Supreme Court decisions allowed states to require parental consent for teenagers' abortions, prohibit the use of public funds and facilities for abortion, and require viability tests after 20 weeks. Many states also mandate waiting periods for abortion, forcing women to visit the clinic at least twice. The latest strategy is passing "informed consent" laws that compel abortion providers to give anti-choice propaganda to their patients.  And a federal law is expected to pass soon that will ban a particular method of abortion at the expense of women's health and rights.
In Roe v. Wade, the Supreme Court gave abortion the highest degree of constitutional protection with its "strict scrutiny" standard. This says that any limitation on a right must be the least restrictive way possible to achieve a "compelling state interest." But the Court dropped this standard in 1992 (Planned Parenthood of Southeastern Pennsylvania v. Casey in favour of the much less protective “undue burden” standard—in other words, restrictions that hamper abortion access are constitutional as long as they're not too onerous. In the same decision, the Supreme Court eliminated the trimester framework by allowing states to protect "potential life" and maternal health throughout pregnancy.
The anti-abortion movement is very active and influential in North America, particularly in the United States, where close to half of the population call themselves "pro-life." Anti-choice people are almost exclusively fundamentalist Christians or devout Roman Catholics, eager to impose their religious views on everyone by law. The remarkable influence of the anti-choice movement in the USA might be best explained by America's religiosity, which far outstrips that of almost any other western or secular nation. Religious people in America also tend to be more politically involved than those in other countries.
Most abortion clinics in the USA have experienced at least some anti-choice picketing and many clinics have been regular victims of very aggressive or violent protests. In 1994, then-President Bill Clinton enacted the federal Freedom of Access to Clinic Entrances Act (FACE), which prohibits the use of force, threats, or physical obstruction to injure, intimidate, or interfere with someone trying to obtain or provide an abortion. The Act, plus improved law enforcement over the years, has helped reduce the size, severity, and frequency of anti-choice protests and other harassment.
But since 1991, there have been eight murders and 16 attempted murders of doctors and clinic staff in the United States. Over 40 clinic bombings, 165 clinic arsons and 80 attempted bombings or arsons have occurred since 1977. Other illegal forms of harassment remain numerous, including death threats, vandalism, butyric acid attacks, anthrax threats, clinic invasions, assaults, and even the occasional kidnapping.
In spite of all the legal obstacles and anti-choice harassment and violence, American abortion clinics have been remarkably successful and resourceful at providing abortions to women who want them. Although the overall abortion rate has declined in recent years, much of the decline has been attributed to increased use of contraception, and perhaps reduced sexual activity by teenagers. It's often been repeated that 87% of USA counties do not have an abortion provider, but that might be because abortions are generally not performed in hospitals and the demand for abortion is concentrated in large cities. Nevertheless, the number of abortion providers has declined more than the abortion rate, meaning that fewer providers are performing more abortions.
In Canada, there have been four attempted murders of doctors—three shootings and a stabbing, with one doctor attacked twice. American anti-choice radical James Kopp has been charged in one of the shootings and is the primary suspect in the other two. The only other episode of major violence occurred in 1992, when the Morgentaler Clinic in Toronto was destroyed by a bomb. Most anti-choice picketing and other harassment occur in Ontario and British Columbia, with lesser activity in the Prairie and Atlantic provinces. The liberal Catholic province of Quebec is relatively untouched by anti-choice action. A few provinces use court injunctions to keep protesters at bay, but British Columbia passed the Access to Abortion Services Act in 1995, which has been fairly successful at deterring protesters from entering a buffer zone outside clinics and doctors' offices and homes.
Abortion is funded by Medicare in Canada, except for four provinces that refuse to fully fund abortions in clinics as required by law. This is partly because of an anti-choice political bias, but also because Canada frowns on private clinics operating outside its universal healthcare system. About two-thirds of abortions in Canada are performed in public hospitals. However, most hospitals don't even perform abortions, which forces many women to travel long distances from their communities. Access is difficult for women outside major centres because of Canada's vast geography and small population—only the largest cities can support an abortion clinic, plus rural areas are more conservative.
Both Canada and the United States have learned that legal victories for abortion rights can be hollow without extensive social and government support to back them up. But living without any laws against abortion does put Canada a step ahead of the USA. The Canadian pro-choice community has little to fear from the courts or legislators—abortion rights are solidly supported by both. The big fight in Canada right now is to force the remaining holdout provinces to fully fund abortions at private clinics under Medicare. America's big fight right now is just to hold on to legalized abortion, period. It is widely feared that President Bush may appoint one or two conservative Supreme Court justices, which would bring an anti-choice majority to the court and endanger Roe v. Wade. If this historic ruling is overturned, the legality of abortion will revert back to individual states. Most states still have pre-Roe criminal laws against abortion and many could start enforcing them. To make matters worse, the world's lone superpower is busy imposing Bush's anti-abortion policies on developing countries, policies that would be unconstitutional at home. The situation is dire, but the resilient and battle-hardened pro-choice community in the USA is mobilizing like never before to defeat barriers to women's reproductive rights, both at home and abroad.