Feminist Organizations Support No New Abortion Law in Canada

Drafted in partnership with the National Association of Women and the Law

In the devastating wake of the Supreme Court decision overturning Roe v. Wade in the United States, Canadians are wondering how we can protect abortion rights in Canada. 

Abortion is regulated differently in Canada. It is an insured health service and so, the Canada Health Act is the law that sets broad national standards under which it is offered (such as accessibility). Pursuant to the constitutional division of powers, provinces are responsible for most elements of health care, such as overseeing the regulation of providers, making rules for hospitals and other health care facilities, as well as dispensing funding under their Medicare plans for insured services. 

The following feminist organizations, institutions and academics maintain that no new federal law is needed with respect to abortion. In fact, introducing federal legislation that would try and enshrine a right to abortion would likely bring on unintended consequences that would harm abortion seekers and providers. 

Read more about why new legislation is not only unnecessary, but potentially harmful 

A quick history of abortion in Supreme Court of Canada rulings

Up until the 1980s, Section 251 of the Canadian Criminal Code criminalized abortion unless the person looking for an abortion followed the complicated process it outlined to get the approval of hospitals’ Therapeutic Abortion Committees made up of at least three doctors, who certified that her life or health was in danger if the pregnancy proceeded. Many hospitals did not have these committees, some hospitals’ committees virtually never approved abortions while others did.

In 1988, the Supreme court of Canada struck down section 251 of the Criminal Code in their R. v. Morgentaler decision. The ruling found that the existing rules made access to abortion “practically illusory.” A majority of the Supreme Court of Canada found that it violated women’s personal security in a fundamentally unjust way. Madam Justice Wilson played a critical role in the decision with a concurring opinion that any restrictions on abortion violated women’s right to liberty. 

In 1989, Tremblay v. Daigle was heard by the Supreme Court of Canada. M. Tremblay, Ms. Daigle’s ex-partner, had tried to get an injunction against Ms. Daigle to prevent her from getting an abortion. His case attempted to establish fetal rights and argued that he had a right to protect his “potential progeny.” The Supreme Court ruled that a fetus has no legal status in Canada as a person and as such, a biological father had no legal right to interfere with a woman’s decision to have an abortion. Later in 1991, the Supreme Court ruling on R. v. Sullivan would establish that personhood begins at birth. 

In 1999, the Supreme Court of Canada ruled that a pregnant person is not liable for damages and owes no duty of care to a fetus in their womb in Dobson v. Dobson. The court found that defining legal standards of how pregnant people should conduct themselves was impossible and added in a concurring opinion that trying to do so would violate the privacy, autonomy, and rights of women.
 

How abortion is regulated in Canada today

Today, abortion is considered and regulated as an insured health service which means it falls under the jurisdiction of the Canada Health Act, the law that sets out the nation-wide principles of the Canadian health care system. While provinces and territories oversee how their health care system is managed, they must be operating within the guidelines of the Act to receive federal government funds. These guidelines include five principles for insured services: public administration; comprehensiveness; universality; portability; and accessibility. The Act’s objective includes facilitating “reasonable access to health services without financial or other barriers.” When provinces fulfill the criteria and conditions of the Act, they are entitled to their full Canada Health Transfer. 

While there are still accessibility challenges to overcome in Canada, abortion is legally protected under this funding framework. 

Anti-choice activists have attempted to restrict abortion through the introduction of private member bills and have been campaigning on the grounds that Canada needs an abortion law. Reproductive rights organizations take the oppositive position and maintain that no federal law is needed with respect to abortion and that Canada serves as a model for other countries for not having any federal law specifying the scope of abortion services. In fact, introducing a law would likely carry the unintended consequence of making it easier for anti-choice politicians and activists to re-criminalize abortion or otherwise restrict abortion and further politicize the issue. 
 

Ways that introducing legislation could hurt abortion seekers and providers.

Opening the door to legislation means opening the door to potential restrictions. Many anti-choice activists would claim that if Parliament is establishing a statutory right to abortion, it should impose  “reasonable limits” on this right. Drafting legislation enshrining a right to abortion would give anti-choice politicians an opportunity to attempt to insert exemptions or restrictions that do not currently exist in the name of “compromise”.

For example, anti-choice politicians have already tried to restrict abortion after a certain gestational time through private members’ bills. They could use this opportunity to try and impose gestational limits to abortion during the process of defining the right to abortion. Abortions are always essential health care and restricting access based on gestational age–not on medical grounds but on the basis of people’s individual moral beliefs–can leave already vulnerable people without the care they need. 

If the “debate” were “re-opened” by a progressive government legislating in this area, this development could be used by a future socially conservative government to justify the introduction of restrictive amendments. Subsequent governments could use such a law to bring in amendments that would introduce restrictions such as gestational limits, mandatory counselling, waiting periods, and the banning of pre-natal sex selection, to name but a few possible examples. Even if a court were to ultimately find these restrictions in violation of the Charter, it would take a lengthy court challenge during which individuals seeking abortion care would be impacted.

There is often a great deal of public attention as to whether a government is “re-opening the abortion debate” which distracts Canadians from the real issues of equitable access that remain to be resolved. Amendments to a new law that would limit access could easily be sold to the public as a reasonable balance between political positions on abortion regardless of the realities of people needing that medical care or what science and research tell us about abortion. Spreading disinformation about abortion has been a primary tactic used by anti-choice advocates in Canada for years to distract the public from the facts and to advance solutions that would further get in the way of those seeking abortion care. 

A new law that is then repealed could change the course of judicial interpretation. If a law establishing a right to abortion was created and then repealed by a future Parliament, this could be considered in future judicial interpretations of the Charter with respect to abortion. While it is likely courts would still decide in favour of granting Charter protections for those seeking and providing abortion services, it is not clear whether and to what extent the repeal would affect judicial interpretation of reproductive rights.
 

Organizational Signatories

Abortion is Healthcare Signs Inc

Abortion Rights Coalition of Canada

Abortion Support Services Atlantic 

After Sex Ed 

AGIR Outaouais

Alberta Abortion Access Network 

Alberta Society for the Promotion of Sexual Health

Amnesty International Canada

Assemblée des Groupes de femmes d'Interventions Régionales (Agir)

Birth Mark

Canadian Association of Midwives

Canadian Mental Health Association

Canadian Research Institute for the Advancement of Women/ L'Institut canadien de recherches sur les femmes (CRIAW-ICREF)

Centre Elizabeth Fry en Outaouais (CEFO)

Centre for Sexuality

Clinic 554

Clinique des femmes de l'Outaouais

Conseil central des syndicats nationaux de l'Outaouais

Cooperation Canada

Dalhousie Feminist Legal Association

David Asper Centre for Constitutional Rights

Ending Violence Association of Canada

Fédération du Québec pour le planning des naissances 

FemDev Consulting

FOXY

Halifax Sexual Health Centre

Handmaids' Local 905

IATSE (International Alliance of Theatrical Stage Employees)

Inter Pares

Medical Herstory

Migrant Workers Alliance for Change

Moms at Work

Monthly Dignity

National Abortion Federation Canada

Niagara Reproductive Justice

Oxfam Canada

Planned Parenthood Newfoundland and Labrador Sexual Health Centre

Planned Parenthood Ottawa

Planned Parenthood Toronto

Regroupement Féministe du Nouveau-Brunswick (RFNB)

Saskatoon Abortion Support Network

Sexual Assault Centre Kingston

Sexual Health Nova Scotia

SHORE Centre

So, I had an abortion...

South Shore Sexual Health

SRHR Hubs

The Canadian Feminist Alliance for International Action

The Enchanté Network

The Good Birth Co.

The Obstetric Justice Project

The Victoria Faulkner Women's Centre

Victoria Labour Council

Women's Legal Education and Action Fund (LEAF)

Yukon Status of Women Council

YWCA Canada

Individual Signatories 

Beverley BainesProfessor, Faculty of Law, Queen's University

Suzanne BouclinAssociate Professor, Faculty of Law (University of Ottawa)

Susan BoydProfessor Emerita, University of British Columbia

Karen BusbyProfessor of LawFaculty of Law, University of Manitoba

Gillian CalderAssociate ProfessorUniversity of Victoria, Faculty of Law

Angela CameronAssistant Prof.University of Ottawa Faculty of Law

Irina CericAssistant ProfessorUniversity of Windsor Faculty of Law

Rebecca CookEmeritus professor

Suzie DunnAssistant ProfessorDalhousie University

Shelley A.M. GaviganProfessor Emerita & Senior ScholarOsgoode Hall Law School, York University

Daphne GilbertProfessorUniversity of Ottawa, Faculty of Common Law

Joan GilmourProfessor EmeritaOsgoode Hall Law School

Martha JackmanProfessorFaculty of Law, University of Ottawa

Lisa KellyAssistant ProfessorQueen's University, Faculty of Law

Jennifer KoshanProfessorFaculty of Law, University of Calgary

Kathleen LaheyPatricia Monture Distinguished University ProfessorQueen's University Faculty of Law

François LarocqueProfesseur titulaireUniversité d'Ottawa, Faculté de droit, Section de common law

Sonia LawrenceAssociate Professor, Osgoode Hall Law School, York University

Hester LessardProfessor EmeritaUniversity of Victoria Faculty of Law

Errol MendesProfessor of LawFaculty of Law, University of Ottawa, Canada

Mary Jane MossmanRetired law professor

Roxanne MykitiukProfessorOsgoode Hall Law School

Val NapoleonActing Dean and ProfessorFaculty of Law, University of Victoria

Paul OchejeProfessorUniversity of Windsor

Debra ParkesProfessor and Chair in Feminist Legal StudiesPeter A. Allard School of Law, University of British Columbia

Karen PearlstonProfessor of LawUniversity of New Brunswick

Elizabeth PickettAss Prof, Dept of LawCarleton University (Ret)

Cintia QuirogaAssistant DeanUniversity of Ottawa

RandallProfessorFaculty of Law, Western

Joshua Sealy-HarringtonAssistant ProfessorLincoln Alexander School of Law at Toronto Metropolitan University

Elizabeth SheehyProfessor EmeritaUniversity of Ottawa, Faculty of Law

Penelope SimonsProfessor and Gordon Henderson Chair in Human RightsFaculty of Law (Common Law Section), University of Ottawa

Lucinda VandervortProfessorUniversity of Saskatchewan/College of Law

Wanda WiegersProfessorCollege of Law, University of Saskatchewan

Margot YoungProfessorUBC, Allard School of Law

Action Canada and NAWL logo
Posted on 2022-08-10
Article type
Topics