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What is there to hide?
Canadian democracy is the loser after Ontario amended its freedom of information act to exempt abortion statistics.
“‘Curiouser and curiouser!’ cried Alice (she was so much surprised that, for the moment she quite forgot how to speak good English).”
Two current abortion-in-the-public-square situations in Canada show abortion is much more than a pro-life versus pro-choice conflict, it’s a pro-democracy versus anti-democracy one.
The furor over Stephen Woodward’s private member’s motion in Parliament to discuss whether the unborn child is a human being has been front and centre in the media. Politicians, including the prime minister, and pro-choice advocates have attacked the motion by insisting either there’s nothing to discuss or debate must be silenced. But these are anti-democratic stances taken in our primary democratic institution, in relation to a foundational societal value — that of respect for human life.
Likewise, a recent change in Ontario law to restrict access to abortion information manifests the same clash between pro-democracy values (pro- freedom of speech, pro-transparency, pro-accountability, and so on) and anti-democracy values (denial of these rights). Contrary to strong contemporary trends in the opposite direction, this change moves Ontario from an earned trust position (“Trust me, because I’ll show you that I can be trusted by keeping you fully informed”) to a blind trust position (“Trust me, because I know what’s best for you and will decide for you, so you don’t need information.”)
Effective January 1, section 65 the Freedom of Information and Protection of Privacy Act (FIPPA) was amended to exclude records relating to the provision of abortion services. This means “individuals no longer have a right to make access requests under Part II of FIPPA to an institution for records in the custody or under the control of that institution relating to the provision of abortion services.”
All information relating to abortion held by government institutions or departments in Ontario is now secret. We know doctors billed for over 44,000 abortions in Ontario in 2010, but this type of information will in future be hidden from the public.
This change has ethical implications. It might also raise legal issues. For instance, a right to freedom of speech is seriously curtailed if one is prevented from obtaining the facts needed to form one’s opinion. And we often speak of such restrictions, when they are imposed in non-democratic countries, as a breach of human rights.
This amendment to section 65 was slipped in, it seems silently, as part of Bill 122, an act to increase the financial accountability of organizations in the broader public sector, hardly a title that would alert one to its presence.
Hansard does not record any debate in the Ontario legislature or at the committee hearings on Bill 122 on this change. There appear to be no media reports, which makes it unlikely most Ontarians were aware of it and could have expressed their views to their MLAs prior to its enactment.
FIPPA is meant to augment the transparency, openness and accountability of all levels of government for their decisions and actions, and our right, as Canadian citizens, to participate in democracy and democratic decision-making. My guess is that if the same approach were taken to information on breast cancer, people would be outraged.
The Ontario government might have enacted this law as a response to two kinds of fear: The fear that abortion information could trigger violence between its supporters and opponents, and the fear of political fallout if that happened and from the facts on abortion becoming known.
In the past, the Ontario Ministry of Health and Long Term Care has refused a request under FIPPA for information regarding OHIP records related to abortion, citing “danger to life and physical safety”, “danger to security of a building”, “endangering the safety of service providers”, and a danger of pro-life “violence”, if the information were released. On appeal, the Ontario Information and Privacy Commissioner ordered the ministry to disclose the requested statistics.
A similar situation arose in British Columbia, with an initial denial of access to information on abortion being overridden, on appeal, by the BC Information and Privacy Commissioner. The BC legislature then stepped in to exempt abortion information from disclosure, although the exemption is narrower than Ontario’s.
In 1999, a nurse from Calgary’s Foothills General Hospital leaked confidential documents on terminations of pregnancy on genetic grounds to the Alberta Report. The Calgary Regional Health Authority won an injunction preventing the Report from using the information.
The Court of Queen’s Bench ruled that the patients’ and doctors’ rights to privacy outweighed the public’s right to know what goes on in a hospital, which is correct with respect to personal, nominal information.
Apart from the fear politicians have that whatever they say regarding abortion will lose them votes, the Ontario MLAs might also be trying to pre-empt a pro-life argument that has become increasingly prevalent — that we shouldn’t use public health-care funds for abortion. That argument would be much less compelling if it can’t be shown that multimillions of taxpayer funding are being spent on it.
The government might also want to avoid de-funding abortion, because of the highly vocal outrage that would generate in the pro-choice lobby. Or perhaps, politically, they just want the issue of abortion to go away and hope that secrecy of information will help to achieve that outcome. But that’s not how democracy is supposed to work.
Margaret Somerville is Samuel Gale Professor of Law and Director of the McGill Centre for Medicine, Ethics & Law and is an international leader in the discussion of complex ethical questions in medicine.
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