After years of debate, Canada has no law on abortion. Is is possible to find an acceptable compromise to rein it in?
A recent editorial, “The abortion debate is over, so shut up” in the Vancouver newspaper, The Province, very bluntly expresses pro-choice wishful thinking on their part. This debate is not going away. It’s gaining strength.
The editorial does, however, accurately reflect a belief of many Canadians that there seems to be no way for us to reach any consensus on the law that should govern abortion, as recent votes in Parliament have consistently demonstrated. I don’t agree, but note I’ve qualified the word consensus with the adjective “any”.
I believe a majority of Canadians can find some “common ground” regarding legal regulation of abortion, but this must be distinguished from finding unanimous agreement - that’s impossible.
For many of us, whether we are pro-choice or pro-life, this common ground will not be a “perfect” stance. That’s unavoidable because we live in a pluralistic society where people have vastly divergent worldviews; we don't all share the same convictions about the intrinsic dignity and value of all human beings, from their conception to their natural death; and we disagree whether the value of respect for life or that of individual autonomy should take priority when they conflict.
The present legal situation, in Canada, defended to the death by some pro-choice advocates, is that there are and should be no legal restrictions on abortion. In stark contrast, some pro-life advocates believe that any law short of the total prohibition of abortion is unacceptable, because, agreeing to a law which still allows some abortions would constitute complicity in the evil of abortion.
Many pro-life advocates now recognize, however, that a total prohibition is not achievable, that the virtue of prudence requires them to implement the protection that is presently feasible, and protecting some unborn children is better than protecting none. Consequently, they would welcome some legal restrictions on abortion short of a complete prohibition. They rightly argue that government has an essential role to play in restricting certain activities, whereby unborn children’s human rights are violated.
Likewise, many Canadians, who would describe themselves as pro-choice, believe that some legal restrictions on abortion should be enacted.
Polls show that a majority of Canadians agree there should be some legal restrictions on abortion, whether on certain grounds such as sex selection (in one poll, 92 percent of Canadians agreed with prohibiting sex selection abortion, except for medical reasons), or after a certain period of gestation, ranging from 12 weeks to, at the latest, viability of the fetus, which the Canadian Medical Association guidelines set at 20 weeks gestation.
In short, most Canadians agree that some law to protect fetuses/unborn children is needed, although they don’t agree at which precise point it should apply.
To find some common ground, we have to stop allowing people with views at the far ends of either the pro-choice spectrum or the pro-life spectrum to dominate the debate, as they now do, especially in the mainstream media. For too long, the battles between those on each extreme have prevented the nuanced discussion with which most Canadians can identify. We need to work together and build on the existing consensus, rather than focus just on differences. In short, we need to start our discussions from where we agree, not where we disagree.
Most Canadians will agree that abortion is always a serious ethical issue, and that it is a separate question when it should become a legal issue.
We can also agree there is a big difference between not prohibiting something legally – for instance, first trimester abortion – and approving of it. Moreover, the absence of a legal prohibition does not mean that the conduct not prohibited is ethically or morally acceptable.
Choosing a 12 to 14 week cut-off, as in several European countries, before legal restrictions on abortion apply, is to focus our law on a point between having no legal restrictions on any abortion -- our current situation in Canada -- and having a total prohibition. I believe it’s an approach a majority of Canadians will accept, no matter on which side of the abortion debate they would classify themselves, because many Canadians hold a more nuanced position than the ones usually attributed to each side.
What I am proposing is that in the first trimester, the message that abortion is always a very serious ethical decision should be delivered through persuasion, that is, other than by using law, but after that law should be employed.
Allowing an early period in pregnancy, when women can seek unbiased counseling without fear of criminal prosecution, could help them to decide against having an abortion. That requires we ensure there are facilities readily available for crisis pregnancy counseling, which are not abortion clinics.
The most relevant analogy here is to the decriminalization of suicide to try to prevent it, because suicidal people and their families would be more likely to seek help, if they were not threatened with criminal prosecution.
And, just as we have supportive, non-coercive suicide prevention programs, we need to consider supportive, non-coercive abortion prevention programs. For instance, a woman with a crisis pregnancy should know that, if she decides against abortion, she will be offered fully adequate psychological and social support. Such an offer is required, if for no other reason, to obtain a valid – non-coerced – informed consent to abortion, should that be the woman’s decision.
Another reason not to use law in the first trimester includes a practical consideration, namely, that the availability of chemical abortifacients means the law won’t prevent abortions in that period. Ineffective law brings the law, in general, into disrespect.
Our current lack of any legal protection of unborn children results from a total failure of our ethical imaginations as to what abortion involves. That failure is demonstrated, I suggest, by a counter example, namely, pro-choice advocates’ outraged reaction to an approach that activates our ethical imaginations and moral intuitions, the display of graphic images of aborted fetuses, for instance, on Canadian university campuses.
Unrestricted abortion in the 21st Century is the equivalent of the ancient practice of putting babies on rocks to die. Many people today seem to be as blind to the wrongs of the former, as people in the past were to infanticide. I believe future generations of Canadians will look back on our current approach to abortion as one of the great human tragedies.
Margaret Somerville is director of the McGill Centre for Medicine, Ethics and Law.