Andrew Coyne's abortion mischief

Today's Maclean's cover story is a longish argument by Andrew Coyne that we should toss abortion back into the legislative arena. Why? Apparently because it's time.

There is, in fact, something quintessentially, even touchingly, Canadian about Coyne's piece. There's presently a "legal void" with respect to abortion. Despite his impeccable conservative credentials, Coyne, it seems, is hungry for regulation. "When it comes to abortion, we are literally a lawless society," he says, invoking connotations of a Western town before the sheriff rides in.

For him, it's all about process. "This is not about abortion," he begins. "It's about democracy." How did we end up with no abortion law? An accident of history! It wasn't meant to be this way. No other country has no abortion law. We've got to do something! Now!

I'm not trying to caricature Coyne's arguments with all those exclamation marks, but there does seem to be a kind of quiet panic in his words. Abortion is unfinished business. The current Order of Canada controversy proves just that. Time to put our shoulders to the wheel and put abortion back in the Criminal Code. Or, at least, settle that matter democratically.

Abortion is not currently lawful, he says, merely not illegal. In my layman's mind, I assumed that anything not forbidden was permitted. In Singapore, chewing gum is against the law. In Canada, we have no law respecting gum-chewing. Is it lawful to chew gum in Canada, or just not illegal? Enough. I have no idea what point Coyne is trying to make here, other than making an appeal for a legal regime that would hold reproductive freedom in its toils, sorting out lawful abortion from unlawful abortion. You can have an abortion You can't. It's the law.

How does he attempt to make this case? He uses two general approaches. First, as noted, he claims that there was a failure of process two decades ago. Secondly, he argues in effect that there is a split amongst Canadians that can only be healed by dragging the issue back into the legal realm.

On the alleged failure of democratic process, he takes us back to the January 1988 Supreme Court decision that struck down Canada's abortion law. Did the SCC establish a constitutional right to abortion? No. But, as Coyne concedes, "it's difficult...to say what the Court wanted with any precision." It was a 5-2 decision, with four separate judgements. Clearly, though (he insists), they expected some new Charter-compliant law would replace the restrictive Section 251 of the Criminal Code that they struck down.

The SCC might have held that door open, but, as it turned out, no one wanted to walk through it. The Mulroney government of the day first tried a "pick one" approach, putting on the floor of the House of Commons a three-part motion that offered a selection of pro-choice, "pro-life" and compromise positions. Surprise, surprise there was no majority support for any of the positions. In a classic example of strange bedfellows, in fact, pro-choice and "pro-life" MPs voted against the compromise. But neither faction had enough support to get its own way.

A few months later, the government put its compromise position before the House. It would allow early-stage abortion if a doctor agreed, but restrict access later on in the pregnancy. The proposal didn't fly. Then, the following year, a watered-down version of the previous law, C-43, was put before the House. It passed by the slimmest of margins--140-131--and went to the Senate, where it ultimately failed, on a tied vote.

Coyne finds all of this undemocratic, which I find passing strange. The issue had been hassled about in the House of Commons three times since the old law had been struck down. On the third attempt, a new measure barely passed. The Senate blocked it, a Senate that had just previously been stuffed with Conservative appointments to ensure passage of Mulroney's Free Trade Agreement. But the Senate, unelected, undemocratic, a vestige of another day and age, does not have authority over the House of Commons.

Nothing prevented the Commons from reintroducing the measure. Nothing prevented the Prime Minister from making the same observation that Coyne makes in his article; namely that the acting Speaker of the Senate, who had abstained, was entitled to vote but (Coyne says) didn't realize it. Nothing prevented lobbying behind the scenes to get support from some of the 23 Senators who didn't vote. But the Mulroney government simply saw the writing on the wall, and decided to pursue the matter no further.

That strikes me as Parliamentary democracy in action, warts and all. The government spent an enormous amount of time and energy getting the matter debated, and rising again after each failure to have another go at it. Public lobbying was at a peak. The Canadian Medical Association, various powerful women's groups and much of the general public weighed in on the pro-choice side. What Henry Morgentaler recently called the "usual suspects" put their own considerable resources behind the anti-choice lobby. The result, after all that, was that insufficient consensus existed to have any law at all.

The case for passing a law, it seems to me, should be that a broad public consensus exists that such a law is required. One doesn't pass a law simply for the sake of having a law. But in this case, no one formulation of an abortion law had anything but minority support. If it's democracy that Coyne wants to invoke, the conclusion here is obvious.

But not, it seems, to Coyne. He moves on to discuss why we apparently need to revisit the notion of criminalizing abortion. He acknowledges that public and political opinion has shifted since 1988 in the direction of choice, but dismisses this as based upon "convenient myth." He expresses outrage that the pro-choice forces are sufficiently in the ascendancy to cow even the Harper Conservatives, and that "pro-life" campus groups are being "banned," by which he appears to mean, if Carleton University is any indication, that some of them are being refused subsidies from students' associations. (The Carleton University Students' Association eventually provided that subsidy, after the "pro-life" club in question amended its charter to conform to the CUSA human rights policy.)

Again, this is all democracy in action, rough-and-tumble, not always very nice, but democratic nonetheless. Dissent isn't being squelched, as Coyne insists--it's simply being out-argued and out-lobbied.

Bringing up polls from a few years ago merely underlines this undeniable fact. Public opinion has shifted towards choice--and it continues to shift. Coyne notes, with barely concealed annoyance, that last month's Angus Reid poll showed that nearly half of Canadians--49%--believe that abortion should be legal under any circumstances, and another 47% under certain circumstances. That may fall short, as he insists, of a "national consensus in favour of unrestricted abortion," but it falls even shorter of a national consensus for a restrictive abortion law.

If only Canadians knew, Coyne says, that other countries had abortion laws, even liberal European nations. That would surely affect our public opinion polls. That would make us want legal restrictions on abortion. The legislative regimes of France, Norway, Sweden, the Netherlands and Italy would have a pronounced effect upon us, if only someone would tell us ignorant Canadians what they were. Quick! Toss that man another straw!

At this point, one can see Coyne's argument collapsing. We're alone, he says. Are all those other countries extreme? Are two-thirds of our own public extreme? (That "two-thirds" remark is journalistic legerdemain, and not a very skillful example of it, given that he has just finished conceding that nearly half of Canadians want no legal restrictions on abortion at all.)

All of these other countries have their own histories, and their abortion laws have their own etiologies. As cosmopolitan as Canadians are, I don't think too many people would be bothered to learn that our European cousins have different laws than we do.

But Coyne isn't finished. If we were to pass a law, he says, things wouldn't change that much anyway. If we had a 20-week gestational limit, for example, only one percent of current abortions would be affected. And the national abortion rate is falling. Perhaps, he says--after all this spilled ink--"there are other factors, other ways, than the criminal law" to deal with abortion. If only he had stopped there.

But, confronting the inexorable logic of his own argument, Coyne retreats. He concludes that a law is indeed wanted, and that pro-choicers should support one, because it would "restore the issue to the realm of democratic debate, without which no genuine consensus is possible." I don't think that Coyne is necessarily arguing here for putting the legal cart before the consensual horse, although his words could be read that way. I believe that he is suggesting that he wants a law to be introduced, debated, fashioned by compromise, and passed.

Otherwise, he says, there is no room for compromise or negotiation. In the US, Roe v. Wade made compromise impossible, he says, and abortion a "winner-take-all game of lawyers." It's much the same here in Canada, he states. But with respect to the latter, where are those lawyers? The legal issues (other than access in places like PEI) are settled. In the US, states keep enacting new, restrictive legislation. Some of it gets struck down and some of it has been allowed to stand by the US Supreme Court. It's more a winner-take-all game of politicians. And women suffer as a result.

Indeed, perhaps the most striking thing about Coyne's article is the near-absence of any reference to the rights of women, and the consequences they have historically endured when those rights are denied or restricted. And his next point--that a law would "open the way to assinging a fetus some rights in Canadian law"--leads him into dangerous waters indeed. He gives the example of a glue-sniffing pregnant woman, whom the authorities could not apprehend and prevent from continuing her practice.

The problem with limit-cases like this is the appeal to raw emotion. Certainly, one feels, something should be done to prevent damage to what eventually will become a citizen. His or her future quality of life will doubtless be adversely affected by the woman's addiction. But from a public policy standpoint, where would state intervention end? In various US jurisdictions, as documented in Susan Faludy's Backlash, women have been apprehended for being seen in a bar, for not eating sufficiently nutritious food, and for attempting to leave their place of residence (allegedly to obtain an abortion). I think it's up to the recriminalizers to tell us if and where a line can be drawn before we rush pell-mell into a legal fetal-rights regime.

"Would an abortion debate be so scary?" Coyne concludes with this rhetorical question. One wonders where he's been since 1998: the abortion debate continues, occasionally flaring up, rarely with new arguments presented, but grinding on, and on, and on. Indeed, the debate is what prompted Coyne to write his article in the first place. What he means, however, is a debate focussed upon the notion of a new abortion law. Maybe, he concedes, we'll collectively talk ourselves out of it. But we'll have decided the matter ourselves, rather than having it all happen by accident and a Senate vote.

As already noted, though, it wasn't blind circumstance that brought us to our current situation. The Supreme Court struck down a damaging, humiliating, restrictive criminal law. Parliament, after three stout goes, decided to let the matter rest, although they could have pursued it further. Nearly half of all Canadians today don't want any legal restrictions on abortion. This doesn't sound, to me, like a favourable climate for making abortion a criminal matter once again.

Coyne, not to put too fine a point upon it, is making social mischief with his suggestion. Women's rights, in 2008, cannot be subjected once again to Criminal Code restrictions. If Coyne thinks the country is divided on the abortion issue now--and it assuredly is--he hasn't seen anything like the division that would be created by introducing new abortion legislation. He wants us to have the discussion all over again, but he doesn't seem to realize that a national debate may be only tenuously connected to the political processes that would ultimately decide the question.

Most Canadians thought abortion should be a matter to be decided by a woman and her doctor years before Section 251 was struck down, but the politicians didn't make a move until the Supreme Court forced them to. And then they were unable to come to a conclusion. There is no guarantee that they would now, or, that if they did, their decision would accord with the wishes of the majority of Canadians. If ever there was a case of rolling the dice, it would be on this issue.

Besides which, since when should rights be put to a vote? In 2008, women deserve better than that. In fact we all deserve better than that. Coyne wants to open a Pandora's box and let its contents loose on the population. The social and public policy consequences could be catastrophic, but for him, at least ostensibly, the debate is everything.

Introduce new criminal abortion legislation for the sake of a national discussion? Let's not, Andrew--and say, we did. Three times, over the period 1988-1991, to be exact. Gamble yet again on a woman's right to choose?

No dice.