The Politics of Abortion
Why is there frenzy in the United States and quiet in Canada?
It was probably my most unwise and unprofessional moment as a campaign manager.
I was managing a campaign in the late 1980’s (never mind whose) when a pro-life zealot phoned every day to scream at me for being a “baby-killer”. He’d go on at top volume for an hour. Every day. I was sick of it but endured the abuse so my candidate or volunteers would not have to. One day, he announced he had seven children and demanded I tell him which one I wanted dead. He started through the list.
“My oldest is Bob. Tell me, should I have killed Bob. Would you kill Bob?”
“My next is Mary. Tell me, should I have killed Mary. Would you kill Mary?”.
When he got to his fourth child, I lost it. “Look Buddy,” I snarled. “If they are all as stupid and obnoxious as you, I say kill them all.” I am grateful this was before cell phone recording and the social media were invented. As it was, he hung up and never called again. Victory, I guess, but I shouldn’t have done it.
I’ve not been involved in political campaigns for a decade and a half, but my sense is that these kinds of exchanges are much rarer on the campaign trail. In Canada - but not in the United States.
Let’s look at why.
In both countries, performing an abortion was legislatively proscribed as a criminal offence in the late 1800’s. By the 1960s, political pressure built to make the provision of abortions by trained medical personnel legal.
In Canada, in 1969 the Liberal government headed by Trudeau the Elder legislated that a hospital COULD (not must) establish a committee of doctors that COULD (not must) decide whether a request for an abortion should be granted. The official criteria were whether the life or health of the pregnant woman was in danger. The result was, at best, cumbersome, arbitrary and geographically spotty. In some places for some women, access to a legal abortion was possible. For others, it was not.
In the United States, some legalized access to medically-provided abortions. By 1971, abortions were legal in 5 states (and Washington D.C.) containing 21 percent of Americans.
At the beginning of the 1970s, the political processes, culture and results were similar in the two countries. A pro-choice push to decriminalize abortion services had some success. This, in turn, was generating an active pro-life movement that had hitherto not existed – largely because abortions had been uniformly criminalized.
Then the political trajectories in the two countries diverged.
In 1973, the United States Supreme Court ruled in the case of Roe v. Wade, striking down Texas abortion laws based on an “imputed” right to privacy in the 14th Amendment (due process) to the constitution. Quite frankly, it was outcomes-based legal reasoning. States were prohibited from restricting access to legal medical abortion services in the first trimester, had some ability to regulate in the second trimester and more in the third trimester. In 1992, in Planned Parenthood v. Casey, the Supreme Court ruled that state regulations on abortion could not place an “undue burden” on pregnant women’s access to abortion. These Supreme Court decisions effectively pre-empted state legislative action to restrict medically-provided abortions.
In Canada, after the 1969 legislation, things moved slower. Dr. Henry Morgentaler challenged the legislation by daring the authorities to charge him. They did, but juries were unwilling to convict. This culminated with R v. Morgentaler reaching Canada’s Supreme Court in 1987. The court ruled that Canada’s existing law was unconstitutional and suggested Parliament to pass an equitable law. In 1988, the Mulroney government introduced legislation to allow easy access to abortions in early stages of a pregnancy, but impose criminal punishments to providers for later-term abortions. The vote was deemed a vote of conscience – no party discipline was applied. Pro-life and pro-choice MPs united to reject compromise; the bill was defeated 147 to 76. After the 1988 election, the re-elected government brought in legislation stipulating a doctor could legally perform an abortion if the life or health of the pregnant woman was at risk. If provided for other reasons, the provider could get two years in the slammer. There was a partial whip; cabinet members had to vote for the bill. Pro-life MPs reluctantly supported the bill which narrowly passed in the House of Commons – but then did not pass in the Senate. The government could have forced the bill through, but chose not to. With that, Canada became an anomaly by having no “abortion law”.
In one sense, Canada and the United States continued on the same trajectory. The number of documented abortions rose following legalization, both because of improved access and because legal abortions are more likely to be reported to the government than illegal ones. In both countries, about a decade after legalization, the “abortion rate” began a slow, steady decline. Canada’s is now about 25 percent lower than in the United States, even though there is less restrictive legislation.
Similar trajectories in practice have been accompanied by divergence in politics.
In Canada, abortion has withered as an issue. Apart from a few forlorn private members bills which quickly die on the order paper, there’s been no legislation. The Liberals and NDP have made a pro-choice position (or at least silence on the issue) mandatory for candidates. Conservatives are split. In every Conservative leadership race, pro-life “social conservatives” search for a champion. The successful candidate signals his support for the cause and then throws the pro-life position under the bus.
In the United States, abortion politics are much, much more prominent and contentious. On the first anniversary of R v. Wade, the first March for Life in Washington, DC occurred. It is now an annual event attracting tens of thousands – sometimes hundreds of thousands. A host of pro-life and pro-choice organizations raise millions. Acrimony over abortion has turned judicial confirmation hearings into gladiatorial combat. Many state legislatures are consumed by the issue. For example, in Missouri the legislature has debated TWENTY-FIVE (25!) bills on abortion so far this year – and its only March. Yikes.
What accounts for the different trajectories?
A partial explanation is different cultures in the two countries. Pro-live believe is often rooted in religious belief. Canada is more secular than the United States. However, cultural explanations do not explain, why the trajectories were once similar. There has to be more to the story. I’m going to consider three possibilities which are likely synergistic.
In both countries, rulings by the Supreme Court that existing laws were unconstitutional triggered national legalization. There was, however, a difference. The Canadian court put the onus back on Parliament to develop a new law. Setting abortion law was seen as a political process. In the United States, the Supreme Court not only struck down existing law, but prohibited legislative restrictions – initially for the first trimester of a pregnancy. This established the legal system as the ultimate focal point for change. The political system became irrelevant. One result was the poisoning of judicial confirmation hearings.
The second major difference is structural and constitutional. In Canada, there is one national criminal code. In the United States, there are 51 (one for each state and a federal one). Public opinion has a geographical distribution, which means that some states will tend to be “pro-life” and others “pro-choice”. All or nothing legislation is easier to pass in the smaller political units. There is more. The entry point for legislation is much more diffuse in the United States. Any member can sponsor a bill; all of them do. In Canada, the introduction of legislation with any chance of passing is controlled by cabinet. In Canada, the Prime Minister is effectively the only point for legislation changing the status quo. In the United States, there are a few thousand.
The combination of multiple points of entry for legislation combined with judicial control over the end result has created half a century of Kabuki Theatre around abortion laws in the United States. Legislatures in “Pro-life States” pass laws. The courts strike them down. Legislators look for end-runs on the courts: parental/spousal notification laws; legislation to restrict abortions to hospitals rather than clinics; requirements that pregnant women get ultrasounds so they can “see” the fetus; compulsory “counselling” prior to an abortion; funding restrictions; waiting periods and much more. The latest ploy comes from Texas, where a recent law stipulates that anyone (anyone!) can sue someone who performed an abortion after a heartbeat could be detected (about six weeks) and collect $10,000 from the provider. It’s a kind of legal vigilante enforcement. Missouri is debating a law allowing people to sue anyone who helps a woman leave the state to get an abortion. It is also debating a law making it a criminal offence to provide any tool, device, instrument or drug used in an abortion procedure. Someone selling a bandage to a doctor who uses it in an abortion procedure would be guilty of a “Class B” felony carrying a penalty of 5 to 15 years in prison. Weirdly, providing the means for abortion to end an entopic pregnancy or an abortion given to a victim of sexual trafficking would be classed as a “Class A” felony carrying a penalty of 10 years to life. Its f*****g nuts, but its also just theatre designed to generate outrage and fundraising. If passed, the courts will strike it down.
In the United States, the combination of ultimate judicial decision and multiple points of entry for legislation created a kind of infernal perpetual motion machine to keep people agitated, outraged and contributing money to the both sides of the cause. In Canada, the Supreme Court’s deferral to Parliament and the single-entry point for legislation caused most people to move on.
There is a third, non-structural, factor worth noting. Stephen Harper. When campaigning to become Prime Minister, Harper attempted to take abortion off the table by promising no change to the status quo. Pro-choicers feared he was lying; pro-lifers hoped he was. Harper kept his promise. For the pro-life movement, it meant a decade of having “their” government in power with nothing happening. That had to be demoralizing and demobilizing.
What does the future hold?
Who knows? I think there is a degree of path dependency established in Canada, but I’ve been wrong about these things before. In the United States, the past fifty years have been corrosive to the health of the body politic. The primary beneficiaries are wedge-issue politicians and fund-raising operatives. It seems like it should be unstable, but the fact remains that the current arrangement has lasted long enough that there are post-menopausal women who have lived under no other regime.