The leaked Supreme Court document spelling the expected end of Roe v. Wade in the U.S. is a warning for Canadians that drives home the need to expand the fight for reproductive justice.

There is much to be done to improve abortion access in Canada, as well as to increase public information, which remains limited. Currently, roughly one in six hospitals are equipped to provide abortions. Those who have to travel to obtain the procedure, and those who lack provincial health insurance, face prohibitive costs. 

When I started research for my book Fired Up about Reproductive Rights ten years ago, I was a young activist organizing for reproductive rights in the Maritimes, and was well aware of these barriers. I soon learned from activists and advocates on both sides of the border that lack of access to abortion is just one of the ways our access to reproductive rights, health and justice is limited. 

At this crucial juncture for our neighbors to the south, we have a strategic opportunity to reflect on where our movements can be stronger, and to build reproductive healthcare systems that are grounded in consent, access and justice.

Protecting abortion by working to improve our healthcare system moves the fight for abortion access beyond a single issue, or presenting it as something that can only be won in the courts.

Canada’s Supreme Court. New legislation could introduce the opportunity to weaken abortion access. Photo: Robert Linsdell

Resisting the push to legislate

Many fear—not without reason—that anti-abortion activists in Canada will be emboldened by what is happening in the U.S. 

In fact, Canada and the U.S. have substantively different histories and legal frameworks when it comes to abortion. In the U.S., Roe v. Wade made it unconstitutional for states to make abortion illegal, though states could still regulate the practice after the first trimester. A 1992 decision later stated that states could not impose “undue burden” on access to abortion before viability, and the vagueness of this decision resulted in a wave of restrictions.   

If Roe v. Wade is overturned, states will be able to make abortion illegal again, and in the thirteen states with “trigger laws,” this will happen immediately, but many states will continue to allow abortion access and provision. 

By comparison, in Canada, the Morgentaler decision decriminalized abortion across the country, and there are no laws regulating abortion. 

Anti-abortion advocates have had limited success in advocating for bills that would limit abortion access (the Abortion Rights Coalition of Canada counted 47 failed attempts). That could change, especially if abortion becomes illegal in the U.S., freeing up the resources of transnational anti-abortion networks. 

Some well-meaning supporters of abortion rights have looked at the limited and unequal access to abortion that we have in Canada, as well as Conservative attempts to regulate the procedure, and they’ve concluded that Canada needs a law guaranteeing abortion access. 

Most reproductive health and justice activists—myself included—believe this would be a mistake. Canada currently has one of the most liberal legal climates in the world for abortion. Introducing laws would mean regulating abortion, which opens up even riskier terrain, as laws could be introduced that would hinder access. 

It is for similar reasons that sex workers have advocated for the decriminalization rather than regulation of sex work—we don’t need the state interfering in what we do with our bodies.

In practice, abortion is regulated under the Canada Health Act. Creating an abortion law would mean distinguishing abortion from all other health-related procedures—a conceptual distinction that is both unnecessary and fraught with danger, in that it implies abortion is not just another health procedure. 

Pro-choice movements helped enshrine the legal right to abortion care.

Fighting for the five pillars of healthcare

I recently spoke with Shannon Hardy, an abortion doula and founder of Abortion Support Services Atlantic about this issue.

“CTV put out this fear-mongering article asking, ‘do we need a law, do we need a change to the Charter?’ We have a law: It’s called the Canada Health Act,” said Hardy. “The way to get abortion access is to enforce the laws we have and to strengthen the five pillars of healthcare. Abortion services are not portable, universal, or comprehensive.”

Hardy’s suggestion is powerful because it recognizes that we already have a regulatory framework with which to address the inequities in access to abortion. For example, after New Brunswick’s only abortion clinic closed in 2019, the province did not cover out-of-hospital abortion access under provincial healthcare. 

Prime Minister Justin Trudeau responded to pressure from the reproductive health community and withheld $140,000 in federal transfer payments for the province’s failure to uphold the Canada Health Act. In classic Liberal fashion, with the onset of COVID-19, the hold was later reversed. 

That this doesn’t happen more often and with more serious financial consequences when provinces fail to provide access to reproductive healthcare is a failure of the federal government. It isn’t actually a failure of policy: the Canada Health Act promises universal healthcare and healthcare includes abortion.  

What happened in New Brunswick demonstrates how legal wins are always limited without the pressure to implement them. One of the most crucial mistakes of the mainstream reproductive rights movement in both Canada and the U.S. was to assume that once “choice” and legal rights had been guaranteed, their job was done. 

In reality, the legal victories of Roe v. Wade in the U.S. and the Morgentaler decision in Canada only gave relatively privileged pregnant people the ability to access abortions. In the U.S., this was clearly highlighted by the lack of mainstream feminist opposition to the 1976 Hyde Amendment, which prohibited the use of federal funds—including the Medicaid health insurance that covers an estimated 15.6 million low-income women—for abortion. 

In Canada, abortion access has been patchy and often available only in urban areas. The resources required to travel and take time off work have made getting an abortion out of reach for many in low income and rural communities. 

Towards reproductive justice

These inequities are part of what has driven Black, Indigenous and women of colour to advocate for a vision of reproductive justice. Moving beyond a framework of legal “rights,” reproductive justice activists have recognized that people’s choices are always constrained because of white supremacy and economic inequality.

Those who work minimum wage jobs or live in precarious housing may not feel they can support a child, but may also lack the ability to access abortions or birth control options. Indigenous peoples have faced genocidal policies, like residential schools, that have prevented them from raising families.  People in the Black, Indigenous, LGBTQ, and disabled communities have often been cast as “unfit” parents, and are rarely supported in becoming parents, while also facing discrimination while accessing healthcare. 

In the U.S. this fight has been led by groundbreaking organizations like the SisterSong Women of Color Reproductive Justice Collective. These activists point out that, given the injustices of child welfare systems and coercive sterilization practices, accessing abortions can be less important than being allowed to have children and to parent the children they have. This should be top of mind in any discussion of abortion in Canada, given that the findings of a recent Senate report confirming Indigenous peoples continue to face forced and coercive sterilization.

That these connections have been largely overlooked by the largely white mainstream feminist and abortion rights movements has been a failure in valuing and supporting all community members. This failure has in turn given a tactical advantage to the anti-abortion movement. 

The anti-abortion movement continues to employ violent attacks on abortion providers as a tactic, and some argue that overturning Roe v. Wade would make this worse. But over the last 20 years, a softer side to the anti-abortion movement has emerged, one that is more palatable to the general public. 

Consider the emergence of crisis pregnancy centres—anti-abortion organizations disguised as  clinics and support centres—that provide misinformation. But they also in many cases provide prenatal and postnatal supports unavailable elsewhere.

Given that the legal status of abortion is not currently under threat in Canada, we would do well to focus our efforts on building strong movements that look at abortion as more than just a single issue. 

There are many groups and organizations that are already leading the way on this kind of work. One of them is the Migrant Rights Network, which advocates for  people in Canada who don’t have permanent residency and who currently lack adequate health insurance. 

Another is the Native Youth Sexual Health Network, an Indigenous led organization which has drawn links between sexual and reproductive health and environmental injustice, domestic violence, and over-incarceration.  

A key plank of reproductive justice work is to build stronger feminist networks and organizations that are ready to fight to force governments to provide access to a range of consensual reproductive healthcare services, support pregnant people where state support breaks down and respond to legal and policy threats to everything from abortion to midwifery care. 

Action Canada for Sexual Health and Rights is doing important work in this regard, as are local full-spectrum doulas across the country.

The fight to strengthen our reproductive and sexual healthcare systems is a fight to improve healthcare access and equity in general. Linking reproductive justice to ongoing anti-poverty and racial justice work is the only way to ensure that people are empowered to be able to make meaningful choices.

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