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Canada needs an abortion law

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On March 6, South Dakota Governor Mike Rounds signed into law a blanket abortion prohibition -- the first such ban to be legislated since the U.S. Supreme Court decided Roe v. Wade 33 years ago. Inspired by South Dakota's example, lawmakers in Alabama, Mississippi, Tennessee and Georgia are considering similar legislation.

For now, the move is largely symbolic: South Dakota's law will almost certainly be declared unconstitutional in U.S. District Court. On the other hand, the anti-Roe forces on the Supreme Court may be just one vote shy of a majority. If George W. Bush has the opportunity to name another Justice, Roe and its progeny could soon be overturned. The question of abortion then would be returned to the arena where all contentious social issues belong: elected legislatures.

For the time being, frustrated U.S. legislators can blame their troubles on an activist Supreme Court. But what's our excuse? Since 1991, when the last effort died in the Senate, Canada has had no abortion law -- a shameful status that distinguishes us from every other nation in the free world. Fetal viability can begin after 23 weeks of gestation. At 37 weeks, doctors consider a pregnancy full-term. Yet by the lights of Canadian federal law, it is equally legal to kill a fetus at 10, 23, 37 or 40 weeks. Doctors are even permitted to remove part of a viable fetus from a woman before extinguishing it -- a process opaquely referred to as "intact dilation and extraction."

The argument for not correcting this -- repeated by Liberals in shrill fashion every time Canadians go to the polls -- is that any new law might compromise a woman's "right to choose." But of course, the rights society confers on women (or on any other group) are themselves the product of moral consensus and compromise. Few Canadians believe a woman should have the right to abort a fetus for any reason, at any point during gestation. Yet this radical minority has not only imposed its agenda on our federal government, it has convinced each of our four political parties that any attempt to modify the status quo is a marker of religious fundamentalism.

The radicals' success is a product of our social history. The right of a woman to have a safe, legal abortion in even the most sympathetic circumstances -- say, an unmarried teenage mother in her first trimester -- was won only recently in most Western nations. In Canada, it wasn't until 1969 that our laws were amended to permit some kinds of abortion. And so the scourge of back-alley procedures lies within our living memory. Such memories have generated a lingering political insecurity: There is a sense that such a young right is still fragile -- that it might be rolled back completely if made the subject of any kind of serious political debate.

Yet such fears are obsolete. Two generations of Canadian women have been able to procure safe, legal abortions. The practice of aborting a non-sentient fetus in the early months of gestation is now tolerated, if not condoned, by the vast majority of Canadians. No government, Conservative or Liberal, will ever take that right away. We can debate the correct balance between respect for life and female autonomy without arousing fears that our society will be cast back to the 1950s.

Lest I be accused of suggesting that Canada take its cues from the United States -- this country's version of the crime of apostasy -- let me provide some other examples. In Britain, abortion-on-demand is available only until the 24th week. In ultra-liberal Sweden, women must seek permission to have an abortion after the 18th week. In Germany, it is available only in the first 12 weeks, and even then the mother is required to undergo counselling beforehand.

None of these legislative models may be exactly right for Canada. But the larger point is that in all civilized nations except ours, the parameters of when and how to permit abortions -- gestation limits, parental notification, counselling periods, government subsidy -- are live issues, and their regulation is subject to ongoing legal refinement. Secure in the basic right to abortion, voters recognize that some restrictions are a moral necessity, and that the nature of those restrictions presents exactly the sort of issue that should be the meat of politics.

Where would a real abortion debate lead in Canada? At the very least, it would lead us back to the common-sense recognition that -- as no less a liberal than Hillary Clinton recently observed -- abortion is an evil to be avoided. It is not -- as suggested by such deliberately opaque phrases as "reproductive health care" (Planned Parenthood's preferred euphemism) -- a medical banality on par with a root canal or cataract removal.

Second, we would acknowledge that the state has an interest in maintaining viable human life. The opposite view is arguable -- but only if one embraces a radically libertarian definition of the state's interest in bioethics, which would be odd in the only free nation on Earth where it is illegal to use private means to pay for life-saving medical treatment.

Liberated from the taboos imposed on us by pro-choice activists and timid politicians, Canada could create an abortion law that aligns itself with the nation's collective moral sense. Such a solution likely would provide the option of abortion to any woman impregnated through rape or incest, or whose health is at risk, as well as on-demand abortions in the early stages of gestation, perhaps even until the fifth month, when higher areas of the brain, our species' biological hallmark, become active. After that, abortion would be banned, except in extraordinary circumstances.

During Paul Martin's brief reign, talk of creating an abortion law was unthinkable: In an effort to demonize Stephen Harper, he ran as the Henry Morgentaler candidate, denouncing any suggestion of reform in this area as an assault on women's rights. Thankfully, he's gone. Yet the self-censorship surrounding the issue remains. Will Harper be courageous enough to dispel it?