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Apr 17 2014

The Constitutionality of Abortion Policy in New Brunswick – Introduction

Tia Beaudoin, a recent Political Science Honours graduate at University of New Brunswick, has kindly offered her thesis as a series of guest blog posts on the subject of the abortion policy in NB, with particular regard to the laws that have resulted in abortion being virtually inaccessible for much of the Maritimes.

As it’s very long, I’ve broken it up into multiple posts:

Cover / Works Cited
Introduction
Chapter 1: A Social and Legal History of Abortion in Canada
Chapter 2: New Brunswick: Openly Defying the Canada Health Act
Conclusion

As an editor’s note, I should point out that Dr. Henry Morgentaler died last May, and after his death, the clinic he founded in New Brunswick — which he’d been fighting to force the government to cover the costs of the procedures done there in the courts over the last 11 years — was forced to close for lack of funding, despite the Canada Health Act requiring funding of abortions. The provincial government, thanks to Regulation 84-20, only covers funding for abortions recommended by two doctors as “medically necessary” — a law that makes it nearly impossible to obtain the two doctors’ sign-off during the mandated first twelve weeks of the woman’s pregnancy. Those two facts essentially make it impossible to get medical funding, and the clinic under Morgentaler had mandated to never turn away a woman in need. As a result, it has lost close to $100,000 over the past ten years.

Worse, the lawsuit was dropped in the wake of the ongoing backlash against Regulation 84-20.

Introduction

In an ideal world, women could choose when their bodies would become pregnant, and every child would result from a fully intended pregnancy. Scientifically, we as a society are getting closer to this ideal through an improved understanding of how the human body works, and through the use of contraception. However these methods are still flawed in a number of ways. Many women do not have access to contraceptives, either because they are too expensive or because they live in a restrictive home where they are not able to receive a prescription for birth control, or purchase condoms. Even if contraceptives are used, mistakes or lack of knowledge can still lead a woman to become pregnant. In addition to this, rape and intimate partner abuse is all too common in our society; women should not be expected to prepare themselves to prevent pregnancy from sexual assault. In addition to this, a partner may refuse to wear a condom. There are countless situations when contraceptives are either impossible to access, or their use is ineffective.

Women should be able to choose whether or not becoming a mother or carrying a pregnancy to term and giving the baby up for adoption is in line with her current personal aspirations. For teenage women in particular, becoming a mother at a young age can decrease the likelihood of completing their education, which leads to limited career opportunities later in life.1 This is in addition to the social stigma teenage pregnancy invariably brings. Many women wish to delay motherhood until they have established themselves in a career, or until they find a partner they believe would be a suitable parent, and others do not wish to become mothers at all. These women have a right to achieving these goals. Abortion was decriminalized in Canada precisely for these reasons.

Despite abortion being decriminalized, access varies throughout the country. Aside from Prince Edward Island, which has no abortion provider within the province, New Brunswick has the worst abortion access rate of any province in Canada.2 Abortion clinics, which present a better option than hospitals for women seeking abortion, are not funded under the provincial health care system. This directly contravenes the Canada Health Act, for which New Brunswick has never been punished. In addition to this, officials of the provincial government regularly flaunt their anti-choice sentiments to the public. New Brunswick women must maneuver through various legislative hurdles in order to receive a publicly funded abortion in a hospital. These hurdles seem designed to set women up to fail, and force them either to spend hundreds of dollars purchasing their own abortion in Fredericton’s Morgentaler Clinic, or to endure an unwanted pregnancy. New Brunswick’s abortion policy is harmful to women in physical and psychological ways and in doing so, breaches their Charter rights; and its operation is illegal under the Canada Health Act.

To discuss New Brunswick’s abortion regulations within the Canadian context, we must first clarify the language and the importance of this procedure. Arguments for the liberalization or the criminalization of abortion are commonly referred to as “pro-choice” and “pro-life” respectively. Many people believe that one must be in one camp or the other, but feelings and personal morals surrounding abortion are more accurately represented as a continuum. For example, many people feel that it is important for women to have abortion as a reproductive choice, but would not wish to choose abortion for themselves. Others feel women should not be able to receive an abortion except in certain circumstances, such as if the pregnancy is a result of rape or incest, or is unviable and likely to kill the mother. It is important to clarify the language which is used to describe these distinct groups.

“Pro-life” is a misleading term, proponents of this philosophy chose this name as it signifies their dedication to protecting the “life” of the fetus, because they view it as a person. Therefore they equate abortion with murder. As Rachael Johnstone states, this name “is hostile to women in its failure to acknowledge their lives if they chose abortions. Moreover it’s equation of abortion with murder does not fit either legal or political definitions of the procedure.”3 these reasons I will be referring to these groups and individuals as anti-choice. People who subscribe to this set of principles place a high, if not higher, value on the fetus rather than on the aspirations and priorities of the woman; they view women who choose abortion as murderers. In addition to this, people who are anti-choice believe a return to rigid gender roles will improve society. To achieve this goal, they argue for the removal of reproductive autonomy to emphasize women’s traditional roles as wives and mothers.4

Anti-choice groups disburse a variety of myths surrounding abortion. A few popular myths are as follows: women who have abortions use the procedure regularly as birth control,5 and that if a woman chooses to have sexual intercourse she is morally bound to accept the consequences, ie. pregnancy. These are not only unfounded but these myths also undermine women who have chosen to have an abortion. Those who do not believe in a woman’s right to chose abortion in the case of an unwanted pregnancy view the argument in a moral tone rather than within human rights parameters. Anti-choice groups, at the same time, are a result of and actively reinforce patriarchy in Western society.

Like most societies across the globe, Canadian society is patriarchal. The word patriarchy was originally used in reference to a father’s dominance within the institution of the family. Today patriarchy more commonly refers to a social force which operates in a number of ways to oppress women and give privilege to men. The term patriarchy does not mean all individual men actively work to oppress women; there are many male feminists who fight against patriarchy. The word refers more to the social forces which place masculinity as the ideal, the standard to which all people should work to achieve, and the social forces which act to put women at a disadvantage due to their sex. There are countless examples of these forces; however the active fight against female reproductive autonomy will be the main focus of this paper.

Reproductive healthcare is a microcosm of how women are ‘othered’ and oppressed in society. A process of othering women has been ongoing for years; however one of the first writers on the subject was French author Simone de Beauvoir in her novel The Second Sex.6 She discusses how women have historically and currently been considered the other; since the days of Plato and Aristotle, and men have been thought to be the norm. It is in this way that women have always been defined based on their differences to the male sex, and not defined by their subjective reality. Instead women have been objectified, due to the normative maleness entrenched within the ever pervasive patriarchy within society. This philosophy is given the term phallocentrism, due to the centrality of the male form as a social ideal. Reproduction is socially seen as a means to an end. Patriarchal society attempts to control it, and by doing so, control women; and in this way it reinforce its dominance.

As it is currently organized, our society is phallocentric. Men and maleness, including the male body, are viewed as the norm. Between men and women there is thought to be a neutral, ‘unisex’ area of practices and objects common to both sexes; however this area is made up of things which mainly fall under the experience of masculinity. One area which is considered to be neutral and common to all humans is medicine; however medical practices are infused with gender and patriarchy. In fact, many drugs are only tested on men and deemed safe for both male and female consumption, despite physiological and chemical differences between male and female anatomy. The female body presents a disruption to this norm of maleness, especially in terms of reproduction. This represents a subconscious threat to societal phallocentrism and male dominance. Civilization has a stake in the reproduction of our species; therefore women’s reproductive capacity has been controlled for centuries through abstract social values and norms, and through concrete legislation. There is a common belief that women are unable to make reproductive choices for themselves, and that they require council from a (usually male) doctor, or they need to be managed by political policy so they do not do ‘harm’ to themselves, or rather society, through their choices. In reality this thought process is retaliation by a patriarchal society to the threat of women’s bodies, women’s reproductive autonomy, and women’s capacity to think for themselves. Adherents to a pro-choice rhetoric reject this retaliation, the societal norm of phallocentrism, and patriarchy itself.

Pro-choice supporters stand for a woman’s right and capacity to make important decisions concerning her reproductive health. Pro-choice women may or may not feel that abortion would be the right choice for their personal lives, but all of them understand and recognize that every woman has the right to make that choice for herself without other individuals or various institutions imposing their personal morals upon her. There are numerous pro-choice philosophical arguments defending abortion. Judith Jarvis Thompson uses amusing metaphors to philosophically explain the rationality of abortions. One of the best examples is as follows;

If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West coast to provide it… But I have no right at all against anybody that he should do this for me.7

In this metaphor, Thompson represents a fetus, and Henry Fonda represents a pregnant woman. Essentially, Thompson affirms that while it is kind for a woman to carry and deliver a baby when it does not align with her own aspirations, she has no obligation to continue to provide life to a fetus that implanted within her uterus against her will. Joyce Arthur continues this argument by stating:

Although an unwanted fetus has no ill intent, it is exploiting the woman’s body and endangering her life and health against her will. A woman with a born child is under no legal obligation to donate a kidney or blood to save her child’s life, so how can a fetus have even more rights over the woman’s body than her born child? … a pregnant woman cannot be required to save [the fetus] by loaning out her body for nine months against her will.8

Anti-choice proponents would respond to this argument by saying that by choosing to have sexual intercourse knowing that pregnancy is a possible outcome of such relations, a woman must be morally obligated to carry the fetus to term, and give it up for adoption if she does not wish to become a mother. This is an example of arguing the subject based on a moral framework.

Pro-choice philosophy operates upon a foundation of women’s rights. The pro-choice response would be that by consenting to sex a woman does not implicitly consent to becoming pregnant; therefore she has a right to have the choice of abortion if she becomes pregnant. All of these arguments reasonably demonstrate that abortion is indeed defensible philosophically through a women’s rights discourse. Abortion is also easily defensible politically and legally as well, as will be seen below. The legality and accessibility of abortion not only aligns with women’s rights, but abortion is a vital reproductive service for Canadian women.

1 – Chief Medical Officer of Health, New Brunswick Department of Health, “Teenage Pregnancy in New Brunswick” Health Indicators, no. 1 (2011).

2 – Jessica Shaw , Reality Check: a close look at accessing abortion services in Canadian Hospitals, (Ottawa: Canadians for Choice, 2006), pg 23.

3 – Rachel Johnstone, “The Politics of Abortion in Canada After Morgentaler: Women’s Rights as Citizenship Rights.” pg 1

4 – Ibid, 5

5 – Joyce Arthur. Pro-Choice Action Network, “Can Abortion be De-funded in Canada?” ‘What does Medically Necessary Mean?’ Last modified 2002.

6 – Simone de Beauvoir, The Second Sex, (New York: Knopf, 1953).

7 – Judith Thompson, “A Defense of Abortion,” Philosophy and Public Affairs, 1, no. 1 (1971), pg 6.

8 – Joyce Arthur. Abortion Rights Coalition of Canada, “The Case for Repealing Anti-Abortion Laws.” Last modified January 2009.

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    The Constitutionality of Abortion Policy in New Brunswick – Conclusion » Lousy Canuck

    […] / Works Cited Introduction Chapter 1: A Social and Legal History of Abortion in Canada Chapter 2: New Brunswick: Openly […]

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    The Constitutionality of Abortion Policy in New Brunswick – cover » Lousy Canuck

    […] The Constitutionality of Abortion Policy in New Brunswick – Introduction » […]

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    The Constitutionality of Abortion Policy in New Brunswick – Chapter 1 » Lousy Canuck

    […] « The Constitutionality of Abortion Policy in New Brunswick – Introduction […]

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