Before Morgentaler Part Two: Making it Legal

CLIP You’re listening to a frequency podcast network production in association with City News.

Jordan Heath-Rawlings Hey, it’s Jordan and this is part two of our special TBS miniseries Before Morgentaler. If you haven’t listened to part one yet, go check it out before you listen to this one or listen to it afterwards.Whatever works. Either way, we hope you enjoy.

CLIP An expected and controversial US Supreme Court decision has been released. A landmark abortion rights case has been overturned.

CLIP A sweeping, deeply consequential decision from the nation’s highest court ruling to overturn Roe v. Wade rocking the foundation’s of more than five decades of legal precedent in our country.

Sarah Sahagian On June 24th, 2022, the United States Supreme Court officially overruled Roe versus Wade, the case that legalized abortion in the country in 1973. For almost 50 years, safe legal abortions remained a federal constitutional right last summer. However, it was overturned on the grounds that the right to an abortion was not deeply rooted in the nation’s history or considered a right when the due process clause was ratified in 1868. The news led to a groundswell of opposition from abortion rights activists across the country and was condemned by many around the world with Prime Minister Justin Trudeau dubbing it horrific. Today, one in three American women live in states where abortion is not accessible. Since the overturning 18 states have banned or restricted abortion. As more work to pass similar. Those most impacted are black, indigenous, and other communities of color, where systemic racism has often impeded access to healthcare. Many of the longtime Canadian activists we spoke to shared their reactions upon hearing the news.

Sandy We saw it and we saw it disappear. It was here and then it was gone.

Sherry You know, you don’t really realize the impact until you see the words written down on, on the paper. And then when the, the draft decision was leaked, it was just so shocking.

Sandy One could see. This was a sort of a 50 year project, uh, by the anti-trans by the far right. And so this is something that they’ve been working on for a very, very long time.

Sarah Sahagian I am Sarah Sahagian taking over the big story today with, before Morgentaler, a mini-series on abortion access in Canada. This is part two, making it legal. So how did this happen? Well, in 2018, Mississippi passed a law that went against the Roe v. Wade decision banning most abortions after 15 weeks of pregnancy. By this time too, the Supreme Court was dominated by justice’s hostile to reproductive rights. So when an abortion clinic called Jackson Women’s Health Organization challenged Mississippi’s Ban, it forced the Supreme Court to review Roe versus Wade. Ultimately overturning it. What does this mean today for those Americans looking to get an abortion? Well, they’ll have to travel to other states or other countries for help. Although Trudeau promised in the day is following the overturning of Roe v. Wade, that he would fight to protect women’s reproductive rights. It still had many wondering, could this happen here at home in Canada? We spoke with Frédérique Chabot director of Health Promotion at Action Canada for Sexual Health and Rights, a pro-choice nonprofit. She explained that the answer is not all that simple.

Frédérique Chabot No. Yes. And it’s complicated. So could something like what happened in the United States with the reversal of Roe v. Wade. The first answer is no, in the sense that we don’t have the same ingredients of the situation that we’ve seen go down south of the border in the sense that we don’t have a, a law that dictates access to abortion of the right to abortion that could simply be reversed. And so it’s a different legal context. It’s a different policy context. It’s fully integrated into healthcare here, so, so we do have a law that regulates abortion access. It’s the Canada Health Act. It’s the act that basically sets the standards for healthcare in Canada that demands that every service is accessible and portable and comprehensive and publicly funded, and so it’s just different in that very simple way. That said, it doesn’t mean that we’re not looking at what is going on there with great interest. Five years ago, it was unthinkable that Roe v. Wade would’ve been overturned, and so we cannot discount the impossible.

Sarah Sahagian Although abortion was decriminalized in 1988, thanks to the Morgentaler decision, it’s true that Canada has no actual abortion rights law. That might sound like cause for concern, and many have since wondered whether the Canadian government should introduce legislation formally enshrining the right to abortion. But actually having a formal law could lead to a point in time where those rights are appealed back by future governments, much like we’re seeing in the US now, according to Frédérique, from a global standpoint, this actually leaves Canada in a good place.

Frédérique Chabot With the demonization of abortion. In 1988, something quite special happened in that abortion was decriminalized, so not legalized. And became regulated as a medical procedure. So across the world, we have activists, you know, talking about how abortion is healthcare, and this is how it should be treated. The only place where that is really true is Canada.

Sarah Sahagian Joyce Arthur, a longtime activist and founder and executive director of the Abortion Rights Coalition of Canada, a national pro-choice group says an abortion law is simply unnecessary. We don’t have laws for other kinds of healthcare. It’s something that should be left up to, uh, doctor groups and associations and doctors themselves, who normally we trust them to operate with discretion and carry out their duties.

Joyce Arthur And we have the Canadian Medical Association, we have the colleges and physicians and surgeons in every province. I’d have policies and directives, and that’s enough for all other healthcares. But as soon as you try and introduce a law, even if it’s like a really good law, that the law is designed to guarantee rights and ensure access. Recognize, you know, women’s equality and all that stuff. The problem is that when it goes through that whole process of, you know, debate and, uh, voting and goes to committees and, uh, then people can make amendments to it or suggest amendments or argue against it. And then by the time you actually get to the end of passing the law, it might have a bunch of, uh, nasty amendments attached to it that restrict abortion in various ways.

Sarah Sahagian Those amendments, by the way, can pop up at any time, even years later. N could look like mandatory ultrasounds or parental consent, either of which could lead to longer wait times and impede access altogether.

Joyce Arthur Do we wanna depend again on our Supreme Court to strike down a law or uphold a law or whatever the case may be? The court could change, you know, its composition over time. And uh, if we have a conservative government that comes into power someday, they could just take that law and free. Amend it or, or repeal it or, you know, all kinds of things could happen. And I think also I’ve always said that, you know, if you have a law, any kind of law, even if it’s some sort of minor restriction, it gives a base to the anti-abortion movement, something to build on. So it’s something they have something to tack and work from. And, uh, so I think it’s just a dangerous situation to be in. And, and we just don’t need a lot, we really don’t.

Sarah Sahagian Now nearly 95% of all abortions performed in Canada are done in the first trimester, which is before 12 weeks gestation. However, some need access beyond 12 weeks for many reasons, including health issues, needing time to raise the funds to travel. A delay in scheduling an appointment, not realizing you were pregnant at all. The list goes on. Patients may even need to make a trip to an entirely different province. For example, if you live in Nova Scotia, abortion is only available until 16 weeks. And while abortions after 20 weeks are rare, there will always be some people who need them. Right now, there are only three locations in Canada that offer abortion up to 23 weeks in six days, including in British Columbia, Southern Ontario, and Quebec. No providers in Canada offer abortion care beyond that point. For the record, that is not because it’s illegal to do so, but because the further pregnancy progresses, the fewer providers we have who are trained to offer that care or who work within institutions that are supportive about providing that care. While many activists and organizations actively campaign for all provinces and territories to provide access to abortion beyond 20 weeks gestation, many people have to go out of the country. Most often to the US where some states provide abortions up to 24 weeks. So while some of us might have assumed the overturning of Roe v. Wade, would lead to an influx of people coming from the US for abortions, according to Frédérique, the impact is more so on Canadian people who might need to visit the US for abortion.

Frédérique Chabot It’s not to say that there’s not some people with means who will be able to come to Canada and access abortion services here. I’m sure that has happened, but this is not a flood of people coming in. We work very closely with our colleagues in the US who are doing similar work than Action Canada, both on the political end, but also on the very frontline work of supporting people who are seeking abortion and offering financial aid. The corridors that we’re seeing being created are not between Canada and the US. They’re between the states that have become red on the map of abortion access in the Haven states. And so this is creating a lot of pressure on the American states where abortion is available. And the interesting piece is that Canadians do travel to those states as well. So there are people in Canada, Who need services past a certain gestational time. Those services are not restricted in Canada in the sense that there’s no law saying past a certain time, you can’t have an abortion. They’re even covered by our healthcare. So if you have the health cards, costs are covered, but the services are not available here. And so people go seek them in the US and so the increased pressure on those states. Means that it’s actually cutting access to Canadians because wait times are going up. And of course, these clinics are prioritizing American patients.

Sarah Sahagian All of which is to say the real issue surrounding abortion in Canada is access. The story doesn’t end at decriminalization. For those seeking to get abortions, the cost is high. From taking time off work, finding childcare, traveling, not to mention the emotional and mental impact of the choice and the procedure itself. Those who have always and continue to be impacted the most are low income, diverse, those who live in rural areas and people who identify as queer.

Frédérique Chabot Points of services are concentrated in urban areas. They are unevenly distributed between provinces. So for example, Ontario has somewhere between 16 to 20 points of service, and you can compare that to Alberta or Manitoba, where there’s two to three points of services for the entire province.

Sarah Sahagian By points of service, Frédérique is referring to places that provide abortions, whether they be hospitals or clinics.

Frédérique Chabot Where you live will have a big impact in terms of accessibility of those services, and that is not the only barrier that exists. Even in urban centers. There’s, you know, you could say, oh, well if you live in a city, it’s easy for you to access abortion. That is not as simple as that. So not only do we have a rural and urban divide in terms of accessibility and differences between provinces, even within urban centers where there’s a lot of services, there is still a lot of barriers that people can experience that have not been addressed for decades at this point. This is the 35th anniversary of the Morgenteler decision this month, and we are still seeing that people can have a really hard time accessing services.

Sarah Sahagian So how can things change? Well, to begin with, those organizations fighting for better and more care could use a whole lot more funding. Good news came in 2021 when for the first time ever, the federal budget mentioned abortion. It committed 45 million dollars over three years to improve access to sexual and reproductive healthcare support for people in Canada who face the greatest barriers to access. Action Canada received part of this funding and have dedicated it to providing emergency aid, which sees them support those seeking abortions from the moment they decide they will be having one to setting up an appointment, traveling and finding support after procedure. Action Canada often will cover the cost of travel accommodations and sometimes the procedure itself for those who are without insurance. However, according to Frédérique, with this fund set to end in 2024, it’s really just a bandaid and a longer term solution is needed. Joyce Arthur agrees.

Joyce Arthur It’s often been, you know, groups on the ground, grassroots groups like us or other groups or, or even. Individual doctors who are strongly pro-choice or providers trying to, to push the envelope to make things happen. Anyone who’s any, in any kind of marginalized position, whether they’re a youth, a person with a second language, indigenous, uh, racialized, they can have a disadvantages piled onto that cuz they’re maybe dealing with racism and other kinds of stigma. So I’ve always thought that, you know, if we can make sure that if we target those populations and make sure that they have. We shouldn’t be just thinking about how, whether white people can have access or not.

Sarah Sahagian For the average person seeking to make a difference. Many of the activists we spoke to share that it’s important to tell your story if you feel comfortable. This could help remove the stigma that still surrounds abortion despite how incredibly common and safe it is. As Joyce shares the anxiety and fear around that stigma can be magnified when access to abortion is also limited.

Joyce Arthur For example, a person in a small town, in a small area like Prince Albert Saskatchewan, for example, very conservative and you know, not much knowledge or information about abortion or contraception. You have to drive to Saskatoon to, to get an abortion. But the peer pressure, I think that people are under, and the family pressure, when someone gets pregnant, you know, uh, they may feel they have no recourse but to carry the term because that’s the reality for them, you know? And then what do you tell people? What do you tell your family? Oh, um, um, I’m going to visit a girlfriend. I, you know, you have to make up these stories and, and all these barriers and problems that happen because of abortion stigma and, and the necessity unfortunately, that people feel that they have to hide it or not tell many people about it, which also translates to a lack of support and feeling isolated. So all these issues that can happen when abortion’s difficult to access, simply finding the right information can be difficult to access.

Sarah Sahagian In fact, if you just Google, where you can find a place for abortion, many of the results you’ll see will lead you to crisis pregnancy centers or CPCs, which are run by anti-choice activists. Who often co-opt human rights language.

Joyce Arthur They’ll tell you all about the side effects of risks of abortion, but nothing about the, uh, side effects and risks of pregnancy and childbirth, which are far, far greater. And, uh, so it’s a very unbalanced perspective that they have and they can make people feel guilty for having abortions. And, uh, I also wanna mention, of course, that you know, it’s not just women who have abortions, but transgender people as well. Non-binary people, trans men. And, um, we’ve worked hard at trying to be more inclusive over the years because the barriers for them in healthcare are even greater. I’ve heard often that trans people, if they need an abortion, they’ll go to a clinic. Or when they go to any doctor, they’ll just, just to avoid the hassle on being questioned and the judgment, they’ll just present themselves as a woman just to, you know, so it’s no trouble. But they shouldn’t have to do that. And I think in terms of the anti-choice movement and these crisis pregnancy centers, well they don’t even recognize, you know, the LGBT community or, or that trans people can have abortions. And certainly, I don’t think any trans person would feel comfortable going to a CP C when their very existence would be denied or questioned.

Sarah Sahagian Ultimately, this means abortion remains a health equity issue. Improving the situation is about more than just adding clinics and services across the country, but reducing the stigma, changing the language, and tackling those issues that may not seem to be directly linked to access.

Frédérique Chabot For example, about 40% of the people who access our financial aid program are uninsured. Sometimes it means that it’s people who are technically should be insured, so they should have a health card, but maybe they are homeless and don’t have identity papers with them. Maybe they’re young and they can’t access their health card because their parents hold it. Or maybe they’re trans and they don’t wanna use their card that has the wrong gender marker. Or they are indigenous and technically should be covered by N I H B,a federal program, but N I H B only reimburses or service providers don’t really know how to deal with N I H B, leaving people in this kind of gap of services. And then a lot of this population as well are either in really complicated immigration situations. For example, you know, a spousal sponsorship with an abusive partner who’s holding all the paperwork to get this person their insurance or complete their application. And they’re pregnant and they need access to healthcare and they can’t get it because of it, or it’s a work visa and their employer is not filling the paperwork properly and delaying their access to a healthcare insurance. Or they can’t leave their employer’s house because they’re a live-in caregiver and their job and their status in Canada is linked to their presence in, you know, this particular employer. And this employer may be abusing their position of power. And so for Action Canada, when we look at that, we believe that if people care about abortion access, they care about regularization of migrants and undocumented people in Canada, and so we are supporting the campaign to offer status for all.

Sarah Sahagian Generally speaking, it’s important to note that there is a lot of good news here. In 2015, health Canada approved the use of a pill that is used to end pregnancy is easy to take and is highly effective. That led to a growth in primary care providers offering abortions. An Ontario loan providers jumped from about 100 to 1200, many of which are outside of urban centers. That also means more providers need the right infrastructure to perform these procedures. Policies also need to be put in place for midwives, looking to offer medical abortions and to support telemedicine.

Frédérique Chabot If people are interested in kind of direct work, like in their own community, there’s lots that can be done. I think storytelling is very important to address. One barrier that we haven’t touched yet, which is disinformation and abortion stigma. Any kind of storytelling around abortion or the importance of abortion goes a very long. To change our culture and change the narratives that exist in society, which then push politicians and leaders in changing the way that they view an issue, because one of the things that, you know, sounds cynical but is just very real, is that our elected officials and politicians are more likely to do something if it’s very well supported by the public. All this to say, let’s be vigilant. This is not a fringe issue. This is an issue that has to do with everything we care about. Ability to tackle climate change, democracy, voting rights. So let’s pay attention. Let’s make sure we build bridges across movements and that we talk about this.

Sarah Sahagian Researching this documentary has taught our team a lot. I’m 36 years old, which means I was a baby when the Morgentaler decision happened that my own baby, well, not a baby anymore, she’s now three years old, was born in one of the only countries in the world without a law restricting her abortion. That sort of progress, something that happened in the lifetimes of so many of us is inspiring. We still have so far to go to ensure all people with Uteruses have easy access to safe abortion care in this country, and we will have to protect this right from politicians who have the power to legislated away. But the process of researching this story has made me profoundly grateful for the work done by abortion rights activists and healthcare providers. I remain in awe of the bravery of Dr. Morgentaler, a man who risked his own personal safety to help other people safely terminate their unwanted pregnancies. However, I am also in awe of the women activists who do not have a Supreme Court decision named after them, but whose work is central to this story. They’re heroes too. We could not tell the stories of all the women identified activists who worked alongside Dr. Morgentaler. There are still so many stories left to be told, but it has been a privilege to tell a small number of them. Thanks for listening to this special episode with the Big Story. If you liked this series, please email us at hello at the big story podcast.ca, or leave us a voicemail at 416 935 5935 letting us know what you think. For more episodes, head to the Big story podcast.ca or find us on Twitter at the Big story fpn. And just so you know, the show is available in every single podcast player and on every smart speaker. You just need to ask your smart speaker to play The Big Story podcast. This episode was produced by myself, Sarah Sahagian, and the amazing Sadaf. The fantastic Stephanie Phillips is our showrunner, the talented Christie Chan is our sound designer. Special thanks to Joseph Fish, Rachel Degas Baris, Mary Jubran, and everyone at the Frequency Podcast Network. You’re a team of luminaries.