30th anniversary of Morgentaler decision

Andrew Scheer and the anti-abortion movement in Canada

‘Free speech’ debates and the continued threat to a woman’s right to choose
Photo: Zhu

On Jan. 28, 1988, Henry Morgentaler stood outside the Supreme Court of Canada and proclaimed that “justice for the women of Canada has finally arrived.” The landmark Morgentaler decision struck down section 251 of the Criminal Code, which restricted women’s access to abortion, for violating the Canadian Charter of Rights and Freedoms, allowing Canadians access to abortion without restrictions for the first time.

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This month marks the ruling’s 30th anniversary, and the media has started to reflect on the ongoing barriers that Canadian women and trans people face in accessing this fundamental medical service. Lack of access, particularly in rural and northern communities, continues to make abortion services across the country unequal.

The Morgentaler decision was an important victory in the fight to provide abortion access, but it was not the end of realizing reproductive justice for all Canadian women and trans people. Pro-choice activists continue to work to counter those who seek to recriminalize abortion and take away our right to control our own bodies. Despite the decriminalization of abortion 30 years ago, the anti-abortion movement shows no signs of going away. Unfortunately, taking away a woman’s right to choose remains on the table in our collective public consciousness. Debates around abortion still take place in Canadian society.

Thirty years after the Morgentaler decision, it is important to understand how anti-abortion activists continue to adapt, rather than disappear. This piece adds to the broader conversation of where pro-choice activists should be focusing their efforts in 2018 by examining the anti-abortion movement in Canada today within the context of Conservative Party leader Andrew Scheer’s vague comments about supporting “free speech” on university campuses.

Harper 2.0

Scheer’s victory in May 2017 seemed like a return to the status quo for Canada’s Conservatives, as the 38-year-old became known throughout the leadership campaign as “Stephen Harper with a smile.” However, in Scheer’s acceptance speech he highlighted a policy that would separate him from Harper. He argued that universities opposing “free speech” should not receive federal funding, a proposal that received overwhelming applause from the audience. At the time, the policy seemed to come out of nowhere, given the media coverage of Scheer during the race as Stephen Harper 2.0.

At the end of the summer, Scheer doubled down on his assertion in an interview with Chris Hall on CBC Radio’s biweekly Canadian political issues show The House. Hall asked Scheer how far he was willing to go with this promise, and whether he supported free speech for groups that promoted white nationalism in the wake of the violent rally in Charlottesville, Virginia. Scheer stated that he condemned racism, but argued that “extreme examples” should not be used to justify “what is going on, on campuses here in Canada.”

'Harper with a smile'
Andrew Scheer

He asserted that small groups of “radical protesters” stifled student groups’ right to freedom of speech when they shut down events on campuses. Scheer believed that he needed to sit down with university administrators and make sure that these events could still take place. Hall questioned him further, asking if it was okay for people who are critical of Islam to be able to assert their views. Getting flustered, Scheer returned to the idea “that small groups of radical protesters threaten events and then the universities say ‘oh well you know there’s a security concern,’” causing the event to be cancelled. He said he wanted to work with universities, something he thought students would appreciate, within Canada’s hate speech laws. He finished by saying that Canadian society needed to do more to protect free speech on campuses.

Scheer’s vague statements did not point to any specific groups or examples. Who specifically did his comments refer to? Who was stifling free speech on Canada’s university campuses? The answer, apparently, came to Scheer in November when a so-called free speech controversy emerged at Wilfrid Laurier University.

Free speech debate at Laurier

Multiple conversations around the role of teaching assistants, academic freedom, and what does and does not constitute good pedagogy emerged from the incident at Wilfrid Laurier University. Academics and journalists alike have already discussed this issue at length.

In the broader story of Scheer’s policy towards universities and free speech, the incident acted as a smoking gun for the Conservative leader, allowing him to once again voice his opinion that something sinister was occurring on Canada’s campuses. Scheer called on Prime Minister Justin Trudeau to join him in “condemning the egregious crackdown on free speech at Laurier University,” arguing that students and faculty at Canadian universities faced increasing barriers to their right to express and debate controversial viewpoints. Students like the teaching assistant at Wilfrid Laurier University, Scheer said, needed the federal government to step in and ensure the protection of their rights.

One can still go to Right Now’s website to see how they asked their anti-abortion supporters to vote in the Conservative leadership race. Scheer was ranked as the second best choice of the 14 candidates on the ballot, ahead of the other top contenders.

The vagueness of Scheer’s free speech comments relates to his narrow margin of victory in the Conservative leadership campaign. Scheer only overtook leading competitor Maxime Bernier on the 13th ballot by relying on votes from social conservatives. He trailed Bernier until hardline social conservative Brad Trost fell out of the running. Once Trost’s supporters’ votes had to be redistributed, Scheer pulled ahead of Bernier and won the leadership race by less than two per cent.

Voters therefore did not simply reject Bernier’s libertarian platform. Scheer directed his comments on free speech at social conservatives in the party to whom he owed his victory, as a promise to defend their right to hold and express their views. Groups like Right Now, an increasingly vocal anti-abortion organization that works to support and elect candidates who share its views, played an integral role in Scheer’s campaign success.

One can still go to Right Now’s website to see how they asked their anti-abortion supporters to vote in the Conservative leadership race. Scheer was ranked as the second best choice of the 14 candidates on the ballot, ahead of the other top contenders. When Scheer speaks of protecting free speech, he does so within the context of the anti-abortion movement and their desire to continue to advance their outdated views that a woman’s right to choose should not be protected by the state.

A history of shaming and violence

Both Scheer’s comments, and the rise of groups like Right Now, We Need a Law, and The Canadian Center for Bioethical Reform, need to be read through the evolution of the anti-abortion movement in Canada and their increasing adoption of successful tactics to block access to abortion from south of the border. Looking at the history of abortion in both Canada and the United States, we see similar story until we get to legislative advances in the last 20 years. Anti-abortion protesters in North America, responding to both Roe v Wade (1973) and R v Morgentaler (1988), typically utilized two tactics to advance their causes at the end of the 20th century.

First, they sought to shame women seeking abortions in front of clinics and hospitals that performed them. These protesters, often Christian, held signs claiming that women seeking abortions were immoral. They also spread misinformation about the harmful effects of abortion.

Second, more radical anti-abortion protestors committed violent action against clinics and abortion providers. One example, among many, was the firebombing of Morgentaler’s Toronto clinic in May 1992. Abortion providers in Canada were shot and stabbed in the 1990s as the Canadian anti-abortion movement became more radicalized.

Morgentaler's Montreal defence committee, 1975
Bibliothèque et Archives nationales du Québec

Anti-abortion protesters intended for these actions to convince the public that abortion was morally wrong and to stop abortions from occurring by any means necessary. However, in the court of public opinion, these violent actions did nothing to advance their position. Members of the mainstream anti-abortion movement in the United States recognized at beginning of the 21st century that violence only served to make the public more pro-choice and less empathetic towards the protestors. They adopted two seemingly more moderate new tactics in the early 2000s, both of which have seen greater success limiting access to abortion in the United States.

New tactics

The first of these new tactics involves getting anti-abortion politicians elected to all levels of government so that they can pass Targeted Regulation of Abortion Providers laws. The goal of these TRAP laws is simple: to close abortion clinics by imposing excessive, unnecessary, and costly regulations on them. Often, politicians argue that this kind of legislation protects “women’s health,” even though restricting access to abortion only hurts women and trans people. Since 2011, more than half of U.S. states have significantly reduced abortion access through these laws.

American anti-abortion protestors also shifted the language they utilize to convince the public of their views. New arguments harness a pro-human-rights rhetoric. Rather than simply claiming that abortion is morally wrong and un-Christian, anti-abortion protesters seek to persuade the public that fetuses deserve the same rights as any other human being.

This language allows anti-abortion activists to see themselves as being on the “right side of history” because they believe eventually the public will come around to their views. More insidiously, they have started comparing themselves to abolitionists or civil rights activists. They borrow language from people like Martin Luther King Jr., arguing that the United States needs to “overcome” abortion. Adopting the language of human rights allows anti-abortion activists to make these comparisons and construct themselves as fighting for justice.

This new rhetoric finds its way into proposed legislation, as politicians look to enact laws in all kinds of areas that define fetuses as persons. Most recently, the GOP’s proposed tax bill contained a clause allowing Americans the ability to open an educational savings account for the benefit of “an unborn child.” This small tweak seemingly grants a fetus the same rights as a person, thereby advancing the anti-abortion position that life begins at conception.

In the United States today, the status of women’s reproductive health and access to abortion looks quite grim. Despite reports that one in four women in the country will have an abortion by age 45, legislators at all levels of the U.S. government continue to make accessing an abortion more difficult. TRAP laws especially impact poor women and women of colour, who often cannot afford to travel or take time off work to meet unreasonable restrictions like mandatory waiting periods. With the appointment of conservative Supreme Court Justice Neil Gorsuch, anti-abortion advocates continue to chip away at reproductive rights with the hope that Roe v. Wade will soon be overturned.

So how does this all relate to the anti-abortion movement in Canada and Scheer’s free speech comments? I said earlier that prior to the 21st century, the fight for reproductive rights took largely the same path in North America. These two new tactics, one involving elections and legislation to advance the anti-abortion cause, the other utilizing human rights language, are also starting to be adopted by anti-abortion activists in Canada.

Weaponizing human rights language

Founded in 2001, the CCBR incorporated the rhetoric of human rights in their Genocide Awareness project. They set up anti-abortion displays on campuses, city streets, and outside high schools, discussing the issue with people passing by.

The CCBR’s summer jobs program teaches young Canadians how to advance the anti-abortion position by adopting the language of human rights. They paint themselves as victims whenever challenged and, like their counterparts in the United States, believe that one day the Canadian public will see how forward-thinking and righteous their views are. They seek to use “empathy” when interacting with people in the street, rather than screaming at them. Looking to the United States, the CCBR and associates fundamentally believe their position on abortion is correct. By changing how they present their ideas, they trust that their position will ultimately win.

Right Now recruits, campaigns for, and provides resources to anti-abortion politicians.

Most recently, the non-profit organization Right Now started to try and implement the U.S. strategy of supporting anti-abortion politicians. One of their founders, Alissa Golob, worked for the Campaign Life Coalition prior to helping create Right Now in 2016. The Campaign Life Coalition is the long-standing social conservative body in Canada (started in 1978), and was responsible for much of the anti-abortion activism that I discussed earlier. They still plan and promote the March for Life every year in Ottawa, and advocate for the government to defund abortion.

However, as Golob describes on her own website, they have been largely unsuccessful. The founders of Right Now saw how politicians in the United States continued to chip away at reproductive rights, and believed the Campaign Life Coalition utilized outdated tactics. They sought to adopt the U.S. strategy of using political campaigns to advance the anti-abortion cause, with the long-term goal of passing of anti-abortion legislation. Right Now recruits, campaigns for, and provides resources to anti-abortion politicians. They believe that once enough elected officials share their views, that will translate into policy as it has in the United States. Their tactics so far have made some change in Canadian politics; they owned Scheer’s victory as a success.

West-Glanbrook MPP Sam Oosterhoff hands out treats to kids.
Matt

More importantly, they helped then 19-year-old social conservative Sam Oosterhoff win a by-election in the Ontario riding of Niagara West-Glanbrook. Oosterhoff’s win exemplified all of Right Now’s strategies in action, from securing the Progressive Conservative Party of Ontario nomination in his riding over a member of the party establishment, to his defeat of the NDP challenger.

Right Now believes that Canadians will choose to vote for anti-abortion candidates, and that people like Oosterhoff just need encouragement and campaign support. Recently, Right Now’s leadership sent information to their supporters about interning for the United Conservative Party of Alberta. They believe that the internship will help young people who share their views gain the skills to promote and pass anti-abortion legislation. Seeing the passage of so many TRAP laws in the United States as the result of grassroots efforts, they want to bring those same tactics to Canada.

While the two organizations are not affiliated with one another, they are two halves of the same push to try and reinvigorate this debate in our country.

In the CCBR and Right Now, we can see the influence of activities in the U.S. anti-abortion movement throughout the last 20 years in Canada today. Both groups believe that engaging Canadians face to face will ultimately advance the anti-abortion position here. Both groups see U.S. social conservatives’ success in politics at all levels, especially since 2010, as a blueprint for how to fight against abortion in Canada. The CCBR tries to change how the average Canadian views abortion, and Right Now trusts Canadians will vote for anti-choice politicians if they help them run for office. While the two organizations are not affiliated with one another, they are two halves of the same push to try and reinvigorate this debate in our country. The difference between Canada and the United States in the last 20 years, they believe, cannot possibly be a sign that their views are outdated or that Canadians are more pro-choice — the Canadian anti-abortion movement just failed to recognize the flaws in their tactics sooner. The CCBR and Right Now hope to effect the same slow erosion of abortion access here in Canada going forward.

However, the legal history of abortion in Canada since 1988 paints an altogether different picture. In fact, pro-choice activists have won many important victories.

Progress for women

Attempts by Canadian politicians to introduce anti-abortion legislation in Canada since R v Morgentaler have failed. When Conservative MP Stephen Woodward brought forward Motion 312 in 2012 to review how the Criminal Code defines when life begins, pro-choice protesters mobilized and ensured that the bill failed.

Just in the past two years, Health Canada approved Mifegymiso (the abortion pill) for use in Canada, which has so much potential to increase abortion access, particularly in rural communities. While its rollout was astonishingly slow and poorly managed, the work of organizations such as Action Canada and the Abortion Rights Coalition of Canada ensure that we continue to make progress expanding its availability and removing some of the initial restrictions put in place for its use.

Provinces continue to change or take stronger stances on the abortion issue. The Maritimes historically maintained some of the strictest laws prohibiting women and trans people from accessing abortion in Canada, even after 1988. PEI was the only province to not provide surgical abortions, until Premier Wade MacLauchlan announced in 2016 that after 35 years abortion services would be available on the island. As of January 2017, PEI women can finally get an abortion in their home province. In October, the Ontario legislature passed a bill banning protests outside and near abortion clinics. This “bubble zone” law, which comes into force Feb. 1, 2018, will make it harder for anti-abortion activists to shame those accessing this fundamental health service and support their safety.

We have momentum and are winning, in almost every way, and I think members of the anti-abortion movement know this.

Local governments have also begun to refuse requests from anti-abortion groups in their communities. The city of Grande Prairie declined the CCBR’s application to run a graphic anti-abortion ad on its buses in 2016. The CCBR sued on the basis that the city’s decision infringed on its right to freedom of expression under the Charter. Justice C.S. Anderson found that the CCBR’s request would cause “psychological harm to women who have had an abortion” and “children who may not fully understand what the ad is trying to express.” Anderson agreed with the city’s position that the ad would create an unsafe and unwelcoming environment on Grande Prairie’s transit system. This was one of multiple cases over the past few years in which the CCBR or groups associated with them sued cities for not allowing anti-abortion advertisements.

When anti-abortion organizations take these issues to court, the pro-choice side of the argument pushes forward. As anti-abortion legislation gains speed in the United States, Canadian pro-choice activists continue to fight to ensure that anti-choice views are opposed at every level of government. We have momentum and are winning, in almost every way, and I think members of the anti-abortion movement know this. To use a metaphor, I like to think of pro-choice activists in North America fighting the same final boss at the end of some sort of epic fantasy movie, with alternative endings. For the U.S. pro-choice movement, the dragon that we thought was dead came back twice as strong and now has three different heads. In the Canadian version, that same dragon knows that we won, and is grasping to hurt our feminist heroes one last time before exhaling its final breath.

Which finally brings me back to why Scheer’s comments on free speech should ring alarm bells for pro-choice activists, and what I feel is the last great battle we must win to solidify the pro-choice position and begin to normalize abortion in Canadian society.

Campus battles

Over the last 10 years anti-abortion groups on Canadian university campuses have also been fighting for their right to spread their hateful views. Student societies across the country deal with community anti-abortion activists and student-led clubs associated with the CCBR who want to demonstrate on their campuses. These issues manifest themselves in both legal and social ways, and vary campus to campus.

In some instances, like at Western University, CCBR-associated clubs exist with no repercussions. They enjoy access to the same university resources (particularly funding, space, and a place at the campus clubs week to recruit new members) as any other club even though they essentially seek to shame and take rights away from other students. Alternatively, some student unions allow these clubs to exist, but regulate or ban altogether their right to demonstrate on campus. Student associations at the University of Victoria, the University of British Columbia, and Wilfrid Laurier University all took this stance dealing with their respective anti-abortion clubs. However, in each of these instances, we see the difficulties both student leaders and university administrators faced coordinating a response, while still allowing anti-abortion demonstrations to take place.

Finally, some student unions have started to deny anti-abortion groups their club status within the university system. These clubs, with the assistance of the CCBR and the Justice Centre for Constitutional Freedoms, sue the students’ unions on the basis that denying their right to be university-sanctioned infringes upon their right to freedom of expression. Anti-abortion activists almost always see any challenges to their activities or existence within the university system as a threat to free speech.

In many of these court cases decided over the past two years, the pro-choice position has won. In 2016, the Ontario Superior Court of Justice decided that the Ryerson Student Union was right to deny Students for Life at Ryerson their affiliate status. The student union argued that the club stood “in contrast with RSU’s Policy on Women’s Issues,” and therefore an anti-abortion group did not belong at Ryerson. Similarly, just this past October, the University of Alberta won a case against UAlberta Pro-Life. The anti-abortion group wanted a review of the university’s stance that they would have to pay $17,500 to cover security costs if they held a demonstration on campus. The Alberta Court of Queen’s Bench dismissed the case and ruled in favour of the university’s handling of the situation.

There are countless other examples of cases currently making their way through the courts across the country, supported by the Justice Centre for Constitutional Freedoms’ finances and resources. Every single one of these cases is framed as a violation of free speech. Yet these two recent victories, as well as the Grande Prairie advertising case, show that judges across the country are having none of it. Freedom of speech does not mean freedom from consequence or a right to access public resources to spread your views.

A real threat

Canadians who favour abortion rights became complacent after the Morgentaler decision, contends Shannon Stettner in Without Apology. “The assumption seems to be that the issue is resolved, perhaps because opponents of abortion have (so far) failed in their efforts to recriminalize abortion,” she writes.

This makes it easy for the average Canadian to ignore Scheer’s comments, because framing anti-abortion views as a free speech issue ignores the very real threat that groups like Right Now and the Canadian Centre for Bio-Ethical Reform present to reproductive rights in Canada. But when we hear Scheer say that he supports free speech on university campuses, what he is in fact saying is that he is willing to use the power of the state to ensure that anti-abortion radicals can exist and continue to be normalized within Canadian society. University student unions have increasingly been taking steps to block CCBR and its supporters, and it is only a matter of time before more anti-abortion clubs see their official status revoked. This will cause more and more anti-abortion students to cry out that their rights are being infringed upon.

Those of us in the Canadian pro-choice community need to fight harder to push back against Scheer and the anti-abortion groups he owes for his victory.

Unlike other hate groups in Canadian society, the anti-abortion movement enjoys relative acceptance by the public. It is still considered normal not to freely talk about abortion, to see anti-abortion advertising on buses and billboards, and for groups like the CCBR to regularly occupy public spaces with their protests. For the average Canadian, the CCBR with their gross, misleading displays does not appear out of place in downtown Toronto on a Saturday afternoon. We have not yet gotten to a point where being against abortion makes someone outdated, a dinosaur. We generally recognize that being openly racist or anti-Semitic has no place in our society (or at least it did not until recently…), but being against reproductive rights has somehow seemed okay. The Liberal Party of Canada only took a strong stance against MPs holding anti-abortion views before the 2015 federal election. The people holding signs outside of abortion clinics and hospitals, young and old, are generally not viewed as harming women and trans people.

This makes Scheer’s comments dangerous. Those of us in the Canadian pro-choice community need to fight harder to push back against Scheer and the anti-abortion groups he owes for his victory. We need to call anti-abortion protesters what they are: anti-women’s rights protesters. Anti-abortion activists and views have no place on university campuses. No student should be forced to pay student fees, and then have some of that money go to people who do not support her bodily autonomy.

The only way to ensure that we win this battle once and for all in Canada is to change how the anti-abortion movement is seen, and to show people like Scheer that we see through his rhetoric.

We need to work to move the conversation towards hate speech, rather than free speech. Anti-abortion organizations like the CCBR, anti-abortion student clubs, and Right Now should be called out for trying to take rights away from women and trans people. They should not be allowed to protest without being seen by the public as violating the Charter for publicly shaming women and spreading false information about abortion. Justin Trudeau’s recent announcement that anti-abortion and anti-LGBTQ organizations will no longer be eligible for summer jobs grants is an excellent and much needed step in the right direction.

Yet even when our government shows leadership to protect the right to choose, Andrew Scheer and the anti-abortion movement refuse to see their beliefs as anti-women and anti-trans. They claim that any attempt to deny funding to anti-abortion groups violates their right to freedom of expression. Scheer and leaders in the anti-abortion community have tried since this announcement to shift the conversation away from women’s rights and towards free speech.

The only way to ensure that we win this battle once and for all in Canada is to change how the anti-abortion movement is seen, and to show people like Scheer that we see through his rhetoric. Those of us in university communities across the country need to speak out against anti-abortion groups that are getting far too comfortable on our campuses. We need to make sure this does not become a free speech debate, by highlighting how wrong it is that clubs exist with the sole purpose of taking away rights from students.

Thirty years after Morgentaler, I look forward to the day when opposition to abortion has no place in our politics or society. Abortion and the right to choose should no longer be up for debate.

Robyn Schwarz is a passionate pro-choice activist based out of London, Ontario, who is currently working on a PhD in Canadian women’s history at Western. She is actively working with the University Student Council to change what the anti-abortion club can do on campus within the system of student governance.

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