On Abortion, Trudeau Has Given Religious Groups the Controversy Many Wanted

So, here’s the thing. The federal government has announced that the funding it is making available for community service work through the Canada Summer Jobs Program (as well as the forthcoming Youth Service Corps) will not be given to any group that doesn’t check a box saying they recognize women’s reproductive rights, in particular the right to “safe and legal abortions.”

This has, understandably, outraged many religious organizations who view abortion as immoral, and they see this policy as discriminatory and an affront to their religious freedom. Some writers have already compared Justin Trudeau to a pre-Christian Roman Emperor or a totalitarian dictator. Opposition leader Andrew Scheer says Trudeau is “imposing” his views on faith groups.

These are pretty explosive accusations, even in the context of the perpetual outrage machine that is politics in 2018. So it might be worth unpacking both the issue at hand, and the larger context of abortion law in Canada.

Minister of Labour Patty Hadju has justified the provision by claiming that there is nothing preventing churches or other religious groups who may be opposed to abortion from applying for funding. The stipulation is just that none of the money can be used for anti-abortion activities. Whether or not that decision is actually meaningful for the groups involved is questionable; unlike the prime minister and some of his closest colleagues in Cabinet, religious institutions tend to hold themselves to a higher ethical standard than “who cares, just get the money.”

Trudeau himself, meanwhile, asserted a more sweeping defence of the policy in an interview with the Canadian Press on Monday: “An organization that has as its stated goal to remove rights from Canadians, to remove the right that women have fought for to determine what happens to their own bodies, is not in line with where the Charter [of Rights and Freedoms] is or where the government of Canada is. Certainly there is no obligation by the government of Canada to fund organizations that are determined to remove rights that have been so long fought for by women.”

Sounds good, right? Well, there’s a catch: reproductive rights, at least in the context of abortion access, is not a right guaranteed by the Charter. There is also no way to know “where the government of Canada is” on the issue outside of ruling party preference, because Canada has no law on the books regulating abortion.

Like all political speech, Trudeau’s insistence that abortion is already a settled issue of Charter rights contains some truth but is largely a rhetorical sleight of hand. In the R v. Morgentaler case of 1988, the Supreme Court of Canada ruled that the country’s 1969 abortion law—requiring women seeking the procedure to first justify its medical necessity to a hospital’s three-doctor “therapeutic abortion committee”—was unconstitutional. Specifically, they ruled that it violated Section 7 of the Charter, which states that “everyone has the right to life, liberty, and the security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.”

It is important to note that the ruling did not recognize s.7 as providing a fundamental Charter right to abortion access; they merely ruled that the law on the books at the time was insufficient. A further SCC ruling in 1989 ( Tremblay v. Daigle) established that only the woman involved can make the decision to terminate a pregnancy or carry it to completion, and that the fetus has no legal standing as a person.

Through these rulings, the SCC set the boundaries of how abortion could and could not be regulated in Canada. The job of actually regulating it, however, falls to Parliament. Following the landmark Morgentaler ruling, the Mulroney government tried twice to bring in new legislation. The first attempt would have ensured easy access to early-term abortions and criminalized late-term procedures, but it was defeated by both pro-life MPs (who thought any access was too much) and pro-choice MPs (who thought any restriction was too much).

A second bill in 1989 that would have banned all abortion save those deemed medically necessary by a doctor passed in the House of Commons by nine votes. But it failed in the Senate after a tie in 1990, and the death of 20-year old Yvonne Jurewicz of Toronto

from a self-induced abortion meant there was little appetite for a third attempt. Since then, no government in Canada regardless of ideological stripe has attempted the formidable task of bringing in a new abortion law. This leaves us as one of the few jurisdictions on Earth with no legal restrictions on the procedure. (Non-legal restrictions, such as service availability in rural areas, remain.) This is just as well, as a number of opinion polls conducted over the years have shown that the Canadian public is either largely pro-choice or at least comfortable with the idea of abortion being treated as an medical procedure between a woman and her doctor.

Anyway—all this is to say that when Justin Trudeau implies women’s reproductive rights are effectively enshrined in the Charter, it’s not quite true. The courts have established the boundaries of the playing field—women’s bodily autonomy is guaranteed—but not the rules of the game. Abortion remains an unresolved political issue, albeit one that most Canadians are content to leave alone. Not that the Liberals are the only ones playing fast and loose with the language of rights here: Conservatives framing this as a form of totalitarian thought-control are also overstating their case.

But can the government actually withhold funds from pro-life groups that would use the Summer Jobs Program for pro-life work? The verdict isn’t back on this one yet, although it is worth acknowledging that both pro-life and pro-choice groups have received Summer Jobs funding from the Trudeau government in the past.

The Toronto Right to Life Association announced last week that it would be taking the Trudeau government to court over the new policy, arguing that its Charter rights to freedom of religion and speech are being violated. The federal government has already settled with the group (along with two other pro-life organizations) in November 2017 after they brought a similar challenge last year. (Those lawsuits did not involve any Charter challenges.)

The crux of the matter boils down to whether or not the anti-abortion proviso in this particular government grant actually does violate a religious group’s fundamental freedoms. There are no laws preventing anti-abortion groups from doing anti-abortion work—they just can’t do it with Summer Jobs Program money. This is less of a problem for a pro-life evangelical church looking to hire students to mow their lawn than it is for a pro-life evangelical church looking to picket an abortion clinic. This distinction is important and anyone trying to flatten it is being more than a little disingenuous.

It all turns on the distinction between positive and negative freedom. Obviously you are allowed to believe whatever you want, and to act on those beliefs as non-intrusively as you please. But do you have the right to demand a share of public money to do so? Does the government retain some capacity to refuse funds for activities it believes undermine other individual rights? Are your rights to free expression stifled if you are refused a subsidy? How long it will take the court system to figure this question out?

Meanwhile, Trudeau has given the Conservative party a gift that both their paleoconservative and libertarian wings can enjoy. Thanksgiving for the whole transnationally outraged right-wing family.

The relative use of abortion as a wedge issue in Canadian politics is arguable. Sure, it may be that Trudeau, drunk on his own hubris/incompetence/corruption/etc is trying to drag this country into Liberal totalitarianism. That our tyrannical Cuck-in-Chief is persecuting Christians and throwing them to the genderqueer jihadi lions or whatever. This is the barely-concealed subtext of every anti-abortion piece in this country right now.

It’s not clear how many people put it high on their list, though—and the prevailing electoral mood is much more likely pro-choice. There is also a chance that Trudeau is doing this as a deliberate provocation. That our feminist prime minister is setting a trap for the Tories by goading them into championing the criminalization of abortion—a.k.a. rolling back women’s reproductive rights—and then incinerating them with it in the next election. Publicly taking the unhinged heat of anti-feminists across Canada and the world would also definitely factor into the inevitable effort to rebrand Trudeau’s Liberals as still “more progressive” than Jagmeet Singh’s NDP—whatever that means.

Without a political solution—ie. an abortion law—we will have this fight about abortion every so many years. Establishing a genuinely progressive abortion law in Canada would require tremendous courage, an expansive vision, and an iron political will to wage a very bitter fight.

In other words, don’t expect this to happen anytime soon in Canada, and definitely not from this government. That’s what the court system is for.