It’s an oft-repeated truism in ethics: “Good facts are essential for good ethics.” So surely we need the facts about an issue as ethically fraught as abortion. Yet not only do we not have them, but they are intentionally not gathered or, if some are or might be available, access to them is denied.
That allows two myths that favour the pro-choice stance on abortion to be propagated: That late-term abortion is rare and that there is a consensus in Canada on the public-policy regime that should govern abortion (which, at present, is the complete absence of any law).
Margaret Wente, writing recently in the Globe and Mail, articulates both myths in one succinct sentence. She states that “a broad social consensus shapes actual (abortion) practice … (and) there are virtually no late-term abortions.” But to the extent one can obtain the facts, the evidence is otherwise.
The facts on late-term abortions are intentionally made difficult to obtain. Some time ago, I contacted a staff member at Statistics Canada to ask about the numbers of late-term abortions. She told me they were instructed for political reasons not to collect statistics on the gestational age at which abortion occurs. She explained, however, that hospitals must report the number of abortions and about 45 per cent had continued to report gestational age. From these unsolicited reports, it’s known that at least 400 post-viability abortions take place in Canada each year and the actual number is most probably more than twice that. The Canadian Medical Association sets viability (some chance of the child living outside the womb) at 20 weeks gestation.
In Canada, infant-mortality statistics include the death of any breathing infant. Statistics Canada’s records on causes of death in the perinatal period (defined as after 22-weeks gestation) list a category “Termination of pregnancy, fetus and newborn,” which shows a total of 241 deaths for the years 2000 to 2005, inclusive, the latest numbers available. Because babies born dead as a consequence of abortion are not reported in these statistics as infant deaths, one can only assume that these must be babies who were born alive as a result of abortion after 22 weeks gestation, breathed, but later died. This also raises further ethical questions about how such babies are treated. Are they given medical care or just left to die, as has happened in the past?
In discussion of abortion in classes in the Faculty of Medicine at McGill University, taught by faculty with relevant knowledge, no one challenges statements that there is a special clinic for post-22- weeks gestation abortion in downtown Montreal and that there is one designated hospital for abortion of 20- to 22-week gestation pregnancies. It’s also been reported in the media that the Quebec government sent a specialist obstetrician to the United States for training in late-term abortion. Although these facts are only circumstantial evidence, they hardly make it seem likely that late-term abortions are truly rare – at least in Quebec.
Anecdotally, as an ethicist, I have been consulted in a professional capacity on two late-term abortions, both of which were carried out. One involved a 34-week gestation pregnancy, where the mother was an unmarried graduate student from a foreign country; the other a 32-week gestation pregnancy, where the married parents did not want to have a “defective child” – the baby had a cleft palate (a relatively minor physical deformity that can be largely corrected with surgery).
As to trying to get specific facts on abortion, in general, two British Columbia hospitals, Vancouver General and Kelowna General, have applied to stop a freedom-of-information inquiry initiated by pro-life activists, John Hof begin_of_the_skype_highlighting end_of_the_skype_highlighting and Ted Gerk. After the hospitals refused their request last year for information on abortion statistics, Hof and Gerk initiated applications for access to the information through the B.C. Office of Information. The province’s Freedom of Information Act was amended in 2001 to specifically exclude access to information about abortion, but they are using a “public-interest-override” clause in the privacy legislation, to argue that the release of the information is in the public interest and should not be withheld. The hospitals have applied for a Section 56 exemption to Freedom of Information rules requiring disclosure, claiming that it was “plain and obvious that the records sought by the Applicant will not be disclosed.” The dispute remains to be resolved.
These situations raise the issue of the ethics of intentionally blocking access to information on abortion.
Such blocking is not neutral, but a strategy to help to maintain the status quo of the complete void regarding abortion law. The unavailability of this information makes the pro-choice lobby’s claims that late-term abortion is rare and that there is a consensus on abortion in Canada, much less likely to be challenged, and, therefore, bolsters its case that we do not need any law on abortion.
It is also a stance that appeals to many politicians who are terrified of an abortion debate for political reasons. A striking example of the lengths to which they will go to avoid that debate are manifested in a motion just passed unanimously by the three parties in the Quebec National Assembly, in favour of unrestricted access to free abortion, with no limitations mentioned. One can only wonder whether they all, or even just some of them, understood that they were endorsing a position that there should be no legal restrictions on aborting viable babies. If they did not understand that, it’s deeply concerning; if they did, in my opinion, it’s horrifying.
And here, too, an appeal to a “broad social consensus,” as Wente calls it, is proffered as a justification. Premier Jean Charest is quoted by La Presse columnist Lysiane Gagnon as saying that “The consensus expressed in the National Assembly reflects the consensus in Quebec society.” Apart from the fact that a consensus does not mean that what is agreed to is ethical, there is certainly no consensus that the situation should remain as it is with no law at all governing abortion. Moreover, even if there were such a consensus, it would not be likely to last if the facts on late-term abortion became widely known and people were willing to face up to the reality they reveal.
The facts on what Canadians believe with respect to using law to govern abortion are, again, difficult to obtain, because depending on the nature of the questions asked in a survey and how the results are interpreted, different claims can be made. One survey showed that about two- thirds of Canadians believe unborn children deserve some legal protection, at the latest at viability. Another said more than 50 per cent of Canadians believe we should leave the abortion legal status quo as it stands.
The strongest consensus that a woman should have the option of abortion, that is, it should not be legally prohibited, exists in relation to pregnancy resulting from rape (Gagnon cites 94 per cent of Quebecers surveyed took this position) or where there is a serious risk to a woman’s life or health in continuing the pregnancy, a very rare situation. Most people also believe that abortion-on-demand should not be available where the baby, if delivered, would be viable, that is, there should be legal restrictions, at this point at the latest.
But between the two poles of a spectrum from unrestricted availability of abortion throughout pregnancy – the present situation – to prohibiting it entirely, there is a wide variety of opinion and certainly no overall consensus on any given approach.
If Cardinal Marc Ouellet’s recent call for a national debate on abortion is heeded, the pro-choice advocates who attacked him and precipitated that call might regret their action. Provided the debate is open and honest, the myths about late-term abortion being rare and that in Canada there is an overall consensus on whether we need some law to govern abortion will be exposed. It would then be up to Canadians to decide what to do. In making this decision, we would need to keep in mind that the law expresses and carries our shared values and having no law to protect unborn children is a choice that reflects certain values and is not a neutral stance.
The likely possibility is, however, that pro-choice advocates and politicians will continue to argue there is no need for a debate.
But if the consensus they claim does exist, they have nothing to fear. And if it does not, then in a democracy a debate is exactly what is required.
Margaret Somerville is director of the Centre for Medicine, Ethics and Law at McGill University.