A choice of options

  • October 18, 2021
  • Julianne Stevenson and Jennifer Taylor

The new Texas law that bans abortion after six weeks of pregnancy is obviously horrific. It also proves that legal protection for abortion — which we think of as relatively robust in Canada — is more fragile than it seems. But this tragic moment presents an opportunity to reframe our thinking around abortion. That is, we should think of abortion not just in relation to the law, but as something that can happen safely at home in appropriate circumstances, without direct medical supervision or state involvement.

Inspired by the work of scholars like Prof. Joanna Erdman, we believe self-managed abortion (SMA) needs to become a more mainstream part of the abortion conversation in Canada. As part of that conversation, it’s important to evaluate some of the legal risks involved — because, while the law shouldn’t always dictate how we think about abortion, we can’t ignore it either.

Defined broadly, SMA refers to the “actions or activities by a pregnant individual to end a pregnancy outside of clinical settings.” SMA often involves taking pills to end a pregnancy, but there are other methods as well (it is even possible for aspiration abortions to happen safely at home, if performed by someone with the appropriate tools and training).

Self-managed abortion is nothing new. Before it was medicalized — and then criminalized — in the 19th century, abortion happened in private spaces, often with the assistance of community practitioners like midwives. Furthermore, Indigenous people have long used traditional, non-clinical methods to end pregnancy. (For more on these histories in the Canadian context, we recommend this essay collection.)

Abortion care has come a long way since the 1960s and 1970s, when activists taught classes on “DIY abortions,” sometimes using a suction device called the “Del-Em” (which is still used today). As Renee Bracey Sherman put it, the advent and wide availability of abortion pills has “revolutionized” abortion access by allowing people to “safely manage their own abortions at home with minimal medical oversight.” (This has especially been a gamechanger during the pandemic.)

The pills used to induce abortion are mifepristone and misoprostol. An abortion is likely to be successful if misoprostol is used alone, but is even more likely to succeed& when used with mifepristone. Together, they have an effectiveness rate of 95% to 98% up to 63 days’ gestation.

In Canada, the drugs are sold together under the trade name Mifegymiso (sometimes called “Mife”), which Health Canada approved in 2015, though only up until nine weeks of pregnancy (even though pills may be effective beyond that).

While the act of self-administering abortion pills is legal in Canada, there are criminal and regulatory prohibitions on some activities that could expose people who self-manage abortion, or assist with another person’s self-managed abortion, to legal risk.

Several Criminal Code provisions criminalize activity during or after birth, like concealing a child’s body, killing an unborn child during the process of birth, or failing to obtain assistance in childbirth. Following R v Levkovic (where the Ontario Superior Court acquitted the defendant of concealing the body of the child, noting the possibility that she self-induced an abortion), these offences are unlikely to apply to most situations involving a self-induced abortion.

Canada’s food and drug regime is another source of legal restrictions.

Notably, as a Schedule I drug, Mifegymiso cannot be lawfully sold in Canada to someone without a prescription. Moreover, it is generally an offence under the Food and Drugs Act to import prescription drugs for personal use. Anyone involved in the procurement of imported prescriptions may also be convicted of the offence. We are not aware of any websites based in Canada that sell abortion pills, meaning that current online ordering options would probably involve importing the drugs from other countries. This would appear to be illegal under the Food and Drugs Act, as it currently stands.

Making Mifegymiso available over the counter (or at least “behind the counter,” like Plan B) might be one solution for liberalizing access to abortion pills and supporting SMA in Canada. Both Mifegymiso and misoprostol alone are currently available over the counter from pharmacies in many countries around the world. At the very least, it should not be an offence in Canadian law to obtain abortion pills without a prescription.

One could argue that legal restrictions on abortion pills, like other medication, are required to protect those who use them (the well-documented safety of abortion pills aside). But Texas reminds us that the law can quickly become more punitive than protective when it comes to abortion. In short, law is not always the answer — or at least, not the only answer.

Activists in the United States have long been prepared for an abortion ban like the one in Texas. They have built up an incredible community-based infrastructure to support people — particularly those from marginalized communities, who are disproportionately impacted by the Texas ban — who may need to have abortions on their own. This infrastructure includes abortion funds, hotlines providing legal advice and abortion access information, legal defence and bail funds, and online guides to abortion pills.

Similar infrastructure could be shored up in Canada, too. We already have a network of dedicated groups across the country (the Abortion Rights Coalition of Canada (ARCC), Action Canada, and Abortion Support Services Atlantic, to name a few) that provide education, support, funding, and other services to help navigate the current gaps in abortion access. If legal access becomes more limited, they offer a model for community mobilization, along with their American counterparts.

This is not to say the black-letter law of abortion access doesn’t matter — of course it does. But focusing exclusively on legislation, case law, and healthcare policy does not sufficiently account for the possibility, however unlikely (depending on what happens with the federal election), that the law can quickly change. We need to celebrate the legal protections for abortion access that we have now and continue to push for more. We must also be prepared in the event they are taken away.

Julianne Stevenson (she / her) and Jennifer Taylor (she / her) are lawyers in Halifax, Nova Scotia. This article expresses their personal views and is not intended as legal advice. It is adapted from a forthcoming report on self-managed abortion for LEAF.

This article was first published in National Magazine.