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 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.

Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty...