Frankly, this is tiring: Joyce Arthur working reality into a fictional story on abortion in Canada. Does she ever give it a rest? Apparently not.

I’ve already debunked her make-believe world here when I wrote on January 12, 2012 about 2009 Canadian abortion statistics, and here when I wrote on November 19, 2012 about 2010 Canadian abortion statistics.

So here we go again–now I’ll do it for 2012 abortion statistics.

1) Arthur says:

“Since 1988, when the Supreme Court of Canada threw out our abortion law as unconstitutional, the sky has not fallen, but our abortion rates have – we’ve witnessed a continuing decline since 2000 and now have a relatively low abortion rate compared to many other developed countries – about 14 abortions per 1000 women of childbearing age per year.” (emphasis added)

Arthur points to CIHI as proof that Canada’s abortions statistics have been declining since 2000. But how does she know this? She doesn’t. Because as CIHI themselves tell us their numbers are underestimated:

“…while this is probably an underestimate of induced abortions done in the country, it is currently the best way to produce pan-Canadian comparable data.”

That’s because CIHI’s numbers don’t record abortions done in private physician’s offices; don’t record medical abortions; and don’t record all clinic abortions, because many clinics choose not to report that information, and nobody makes them do it.

Arthur then says there are 14 abortions per 1000, but neglects to tell you, that that number is from Statistics Canada data from 2005–nine years ago. We have no idea right now how many abortions are committed per 1000 abortions, because our data is inaccurate. And even if it was accurate, you can’t use nine year old data to talk about today’s trends.

(In fact, discerning minds must question why CIHI reports at all–if their numbers are so woefully inaccurate? But that’s a question for another day.)

2) Arthur says

“90 per cent of abortions occur during the first trimester, and less than half a percent after 20 weeks.” (emphasis added)

For 2012, CIHI reported a total of 83,708 clinic and hospital abortions (and as stated above this is under reported). Of these abortions, a full 62,178* have “unknown” gestational age.

That means all 62,178*, or most of them, or some of them, or none of them, could be late term abortions. We. Do. Not. Know. That’s what “unknown” means. And we don’t know these gestational ages because most abortion providers don’t report them.

So concluding late-term abortions are “less than half a percent” is impossible.

3) Arthur says:

“The latter [after 20 weeks] are all for compelling reasons, such as fetal abnormalities incompatible with life or a serious threat to the woman’s health or life.”

How does Arthur know these late-term abortions are for compelling reasons? Because nobody else in Canada knows this. Arthur can’t know–since reasons are not reported.

We know for sure that in 2012 there were 563 late term hospital abortions (as reported by CIHI). And remember, we don’t know how many late term abortions were done in clinics because clinics don’t report late-term abortions. And since we don’t know the gestational ages of 62,178* abortions, Arthur’s conclusions are based on bad, wrong, missing, and or inaccurate information.

Even if Arthur can prove there are “only” 563 late abortions per year, are we supposed to take comfort in the fact that in relative terms there are so many fewer late term abortions than early abortions? That just means we have many, many, many, many, many, many early abortions.

4) Then Joyce gets creative, by actually redefining the medical term “fetal viability”:

“Much of the debate in the UK media has focused on the science of fetal viability and at what gestation they can survive on their own. This issue is totally irrelevant to women who need abortion care, as the survival ability of premature babies applies only to fetuses being carried to term. If a woman needs an abortion, then by definition, her fetus is not viable.” (emphasis added)

In other words, if you don’t like the definition of something, hey just change its meaning. That was easy.

5) Finally we get to the bottom of Arthur’s real worry. That darned fetus. Always gets in the way of a good abortion fairy tale. To solve this thorny issue of decapitating, dismembering and disemboweling another human being, we simply advise the reader to NOT focus on the fetus.

“When we focus on the fetus, we forget about the woman and her reasons for an abortion. Women don’t ask for an abortion because it’s their ‘right to choose,’ or because they don’t understand what’s inside of them. They request abortion because they can’t provide responsibly for a child (or another child) at this point in their lives. A woman’s abortion decision is about ensuring her future and that of her family, not about the current legal or moral status of her fetus. It’s about being the best mother possible when she’s ready – or maybe not becoming a mother at all if she knows she’s not suited to it. That is the very definition of conscientious decision-making. We can trust women to know what’s best for themselves and their families, without imposing punitive criminal laws against their private decisions.”

So many problems dissipate when we make up numbers, change definitions, and ignore the fetus. It’s easy, really. Just ask Joyce.

(* 62,178 unknown gestational age abortions is calculated using simple arithmetic: 83,708 total known abortions – 21,530 known gestational age abortions (see page 6 of CIHI’s 2012 statistics) = unknown gestational age abortions)

In Monday’s Sudbury Star, Ruth Farquhar, an Ontario freelance writer, wrote that it was a sad day for women as New Brunswick’s only private abortion clinic announced that it would be closing its doors due to lack of government funding of private centres. She expressed her disbelief that the province required the opinion of two physicians prior to an abortion procedure being performed. And since abortion was obviously a “medically necessary” procedure, she declared that the province was “clearly, from a legal standpoint, in violation of the Canada Health Act.”

Unfortunately Farquhar and others who argue that clinic procedures must be government funded don’t quite have the law on their side. Neither do they seem to be in favour of rigorous medical standards to protect women’s health.

If women want to undergo any surgical procedure, it is cautious and in fact ‘pro-woman’ to require that they consult a physician, and more so to require the opinion of more than one. No medical procedure is without risk.

Last weekend I had to undergo a Dilation and curettage (D&C) procedure due to a complication following the birth of my son. Now a D&C and an abortion aren’t unrelated procedures. A D&C is a surgical procedure where the lining of the uterus or some contents found in the uterus are removed. The same procedure is used for early abortions. In that case, it is the developing child in the womb who is removed.
Even though I was a fairly non-urgent case for Ottawa’s busiest hospital, no fewer than three doctors were involved in the decisions surrounding my D&C. Then four other physicians attended my surgery. I thought it was overkill, but clearly those with medical expertise thought otherwise. In fact, they thought it medically necessary.

Given my experience of undergoing a fairly simple and straightforward D&C, is it that unreasonable that the New Brunswick government requires two medical opinions stating that an abortion is necessary prior to a citizen undergoing surgery?

Farquhar also claims that abortions are “medically necessary.” What she is referring to is a term that provinces and territories may assign to certain medical procedures under the Canada Health Act. If a province determines that a procedure is “medically necessary”, it must fund that procedure with tax dollars through its public health insurance plan. But what is “medically necessary”?

I’ve had the painful experience of reading through the Canada Health Act as well as consulting all available court decisions which address the question of “medical necessity.” The reality is that the Act is vague and no court in Canada has provided a clear list of criteria help provinces, or Canadian citizens for that matter, determine on a case by case basis whether or not a medical procedure should be classified as medically necessary. This isn’t some clear and established legal term or test.

Farquhar is brazen in claiming that the New Brunswick government is in clear violation of the Act. I can’t imagine any lawyer worth their salt making that kind of legal assessment. In fact, Health Canada even states that it’s up to each province to determine for itself which procedures are considered medically necessary.

Even the Abortion Rights Coalition of Canada states that the determination of whether a procedure should be deemed “medically necessary” is “a matter of professional medical judgment, based on the patient’s particular circumstances and needs.” Heck, that almost sounds like New Brunswick’s policy – two physicians assessing each patient individually, on a case by case basis, in accordance with their professional judgment.

Those who lament the closing of this abortion clinic call themselves “pro-choice.” Indeed, “choice” is the governing principle of their movement. “My body, my choice” is the best known slogan. Perhaps they do not realize the conundrum. For if abortion is truly a personal choice, how on earth can it also be medically necessary?

Faye Sonier is a human rights lawyer practicing in Ottawa. She’s also a regular contributor to the ProWomanProLife.org project.

The three stupidest things Canadian abortion activists have said (lately)

I’m guessing that most Canadians wouldn’t identify with this polarizing style of debate. It’s high time these abortion activists realized that women’s freedom ought to be achieved on its own merits rather than on the corpses of aborted fetuses.

This past Wednesday, the Vancouver and Burnaby Crisis Pregnancy Centres (“Vancouver CPCs”) announced that they would not appeal the decision of the British Columbia Supreme Court dismissing their defamation suit against Joyce Arthur and the Pro-Choice Action Network (“Pro-CAN”). In 2009, Arthur wrote a report for the Pro-CAN with the express goal of exposing “the anti-woman and anti-feminist agenda of CPCs”. The report, Exposing Crisis Pregnancy Centres in British Columbia (the “Report”), which was funded using federal taxpayer dollars was released and concluded that CPCs use unethical methods to mislead, deceive and hurt women and convert them to Christianity. The Vancouver CPCs denied the allegations set out in the Report and disputed its accuracy and reflection of them.

Crisis pregnancies happen and when they do, they are, well, a crisis. Regardless of where you stand on abortion, the vast majority of people acknowledge that the decision to have an abortion or carry a pregnancy to term is not taken lightly. Because of the complex and sensitive nature of the decision women should be given the opportunity to consider and discuss their options, should they want to. That’s where CPCs step in. CPCs do not provide abortions or refer women to abortionists. In my experience, and I have sat on the board of a local CPC, CPCs do not hide the fact that a referral for an abortion is not an available service. What they do offer is information on pregnancy options, including adoption, abortion and keeping the child; counseling for pregnant and post-abortive women and men; childbirth classes; doula services and the provision of maternity and baby-related items such as clothes, bottles and strollers. Most CPC clients are, with the exception perhaps of the pro-choice “undercover clients” on a mission to “expose” a particular CPC, happy with the counseling and information they received from a CPC, regardless of whether or not they end up having an abortion.

In her Report however, Arthur does not address the good that CPCs do or the fact that their clients are generally satisfied with their services. Instead, she makes outlandish allegations and generalization, basing them in part on the say-so of someone who admittedly, lied and deceived people she interacted with to “expose” them. Among Arthur’s allegations were that CPCs provide inaccurate information, use graphic imagery and mislead clients into thinking that the CPC was a medical clinic. The Vancouver CPCs however, as with most CPCs, do not employ such tactics. Worried that their reputation was being tarnished, the Vancouver CPCs sued Arthur and the Pro-CAN for defamation alleging that specific portions of the Report were defamatory to the Vancouver CPCs.

In Court, Arthur and the Pro-CAN argued that although the Report did reference the Vancouver CPCs and one of their executive directors, that the portion of the Report alleged to be defamatory was not talking about the Vancouver CPCs specifically. In fact, Arthur and Pro-CAN argued that this section of the Report talked about CPCs across North America. This is an important legal question because in order for the Report to be considered defamatory, there needs to be a target of the defamation. The Vancouver CPCs argued that they were the targets because they were specifically referred to in an appendix and because the Report as a whole was about CPCs in British Columbia, where they both operate. If, however, that section of the Report was found to be about CPCs in North America, of which there are approximately 4,200, then the sample is simply too large for any reasonable person to suspect that the Report is speaking about the Vancouver CPCs.

It’s a clever argument that has been used in many defamation cases in the past and unfortunately, it was successful in this case. Somehow, the Court found that the impugned statements in the Report, despite the fact that the Report was entitled Exposing Crisis Pregnancy Centres in British Columbia, that it had “Exposing Crisis Pregnancy Centres in British Columbia” at the top of each page and despite the fact that it attached an appendix listing all of the CPCs in British Columbia, including the Vancouver CPCs and the name of one of their executive director, were not referring to CPCs in British Columbia, but rather, of CPCs in North America generally.

While it’s true that some of the allegations in the Report are prefaced with words like “most CPCs” and “the majority of CPCs”, I do not see how, given the above-noted facts, anyone could conclude anything other than that the allegations contained in the Report apply to at least CPCs in British Columbia, which include the Vancouver CPCs. Although this decision appears, at first, to be a loss, we need to see and appreciate that it is not. The Vancouver CPCs sued Arthur and the Pro-CAN because the allegations in the Report did not accurately reflect the way they operate. The Vancouver CPCs lost their case, not because the contents of the Report were true, but because the Court found that the impugned statements in the Report were not about them. That means the Vancouver CPCs were vindicated.

There are very basic and straightforward defenses to defamation. These include that the impugned statements were true, made in good faith with the reasonable belief that they were true or were personal opinion. As a lawyer, if I had a client seek my advice after being sued for making defamatory statements of fact, the first question I would ask is if the statements were true. If they were, that’s how we would defend the claim. If the statements turned out not to be true, then the next question I would ask is whether the person knew that the statements were true when they were making them. If so, then this, “good faith” would be our second possible defence.

It’s only if and when I conclude that these straightforward defenses are not available that I would start to look at other possible defenses like, the comments were not about the Vancouver CPCs specifically, but rather, CPCs in North America generally. Again, Arthur and the Pro-CAN’s argument is a clever one that has been used before, but it’s not, at least in my opinion, the easiest, simplest or strongest argument to a defamation suit. If you read Arthur and the Pro-CAN’s written arguments, which I have done, you see that Arthur and the Pro-CAN do not spend their efforts arguing that the contents of the Report were being true and accurate. Rather, they focussed on this weak and last resort argument about who the impugned statements in the Report were targeting. Lawyers need to advance the best possible argument for their clients. This leads me to believe that the ‘truth’ argument was not, in this case, the best argument for Arthur and the Pro-CAN.

I don’t want to speak for Ms. Arthur and the Pro-CAN, but it is my opinion that they made this argument because it was the only one available, meaning that they knew that the contents of the Report were not true or were not wholly true. And that’s why we need to look at this decision as a victory. Defamation cases are fact-centred and fact-specific and so there is no great precedent set by this decision. There is nothing in here to be relied on by the Courts in the future to limit what CPCs or pro-lifers can or cannot do. What does come out of this decision however, is the following:

• The impugned allegations in the Report were not about the Vancouver CPCs; and,
• The impugned allegations in the Report were not proven to be true and accurate.

I would chalk that up to a victory any day of the week.

Albertos Polizogopoulos is a Partner with the firm Vincent Dagenais Gibson LLP/s.r.l. in Ottawa, Ontario. He regularly appears before courts and appellate courts including the Supreme Court of Canada to advocate for his clients’ rights to freedom of religion, freedom of expression and parental authority. He also frequently appears in media interviews and on panels to discuss constitutional law. @CharterLaw

The Christian Advocacy Society of Greater Vancouver (I’m not sure how much more up front about religious affiliation you can be) and the Crisis Pregnancy Centre of Vancouver Society filed a Notice of Civil Claim on October 12, 2012 alleging defamation against Ms. Arthur and the Pro-Choice Action Network on the basis that the above mentioned assertions, and other serious allegations, were false. One of the main purposes of these organizations is to provide care for women with unplanned pregnancies.

The ruling is being viewed as a victory for Ms. Arthur and undoubtedly she will continue to wage war against those who work toward minimizing the number of abortions in Canada. Indeed, only a few days after her victory, Ms. Arthur began calling for the British Columbia government to regulate CPCs. She is quoted in a Straight.com article stating that CPCs are “scaring” women and “handing out misinformation”.

Ms. Arthur’s new media statements are contrary to her own lawyer’s position in written and oral submissions to the court – accepted by the judge – that the CPCs defamation case should be dismissed because the allegations in her report were NOT about BC CPCs.

Further, nearly all CPCs in Canada are members of the Canadian Association of Pregnancy Support Services and are subject to the highest standard of counselling ethics, as well as Canada Revenue Agency guidelines pertaining to political activity.

Planned Parenthood, the largest abortion provider in North America, consistently cites the second most common reason women seek abortion as an inability to afford the costs associated with raising a child. At a crisis pregnancy centre, trained counsellors come alongside such women and in a pastoral manner are able to seek ways in which economic barriers can be overcome. (Having been at  a few of their fundraising events, I can attest to their prudent use of resources for this purpose.) The end result could be that a previously distraught woman (who may well have thought her only choice was abortion) is able to consider another choice that was, in her mind, previously unavailable to her and can carry on with the pregnancy in confident expectation of childbirth. What callous person would be opposed to giving a woman this choice? Who could be opposed to such compassion and human kindness?

A large majority of Canadians are not comfortable with the high rate of abortions and the truth is that CPCs play an important role in minimizing the perceived need for a woman to terminate her pregnancy. They are on the frontlines of assisting those who need help.

Rather than taking the approach of Ms. Arthur by impeding a woman’s right to choose life for her pre-born child, we should be doing all we can to ensure they have the means to carry out this important work of providing alternative and viable choices for women.