Columbia Journal of Gender and Law 2933.1 THE LAW OF STIGMA, TRAVEL, AND THE ABORTION- FREE ISLAND JOANNA N. ERDMAN* In 1988, the Supreme Court of Canada decriminalized abortion in R. v. Morgentaler.1 Almost immediately thereafter, the Maritime province of Prince Edward Island (“P.E.I.”) passed a legislative resolution opposing the provision of abortion services on the Island except to save the life of a pregnant woman.2 P.E.I. is a small pastoral province of rolling hills and ocean coves in the St. Lawrence Gulf, and since 1988, through various regulatory actions, its government has honored this policy promise to keep the Island abortion-free and to preserve its moral landscape.3 The same year that abortion was banished from P.E.I., Prince Edward Islanders also voted “yes” to the building of the Confederation Bridge, which would join the Island to * B.A., J.D., University of Toronto; LL.M., Harvard Law School. MacBain Chair in Health Law and Policy, Schulich School of Law, Dalhousie University. 1 R v. Morgentaler, [1988] 1 S.C.R. 30, 32 (Can.). 2 57th Gen. Assembly of Prince Edward Island, 3d Session, Resolution 17 Re Abortion J. Legis. Assembly 11, 90–91, 117–18 (1988). 3 In 1994, P.E.I. formally excluded induced abortion from the definition of basic health services eligible for public health insurance coverage unless the procedure is performed in a hospital and approved as medically required. General Regulations, P.E.I. Reg. EC453/96, § 1(c)(iv) (Can.) enacted pursuant to Health Services Payment Act, R.S.P.E.I. 1988, c. H-2 (Can.). This exclusion was previously an informal but enforced government policy, which Dr. Henry Morgentaler legally challenged in an effort to open a financially sustainable abortion clinic on the Island. In response to the lawsuit, and to keep the Island abortion-free, the government formally promulgated the regulation, and the provincial court of appeal upheld the regulation as valid law. Morgentaler v. Prince Edward Island (Minister of Health and Social Services) (1996), 139 D.L.R. 4th 603, 609 (P.E.I.C.A.). In 2013, Health P.E.I., the crown corporation responsible for the provision and delivery of provincial health services, developed a business case for a hospital-based abortion clinic after three physicians expressed interest in providing on-Island services. In 2014, however, a CBC investigative report documented Ministerial interference with the proposal, shutting down further development or approval of the business case as against government policy. See Abortion Clinic Working Group Was Convened by Health PEI, CBC News (May 30, 2014), http://www.cbc.ca/news/canada/prince-edward-island/abortion-clinic-working-group-was-convened- by-health-pei-1.2659470 [https://perma.cc/R6F6-99CS]; Abortion Service on P.E.I. Would Have Saved Money: Report, CBC News (Oct. 20, 2014), http://www.cbc.ca/news/canada/prince-edward-island/abortion-service- on-p-e-i-would-have-saved-money-report-1.2803587 [https://perma.cc/JT9G-Q75N]. Columbia Journal of Gender and Law30 33.1 mainland Canada and make travel between them “easy and convenient.”4 Opened on May 31, 1997, the Confederation Bridge is an amazing sight. Curved and eight miles long, the bridge is one of the greatest engineering feats of the twentieth century, the longest crossing over ice-covered water in the world. In its steel and concrete structure, durable and reinforcing, the bridge reflects the ingenuity of its engineers, who built a shield on the pier shafts to lift and break the ice flow under its own weight, and who built the bridge high enough to allow cruise ships to pass.5 The story of the bridge, however, is not a single story.6 More than steel and concrete, the bridge represents a historical problem and a vision of a solution to that problem, that is, the need for an easy and reliable crossing over a treacherous body of water. The bridge also captures more than a century of public controversy. The plebiscite vote to build the bridge followed a heated debate in which farmers, fishers, and other Islanders divided on how access to the mainland would affect their way of life.7 The bridge challenged Islanders’ sense of themselves, their past and future collective identity.8 Likely unforeseen in 1988, the Confederation Bridge would also achieve a material and moral significance in the reproductive lives of Islanders, and the reproductive law of the province. Every year, Islanders cross the Confederation Bridge to access abortion services, with limited public funding, in neighboring provinces on the Canadian mainland.9 4 M. H. Wigginton, Provincial Plebiscite Report of the Chief Electoral Officer of Prince Edward Island, 1988 for the Provincial Plebiscite: Fixed Link Crossing, January 18, 1988 (1988); About Confederation Bridge, Confederation Bridge, http://www.confederationbridge.com/about/confederation- bridge.html [https://perma.cc/6UPU-9KYF] (last visited Apr. 22, 2016); P.E.I. Votes to Connect to the Rest of Canada, CBC Digital Archives (Jan. 19, 1988), http://www.cbc.ca/archives/entry/pei-votes-to-connect-to- the-rest-of-canada [https://perma.cc/E8LX-5SRY]. 5 Dennis E. Becker, et al., Foundation Design Aspects of the Confederation Bridge, 35 Can. Geotechnical J. 750 (1998). 6 Copthorne Macdonald, Bridging the Strait: The Story of the Confederation Bridge Project 13 (1997). 7 Brian Bergman, The Island’s New Link: Confederation Bridge Still Inflames Passions, 5 MacLean’s 30 (1997); Prince Edward Islanders Debate Bridge to New Brunswick, CBC Digital Archive (Jan. 15, 1988), http://www.cbc.ca/archives/entry/prince-edward-islanders-debate-bridge-to-new-brunswick [https://perma. cc/5AG9-R83S]. 8 See generally Bridging Islands: The Impact Of “Fixed Links” (Godfrey Baldacchino ed., 2007) (a critical review of the sociocultural, economic, and political impacts on “islandhood” and island ways of life when fixed links, such as bridges, connect islands to mainlands). 9 There are two options for publicly funded out-of-province abortion services: the Queen Elizabeth II Health Sciences Centre in Halifax, Nova Scotia, and as of July 1, 2015, the Moncton Hospital, in Moncton, New Columbia Journal of Gender and Law 3133.1 The Confederation Bridge thus tells a story of abortion travel in Canada—women’s long crossings over menacing, ice-covered waters, their feats of ingenuity, and their durable and reinforcing supports in this crossing. It is the story of a bridge built to break some women under their own weight, while allowing others to cruise past. It is the story of a problem and a solution to that problem. It is the story of a public controversy over how abortion challenges Islanders’ sense of themselves, their past and their future—the Islander way of life. The Confederation Bridge offers a unique analytical vantage on the issue of abortion travel. Against a ground-level account of the individual traveler and her hardship, an aerial view of the bridge reveals the social and political landscape of abortion travel. It spatially represents a government policy of abortion travel as an act of banishment by and from the state.10 A government policy that requires residents to leave the Island to access abortion services inflicts distinct harms of exclusion, disregard, and neglect, and calls forth a distinct rationale in justification for these harms, namely protection rather than only punishment. These harms and justification of abortion travel are best captured by the sociological concept of stigma, defined as a social process of devaluing or denigrating a group of people by denoting contempt or lack of respect for them, including by arousing feelings of anguish and inferiority in them.11 Stigma begins with the labeling of some trait as socially relevant.12 Abortion, the decision and act to terminate a pregnancy, has long been linked to undesirable moral qualities in the individual—sins of lust and gluttony, the sins of desire. Abortion, however, also has a social import that is critical to a stigma analysis. A woman who wishes to or does terminate a pregnancy challenges gender and moral codes, and so unsettles, if not threatens, communal norms. She is, for this reason, a “public enemy.” The criminalization Brunswick. “The Province of Prince Edward Island, through PEI Medicare, will pay for approved physician or hospital costs at either hospital.” All incidental and travel expenses related to the services remain out-of- pocket, though low-income patients may be eligible for bus fare to and from the hospital. Abortion Services, Health PEI, http://www.healthpei.ca/abortionservices [https://perma.cc/4Y5J-KVN8] (last visited June 29, 2016). See also Abortion Access Made Easier for P.E.I. Women, CBC News (June 2, 2015), http://www.cbc.ca/ news/canada/prince-edward-island/abortion-access-made-easier-for-p-e-i-women-1.3096669 [https://perma. cc/ZGR7-4E9H]. 10 See Lisa Smyth, Ireland’s Abortion Ban: Honor, Shame and the Possibility of a Moral Revolution, in The Abortion Papers Ireland 167–78 (Aideen Quilty et al. eds., 2015). 11 Bruce G. Link & Jo C. Phelan, Conceptualizing Stigma 27 Ann. Rev. Soc. 363 (2001). See also Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (1963). 12 Link & Phelan, supra note 11, at 367–68. Columbia Journal of Gender and Law32 33.1 of abortion in the nineteenth century traded on this idea, reflecting general anxieties of modernity and its effects on the moral fabric of society—namely, the feared consequences for sexual and marital relations of the shift from a rural, agrarian society to an urbanized and industrialized existence.13 Abortion’s social threat reveals a protective and not only a punitive rationale for keeping an island abortion-free. Women are devalued, rejected, and excluded. They are branded as outsiders and literally placed outside the city walls to protect and preserve a way of life, a sense of cultural self. To think oneself under siege, to act in self defense, gives a broad license for cruelty and a justification for the suffering of others. Law has an important role to play in stigma, because it is a script that keeps audible this rationale, and more importantly, executes on that rationale by denying benefits and imposing burdens. Criminal law may have been the classic legal instrument of stigma, but in today’s welfare state, the exclusion from social programs performs this work.14 The P.E.I. off-island abortion policy excludes those who seek to terminate a pregnancy from a fundamental social institution of the Canadian state, the universal healthcare system, a national symbol of citizenship.15 Stigma is a potent form of social control precisely because it is effected through existing social structures, law among them.16 13 Angus McLaren, Birth Control and Abortion in Canada, 1870-1920, 59 Can. Hist. Rev. 319, 320–21 (1978). The campaign to criminalize abortion reflected and reinforced prevailing moralities of a deeply patriarchal, but also racist society. The campaign traded on fears of “race suicide” with the relative decline of English Canadians’ birth rate against that of French Canadians and the influx of non-British migration. Louise Falconer associates the nineteenth century criminal restrictions on abortion with the rhetoric of “populate or perish” then resonating throughout the British Empire. Louise Falconer, The Mother Country and Her Colonial Progeny, 7 Law Text Culture 149, 150 (2003). Abortion restrictions condemned white married women who terminated their pregnancies not only for lack of morals, but also for depriving fathers of their sons and countries of their soldiers. These women were perceived as neglecting their maternal duties to husband and state. Women’s sense of belonging in Canadian society—their respect and worth—was intimately tied to their reproductive capacity. Joanna N. Erdman, In the Back Alleys of Healthcare: Abortion, Equality, and Community in Canada, 56 Emory L.J. 1093, 1137 (2007). 14 Erdman, supra note 13, at 1140. 15 Robert G. Evans, “We’ll Take Care of It for You”: Healthcare in the Canadian Community, 117 Daedalus 155, 165 (1988). 16 Scott Burris, Stigma and the Law, 367 Lancet 529, 530 (2006) [hereinafter Burris, Stigma]; Scott Burris, Disease Stigma in U.S. Public Health Law, 30 J.L. Med. Ethics 179, 183–86 (2002) [hereinafter Burris, Columbia Journal of Gender and Law 3333.1 If protection of collective life is a rationale for an abortion travel policy, what are its effects? What happens when an individual is stigmatized within their community, branded with this letter ‘A’? Among the most troubling and reported effects is acceptance.17 By the discrediting rationale the law recites, individuals come to accept their own lesser worth. They believe themselves undeserving of the law’s benefits, and entitled only to its burdens. They come to accept the truth of their moral failings and to self-enforce this orthodox view through shame, guilt, and isolation.18 They develop strategies to conceal their mark, to avoid others, and most tragically to disavow themselves, and to thus suffer in silence. In 2014, Colleen MacQuarrie, Jo-Ann MacDonald, and Cathrine Chambers published a report on the impact of the P.E.I. abortion policy.19 Their report documents these stigmatic harms as recounted by Island residents who sought abortion services. One woman described having told her sister years later of her abortion, only to learn that they had suffered through the same experience mere months apart. “[B]oth of us were shocked and saddened for each other that we couldn’t—that we didn’t share and support each other at the time . . . . [We] did it in isolation . . . and loneliness, and didn’t reach out . . . . [Because] you know, the sense of wronging that you’ve done.”20 Women recited their justifications for having had an abortion over and over again, almost pleading to be believed. They asked: what other choice did I have? Why is my suffering not perceived as such by others? Why do I not see what others see? Should I see what others see? This moral dissonance was especially strong where women expressed certainty in the decisions they made, whether as an act of control over their lives or as acts of conscience. One woman explained: “It’s just that people need to be ashamed. Someone should be able to say, ‘Yes, I had an abortion. It was the right decision for me at that time.’”21 Another woman spoke in frustration and anger of having to follow the cultural script of the law: “It’s like that idea that you just—you have Disease]; Link & Phelan, supra note 11, at 370–75. 17 Burris, Stigma, supra note 16, at 530; Burris, Disease, supra note 16, at 181. 18 Eileen Fegan documented how the complex and contradictory feelings of indecision and determination, trauma and grief, regret and relief that has characterized Canadian women’s decision-making about abortion is inextricably linked to the social norms and the legal rules that enforce these norms. Eileen V. Fegan, ‘Subjects’ of Regulation/Resistance? Postmodern Feminism and Agency in Abortion-Decision-Making, 7 Feminist Legal Stud. 241 (1999). See also Eileen V. Fegan, Recovering Women: Intimate Images and Legal Strategy, 11 Soc. & Legal Stud. 155 (2002). 19 Colleen MacQuarrie et al., Trials and Trails of Accessing Abortion in PEI: Reporting on the Impact of PEI’s Abortion Policies (2014). 20 Id. at 13. 21 Id. at 14. Columbia Journal of Gender and Law34 33.1 to feel bad. If you don’t feel bad, you’re a horrible person, and this is imposed upon you . . . . You’re an awful, awful person, if you don’t feel incredibly awful.”22 To breed doubt in these acts of conviction is to crush a fundamental aspect of humanity, that is, the belief that we know ourselves. One woman remarked, “Oh, god, it takes something away from you . . . . A certain sense of ‘I am my own person.’”23 To destabilize this sense of self, to estrange a person from herself, and to enlist that person in her own denunciation takes inhumanity to an ultimate pitch.24 Many women, however, refuse to accept the negative societal view of their actions. Much as situations of displacement foster survival and adaptability, women may brandish abortion stigma as a source of moral worth.25 Rather than doubt themselves, they question those around them. Their exclusion creates the very distance necessary to challenge moral truths. The island, after all, always looks different from the mainland. Stigma thus introduces the possibility for moral revolution, or at least a moral plurality on abortion. In P.E.I., this revolutionary potential was manifest in a street poster campaign that co-opted the iconic Anne of Green Gables for advocacy on local abortion access.26 Plastered on signposts, mailboxes and telephone poles, the posters bear the image of a girl in bright red braids with green ribbons, her face obscured by a Zapatista bandana. She demands notice from the province’s Premier Wade MacLauchlan through the hashtag #HeyWade, calling on his government to provide #AccessNow and to #TrustIslandWomen. With its revolutionary iconography, the campaign challenges the image of a singular and idyllic P.E.I. through a rebellious Island woman demanding recognition and change. The title character of Anne of Green Gables is an interesting subversive not only because she embodies a feminist 22 Id. at 15–16. 23 Id. at 8. 24 Scott Burris, Stigma, Ethics and Policy: A Commentary on Bayer’s “Stigma and the Ethics of Public Health: Not Can We but Should We”, 67 Soc. Sci. Med. 473, 475 (2008). 25 Burris, Stigma, supra note 16, at 530–31; Burris, Disease, supra note 16, at 185–86. 26 Anne of Green Gables is a classic children’s novel by Canadian author Lucy Maud Montgomery originally published in 1908. The novel recounts the adventures of Anne Shirley, a young orphan from Nova Scotia, Canada, who is mistakenly sent to Marilla and Matthew Cuthbert of Green Gables, Prince Edward Island, and must make a home in the close-knit farming village. Anne’s World: A New Century of Anne of Green Gables (Irene Gammel & Benjamin Lefebvre eds., 2010) (examining shifting cultural meanings associated with Anne Shirley as a fictional icon of Canadian literature). See also Jesara Sinclair, PEI Right to Life Criticizes Pro-choice Posters Using Anne of Green Gables-like Graphic, CBC News (Jan. 28, 2016), http://www.cbc.ca/news/canada/prince-edward-island/pei-karats-abortion-posters-1.3423558 [https://perma. cc/2MC3-VEY6]. Columbia Journal of Gender and Law 3533.1 individualism, but also because the novel engages with themes of nativism, through an intense anxiety about and resistance to outsider influence within a close-knit farming community.27 Much like the Canadian healthcare system, this classic of Canadian literature has become a discursive site for social conflict over Islanders’ sense of themselves.28 Alongside street-level advocacy, Island women tested the capacity of law to provide a counter-script and a set of resources for effecting resistance against abortion stigma and repatriating services to P.E.I. On January 6, 2016, an organization of veteran local activists, Abortion Access Now PEI (“AAN PEI”), notified the provincial government of its intention to legally challenge the province’s abortion policy.29 Among its arguments, AAN PEI claimed that sending women off-island to access care violated women’s constitutional equality rights.30 In 1985, in its first case under the equality rights provision of the Canadian Charter, the Supreme Court of Canada wrote that the “promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.”31 In its most recent case on equality rights, the Supreme Court affirmed this commitment: “If state conduct widens the gap between the historically disadvantaged group and the rest of society rather than 27 Laura M. Robinson, ‘A Born Canadian’: The Bonds of Communal Identity in Anne of Green Gables and a Tangled Web, in L.M. Montgomery and Canadian Culture 19 (Irene Gammel & Elizabeth Epperly eds., 1999). 28 Herb Wyile, Anne of Tim Hortons: Globalization and the Reshaping of Atlantic-Canadian Literature (2011). 29 Press Release, Women’s Legal Educ. & Action Fund, LEAF Proudly Supports Abortion Access Now PEI’s Legal Challenge to Prince Edward Island’s Discriminatory Abortion Policy (Jan. 5, 2016). The case was designed as public interest litigation with pro-bono representation by Nijhawan McMillan Barristers in Halifax, Nova Scotia and supported by the Women’s Legal Education and Action Fund, a national, equality rights organization. See also Teresa Wright, Advocacy Group Suing PEI Government Over Lack of Abortion Access, Guardian (Jan. 5, 2016), http://www.theguardian.pe.ca/News/Local/2016-01-05/article-4393918/Advocacy- group-suing-P.E.I-government-over-lack-of-abortion-access/1 [https://perma.cc/DY3F-42SZ]; P.E.I. Abortion Advocates to Sue for Access on Island, CBC News (Jan. 5, 2016), http://www.cbc.ca/news/canada/prince- edward-island/abortion-lawsuit-pei-1.3389889 [https://perma.cc/4P4F-SJ4X]. 30 Draft Notice of Application under s. 2(1) of the Judicial Review Act, R.S.P.E.I. 1988, c J-3, and Rule 14.05(3)(g) of the Rules of Civil Procedure in Abortion Access Now PEI Inc. v. Gov’t of P.E.I., Women’s Legal Education and Action Fund. 31 Andrews v. Law Soc’y of B.C., [1989] 1 S.C.R. 143, 171 (Can.). Columbia Journal of Gender and Law36 33.1 narrowing it, then it is discriminatory.”32 Canadian equality rights have thus long embraced a sense of community, that is, not merely tolerance but a sense of belonging and of sharing equally in the benefits of Canadian society—the sense that “we are all in this together.”33 For more than 150 years, Canadian women who terminated their pregnancies were a criminal class, perceived as a threat to family, community, and nation and punished for this transgression. In their constitutional challenge, AAN PEI argued that a healthcare system that reinforces and perpetuates this historic disadvantage raises a strong presumption that a continuing contempt for and entrenched prejudice against these women motivates its design.34 An abortion policy that denies and neglects the healthcare needs of women who seek to or do terminate pregnancy undercuts the very purpose of a universal healthcare system, and in so doing, sends a clear message of exclusion, disregard, and neglect rather than concern, respect, and consideration. There are some benefits, some institutions, which are so important that denying participation in them implies the lesser worth of those excluded. This is true of the public healthcare system, a fundamental social institution, symbolic of Canadian citizenship. In the domain of healthcare, all Canadians are supposed equals. To be denied equality within this institution, to have one’s needs neglected and welfare disregarded, communicates a broader message about the very worth of those excluded. The province’s selective divestment from the healthcare needs of women implies a divestment from women themselves. The abortion policy denies more than access to a healthcare service. It denies women full inclusion in the collective life of Canadian society. With this constitutional challenge, the women of AAN PEI asserted their claims as Islanders and as Canadians, bridging two identities the abortion policy aimed to sever. On March 31, 2016, the P.E.I. government recognized them, equally and fully. Rather than contest the Charter challenge, Premier Wade MacLauchlan announced, “[T]he most responsible approach is to revise the policy . . . . [W]e . . . recognize our obligation to provide timely and professional healthcare, without discrimination.”35 The government 32 Kahkewistahaw First Nation v. Taypotat, [2015] 2 SCR 548, ¶ 20, (citing Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, ¶ 332). 33 Erdman, supra note 13, at 1129–34. 34 In designing a public health insurance plan, “[i]t is not open to . . . a legislature to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment.” Auton v. B.C. (Attorney General), [2004] 3 S.C.R. 657, ¶ 41 (Can.). 35 Mehler Paperny, Facing Lawsuit, PEI Will Start Offering Abortions, Global News (Mar. 31, 2016), http://globalnews.ca/news/2610660/facing-lawsuit-pei-will-start-offering-abortions/ [https://perma.cc/XL55- CLQB]. The Premier openly acknowledged that “the current policy would likely be found to be contrary to equality rights guaranteed under the Canadian Charter of Rights and Freedoms as well as Charter guarantees Columbia Journal of Gender and Law 3733.1 shared plans to open a hospital-based clinic offering a full complement of reproductive health services, including abortion, on the Island.36 In explanation for this policy shift, the Premier explained that “the character of all places changes and evolves . . . . It’s one of those things that comes at its time.”37 Colleen MacQuarrie, a founding member of AAN PEI, listened to the Premier with tears in her eyes. She too thought of the character of this place: “I have listened to women’s stories and I heard how horrible the situation had been . . . It’s very emotional when I think about the punishing regime . . . the women had gone through.”38 A bridge motif governs the story of abortion stigma and travel in Canada—a fixed link between protection and punishment, acceptance and resistance, estrangement and connectedness, local and national, past and present. The Confederation Bridge is an artifact of this story, of Islanders’ changing sense of themselves and of their collective identity. of security of the person.” Teresa Wright, Abortions to be Available in P.E.I., Guardian (Mar. 31, 2016), http://www.theguardian.pe.ca/News/Local/2016-03-31/article-4483109/Abortions-to-be-available-in-P.E.I./1 [https://perma.cc/59PB-TUBE]. 36 Sean Fine, PEI Drops Opposition to Abortion, Plans to Provide Access by Year’s End, Globe & Mail (Mar. 31, 2016), http://www.theglobeandmail.com/news/national/pei-to-allow-abortions/article29474278 [https:// perma.cc/4P4F-SJ4X]; Sara Fraser & Jesara Sinclair, Abortion Services Coming to P.E.I., Province Announces, CBC News (Mar. 31, 2016), http://www.cbc.ca/news/canada/prince-edward-island/pei-abortion-reproductive- rights-1.3514334 [https://perma.cc/4TYK-CDGR]; Graham Slaughter, P.E.I. to Establish Abortion Clinic on the Island, CTV News (Mar. 31, 2016), http://www.ctvnews.ca/health/p-e-i-to-establish-abortion-clinic-on- the-island-1.2840104 [https://perma.cc/3EPA-4PRX]. 37 Fine, supra note 36. 38 Teresa Wright, Change in P.E.I.’s Abortion Policy Long Time Coming, Guardian (Apr. 1, 2016), http:// www.theguardian.pe.ca/News/Local/2016-04-01/article-4483618/Change-in-P.E.I.s-abortion-policy-long- time-coming/1 [https://perma.cc/SVK3-Q69B].