The Power of Acting As If: Prefigurative Politics and Statutory Abortion Law
Joanna N. Erdman
Schulich School of Law at Dalhousie University
This symposium asks about statutory laws to codify abortion rights, and, by the question, suggests that such laws are distinct from statutes that restrict abortion, the common focus of abortion rights. We are much more familiar with abortion rights as a challenge to, rather than as the basis of, statutory law.
Statutory abortion law, however, has long evaded such easy categorization, being either rights protective or rights restrictive. Most abortion rights cases under international human rights law, for example, treat criminal abortion statutes as protective measures. Statutory grounds for lawful abortion in cases of risk to life or health, sexual violence, and fetal impairment are treated as rights-based entitlements, with state parties called upon to ensure that people can access services under these grounds through the enactment of better rules and procedures.
The question of statutory characterization—does this statute protect or restrict rights?—has troubled abortion law in national contexts too. Canada has no abortion law, no statute that regulates acts taken with intent to end a pregnancy. More specifically, Canada has no criminal code provisions on abortion. These were struck down in the 1988 Supreme Court decision, R v. Morgentaler. At the time, Canadian law criminalized abortion, except when authorized by a hospital committee as therapeutic, that is, when pregnancy presented a risk to life or health. Dr. Morgentaler and his colleagues, Drs. Robert Scott and Leslie Smoling, were charged under this law with conspiracy to procure an abortion. On appeal, however, a majority of the Supreme Court declared the law in violation of the right to security of the person because its hospital committee system delayed access to care and thereby created a risk to health. Since Morgentaler, no new federal abortion statute has ever passed, even when the government argued that it would be protective of a basic level of services across the country, and even when for decades, in parts of the country, abortion services were unavailable or inaccessible in the public health care system.
This Essay returns to that moment when Canadians departed from statutory abortion law in Morgentaler, but not to the Supreme Court judgment. It returns to a pre-trial motion in the case when Dr. Morgentaler’s lawyer Morris Manning moved to quash the indictment on the ground that the criminal abortion law was unconstitutional. To support the motion, he called evidence from “persons who work within, as best they can, the therapeutic abortion committee system, to show how that system works, or doesn’t work.” Manning died last year. In his obituary, he is described as “fearless, creative and eloquent.” Most importantly, he was a lawyer who knew that there is more to law than the lawyer’s law. In Morgentaler, he thus asked the people who live and labor under the abortion law: How does the law work?
Morris asked this question of Carolyn Egan and Janice Patricia Tripp. They were social workers with direct experience in securing abortion services for their clients, but they were also activists who had a vision for the law rooted in social justice. For them, abortion rights were inseparable from a radical restructuring of society including a reimagined role for the state and its law. Through their testimony, they brought this vision into the courtroom.
When Manning asked these activists ‘what is the abortion law?’ he asked a more basic question: ‘what is law?’ And, more fundamentally: ‘who decides?’ By answering these questions, Egan and Tripp remade a restrictive abortion statute into a visionary one.
They first testified to the crisis of access under the law. The humiliating way people were forced to hunt for services, the cruelty of the delays and denials they faced, and the exploitative practices they endured. “I’m not going to say there is no access,” Egan remarked, “there is . . . but it’s a very privileged access.” The government lawyer did not dispute this evidence but argued that it did not impugn the law. These inequalities are regrettable, he agreed, but the fault was with people not the law. Is it not true, he asked Egan, that your clinic deals mostly with poor, young, and low-income women, and is it not also true that no matter what system you have, people with less resources, will have more problems? Misfortune under the law, he insisted, must be distinguished from the good of the law. In this line of argument, the government described the criminal law as a set of statutory benefits. The law promised everyone access to therapeutic abortion, and as such, any claim of injustice required that we live up to the law not depart from it. Alternatively, any injustice under the law flowed from an overinflated expectation of it. These people would have suffered no matter the system of law, so scale down your expectations and the law will be seen to work. Yet this is what Egan and Tripp refused to do.
In their testimony, they showed how the law could never provide the justice it promised. Its own rules created the conditions for arbitrary practice, specifically, the statutory entitlement to a therapeutic abortion. The Criminal Code never defined a therapeutic abortion, a matter left to the opinion of medical practitioners. Each one had a different opinion, and some only had an opinion for a fee. Under the law, an abortion was legal if a committee certified it as therapeutic, and committees generally certified an abortion as therapeutic if a physician claimed that it was. There was no such thing as a therapeutic abortion, only the certificate of it. It was the perfect racket. “We don’t know what those criteria are, how the decision is made, we don’t know,” no one does, explained Tripp.
If the abortion law is the source of injustice, the government lawyer proposed on cross, there is nothing for you to do but break it. Do you believe that “you need to break the law to change the law?” His question was provocative, but not in the way he intended because he was unaware that the social workers did not share his understanding of the law. The following exchange ensued when he asked Egan directly: “Have you broken the law?”
“From time to time, you have used the expression, therapeutic abortion. What do you mean by that term?” She answered: “That’s the term commonly used in the field – and probably because of the law.” He asked: “That’s what you mean by the term, correct? You’re not using it to refer to people who simply wish to have an abortion.” Egan answered: “Well, if a woman is confronted with an unwanted pregnancy that she feels, for whatever reason, she can’t deal with at [that] time – and women have all kinds of reasons for making that choice, birth control failure, economic or social circumstances, they didn’t intend it or because they feel like they must have an abortion, then…” He interrupted her, “I’m waiting for the end of the sentence.” She continued, “Well, then, the physician will refer the patient to a committee because an unwanted pregnancy is depressing, an emotional health risk.”
Every abortion could be made a therapeutic abortion under the statute. “The thing is,” Egan continued, “One must give a certain level of respect and dignity to a patient when she comes to a clinic, that she has the resourcefulness and the right to make the decision around such a basic question as this, and . . . .” He interrupted again, “Isn’t that abortion on request?” The lawyer was desperate to categorize every abortion as therapeutic or on request, legal or illegal, but Egan refused. She refused the categories of the statute and returned to the complexity of people’s lives. Frustrated, he eventually asked, “Have you ever undertaken anything which you would regard as an effort to further an abortion that is not in conformity with the law of Canada, as you understand it?” She answered: “I don’t think so.”
When the lawyer asked Egan if she had broken the law to fulfil a political vision of what she believed the law should be, abortion on request, she answered with her vision of the law. When he asked, “What is the law on abortion in Canada today?” She answered: “The right of every person to make the decision around such a basic question as this.” She explained that the criminal provisions codified what the law implicitly allowed before: abortion if the public good could be served. “I’m paraphrasing, obviously, as I’m not a legal . . . but someone could not be prosecuted under the law if they could prove that the public good could be served by their deed . . . . And that law was codified.”
Egan answered for the law of the present not the future, and by answering the question in this way, she was not a lawbreaker but a lawmaker. There is a tension in her answer between “what is” and “what could be.” This tension is the heart of prefigurative politics and the power of acting as ‘if’ a preferred set of legal norms were already in place, and more profoundly, as if, you have the power to put them in place. When asked if “you need to break the law to change the law,” Egan answered, “Well, I’m not a legal expert, sir, and I’m not always sure how laws are changed. I understand that laws are changed through Parliament and through court challenges, but I’m not an expert, so I don’t know all the methods that one would use.”
When Egan and Tripp brought their vision of abortion rights into the courtroom, they engaged in something different than statutory interpretation. They enacted a new abortion law, albeit one not yet qualified as such by a legislature or court. Yet they had the power to do it, to make law, because the jury in Morgentaler acquitted on the statute ‘as if’—as if the criminal law already protected the right of every person to decide this basic question of their reproductive life and future. The jury would not convict someone under the law for helping someone in need. Carolyn Egan and Janice Patricia Tripp are not named in the citation that serves as the historical record of Morgentaler, but they changed the law before the Supreme Court did.
When a lawyer asks a social activist, ‘what is the abortion law?’ the lawyer tends to ask a different question than the one answered. Activists answer for the law ‘as if’—as if the law was already rights-protecting. Such lawmaking activism continues today. On April 8, 2022, Justyna Wydrzyńska appeared before a tribunal on the charge of aiding an abortion under the Criminal Code of Poland for having shared abortion pills with a woman stranded by pandemic restrictions and surviving a violent partner at home. “Helping her was my first response,” Wydrzyńska explained, and she defends her action thus: Every person has the right to aid. Helping someone is not a crime.  If it is lawful in Poland to self-manage your abortion, it cannot be criminal for a person to aid you, comfort you and keep you safe. Solidarity and compassion are not crimes. Wydrzyńska is an abortion rights activist with a vision not for, but of the law. In support of her case, the social media campaign #IamJustyna asks: What would you do if someone asked you for help? Would you help them like Justyna? “We’re encouraging people to message their friends and say, ‘if you ever need an abortion, you can count on me.’” The campaign trades on the power of acting ‘as if’—as if the Polish abortion law already allowed you to help someone in need and protected the right to aid. The abortion law, as if. The future of a rights-protecting abortion law enacted in the restrictive statute of the present-day.
 Joanna Erdman, The Procedural Turn: Abortion at the European Court of Human Rights, in Abortion Law in Transnational Perspective: Cases and Controversies 121-142 (R.J. Cook, J.N. Erdman & B.M. Dickens eds., 2014).
 R v. Morgentaler,  1 SCR 30 (Can.).
 Canada Criminal Code, R.S.C 1970, c C-34, s 251.
 Joanna N. Erdman, Constitutionalizing Abortion Rights in Canada, 49 Ottawa L. Rev. 221-261 (2018).
 R v. Morgentaler,  47 OR (2d) 353. See Joanna N. Erdman, An Abortion Law Preformed, 35 J. L. & Soc. Pol’y 44-67 (2021) (containing detailed excerpts from the trial transcripts including the Motion to Quash and Call Evidence, and the Witness Examinations of Egan in Chief, Egan Cross, Egan Re- examination and the Witness Examination of Tripp, Janis Patricia). Copies of these transcripts remains on file with the Author and are the source of all excerpted testimony in this Essay.
 Morgentaler, supra note 5, at 110.
 Lisa Fitterman, Legal giant Morris Manning defended Henry Morgentaler, Globe & Mail (July 1, 2021), https://www.theglobeandmail.com/canada/article-legal-giant-morris-manning-defended-henry-morgentaler/.
 Morgentaler, supra note 5, at 160.
 When the abortion provisions of the Criminal Code were reformed, then Justice Minister John Turner explained that the statutory term “[h]ealth is incapable of definition and will be left to the good professional judgment of medical practitioners to decide.” House of Commons Debates, 28th Parl., 1st Sess., Vol. 8 (Jan. 23, 1969), at 4722 (Hon. John N. Turner), at 8124.
 Morgentaler, supra note 5, at 3010.
 Id. at 174.
 Id. at 191-210 (for the entirety of the quoted excerpts in this exchange).
 The Criminal Code previously prohibited abortion without any explicit defense, resulting in uncertainty about whether the defense of necessity applied. Graham E Parker, Bill C-150: Abortion Reform 11 Crim. L.Q. 267 (1969).
 Davina Cooper, Towards an adventurous institutional politics: The prefigurative ‘as if’ and the reposing of what’s real, 68 Soc. Rev. 893 (2020).
 Martha-Marie Kleinhans & Roderick A Macdonald, What Is a Critical Legal Pluralism, 12 Canadian J. L. & Soc’y 25 (1997).
 Weronika Strzyżyńska, Polish woman is first activist to face trial for violating strict abortion law, The Guardian, (Mar. 28, 2022), https://www.theguardian.com/global-development/2022/mar/28/polish-woman-is-first-to-face-trial-for-violating-strict-abortion-law.
 JakJustyna, supra note 16.
 Strzyżyńska, supra note 17.