Go to jail or go to Canada.
Canadians who think the end of Roe has nothing to do with them are in for a surprise. If anti-abortion laws are to have teeth in the US, examples will have to be made. Americans will have to go to jail. Or they will have to leave. And where do Americans go when they are afraid of jail, or worse, in the USA? They go to Canada.
In response to the news that Roe will soon be toast, the Guardian newspaper in the UK published an article on the possibility of pregnant Americans going to Mexico and Canada for abortions. As the article pointed out, this scenario is pretty unlikely, because most Americans of means will travel to neighbouring states to have abortions rather than go all the way to Canada. Many others will have abortions at home, using pills bought on the internet. In most cases, police will never find out. But not in every case. Lots and lots of people will get caught having, or giving, or helping with an abortion in a red state. The real role of Canada will not be to provide a safe haven for Americans seeking abortions, but for fugitives facing a homicide charge.
How will regular Americans be transformed into fugitives? People in red states will order abortion pills on the internet, but will then go to the hospital, frightened by the excessive bleeding abortion pills can cause. Doctors and nurses in states where abortion is legal will make phone calls and share supposedly private medical information with police in the person’s home state, where abortion is illegal. People in red states will buy pills on the internet and have their packages intercepted by the mail. Many, many people will get caught, particularly since most people getting and giving abortions have no experience with breaking the law. The line between abortion, contraception and miscarriage are blurry. Too many Americans believe that politics is a game that could never possible affect them.
Why Canada? Can’t “Sanctuary Cities” Protect Americans?
Some pro-rights jurisdictions have already labelled themselves as “sanctuaries” for abortion, echoing the rhetoric of the sanctuary city movement for undocumented people. Why must Canada get involved if people can flee homicide charges in Texas to safety in California or New York? Because the US is one country and “blue” states can never, really, be safe. Sanctuary cities only work as long as the Governor, police chief, mayor and everyone else in the government agrees. That’s a lot of politicians to have to trust.
Add to that the little problem of federal law. Cities and states cannot do whatever they want, they must obey the Federal government in some things. Sanctuary cities are probably unconstitutional. They have already been challenged on the constitutional principle of the “supremacy” of federal law that helps to bind our country together into one, cohesive national of laws and will be challenged again on the principle that states should give each other’s laws “full faith and credit”. In this way, the abortion wars will mirror the debate over gay marriage in the 1990s. Sometimes, such debates force the country to ask itself which moral issues are individual and personal and which are universal, which should be left to the states and which cannot. Sometimes, such debates can be good for the Constitution and democracy. This will not be one of these times.
In their unprecedented brutality, the abortion wars will be different. Some states will make an abortion a homicide. This will mean that sanctuary cities will be refusing to enforce a murder charge. Women will be tied down, forced to deliver babies against their will. Mothers and fathers will be locked up in jail for life. Bounty hunters will fan out across the country, bundling people into the backs of cars in the middle of the night and dropping them off at the police station where they are wanted for murder. For people hiding out in a sanctuary city, life will not be normal as long as there is a price on their heads and such serious charges against them in another state. Many will be looking to flee the US altogether. Like the Vietnam war, where nowhere in the USA was really safe for young men who didn’t want to die, they will look to Canada.
But Moving to Canada isn’t as easy as many Americans think
As many as 60,000 people may have left the USA for Canada to avoid the draft during the Vietnam war. Because of Canada’s liberal immigration policies towards Americans, conscientious objectors did not need to apply for asylum. They simply moved to Canada as legal immigrants, found jobs, and made new lives for themselves.
Much has changed since that time. Despite what many Americans think, it is no longer easy for them to emigrate to Canada. Even for those who may qualify, the process will simply take too long for those fleeing a homicide charge for abortion. They can cross the border stay six months without a visa, a period that can be extended periodically by returning to the US. Messing this up, however, can have serious, long term immigration consequences.
But being able to physically stay in Canada is simply the beginning. Americans without work visas won’t be able to work unless they find an employer willing to sponsor them. A lot of Americans simply don’t know this and won’t have enough savings to make it very long in Canada without help. Americans in Canada without visas also won’t be able to send their children to school. Immigration lawyers can cost thousands of dollars, but will be crucial to helping Americans figure out their options.
Canada and Abortion Refugees
One possible solution for Americans fleeing to Canada is the asylum system. To say that Americans being prosecuted for abortion may qualify for asylum or a compassionate visa in Canada, however, is not to say that the Canadian government is ready to deal with an influx of Americans to Canada or that Canadians are ready to stand up for the rights of abortion refugees. American refugees may be seen with sympathy, or they may be seen as a bunch of privileged Karens taking spaces away from “real” refugees.
Then there’s the question of USA-Canada relations. Perhaps never before have the USA and Canada been further apart on an issue as they will soon be on abortion, but Canadians should not underestimate how difficult the USA can be when it wants its way on something. And a newly-elected Republican president may choose to make “abortion fugitives” an issue for Canada.
The two countries used to be in lockstep on abortion. In the Apprenticeship of Duddy Kravitz, published in 1959, the main character’s older brother flees Montreal for Toronto after performing a backstreet abortion. The story could have been written in 1950s Chicago, Philadelphia or New York. But, as the US has gone one way on abortion, Canada has taken off in the other direction. Today, abortion is fully legal in Canada. Some Canadians are likely to view homicide arrests for abortions in the US as persecution, as an outrage, as a crime. Many will not. Will Canadians welcome American abortion fugitives with open arms? Will it be worth it to Canadians to cause a rift with the US government?
The Refugee Law Says “Maybe”
What about the law? Are there any legal routes to asylum for abortion refugees? It’s no secret that gender and sexual rights were left out of the 1951 Refugee Convention, but the drafters wisely included a category for “particular social group,” to allow the Convention to grow and change as needed. Canada today has a fairly well established history of recognizing sex and gender-based persecution based on the “particular social group” category under refugee law. People have been granted asylum from domestic violence based on this line of jurisprudence. In 1993, the Federal Court of Canada found that forced sterilization is persecution. Harsh punishments for abortion could be viewed by Canadian courts as dis-proportionally severe persecution under this line of reasoning. But refugee law is not immune from politics, and politics between the US and Canada may complicate these rulings. The USA is not a small, far away country, it is Canada’s very large, and very near, neighbour.
What tools might the Canadian government have to keep troublesome abortion refugees away? Ironically, because many blue states in America will be deemed “safe” for abortion refugees, Canadian courts may deny many asylum cases. Ironically, the move to create abortion sanctuary cities may cut against American asylum claims for abortion in Canada, since Americans can simply settle in parts of the US that are “safe”. It will be up to applicants to prove that such sanctuaries are really not effective given the seriousness of the charges they face and the fact that many jurisdictions may be forced to cooperate by the courts or changes in politics. But wishing to avoid a thorny political problem, Canadian judges may choose this argument as an easy way out.
If asylum is not an option for Americans fleeing homicide charges for abortion, can Canada be a safe haven in other ways? Canada also allows people to apply for a visa based on humanitarian and compassionate reasons. Given the open-ended nature of this pathway to a visa, it might be a way for Americans fleeing abortion persecution in the USA to remain in Canada, despite the existence of sanctuary jurisdictions, given the hardship that living under the constant threat of changing political winds in sanctuary jurisdictions. Again, such largesse from the government would require political will. It will require Canadians taking a stand.
But where do they stand? The two countries think of themselves as siblings, alike and not alike, but members of the same family. Many Canadians have probably never thought about a world in which the US has travelled so far away from them that it can no longer be understood or reasoned with. Pro-choice Canadians are uncomfortably aware that a pro-life movement also exists in Canada, and that whither the US goes, Canada sometimes follows. Texas may seem far away, but Canadians should not forget that it’s also right next door. Roe is a US law, but having “no opinion” on the end of Roe is not going to be an option for Canada.