Charter Challenge on Abortion Statistics

I'm kind of surprised there hasn't been a single mainstream media story on this.

So, here goes with my version of an interesting looming conflict over reproductive rights in Ontario.

First, the players. One is amateur statistician and serial shrieeeeker, Pat Maloney. Another is the Dominionist (reluctant) revealer of Conservative leadership candidates' abortion stances, Association for Reformed Political Action with its astroturf stalking horse, We Need a Law Like a Hole in the Head.

The issue: The exemption of abortion statistics from Ontario's Freedom of Information and Protection of Privacy Act (FIPPA).

Background. In January 2012, FIPPA was extended to hospitals with the following exemptions (scroll down to Sec. 65).

(5.7)  This Act does not apply to records relating to the provision of abortion services. 2010, c. 25, s. 24 (17).

Among its many other exemptions, there's also this:

(5.3)  This Act does not apply to the ecclesiastical records of a church or religious organization that is affiliated with an educational institution or a hospital. 2010, c. 25, s. 24 (17).

You know, just to forestall any accusation that the government is PROABORTION and ANTICHRISTIAN!!!

Here's a news story about the abortion exemption from August 2012.

The Ontario government says it recently restricted public access to records of abortion services because the data is “highly sensitive.” The change has prompted criticism from some anti-abortion groups, saying the public’s ability to request abortion data was important because statistics currently released by government entities are “shoddy.”

Asked to explain the decision, the provincial Ministry of Health said in a statement to the National Post: “Records relating to abortion services are highly sensitive and that is why a decision was made to exempt these records.”

B.C. has had a similar clause in its Freedom of Information act since 2001, restricting the disclosure of information relating to abortion services. The change came after several clinics and hospitals in the province were targeted by anti-abortion groups, as well as violence against North American abortion providers, and was intended to protect the providers, said Wendy Norman, an associate professor of family medicine at the University of British Columbia.

At the time, beyond the "highly sensitive" characterization, the purpose of exemption was never made explicit though concerns for the safety of providers and for the non-entirely neutral use of the information were assumed.

The fetus freaks naturally claimed censorship and scurrilous skulduggery.

Pat Maloney, in particular, seemed to be itching for the martyr mantle.

Anti-abortion blogger Patricia Maloney, however, says her latest request was denied.

“Before this change occurred, a citizen of Ontario could ask for and receive information on abortion statistics. I have done several of these Freedom of Information requests,” she wrote on her blog, Run with Life. “In fact it was my latest FOI, which was refused, that alerted me to the change.”

And now she has a partner, ARPA, in her martyr quest. Here is their factum asking that Section 65(5.7) of FIPPA be declared unconstitutional.

First, the spin claim voiced by the usual suspects that this is aaallll about facts and statistics is just too hilarious. Here's the Focus on the Family astroturf gang:

This is not about being pro-life. We need good statistics to see trends in our society and to know whether education programs are working.

Yeah, sure. Pat Maloney, who used aggregated abortion statistics to call for homicide investigations, is aaaalll about stats.

Also, we do not remember any anti-choice organizations among the 488 groups clamouring to keep the mandatory census for the sake of "good stats," though among those eleven in favour of scrapping it was "gendercide hero" Mark Warawa.

And now there's another wrinkle. The Ontario Civil Liberties Association (OCLA) is backing the call for the release of information.

“The exclusion effectively prohibits expression on the excluded records, and thereby violates the Charter right to free expression of the requesters of the information,” said the OCLA position paper. “The OCLA seeks to raise the concern that there is palpable institutional bias against pro-life advocates in Ontario and that this is harmful to society and substantively unjust towards members of the community.”

Bias against "pro-life advocates" seems an odd tack to take, though. (Not to mention the very odd use of the phrase "pro-life" by what one would like to think of as unbiased intervenors.

It seems to us that there is a simple solution. There are grounds for refusal to disclose information under Section 10(1)(b) of FIPPA.

10. (1)   Subject to subsection 69 (2), every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, (b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

Judging from the uses to which fetus freaks have put this kind of information previously, "frivolous" and "vexatious" would both apply.

Finally, if the antis had their way, abortion would be criminalized or at least defunded and then what kind of stats would be available?

None.

Except for skyrocketing death and disability stats from self- or amateur-administered abortion.

As a fan of facts and evidence, DJ! generally supports the release of information, provided the safety of patients and providers is guaranteed.

Like the Abortion Rights Coalition of Canada (ARCC), we're not convinced that can achieved by this means.

ARCC supports the release of general statistics on abortion, because that's needed for research purposes and health planning to improve services etc., while posing no risk of identifying individual providers or facilities. The amendment apparently does not prevent that.

BONUS: Most recent Canadian abortion stats (Feb. 2015) from ARCC.



h/t to Joyce Arthur for some help in clarifying my thoughts and for law links