The law of stigma, travel, and the abortion-free island.

• Author: Erdman, Joanna N.
• Position: Banishing Women: The Law and Politics of Abortion Travel

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 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) 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 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...