The Good Blog

For the first time in history, British public television has aired an ad for a charity that performs abortions. Marie Stopes International, a charity that carries out about 65,000 terminations a year at its British clinics (about one third of all the abortions performed in Britain), ran its first TV ads last week. And the Canadian government and courts should take note because this might inspire Canadian charities to do the same.

It’s one thing for abortions to be legal in Canada or elsewhere, but it is a significantly different social issue to have organizations that carry out abortions advertising on TV.

Although the broadcast Committee of Advertising Practice bans commercial enterprises or medical services providers from advertising abortions in England, the ban does not include charities. There are various charities in Canada that provide termination services, and it would be disturbing to have them begin airing ads on Canadian public television (even thought there is no one charity which has the “market share” in performing abortions in Canada that Marie Stopes International has in Britain.)

Abortion is a controversial issue, and I’m not here to argue whether or not it should be legal. Instead, I’d like to express the view that legality and advertising are two very different things: just because abortion is a legal medical procedure, that does not justify giving charities special dispensation to advertise and therefore promote those services.

In fact, traditionally, charity law as a matter of legal principle has excluded issues that are socially controversial. That means charities haven’t been granted the tax benefits of registered charity status if they do socially controversial work. That’s because charity depends upon the trust and support of the public. And if the objects of a charity, or its activities in pursuing those objects, are too controversial, the concern is that the public will cease to trust the charitable sector as a whole because of the controversy around that single issue.

However, the Federal Court of Appeal rejected the traditional view opposing controversial purposes for charities when it held that abortion was a charitable purpose. Presumably a public consensus against television advertising would not prevent them from being aired in Canada. In the case of the Vancouver clinic, Everywoman’s Health Centre Society (1988) v. M.N.R.,[1992] 2 F.C. 52, the Federal Court of Appeal held:

“To define ‘charity’ through public consensus would be a most imprudent thing to do. Charity and public opinion do not always go hand in hand; some forms of charity will often precede public opinion, while others will often offend it…Courts are asked to decide whether there is an advantage for the public, not whether the public agrees that there is such an advantage.”

In Canada, Parliament has for decades found abortion an issue too controversial even for politicians to address in legislation. That’s why it’s left to judges, who are not elected, to decide whether abortion has an advantage for the public even if the public does not agree.

Since 1967, charities wanting to be more innovative than Canada Revenue Agency will allow must go to the Federal Court of Appeal to expand the boundaries of what charities are allowed to do. Here the court usually holds the traditional line and has seldom granted registered charity status to appellants. In the past 35 years, only a couple dozen charities have had the financial resources to go to court to try and expand charitable purposes. Only three of these appeals have been granted.

The Federal Court of Appeal court has taken a very restrictive approach to allowing the law of charity to move forward to address modern social issues. Given this conservative track record, it is surprising that abortion was a social issue so compelling that the court was not concerned that public opinion opposed it.

If public opinion and controversy are not enough reason to deny charitable registration for an abortion clinic, there is no reason to believe that controversy or public opinion are reasons for the court to stop charities from advertising abortion services on public television. Certainly, the airing of the abortion television ad was controversial in Britain.

The courts are not the place to try to stop charities from advertising abortions. Not only has Federal Court of Appeal registered an abortion clinic, it has subsequently revoked the registration of two pro-life charities. If Canadians are going to oppose having charities advertise abortion services in Canada, they will need to mobilize politicians to prohibit such ads.

If they don’t, Canadians may find that what many consider “abortion” becomes more accessible. The day after the Marie Stopes ad was broadcast on television in Britain, the UK National Health Service published guidance that “the morning after pill” should be made readily available in pharmacies.

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Tags: abortion, advertising, Blake Bromley, Britain, Canada, charity law, Marie Stopes International, UK
Categories: Charity, Law