“We have really underestimated the power of regulatory law in terms of mobilizing stigma,” says Jula Hughes, an associate professor at UNB’s Faculty of Law “Regulatory law does almost as good a job of stigmatizing as criminal law. This is something the courts have refuted every time but I think the abortion experience really bears that out.”
In her paper, "From abortions to sex work: What decriminalization can teach us about stigma in criminal law," Hughes explores the idea that legal scholars should pay closer attention to what happens in society after something is decriminalized.
She says a good example is “asymmetrical decriminalization” like we are seeing with sex workers and Bill C-36. Her paper considers the relationship of criminal law stigma to social stigma and its implications for the decriminalization and recriminalization of sex work.
“The advocates for asymmetrical decriminalization say they are advocating for not criminalizing sex workers, but since that’s an interaction between clients and sex workers as long as you’re targeting one act, chances are you’re marginalizing both.
“We do the same thing in drug trafficking — we treat more harshly the person selling the drugs than the person buying the drugs but we make the person buying the drugs more vulnerable because the trafficker has to hide,” she says.
Hughes points out there is specific regulatory law in the Maritimes aimed at abortion and that continues to feed abortion stigma.
“It operates to label women and trans people who access abortion as a particular category and that allows stigma to continue,” she says.
Hughes says there should be no special regulation of abortion. If it becomes purely a health care service, for example, it is hard for anyone to target patients.
“It’s the fact it has to be done in a special setting that allows targeting of patients,” she says.
She adds the “revolution in abortion practice” is about two weeks away because the abortion pill is set to be approved by Health Canada and that’s going to make it much more difficult to target individuals.
Hughes has been doing access-to-abortion research in New Brunswick since she arrived at UNB’s faculty of law in 2006. She says her research was inspired by the climate she encountered when she arrived in the Atlantic province.
One of the things that was striking to her, coming from Ontario at the time, was that despite the case law from the Supreme Court of Canada and the changes to the Criminal Code, the situation there was pretty much exactly as it was in the 1970s following the Badgley Report.
In 2011, Hughes notes, “there were only two hospitals in New Brunswick which provided 414 funded abortions. The provincial regulatory regime post-1993, precluded funded abortion access on moral grounds for low income, immigrant, and rural people as effectively as the 1969 criminal law, despite the Supreme Court’s holding precluding mortality-based provincial abortion.”
She adds: “Abortion was also attended by the political and public stigmatization of people accessing the procedure and by the targeting of Dr. [Henry] Morgentaler personally.”
It left her wondering how changes to the criminal law and complete decriminalization could have so little impact, leaving women still facing all the same hurdles.
“As a criminal law scholar that was very confusing,” she says. “At the same time, Maritime women read the newspaper and know it’s not like that everywhere in the country.”
Hughes says even though people may be aware of their rights and connect those rights with the Charter, there is a struggle to understand how law is underperforming in this way.
“The reason stigmatization is of interest to lawyers and legal scholars is the close connection between social stigma and discrimination,” she says. “We mobilize law in all kinds of ways to limit or eliminate, or limit discrimination and stigma is a particular version of discrimination. It’s also a set of beliefs that enable discrimination. So once you stigmatize someone they are marginalized as a result of that stigmatization. They become a target for further discriminatory acts and being in a group that is discriminated against makes it easier to become a target for stigmatization.”
Hughes says marijuana decriminalization is a “great counter story” because unlike in the contexts of sex work and abortion, where social attitudes haven’t really changed, social attitude for marijuana use has never been as harsh as the law.
“If anything, people are moving towards favouring regulation only because they don’t think a lot of stigma should be attached to being a soft drug user,” she says. “There’s no moral panic around drug use the way there was in the 1980s.”
She says the courts are doing “mostly the right work” by imposing rationality requirements on application of criminal law, but they are “being timid about it.’