We first liberalized our law against abortion in 1969; then our Supreme Court threw it out completely in 1988. Canada has a unique history around abortion, because a single figure - a doctor - became a Canadian hero who forged the way in the struggle for safe, legal abortion on demand.

Canada first banned abortion in 1869 under threat of life imprisonment. Although statistics on illegal abortion are hard to come by, we do know that between 1926 and 1947, 4,000 to 6,000 women died as a result of bungled, illegal abortions. By the 1960's, anywhere from 35,000 to 120,000 illegal abortions were being performed each year. Today, Canada's legal abortion rate is just over 100,000 a year.

Pressure to liberalize Canada's abortion law came in the early 1960's, mostly from medical and legal associations. In 1967, Canada's Justice Minister, Pierre Trudeau, presented a bill to liberalize the law. It would still be a crime, but a woman could apply for special permission from a Therapeutic Abortion Committee of three doctors at a hospital, who would judge whether her life or health was in danger. Trudeau, destined to become one of Canada's most influential prime ministers, not only succeeded in liberalizing Canada's abortion law, his bill also legalized homosexuality and contraception, which had been completely illegal up until then. When he introduced his bill, Trudeau uttered his most famous line: "The state has no business in the bedrooms of the nation!"

The bill became law in 1969, and it gave the medical profession exactly what they had asked for - legal sanction for the status quo. Before 1969, groups of doctors at some big-city hospitals would approve abortions by committee, making it harder to prosecute any lone doctor. So the new law was great for doctors, but it didn't do much for women. Hospitals were not required to set up Therapeutic Abortion Committees (TACs), so most simply didn't. Some TAC's took 6-8 weeks to process an application for an abortion, some imposed quotas, and some rejected most applications. And in the 1980's, the anti-abortion movement started taking over hospital boards in order to disband TACs or staff them with anti-choice doctors. So in practice, access to abortion was very unfair, just like before the law.

One person who hated the new law was Dr. Henry Morgentaler, a family physician form Montreal, Quebec, and a Polish survivor of the Nazi concentration camps. Dr. Morgentaler had lobbied for a change to the old law in 1967, stating that women had a basic right to abortion, that it was not just a privilege. After that publicity, a parade of women started to show up at Dr. Morgentaler's office, pleading for an abortion. At first he refused I'm so sorry. I can't help you, he would say - It's a crime. I might have to go to jail. But after awhile, Dr. Morgentaler started to feel like a coward and a hypocrite. Finally, after hearing about one too many terrible deaths from illegal abortion, he decided to act. He began to provide abortions to women in his office. Although Dr. Morgentaler's conscience felt better, he was now an outlaw.

In 1973, Morgentaler publicly declared that he had defied the law by performing 5,000 safe abortions outside hospitals, without the approval of any committee. He even filmed himself performing an abortion and had it shown on television. What happened next changed Canadian jurisprudence forever. He was arrested, then brought to trial three times by the province of Quebec, and three times Quebec juries refused to convict him. The courts were incensed at this rebellion by the juries against the law, because Morgentaler had clearly broken the law, and even boasted about it.

After the first trial, the court simply reversed the acquittal, citing "jury error." Morgentaler was sentenced to 18 months in jail, where he suffered a heart attack while in solitary confinement. During his prison stay, he was tried on a second set of charges and acquitted again by another jury. A political cartoon was published at the time that showed a prison guard pushing Dr. Morgentaler's food tray under the grill and saying, "congratulations, doctor, you've been acquitted again!"

Morgentaler's ordeal created headlines across the country and an uproar in the civil rights community. As a result, a new federal law was passed - the "Morgentaler Amendment" - which prohibited courts form nullifying a jury verdict. The government set aside the doctor's first wrongful conviction, but ordered a new trial at which he was acquitted again, for the third time. Finally, ofter serving 10 months in jail, Morgentaler was released. By this time, Quebec had a new government, which decided that the abortion law was unenforceable and dropped all further charges against him.

Meanwhile, a growing abortion rights movement was becoming galvanized by Morgentaler's struggle. The public and hundreds of activists had mobilized around his legal defence and his civil disobedience was a major catalyst for the budding feminist movement in Canada.

Buoyed by this support, Morgentaler decided to challenge the law in other provinces. He spent the next 15 years opening and running abortion clinics across Canada, in clear violation of the law. Two of his clinics were raided by police, and Dr. Morgentaler, along with other doctors, was charged with "conspiracy to procure a miscarriage". At the 1984 jury trial, everyone was acquitted -- Morgentaler's fourth acquittal! But the government appealed, the appeal court squashed the acquittal, and a new trial was ordered yet again. Now it was Dr. Morgentaler's turn to appeal - to the Supreme Court of Canada. Finally, on January 28, 1988, the Supreme court handed down an extraordinary ruling. Canada's abortion law was unconstitutional, in its entirety. The court tossed it out.

The legal victory was decisive. The court fully recognized that the abortion law was unfair, that it presented unreasonable obstacles to women seeking abortions. The law was in breach of Canada's Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person. One of the justices stated: "The right to liberty ... guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life ... the decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state."

In spite of the decision's noble language, the Supreme Court encouraged the government to create a new, "improved" law against abortion. In 1989, the government introduced a bill to make doctors fully responsible for the abortion decision, with a twoyear jail term as punishment if the woman's health was not at risk. While the bill was being debated and fought over, almost 100 doctors quit performing abortions, and another 275 promised to quit if the bill passed. The bill did pass in the House of Commons, but when it went to the Senate, it was defeated by a tie vote. At that point, the government gave up and washed their hands of the abortion issue. They promised not to introduce a new law again.

In the 1990's, access to abortion improved tremendously. There are now many clinics across the country that provide abortions outside hospitals. Abortion is also extremely safe. In fact, I believe that Canada has the lowest maternal mortality rate in the world for early abortions (.1 per 100,000 procedures). Even though there's no gestational limits in Canada, at least 97% of abortions are done in the first 16 weeks of pregnancy. Canada also enjoys a high approval rating for legal abortion - about 70 - 80% of Canadians believe that abortion is a private matter between a woman and her doctor, compared to less than 60% of Americans.

But we do have problems trying to deliver accessible abortion services to women. Some parts of Canada are run by politicians who wouldn't lift a finger to improve women's access to abortion. Access is also hampered by our sheer size - we're the second largest country in the world after Russia and by far the least populated for our size2, making it much harder to deliver accessible abortion services to all Canadian women. Although hospital abortions are fully funded by the federal government, which declared them to be a medically necessary service, some provinces refuse to fund abortions in clinics. This forces women to go to hospitals instead, which are not the easiest or most supportive place to obtain an abortion. Only about a third of hospitals actually do abortions, and many have onerous restrictions, such as quotas, a two-doctor approval process, long waiting lists, or 12-week gestational limits. Even so, about two-thirds of all abortions in Canada are still performed in hospitals.

A second problem is anti-choice harassment and violence, most of it either copied or directly imported from the United States. Three Canadian doctors have been shot in the last seven years, and an American antiabortion terrorist has been linked to all the shootings. Canada shares the longest unprotected border in the world with America. Being so close to the U.S. does have its benefits, but the flow of anti-abortion extremism across our border is not one of them!

Anti-choice activity in Canada is spotty, however - only two provinces, Ontario and British Columbia, have strong anti-choice factions that regularly picket clinics and protest against abortion, and these provinces have borne the brunt of anti-choice violence. One doctor has been shot in Ontario, and others have been threatened. In 1992, the Toronto Morgentaler clinic was destroyed by a bomb. British Columbia is home to Dr. Garson Roma] is, the first abortion provider shot in Canada, in 1994. He is the only provider in North America to be violently attacked twice - in July 2000, Dr. Romalis was stabbed by an unknown assailant in the parking lot of his medical office. British Columbia is also the only province with legislation prohibiting anti-abortion protesters outside clinics, as well as doctors' offices and homes. Ontario uses court injunctions to stop protest activity at clinics.

Most other Canadian provinces and territories have a small and fairly conservative population, so abortion services maintain a low profile with little controversy, although often without clinic funding. French-speaking Quebec is an interesting exception. Anti-choice opposition is virtually nonexistent in Quebec, and with its mostly liberal, Catholic population, the Pope and the Vatican have very little influence. Believe it or not, Quebec's Archbishop is in favour of contraception!

Canada has only one national anti-choice group of note, Campaign Life Coalition. Most Canadian antichoice groups are milder and meeker versions of American groups, with a public voice that is more marginalized than in the U.S. However, Canadian anti-abortionists have learned a lot from their American neighbours. The propaganda and misinformation we're subjected to is largely regurgitated from America as are many harassment techniques, such as gathering information on providers, picketing doctors' homes, and sending harassing mail. Anti-abortion violence has damaged the credibility of Canada's anti-choice movement, though - the term "pro-life" appears to be linked with "violence" in the minds of the public, thanks to extensive media coverage of violent incidents and widely-quoted pro-choice outrage.

The pro-choice movement in Canada is much smaller and less well-- funded than anti-abortion groups, and almost exclusively volunteer-run. Our influence often outweighs these limitations, however, because we benefit from our country's liberal social attitude towards abortion rights and abortion's strong legal protection in Canada. Both Ontario and British Columbia have enjoyed pro-choice provincial governments that worked hard to improve and protect abortion services.

Also, the Canadian media is generally sympathetic to the pro-choice view. In the recent federal election (November 2000), the media had a field day attacking and humiliating the right-wing candidate, Stockwell Day, whose many blunders included admitting a belief in Biblical creationism, and releasing a party platform that called for a national referendum to defend abortion policies. Four out of five of Canada's major political parties are now official pro-choice.)

Living without any criminal law against abortion has taught us that legal victories can be hollow without extensive social and government support to back them up. Nevertheless, the right to abortion in Canada now stands on very firm legal ground. The anti-choice have fought numerous court cases over the years, trying to obtain legal protection for fetuses, but they have decisively lost every one. Courts have consistently ruled that the fetus has no inherent right to life and no legal protection as a person until it's born alive. Under Canadian law, the woman and her fetus are one, and the woman's interests always come first.

1. Besides Canada, only China, Vietnam, and North Korea have no laws regulating abortion. Canada does have a law that prohibits non-doctors form performing abortions.

2. Canada has a population of 30 million people, living in ten provinces and three territories.

Joyce Arthur

Pro-Choice Action Network

Copyright The Human Quest Mar/Apr 2001
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