Abortion in Canada

The movement to liberalize Canada's abortion laws began in the 1960s. Former Chief Coroner of Ontario Morton Shulman recalls that in the Sixties, abortion could be legally performed only to save the life of the woman, so there were practically no legal abortions. He stated that the pregnant daughters of the rich were sent to reliable physicians who did abortions for cash. He estimated that these physicians did twenty to thirty abortions per week. Women who were not rich were left to perform an abortion on themselves or go to what he called a "nurse" abortionist. Their method was commonly pumping Lysol into the woman's womb. The mortality rate was high and the infection rate over 50%. He added, "By the time I became Chief Coroner, I had had the unpleasant experience of seeing the bodies of some dozens of young women who had died as a result of these amateur abortions."[15]

Chief Coroner Morton Shulman decided to publicize deaths from illegal abortions.[16] He instructed his coroners to call a public inquest into each abortion death.[16] He describes one case that he believes was the turning point, that of 34-year-old Lottie Leanne Clarke, a mother of three children, who died of a massive infection in 1964 after an illegal abortion in spite of medical treatment and antibiotics. At the inquest into her death, the jury recommended that the laws about therapeutic abortion be revised. Dr. Shulman added that a federal government committee should review the question of abortion and the law. Newspapers published editorials recommending the reform of the abortion law. In 1965, the Minister of Justice, Guy Favreau, wrote to Dr. Shulman that the recommendation would be considered in the program to amend the Criminal Code. The eventual amendment closely followed the recommendations of the coroners' juries.[15]

In 1967, Justice Minister Pierre Trudeau introduced a bill which included an amendment to the provision of the Criminal Code which prohibited abortions.[17] The bill, known as the Criminal Law Amendment Act, 1968–69, continued the basic prohibition on abortions, with the potential life sentence. However, the bill made an exception for abortions performed in a hospital with the approval of that hospital's three-doctor therapeutic abortion committee. The committee would have to certify that the pregnancy would be likely to endanger the life or health of the pregnant woman. The term health was not defined, and therapeutic abortion committees were free to develop their own theories as to when a likely danger to "health" (which might include psychological health) would justify a therapeutic abortion.[17]

This same bill also legalized homosexuality and contraception, and would be the subject of one of Trudeau's most famous quotations: "The state has no business in the bedrooms of the nation."[18][19]

When he introduced the bill in 1967, Trudeau was Minister of Justice in the government of Prime Minister Lester Pearson. In 1968, Pearson retired and Trudeau succeeded him as prime minister. The bill did not pass before the 1968 election, but was re-introduced by John Turner, Minister of Justice in the Trudeau government. Parliament passed the bill in 1969.[20] In the 1970 federal statute revision, the provision was re-numbered as s. 251 of the Criminal Code.[21]

In 1975, a Committee on the Operation of the Abortion Law was appointed "to conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions [was] operating equitably across Canada", and to make recommendations "on the operation of this law rather than recommendations on the underlying policy". The Committee, known as the Badgley Committee after its Chair, Dr. Robin F. Badgley,[22] reported in January 1977. It found, quite simply, that "the procedures set out for the operation of Abortion Law are not working equitably across Canada". In large part, this was because the intent of the law was neither clear nor agreed upon. Access to abortion as set out in the Criminal Code was not available for many women due to variations in distribution of hospitals and doctors, and in whether Therapeutic Abortion Committees were set up and in doctors' interpretations of "health" for women, ages of consent, and parental notification requirements. The report recommended better family planning to reduce the number of unwanted pregnancies; but their main conclusion was that abortion services were not being delivered as required.[23]

Dr. Henry Morgentaler was an abortion-rights advocate physician who fought numerous legal battles aimed at expanding abortion rights.

In defiance of the law, Dr. Henry Morgentaler began performing abortions at his clinic without approval of a Therapeutic Abortion Committee and in contravention of the law.[27] In 1973, Morgentaler stated publicly that he had performed 5,000 abortions without the permission of the three-doctor committees, even going so far as to videotape himself performing operations.[28]

The Attorney General of Quebec prosecuted Morgentaler twice, and both times juries refused to convict him despite his outright admission that he had performed many abortions. The Attorney General appealed one of the acquittals. In 1974, the Quebec Court of Appeal overturned the jury's verdict, and Morgentaler was sentenced to 18 months in jail. Morgentaler then appealed to the Supreme Court of Canada from the overturning of the jury verdict. He also challenged the constitutional validity of s. 251 under the division of powers. In 1975, the Supreme Court dismissed his appeal.[29] Public outcry over the decision caused the federal government to amend the Criminal Code (commonly known as the Morgentaler Amendment) preventing appeal courts from substituting a conviction for a jury's not-guilty verdict.[30] Morgentaler was again acquitted at a third trial, causing the Quebec government to declare the law unenforceable.[6]

Morgentaler's struggle prompted a nationwide movement to reform Canada's abortion laws. In 1970, as part of the Abortion Caravan, 35 women chained themselves to the parliamentary gallery in the House of Commons, closing Parliament for the first time in Canadian history.[31]

Upon his release from prison in Quebec, Morgentaler decided to challenge the law in other provinces. Over the next ten years, he opened and operated private abortion clinics across the country in direct violation of the law. Following a fourth jury acquittal in 1984, the Ontario government appealed the decision. The Ontario Court of Appeal set aside the acquittal and ordered a re-trial.[6]

Morgentaler, in turn, appealed to the Supreme Court of Canada.

In a landmark decision, the Supreme Court declared in 1988 the entirety of the country's abortion law to be unconstitutional: R. v. Morgentaler.[32] By a 5-2 decision, the Court held that section 251 of the Criminal Code was of no force or effect because it violated section 7 of the Canadian Charter of Rights and Freedoms. Section 7 states that: "Everyone has the right to life, liberty, and the security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice." The Court also held that the infringement could not be justified under s. 1 of the Charter, which in some cases allows a government to provide a reasonable justification for the infringement.

There was no single majority judgment. Chief Justice Dickson, Justice Beetz, and Justice Wilson all wrote decisions finding the law to be unconstitutional, but for varying reasons in support. Justice McIntyre wrote the dissenting opinion.

Chief Justice Dickson held that "[f]orcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations" infringed the woman's right to security of the person, as protected by s. 7 of the Charter.[33] Justice Wilson found that the law "asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state" which similarly breached the right to security of the person.[34][6]

Having found that law infringed the right to security of the person, the majority then considered whether that infringement was consistent with the principles of fundamental justice, which is the second branch of s. 7 of the Charter. The judges in the majority agreed that the procedural requirements to obtain an abortion, as set forth in the law, were especially troublesome. Only accredited or approved hospitals could perform abortions, which imposed a barrier to local access. The law also specified that women wanting an abortion were required to obtain approval from a "therapeutic abortion committee" in a hospital. The committee was composed of at least three physicians appointed by the hospital's board of members, and did not include the practitioner who was to perform the procedure.[35] The court found that the committee requirement was deeply flawed, in part because of the long delays caused by the committees and that in many hospitals, the committees were merely committees on paper and did not actually approve abortions.

Chief Justice Dickson held that "the structure -- the system regulating access to therapeutic abortions -- is manifestly unfair. It contains so many potential barriers to its own operation that the defence it creates will in many circumstances be practically unavailable to women who would prima facie qualify..." Noted barriers included a lack of hospitals with committees, doctors who did not wish to refer matters to committees, the lack of a standard meaning for "health" leading to inconsistent standards among committees, and geographical and financial differentials in treatment. He concluded the provision violated the principles of fundamental justice.[36]

The majority of the court in Morgentaler did not find it necessary to consider whether there was a substantive right to abortion under Section 7. Justice Wilson was of the opinion that such a right existed, but the other judges in the majority made their decision on procedural grounds, relating to the insufficiencies in the committee process.

Following the Supreme Court decision, the Mulroney government made two attempts to enact a new abortion law.

In the spring of 1988, the government first attempted to find a compromise solution that would give easy access to abortion in the early stages of pregnancy and criminalize late term ones. The motion in the House of Commons was defeated 147 to 76, voted against by both MPs who opposed easy access to abortions and those who opposed adding any abortion rules to the Criminal Code.[37]

The Supreme Court decision became an important issue in the 1988 federal election later that fall. Both the Progressive Conservative and Liberal parties were sharply divided on the issue and neither party advanced a concrete platform on the abortion issue. Prime Minister Brian Mulroney declared he was opposed to "abortion on demand", but gave no details on what that meant legally.[38] Liberal leader John Turner stated that MPs should be allowed to vote their conscience, but refused to give his own opinion on the issue. NDP leader Ed Broadbent had a firm position that abortion is a medical matter, not a criminal one, and should be left to a woman and her doctor.[39] The Mulroney government was returned in the 1988 election.

In 1989, the government introduced a much stricter bill in the House of Commons. If enacted, it would ban all abortions unless a doctor ruled the woman's life or health would be threatened. Anyone found in violation of the law could be imprisoned for up to two years.[40] The House of Commons passed the new bill by nine votes, with the cabinet being whipped in favour and most anti-abortion members supporting it.[41] In June 1990, a teenager from Kitchener, Ontario, was injured during a botched abortion performed in a man's home. Several days later, a Toronto woman, Yvonne Jurewicz, died from a self-induced, coat-hanger abortion.[42] These cases were reported in the news and the latter case was discussed at multiple levels of government. Speaking in the Legislative Assembly of British Columbia, New Democratic MLA Darlene Marzari pointed out:

For our purposes, though technically speaking the bill has not been proclaimed, Bill C-43 is, in the minds of the public and in the minds of women, now law. In fact, while we're dancing on the head of a pin and counting ourselves as angels, a woman in Toronto has died—she bled to death—three weeks ago. Her name was Yvonne Jurewicz, she was 20 years old and was probably afraid to go to the doctor and afraid to go to the hospital after she tried to abort herself. This is the sad fact of Bill C-43. While we debate the minor points of whether or not the Lieutenant Governor or the Governor-General of Canada has picked it up, we know that young women in this country are under the impression they will be considered criminals if they show up in an emergency ward door hemorrhaging.[43]

Reform Party MP Deborah Grey, who supported the bill, denied that this death, the first known death from illegal abortion in Ontario in twenty years, could have anything to do with the publicity surrounding the passing of Bill C-43.[44] But in Ontario, the connection was made. Richard Johnston, MPP suggested to Premier David Peterson that Ontario announce it would not start any third-party prosecutions against women or doctors, to prevent any further tragedies and to reassure doctors that they could go on providing services to the women of Ontario.[45]

A few months later, the bill failed in the Senate on a tie vote. Under the rules of the Senate, a tie meant the measure was defeated.[46] The defeat was somewhat unexpected since it was the first time since 1941 that the Senate, whose members are appointed, had outright defeated legislation passed by the House. Eike-Henner Kluge the director of the Canadian Medical Association ethics and legal affairs viewed that the bill was flawed ethically. Eike-Henner Kluge drafted an analysis for a Senate committee about Bill C-43 and his presentation may have swayed two votes to change resulting in a tie vote which resulted in the Senate not passing the Bill C-43.^[5]

In the wake of the controversy surrounding passage of the Goods and Services Tax the Progressive Conservative government did not wish to provoke a contest of wills with the Senate and announced it would not re-introduce the legislation. The fact that no subsequent government has re-visited this decision has been what has led to the unique situation of Canada having no abortion law whatsoever. Abortion was now treated like any other medical procedure, governed by provincial and medical regulations.

The court in Morgentaler did not consider the question of whether the unborn were included in the "everyone" who have the right to life. At that time, another case before the courts would have raised that issue; it was brought by Joe Borowski, a Member of the Legislative Assembly of Manitoba. However, after the Morgentaler decision, the Court held that the Borowski case was moot since Morgentaler had struck down the provisions it was challenging.

Two further cases, Tremblay v. Daigle and R. v. Sullivan,[47] relied on the born alive rule, inherited from English common law, to determine that the fetus was not a person: Sullivan could not be charged with murder of a fetus and Daigle could not seek standing in court as the guardian of a fetus. The 1989 Supreme Court of Canada case of Chantal Daigle[48] is one of the most widely publicized cases concerning abortion in Canada after the law prohibiting abortions was overturned by the Supreme Court of Canada. Daigle's ex-boyfriend obtained a restraining order against her having an abortion. While the restraining order was issued in Quebec, it was legally restricting Canada-wide. The Supreme Court of Canada ruled that only the woman could make the choice; the man had no legal say in a woman's choice to terminate a pregnancy or carry it to completion.

Daigle had already had a late second-term abortion before the Court ruled on her case. While the case was fast-tracked, the progress was so slow that Daigle would have been in the third-trimester had she waited for the ruling to be handed down. Daigle had an abortion in the United States while the case was before the Supreme Court of Canada. This was not made public until after the ruling, although it was not unexpected. This is in contrast to the Roe v. Wade case in the United States where Roe had carried the pregnancy to term. That case, however, was different from the Tremblay v. Daigle case in that it was about whether abortion was legal. In the Tremblay v. Daigle case, the question was whether a male partner has a say in whether a woman can obtain an abortion. ruling

Two further cases addressed the "interest in the fetus". In Dobson (Litigation Guardian of) v. Dobson,[49] a grandfather attempted to act on behalf of a child born with cerebral palsy, supposedly resulting from a car accident in which the mother was the driver. He attempted to sue the mother with negligence in driving. The mother was in favor of the suit succeeding as it would have provided her with funds to raise her disabled child; her insurance company was defending the suit through subrogation. Citing the Kamloops v. Nielsen,[50] the Court decided that courts cannot impose a duty of care on a pregnant woman toward her fetus because it would interfere with the exercise of her autonomy rights during pregnancy and faced difficulty in defining a standard of care in pregnancy. Only a legislature can do this. In Winnipeg Child & Family Services (Northwest Area) v. G. (D.F.),[51] courts determined that a pregnant woman addicted to solvents could not be civilly committed for treatment.

In 2004, Dr. Henry Morgentaler launched a judicial battle against the New Brunswick government, seeking to have abortion recognized as a constitutional right under the Canadian Charter. In a review of Regulation 84-20 in 2014, the government eliminated the requirement for two physicians to certify the medical necessity of a procedure effective 1 January 2015. The amended regulation requires all abortions be performed in a hospital.[54]

Until 2004, Manitoba did not fund private abortion clinics. However, in July 2004 the province's only private abortion clinic was purchased by a non-profit organization, which then successfully sued the provincial government to pay for abortion procedures there. In December 2004, a Manitoba Justice ruled that the province must pay for all therapeutic abortions.[55] This was overruled in 2005 by the Manitoba Court of Appeal because the trial Justice should not have made a decision based on written documents only.[56] Leave to appeal to the Supreme Court of Canada was denied.[57] The same plaintiffs have launched a new court challenge to the government practice of not paying for therapeutic abortions outside hospitals.[58]

Quebec used to fund only in part abortions done in private facilities. A 2006 judgment concluded that this practice did not conform to the Act respecting the Régie de l'assurance maladie du Québec;[59] it was initially decided that abortion in private facilities would only be fully paid for if a woman could show that she attempted to obtain an abortion in the public system and could not obtain one.[60] In January 2008, the government decided to fund all abortions without any limitations.[61]

Access in British Columbia (BC) is governed by the Access to Abortion Services Act, which limits political demonstrations outside abortion-providing facilities, doctor's offices, and doctor's homes to set distances. Similarly, demonstrations are prohibited in certain "buffer zones" in Ontario under the Safe Access to Abortion Services Act.