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By the time abortion is included in the House of Commons order, both sides know it won’t end until another round of the “twisting and splitting” debate is over.
Publication date:
May 08, 2022 • 16 hours ago • 6 minutes reading • 285 comments Dr. Henry Morgenthaler spoke to reporters in Ottawa after the Supreme Court of Canada ruled in his favor in challenging Canadian abortion laws, January 28, 1988. Photo: Fred Chartrand / Canadian Press / file
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In France, abortion after 14 weeks of gestation requires a doctor’s approval. In Germany, anyone who wants an abortion must undergo a mandatory consultation. Norway performs abortions on request, but only in the first trimester.
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But there is no federal law in Canada that restricts abortion.
Trying to abort a healthy fetus in the eighth month of pregnancy will turn you away from the hospital’s ethical guidelines, but there is nothing illegal about it. And all of this is due to a rapid series of events in the late 1980s, so politically traumatic that most Canadian politicians still prefer to pretend it never happened.
Prior to 1988, Canada had a much more restrictive abortion regime than the United States. While Rowe v. Wade in 1973 cleared the way for legal elective abortion in all 50 states, in Canada abortion existed only as a rare medical exception.
In order for an abortion to be performed, it had to be approved by a “therapeutic abortion committee” of doctors who were instructed to reject any abortion that did not directly endanger the life or health of the mother.
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And even that was a more liberal regime than it was before the 1970s, when the country outright criminalized the practice. In the same package of reforms to the 1969 Penal Code that legalized homosexuality, “therapeutic abortions” became the first legal abortion in Canada’s history. The law was certainly restrictive, but it was far from a total ban: in the last year of the regime, in 1987, 63,662 “therapeutic abortions” were performed in Canadian hospitals.
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Rowe’s reversal against Wade would not turn the clock back to 1973
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Politically, abortions have spent much of the 1970s and 1980s in the background of parliament. The then Prime Minister Pierre Trudeau supported numerous progressive causes during his 15-year term as prime minister, but electoral abortion was definitely not one of them. This did not arise as a major problem in any of the six federal elections between 1968 and 1988.
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When the word “abortion” was raised in the House of Commons, it was often uttered as an insult to progressive conservatives against the NDP, the first major party to put legalized abortion on its official platform. And even then, many NDPs continue to say that while they support access to abortion, they are still not very enthusiastic about the procedure itself.
“I do not support abortion,” said Stuart Legate of the NDP in a 1977 debate when an opponent of the Progressive Conservatives accused him of using the term “family planning” as a euphemism for legalized abortion.
What changed everything was R. v. Morgentaler, the 1988 decision of the Supreme Court of Canada to remove abortion from the Penal Code.
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The case culminated in nearly 20 years of open civil disobedience by Polish-born Holocaust survivor Henry Morgenthaler, who in 1969 opened Canada’s first publicly advertised abortion clinic in Montreal as an open challenge to the status quo.
The result for Morgentaler was an almost endless stream of attacks, accusations, appeals and – at one point – a short prison sentence. But it was an 1983 attack on Morgenthaler’s newly opened clinic in Toronto that would lead to charges of “conspiracy with intent to perform an abortion,” which he would spend five years challenging all the way to the Supreme Court.
The basis of the decision was that an anti-abortion law is similar to forcing Canadian women to give birth. “Forcing a woman, through the threat of criminal punishment, to bear a child by the end of time, unless she meets certain criteria that are not related to her own priorities and aspirations, is a profound intervention,” it said.
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It will be a long time before the federal government tries to legalize abortion again
The Charter of Rights and Freedoms was only six years old, and existing abortion bans in Canada were lifted in violation of the newly codified right to “security of the person.”
Contrary to popular belief, R. v. Morgentaler does not codify abortion as a constitutional right. The text even says that it is a “perfectly valid legislative goal” for Canada to have laws protecting unborn fetuses. The Charter of Rights and Freedoms, she said, does allow “reasonable limits to be set for a woman’s rights, given the fact of the developing fetus in her body.”
Everything that R. v. Morgentaler, was to repeal the existing criminal ban and return the matter to the House of Commons. The Supreme Court at the time would have suggested that Canada would continue to have an abortion law, albeit a less restrictive one.
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This was definitely an undesirable development for Brian Mulroney’s progressive Conservative government. Already embroiled in controversy over his desire for free trade with the United States, Mulroney was suddenly tasked with immersing himself in a problem he would soon describe as “too embarrassing and divisive to be allowed to last much longer.”
Recent polls show that more than three-quarters of Canadians support some form of legal abortion. But public sentiment was defined differently in the late 1980s, and after Morgentaler’s decision, Mulroney soon warned his assembly that “public sentiment against abortion could harden in the country.”
The result, introduced in 1990, was Bill C-43. Formed under the supervision of then-Justice Minister Kim Campbell, observers at the time called it a model for parliamentary compromise. He limited abortions to cases where the mother’s health was at stake – although she left a significant loophole open, including mental health in this category. Self-induced abortions – or abortions performed by anyone other than a licensed physician – will be punishable by two years in prison.
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The judgment of the Supreme Court of Canada on R. v. Morgentaler does not codify abortion as a constitutional right, as many believe. Photo by Sean Kilpatrick / The Canadian Press / File
The bill passed the House of Commons, but died suddenly the following year, when it gave a surprising tie in the Senate, which, according to Red House rules, meant an automatic defeat of the law. For better or worse, this remains the most important thing the Senate has done since its inception in 1867.
“It will be a long time before the federal government tries to legalize abortion again, certainly not for the rest of this century,” said Calgary Herald columnist William Gold, just after the Senate vote. “There are no political rewards for this work and there will be many other urgent issues that cry out for attention,” he added.
Thirty-one years later, Gold could not have been more insightful. With the exception of a few bills of private members, the House of Commons sought something that even resembled an abortion law.
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There are compelling arguments for an abortion law on both sides of the political spectrum. The selection camp sees it as a way to codify access to abortion as a protected right (rather than a medical procedure permitted by legal vacuum). The anti-abortion camp wants a legal framework that could ban late and selective abortions.
But once abortion is on the order, both sides know it won’t end until another round of “twisting and separating” debates is over.
That is why, unlike their conservative cousins in the United States, the Conservative Party of Canada is fighting hard for elections that mention abortion as little as possible. This week, when news emerged of Rowe’s possible turnaround against Wade in the United States, the immediate reaction of interim Conservative leader Candice Bergen was to say she didn’t want anything to do with it.
Read the statement: “The Conservative Party will not introduce legislation or resume the abortion debate.
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