History, Law, and Access

By Joyce Arthur (copyright © October 1999)

• Introduction
• History of Abortion in Canada
• Access and Funding Issues
• From Coast to Coast
• Anti-Choice Activity
• Conclusion
• References / Bibliography

Canada is one of the very few countries in the world that has NO criminal law restricting abortion at all. We first liberalized our law against abortion in 1969; then our Supreme Court threw it out completely in 1988. And we've been doing just fine without it. In the 11 years since we began our great experiment, we've found that doctors and women exercise the right to abortion responsibly, without the need for any legal restrictions. We don't need gestational limits. We don't need waiting periods. We don't need parental or spousal consent laws. And we don't need restrictions on certain types of abortions.

I'd like to share with you Canada's unique history of abortion, how it came to be that we have no law, and what abortion services in Canada are like today.

First, I must admit that Canada has its share of 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, especially around election time. 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 size, and that makes it much harder to deliver accessible abortion services to all Canadian women. Also, many clinic abortions are not funded in Canada, which forces women to go to hospitals instead. Unfortunately, hospitals in Canada may not be the easiest or most supportive places to obtain an abortion.

A second problem is anti-choice harassment and violence, all of it either copied or directly imported from the United States. Three Canadian doctors have been shot in the last five years, and an American anti-abortion 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!

I'll expand on each of these issues a bit later -- access, funding, and anti-choice activity -- but first let me take you on a tour of Canadian history.

Canada has a fascinating and unique history around abortion, because a single lone figure -- one doctor -- stands out as a great Canadian hero, a pioneer who forged the way in the struggle for safe, legal abortion on demand.

Like most other countries, Canada criminalized abortion in the 19th century. The Canadian Parliament banned it completely in 1869 under threat of life imprisonment. Statistics on illegal abortion are always hard to come by, but we do know that between 1926 and 1947, 4,000 to 6,000 Canadian women died as a result of bungled, illegal abortions. By the 1960's, it was estimated that anywhere from 35,000 to 120,000 abortions were being performed every year. Today, Canada's legal abortion rate is about 100,000 a year.

Pressure to liberalize Canada's abortion law began in the 1960's. It came primarily from medical and legal associations, but also from various women's and social justice groups, such as the Humanist Fellowship of Montreal, whose president at the time was Dr. Henry Morgentaler.

In 1967, the Justice Minister of Canada presented a bill to liberalize Canada's abortion law. It would still be a crime, of course; but the 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. The Justice Minister who presented the bill was Pierre Trudeau, destined to become one of Canada's most famous and charismatic prime ministers. Trudeau not only succeeded in liberalizing Canada's abortion law, his bill also legalized homosexuality and contraception, both of which had been completely illegal up until then. When he introduced his bill, Trudeau uttered what is probably his most famous line: "The state has no business in the bedrooms of the nation!"

The bill became law in 1969, exactly 100 years after abortion was first made illegal in Canada. The new law was an odd piece of work. It gave the medical profession exactly what they had asked for -- legal sanction for the status quo. You see, in the old days, groups of doctors at some big-city hospitals would get together and approve abortions by committee. That made it harder to prosecute any lone doctor. So the new law was great for doctors, but it didn't do much for women. There were immediate and ongoing problems. First, hospitals were not required to set up therapeutic abortion committees (TACs), so most simply didn't, even if they were the only hospital around. Second, TACs often took 6-8 weeks to process an application for an abortion, or they would impose quotas. Third, each TAC would interpret the law differently. The law allowed abortion to preserve the woman's "health", a vague term that some TACs interpreted conservatively, others liberally, with the result that some TACs approved very few abortions, while others simply rubber-stamped them all. Fourth, TACs were overwhelmingly male, meaning that men were dictating the fate of women they had never even met. Fifth, the anti-abortion movement started taking over hospital boards, and once in control, they would either disband the TAC, or staff it with anti-choice doctors. So in practice, access to abortion was very unfair, just like it was before the law. The only women who had relatively good access to abortion tended to be educated, middle and upper-class women who lived in big cities. For the majority of women who were poor or who lived outside major centres, there was virtually no access to legal abortion at all.

One person who hated the new law was Dr. Henry Morgentaler, a family physician from Montreal, and a Polish survivor of the Nazi concentration camps. Dr. Morgentaler had lobbied for a change to the old law back in 1967, stating that women had a basic right to abortion, that it was not just a privilege. After the 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. Dr. Morgentaler's conscience felt better, but now he was an outlaw. Even with the liberalized abortion law, he was still an outlaw, because abortions were only supposed to be performed in hospitals, with the permission of three doctors.

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 (where he practiced), and three times Quebec juries refused to convict him. The courts were outraged at this rebellion by the juries against the law, because Morgentaler had clearly broken the law, and even boasted about it.

At 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. Also during his prison stay, he was tried on a second set of charges and acquitted again by another jury. There was a political cartoon published at the time that showed a prison guard pushing Dr. Morgentaler's food under the grill and saying, "Congratulations, doctor, you've been acquitted again!"

Morgentaler's ordeal created an uproar in the civil rights community, and resulted in a new federal law that prohibited courts from cancelling a jury verdict. The law was named in honour of Dr. Morgentaler. The government set aside the doctor's first wrongful conviction, but ordered a new trial, at which he was acquitted again. Finally, after serving 10 months in jail, Morgentaler was released. By this time, Quebec had a new government, which decided that the abortion law was unenforceable. They offered Morgentaler freedom from prosecution and dropped all further charges against him.

Meanwhile, a growing abortion rights movement was becoming galvanized by Morgentaler's struggle. Hundreds had mobilized around his legal defence, and his civil disobedience was a major catalyst for the budding feminist movement in Canada. In May, 1970, one year after the new abortion law, the first national feminist protest took place -- the Abortion Caravan. Women travelled over 3,000 miles from Vancouver to Ottawa, gathering numbers as they went. In Ottawa (Canada's capital), the Abortion Caravan held two days of demonstrations. As a finale, 35 women chained themselves to the parliamentary gallery in the House of Commons, closing Parliament for the first time in Canadian history. The Abortion Caravan helped politicize and activate women around the country. One group, the Canadian Alliance to Repeal the Abortion Law, or CARAL, formed in 1974. Today, they are called the Canadian Abortion Rights Action League -- Canada's only national group dedicated to defending abortion rights.

After Morgentaler was finally freed from the threat of criminal prosecutions in his own province of Quebec, he decided to challenge the law in other provinces. With the help of CARAL and other women's groups, 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! Unfortunately, Canadian governments and courts are very slow learners. 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 declared unconstitutional, in its entirety. They tossed it out. Dr. Morgentaler's struggle was over, his actions and principles were vindicated, and all Canadian women now had the promise of complete reproductive freedom.

The legal victory was a decisive one. The court fully recognized that the law was unfair, that it presented unreasonable obstacles to women seeking abortions. The abortion law was in breach of Canada's Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person. As 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."

As you can guess, this wasn't the end of things. In spite of the decision's noble language, the Supreme Court actually encouraged the government to create a new, "improved" law against abortion. A year later, the government introduced a bill making doctors fully responsible for the abortion decision, with a two-year jail term as punishment if the woman's health was not at risk. While the bill was being debated and fought over, close to 100 doctors quit performing abortions, and another 275 promised to quit if the bill passed. The bill was passed in the House of Commons, but when it went to the Senate, it was defeated there by a tie vote. That's how precarious a woman's right to abortion was -- after so many years of bitter struggle and our great victory, we almost lost it then and there, because a hundred politicians, mostly men, figured they had the right to decide on abortion, not women. It was an important lesson that clearly demonstrates that as long as abortion remains politicized -- not just in Canada, but anywhere -- women's right to abortion will never be safe.

After the defeat of that bill, the government finally gave up and washed their hands of the abortion issue. They promised not to introduce a new law again. So Canadian women finally won an unfettered right to abortion upon request. Or did they? After all, our government's decision to leave things alone was not based on a passionate belief in a woman's right to choose. It was simply based on distaste for having to deal with anything controversial. I guess we're lucky to have a do-nothing government on our side for a change, but in politics, you never can tell what the future will bring. We must always be vigilant.

In the 1990's, access to abortion did improve tremendously. There are now many clinics and health centres 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. Even though there's no gestational limits in Canada, over 90% of abortions are done in the first trimester, only 2-3% are done after 16 weeks, and no doctor does abortions past 20 or 21 weeks except for compelling health or genetic reasons. Our overall abortion rate is about 16 per 1000 women of child-bearing age per year, a fairly low rate compared to other developed countries. And about 80% of Canadian women use some form of contraception (compared to 64% of American women).

Today, Canada's pro-choice movement focuses most of their work around three issues: access, clinic funding, and anti-choice activity. I'll expand a bit on each of these, with some examples from different regions of Canada.

Canada is divided into ten provinces and three northern territories. 90% of Canada's population of 30 million people live within 100 miles of the U.S. border. That's because our great white north is a harsh environment to live in. This causes serious access problems for many women from northern regions, as well as outside the major centres. It's common for women to travel hundreds of miles to find the closest abortion provider.

Abortion access is closely tied to hospital funding versus clinic funding. Nearly two-thirds of all abortions in Canada are still performed in hospitals, although that number decreases every year. Hospital abortions are more common simply because the federal government pays for them. Provincial governments are required to fund abortions in clinics, but some don't. Two provinces provide only partial funding to clinics (Quebec and Nova Scotia), and two refuse to pay a penny (New Brunswick and Manitoba). The Nova Scotia government is so stubborn on this issue, they prefer to pay $130,000 a year in penalties to the federal government rather than pay for a poor woman's abortion.

Clinics also do fewer abortions than hospitals because there still aren't enough clinics. Part of the problem is political, and part of it is because Canada's small population means there simply isn't enough demand for abortion to support independent clinics except in the largest cities. Free-standing clinics are also not well-suited to small communities, because it's hard for patients and medical staff to remain anonymous.

Even though so many women must depend on hospitals, it can be difficult to obtain abortions there. Only about a third or so of hospitals actually do abortions, forcing many women, especially rural women, to travel in search of an abortion provider. Some hospitals put women through an illegal approval process; some have quotas; a few require parental consent for surgery on minors (with no exemption for abortions); some will only perform first-trimester abortions; and some have long waiting lists -- four to six weeks in some cases. Hospitals also require a doctor's referral for an abortion, which can be very difficult to obtain for women living in conservative areas. Finally, not only does a woman receive no counselling at a hospital, she may have to face anti-choice medical staff who disapprove of her decision.

Abortion is the only medical procedure in Canada that does not meet the most basic requirements of the Canada Health Act, which states that insured medical services must be universal, accessible, portable, and comprehensive.

Generally speaking, access to abortion is the worst in the Maritime provinces (on the east coast of Canada), which is the poorest part of Canada. When it comes to abortion, the province of Prince Edward Island is our national disgrace. The government there refuses to provide any abortion services whatsoever. PEI is very conservative and the Catholic Church also has a strong presence. The province will pay for hospital abortions in other provinces for women willing to travel, but through luck or design, virtually no hospital in the Maritimes will perform abortions on women from out-of-province. So, every year, 200 women a year from Prince Edward Island travel to a private clinic in New Brunswick or Nova Scotia, at great personal expense. If they are unlucky enough to be over 16 weeks pregnant, they must travel to Montreal, Toronto, or Boston. Things are a little easier for PEI women now -- in 1997, a very long bridge was built connecting the Island to New Brunswick. Now, PEI women can drive across the bridge, have their abortion, and come back the same day. This is all very nice, but building a bridge to another province seems an awfully expensive way for the government to avoid their responsibility to women.

Only Newfoundland provides full funding for all abortions, including at its single clinic. By the way, Dr. Morgentaler is still very busy fighting legal battles in Canada, but his focus has now switched to clinic funding. Recently, he's been trying to force provincial governments to fund his clinics in Nova Scotia and New Brunswick, with no luck so far. He wins in court, but the governments just refuse to pay. Morgentaler is not one to give up, though. In 1994, New Brunswick took him to court to stop him from opening a clinic in the province, but they eventually failed, after numerous court cases and appeals. They even tried to take away his licence to practice medicine, but that didn't work either. And in Nova Scotia, after Morgentaler announced he was opening a clinic there, the government passed a law in one day outlawing clinic abortions. The moment poor Dr. Morgentaler started performing abortions at his brand new clinic, they swooped in to arrest him. What a coup for the government! But their gloating turned glum when they came out the losers after another endless round of taxpayer-funded trials and appeals.

Because of lack of clinic funding, about 90% of Nova Scotia's abortions are performed in hospitals. In New Brunswick, hospitals cannot keep up with the demand, forcing many women to pay in full for a clinic abortion, or travel to another province. New Brunswick's clinic must fly in a doctor every week because no local physician performs abortions.

Back in Morgentaler's home province, Quebec, things are much improved compared to earlier decades. Abortions are now being performed in 30 hospitals, 11 community health centres, 5 private clinics, and 3 other centres. The private clinics are only partially funded, but all abortions at hospitals and community health centres are fully funded. Quebec has a mostly liberal, French-speaking, Catholic population, but the Pope and the Vatican have very little influence there. Believe it or not, Quebec's Archbishop is in favour of contraception! In addition, anti-choice opposition is very weak and almost non-existent. Quebec was responsible for the famous case of Chantal Daigle. In 1989, one year after Canada's abortion law was thrown out, this young woman's boyfriend managed to get a court injunction preventing her from getting an abortion. Ms. Daigle's case went all the way to the Supreme Court, although by the time the court ruled on the case, Ms. Daigle had secretly managed to obtain a late-term abortion in the U.S. The court went on to decide that a father has no legal right to veto a woman's abortion decision.

Ontario, Canada's wealthiest and most populated province, accounts for almost half of Canada's abortions. Most are performed in five major cities, all in Southern Ontario. However, travel grants are available to women in northern regions, and a new clinic has just opened in Sault St. Marie (in the north). Clinics have been fully funded since 1991, but in '95, a conservative government was elected, and funding was denied for new clinics. Overall access to abortion has also decreased in the last four years due to healthcare budget cuts, hospital closures, and mergers with Catholic hospitals, which deny reproductive care to their patients. Ontario is also a major target of anti-choice harassment and violence in Canada. One doctor has been shot there, and others have been threatened. In 1992, Morgentaler's Toronto clinic was destroyed by a bomb.

Manitoba, Saskatchewan, and Alberta are called the "prairie" provinces (picture those endless flat expanses of golden wheat). Again, access is concentrated mostly in the large, southern cities, with the exception of Alberta, which has clinics in both Calgary and Edmonton, up north. The Calgary clinic suffers from government-imposed quotas, which force women to wait or travel elsewhere for abortions, even while the clinic's procedure rooms sit empty. Saskatchewan has no clinics, and until 1992, only one hospital provided abortions, in Saskatoon. After Dr. Morgentaler threatened to open a clinic in Regina unless the government improved access, the Saskatchewan government finally started a Women's Health Centre at a local hospital. Anything to keep the dreaded Dr. Morgentaler out! Manitoba is the only province besides Ontario and British Columbia to have experienced an episode of serious anti-choice violence. A doctor in Winnipeg was shot in 1997. Morgentaler's clinic in Edmonton, Alberta also experienced a butyric acid attack in 1996. Butyric acid is a toxic, foul-smelling chemical that is injected inside clinics through the roof or walls. Clinics in the United States have suffered countless butyric acid attacks.

British Columbia has four clinics, all located in Vancouver. The current government in BC is very supportive, however, and has designated 33 hospitals throughout BC that must provide abortions. Clinics are fully funded, and the government has taken steps to improve access, as well as reduce the effects of anti-choice harassment and violence. BC is the only province in Canada to have legislation prohibiting the presence of anti-choice protesters outside clinics, as well as doctors' offices and homes. It's called the Access to Abortion Services Act or the bubble zone law for short. The Act has been challenged in court twice by anti-choice protesters, who believe it interferes with their freedom of speech, but the Act was upheld both times. In Canada, there is no absolute right to freedom of speech. The courts found that the bubble zone law's restrictions on freedom of speech were justified, because they applied only in a particular time, place, and manner to protect a vulnerable group -- women seeking abortions.

Canada has three northern territories, the Yukon, the Northwest Territories, and Nunavut. All are sparsely populated, and the majority of the population are First Nations people -- Canada's aboriginals. There are no clinics of course, because of the lack of a population base to support them, but abortions are available at a single hospital in the capital city of each territory (Whitehorse, Yellowknife, and Iqaluit). The territorial governments pay travel costs for women from remote areas.

First Nations women have the highest rates of abortion in Canada, because aboriginals suffer disproportionately from poverty, unemployment, and other social ills. The real challenge for First Nations women is not access to abortion, but just fighting for the right to have and keep a baby, and the ability to provide for it adequately. Indeed, some white doctors counsel First Nations women to have abortions, because they're "too poor" or "not fit to raise a child." Canada's First Nations people are only now beginning to emerge from more than a century of oppressive government policies. Today, they finally have some much-deserved political clout in Canada, and there is hope for more justice and prosperity in their future.

To a large degree, Canada's access problems reflect the degree of conservatism and anti-choice presence we have. Most provinces have at least some anti-choice activity, but two provinces, Ontario and British Columbia, bear the brunt of anti-choice violence, harassment, and clinic protests. That may be because governments there have been publicly supportive of abortion rights and have worked to improve access. In other provinces, abortion services may not be well publicized. This reduces anti-choice activity, but it also makes it harder for a woman to find the services. In areas where access is poor, like the Maritimes, the population is more conservative, and people are afraid to speak out publicly in favour of abortion rights. The anti-choice stay quiet in those situations, since all they have to do is preserve the status quo. But when the anti-choice are confronted by too many women exercising their right to abortion too openly and too easily, the anti-choice fight back, and they fight dirty.

In November 1994, the first Canadian doctor was shot in Vancouver, BC, Dr. Garson Romalis. He was shot in his home, while eating breakfast, by a sniper hiding in the back alley. Two other similar shootings followed in 1995 and 1997, first in Ontario, then Manitoba. All the shootings occurred around Nov. 11, Canada's Remembrance Day holiday for war veterans, a day that the anti-choice movement has co-opted to memorialize aborted fetuses. The sniper also struck in New York State twice, once in 1997, and again in 1998, killing Dr. Barnett Slepian. The killer is James Kopp, an American anti-abortion radical, and he is the main suspect in the Canadian shootings.

Anti-choice violence creates an atmosphere of fear and intimidation. Crimes like shootings, death threats, and clinic bombings have reduced access, because many Canadian doctors quit performing abortions to protect themselves and their families. Canada, along with the United States, already suffers from a dwindling pool of aging abortion providers, who are starting to retire. Young doctors don't remember what it was like when abortion was illegal, and they don't want to risk their personal safety to perform a medical procedure that doesn't carry as much prestige or financial reward as other specialties. One bright spot, however, is Medical Students for Choice, which has two chapters in Canada -- Toronto and Vancouver. This group is working successfully at raising awareness of the need for abortion training at medical schools.

The right to abortion in Canada now stands on very firm legal ground. The anti-choice have initiated numerous court cases over the years, trying to obtain legal protection for fetuses, but they have decisively lost every one. In at least seven major court cases, Canadian courts have 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.

In conclusion, I hope that Canada's experiences in abortion law might be useful to other countries that would like to abolish their laws against abortion. Perhaps the key is to do as we did -- adopt a liberalized abortion law that is so badly flawed, it violates people's constitutional rights! Unfortunately, although we did get the courts to toss it out, it took 20 years of difficult struggle, and women suffered in the meantime.

But living without any law against abortion has taught us that legal victories can be hollow without extensive social and government support to back them up. After all, women can't make a real choice between abortion and childbirth unless they have genuine access to abortion in all communities, and adequate social supports to help them raise their kids. Abortion providers can't give women proper access if they're the victims of anti-choice harassment and violence, or if they have to fight government repression, like Dr. Morgentaler had to and still does. Since abortion will likely stay political, perhaps the long-term solution is to pass a federal law that declares abortion to be an essential health service.

In spite of the problems, most Canadian women do enjoy relatively good access to quality abortion services. And we've accomplished much of that in only 11 years. Canada also enjoys a high approval rating for abortion. Almost 80% of Canadians believe that abortion is a private matter between a woman and her doctor, compared to less than 60% of Americans. Because we have virtually no restrictions against abortion, we've been able to spend our time working on access and funding issues, instead of fighting oppressive laws, which is what our American friends must do. Restrictions such as consent laws, waiting periods, and the like are simply cruel and unnecessary obstacles that impede a woman's ability to get a safe, early abortion.

There is no question that the absence of restrictive laws against abortion places the struggle for abortion rights on the fast track to success. Those rights can be compromised if the government is not fully committed to fulfilling them. But I believe that abolishing all laws against abortion is a crucial first step to ensure safety and access, and to promote social and political tolerance of abortion.