The Canadian Abortion Situation
Dr Henry Morgentaler
In Canada, abortion is a health matter, not a criminal offence and it has been this way for the last 21 years. This move, from crime to health, was largely the result of two extraordinary factors: the courage of Dr Henry Morgentaler on the one hand and the Canadian Charter of Rights and Freedoms on the other. Undeniably, without the perseverance of advocates and health providers as well, the change could not have happened.
For those who do not know about Morgentaler’s influence on the abortion rights of women, this is a brief summary. He was born in 1923 in Poland. His father was active in the Jewish Socialist society and was killed by the Gestapo. Henry was sent to a concentration camp in 1944. He survived and subsequently emigrated to Canada.
He trained as a doctor in Montreal and practised as a GP until, in 1967, he made public the fact that he was performing abortions. In 1968, he set up a private abortion clinic in Montreal. Montreal is French-speaking and predominantly Catholic but women still came to him for abortions. He claimed he had done 5,000 abortions. At that time, the law allowed abortion only for saving the life of the mother. In addition, abortions had to be approved by an Abortion Therapeutic Committee, which met once or twice a month, and could only be performed in a hospital. Morgentaler was prosecuted for breaking the law, found not guilty, then guilty on an appeal by the police and went to prison. He appealed and was again found not guilty. He was released from prison after 10 months.
In 1983, he was again charged, again acquitted by a jury and once again had this decision reversed by a Court of Appeal. The case then went to the Supreme Court where he was finally acquitted. In addition, the Supreme Court found that the law that he had supposedly broken, was a violation of women’s rights and freedoms. The Canadian Charter of Rights and Freedoms had been passed into law in 1981. This landmark decision in Regina v Morgentaler took abortion out of the criminal code and into the jurisdiction of health.
Henry Morgentaler has had death threats against him, he has been attacked, he lost his medical licence at one point and one of his clinics was bombed. He suffered a heart attack while in solitary confinement in prison. He has paid dearly for his beliefs that women should have free access to abortion. However, he has received accolades too. He was named a Member of the Order of Canada – this prompted the resignation of four other Members who objected to sharing this honour with him. When he was awarded an honorary doctorate, the occasion was marked by vociferous protests from anti-abortion activists.
While Canada seems to have reached their nirvana on abortion in fact there are still problems of unequal access, 12 week limits in most facilities, delays, insufficient doctors who will perform abortions, and the attitudes of some staff and others who are anti-abortion.
The courts continue to play an important role as provinces which will not fund a clinic or deny women safe and timely abortions are taken to court. These challenges have largely been successful although some cases are still ongoing. Issues over parental or partner approval likewise have been dealt with – the need to seek the approval of others is a violation women’s equality and rights.
Also posing a threat to the status quo are the anti-choice MPs, making up about 30% of the Canadian Parliament. There has been a succession of private members’ bills aimed at restricting abortions, the latest being the Unborn Victims of Crime bill. However, the Charter of Rights and Freedoms makes it quite clear that politicians cannot restrict the rights of women to make their own choices. In the words of a lawyer speaking in a symposium to celebrate 20 years of decriminalized abortion services: “the pregnant woman and the unborn child speak with one voice, and that voice is hers.”
Finally, it is worth reflecting on the words of two Canadian judges:
Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of her security of the person.
A compilation of presentations from the symposium to celebrate 20 years of decriminalized abortion services is available at: http://prochoice.org/pubs_research/publications/downloads/canada/ofwhatdifference.pdf.
Pat Syme
Pat spent some time in Canada, met Dr Morgentaler and has maintained an interest in Canadian abortion issues. She is a long standing member of ALRANZ.