Legal Abortion in Canada Unlike

Legal Abortion in Canada

Unlike the U.S. where feminism has been defending a woman's right to a legal abortion since the 1980s, the Canadian movement has made some significant gains. Abortion was decriminalized and abortion clinics were established in Canada as a result of directly challenging federal and provincial governments. Pro-choice groups worked towards legalization for six years. On January 28, 1988, the Supreme Court of Canada declared Section 251 of the Criminal Code unconstitutional. Section 251 restricted conditions under which abortions could be performed and not be considered an indictable offense. The procedure had to be performed in an accredited hospital and could only be done with the written consent of a therapeutic abortion committee. The committee was composed of at least three doctors, who had to find demonstrable evidence that a pregnancy was endangering either the life or health of the pregnant woman. Usually, health was interpreted to mean mental health (Weir, 1994), and women often said they would kill themselves if they were forced to complete the pregnancy.

Before de-criminalization, inequality was a primary feature of Canadian women's access to safe and legal abortions (Palley, 2006; Weir, 1994). During the 1980s anti-choice groups were mobilizing to pressure hospitals into abolishment of abortion services. This pressure combined with the punitive criminal law meant that great variability existed regionally in the availability of abortion services. The delay between the first visit to the doctor and the actual procedure averaged about 8 weeks! "No abortions were performed in certain provinces, and in others abortion services were narrowly circumscribed" (Weir, 1994, p. 253).

Section 251 was passed in 1969. This law criminalized abortion under any circumstances but in an accredited hospital with a therapeutic abortion committee. Activism in opposition to that law began in 1970 when Dr. Henry Morgentaler was arrested for doing abortions without the consent of an abortion committee and outside of an accredited hospital. He performed the abortions as an act of civil disobedience, and when he was prosecuted in Quebec in 1973, 1975 and 1976, all three juries refused to convict him as a criminal. In 1976 a newly elected Parti Quebecois government refused to continue with the prosecutions of Dr. Morgentaler, and English Canadian activism subsided because the new government promised there would be no further cases brought before the Court for violation of Section 251 (Albert, 2005). Although Section 251 was a federal law, cases were prosecuted in the provinces. Abortion was de-criminalized, but women continued to fight in Quebec for better access to abortion services and for public medical insurance coverage for abortions done in clinics and health centers (Palley, 2006).

By the 1980s in English Canadian cities, anti-choice groups had stepped up their opposition to legal abortion and their political activities had greatly increased. Feminist health care workers were experiencing problems with abortion referrals. In Toronto work began on building a clinic. Dr. Morgentaler announced that he would build two clinics separate from hospitals and without any therapeutic abortion committees. Technically, such "freestanding" clinics were illegal in Canada. Soon after the Morgentaler clinics opened in Winnipeg and Toronto, and after Section 251 of the Criminal Code was declared unconstitutional in the Supreme Court of Canada, freestanding clinics became commonplace in all provinces except Nova Scotia (Palley, 2006; Weir, 1994).

Immediately after abortion was de-criminalized in the Supreme Court, pro-choice groups went to work to prevent new legislation that would try to make abortion illegal again. Their slogan was "No New Law!" Despite their efforts, however, the federal government did try to enact new legislation (Bill C-43) to re-criminalize abortion. The bill passed in the House of Commons, but in January, 1991, the Canadian Senate defeated it. Weir (1994) suggests that currently, attempts to amend the Criminal Code are improbable, and no new attempts are likely to be made for at least a generation.

The "No New Law!" campaign then shifted its focus to the establishment of freestanding clinics and insurance coverage for women who needed the procedure. Because provincial governments regulate health care in Canada, pressure was put on them for publicly funded clinics. Pro-choice activists also pressured the federal government to approve RU-486 for Canadian testing.

Although criminal sanctions are no longer in force, improved equal access has been disappointing. Rich women have always had access to safe abortions and always had a choice, but working women have not. Their choice was inhibited by the state's involvement. Weir (1994) states the women now who have the greatest difficulties are women of colour, rural women, women from under-serviced areas, poor women, unemployed women, women with disabilities, and women whose first language is not English. How much money women have and what kind of work they are employed in makes a huge difference in their ability to access abortion services.

Access to legal abortions is regulated under provincial health policies (Palley, 2006). The Canada Health Act requires provinces to provide equal access to health care facilities. The national policy since 1995 has been that abortion is a medically necessary service, but this policy often gets undermined by the politics of provinces and territories and intense pressures by anti-choice interest groups. Canada's federal government is limited in its powers and only allowed to sanction provincial violations of the Canada Health Act (with financial penalties). The federal government does not usually interfere with provincial health affairs. Palley (2006) states, "Also, the federal government at the national level has not utilized sufficient financial penalties to ward off substantial lack of compliance with respect to provision of abortion services in many of Canada's provinces and territories" (p. 565). This perhaps explains why inequality of access to services still exists.