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Apr 18 2014

The Constitutionality of Abortion Policy in New Brunswick – Chapter 1

Tia Beaudoin, a recent Political Science Honours graduate at University of New Brunswick, has kindly offered her thesis as a series of guest blog posts on the subject of the abortion policy in NB, with particular regard to the laws that have resulted in abortion being virtually inaccessible for much of the Maritimes.

As it’s very long, I’ve broken it up into multiple posts:

Cover / Works Cited
Introduction
Chapter 1: A Social and Legal History of Abortion in Canada
Chapter 2: New Brunswick: Openly Defying the Canada Health Act
Conclusion

As an editor’s note, I should point out that Dr. Henry Morgentaler died last May, and after his death, the clinic he founded in New Brunswick — which he’d been fighting to force the government to cover the costs of the procedures done there in the courts over the last 11 years — was forced to close for lack of funding, despite the Canada Health Act requiring funding of abortions. The provincial government, thanks to Regulation 84-20, only covers funding for abortions recommended by two doctors as “medically necessary” — a law that makes it nearly impossible to obtain the two doctors’ sign-off during the mandated first twelve weeks of the woman’s pregnancy. Those two facts essentially make it impossible to get medical funding, and the clinic under Morgentaler had mandated to never turn away a woman in need. As a result, it has lost close to $100,000 over the past ten years.

Worse, the lawsuit was dropped in the wake of the ongoing backlash against Regulation 84-20.

Chapter 1: A Social and Legal History of Abortion in Canada

This chapter will give a summary of federal abortion legislation from Confederation until present day. It will also describe the various societal problems associated with each historical stage of abortion legality, such as the widespread and at times deadly practice of illegal abortion. I will discuss how the societal issue of illegal abortion, coupled with the illegality of contraceptives and sexual health information and the sexual revolution and Second Wave feminism of the 1960’s brought about a surge in reproductive justice activism which helped fuel the flames of change in Canada. I will also consider the introduction of the Canadian Charter of Rights and Freedoms, and how it led to one of the most significant moments in the history of abortion in Canada, the Supreme Court’s 1988 Morgentaler decision. I will conclude by describing Prime Minister Brian Mulroney’s designation of abortion as a medical issue, thereby placing it’s regulation under provincial jurisdiction, which led to the numerous problems New Brunswick is facing today.

Surprisingly, countries in which abortion is illegal often have the highest abortion rates, and this statistic has weight in any discussion of women’s health. Although abortion was illegal in Canada for nearly a century, many women suffered and died from illegal abortions. In fact, during the early part of the 18th century, advertisements for cures for “female troubles” and ways to make a woman “regular” were quite common, and these were usually for the purposes of preventing conception or ending an early pregnancy.1 During this period up until the 1960’s women would often seek out ‘back alley’ abortionists, or attempt to perform an abortion themselves through various methods. Under unsanitary unsafe conditions, combined with inexperienced and untrained hands, many women were mutilated, made infertile, or killed through these practices. Even if an illegal abortion did not leave lasting damage, the experience was still incredibly traumatizing and painful for women, as there were no adequate avenues for sufficient aftercare or counseling due to the illegality of the procedure. Various methods used for illegal abortions include “insertion of sharp objects…harsh chemicals… by drinking poisonous substances, or through severe pelvic pummeling.”2 Many women sought out doctors to perform their abortions, although many of these practitioners did not have their licenses or any relevant medical training. Another option was to travel outside of Canada to the United States or Mexico to find a doctor willing to perform the operation. Both of these options were incredibly expensive, a woman describing an abortion from 1960 stated her procedure cost the equivalent of four month’s rent at the time.3 According to many accounts from women, abortionists were often unsympathetic, judgmental, cruel, and in some cases sexually harassed their patients. Abortions such as these were often extremely painful, and usually an abortionist would not risk anesthesia or medication because the procedure being performed was strictly illegal, and the use of these substances would increase the risk of both the abortionist and the woman being caught. Many instances of poor aftercare were also reported during this time period. When abortion is not legal or regulated in any fashion, it is clear that the consequences are indeed dire. This was unfortunately the case in Canadian legal history for some time.

In many respects, Canada’s history has been heavily influenced by the country’s close colonial ties with Britain. The legal past of abortion in Canada is no different. Prior to Confederation in 1867, abortion was considered illegal under numerous provincial governments. A few decades after Confederation in 1892, Canada’s first Criminal Code became law. Within the Code, specifically sections 271-272, practicing abortions or receiving an abortion became a criminal offense punishable by life imprisonment. This abortion legislation continued to act as a standard for the medical community until Prime Minister Pierre Trudeau’s radical Criminal Code reforms, finalized in 1969.

By the late 1960’s, abortion had been included within the Criminal Code for nearly a century. These laws, over the years, proved themselves to be quite redundant and harmful to the Canadian public. While many women spent exorbitant amounts of money and put their lives at risk for an illegal ‘back alley’ or self-induced abortion, many women in urban centers from wealthy families who may have had certain connections unavailable to middle or lower class women were covertly admitted as ‘private patients’ in hospitals to receive safe procedures from trained doctors.4 In addition to this, doctors commonly performed abortions on women who had high risk or unviable pregnancies which would put the woman’s life in danger. The doctors who performed these practices and the women who underwent them were almost never prosecuted. The issue of illegal abortions was made even worse at the time, because distribution of accurate information and materials concerning contraception was illegal as well. The problems and inequalities came to an apex during the Western sexual revolution in the 1960’s. During the feminist movement’s Second Wave, women’s groups were becoming more vocal about their desire for contraceptive information and materials, as well as the legalization and accessibility of abortion. In addition to this, women and men were enjoying a radical new sexual freedom, which was causing an increase in unwanted pregnancies. In 1968, then Justice Minister, Pierre Trudeau recognized these problems in Canadian society and set into motion a vast Criminal Code amendment which attempted to address many of these issues, including the legalization of homosexuality and contraceptives, and increased the accessibility of divorce, and abortion under certain circumstances. The act passed during the following year, after Trudeau had been elected as Prime Minister.

For the first time in Canadian history, abortions were legalized, however only under certain conditions as described in section 251 of the Criminal Code. A woman could receive an abortion if she had received written permission which acknowledged that her pregnancy was harmful to her life or health. A woman was only eligible for permission if she was over 21 years old. This permission was granted by an accredited hospital’s panel of three physicians called a Therapeutic Abortion Committee, otherwise known as a TAC. She could then receive her abortion only in the specific accredited hospital in which she had gained permission, by a doctor who was not on the hospital’s TAC. 5 Any other form of abortion was still illegal; any person performing an illegal abortion was at risk of life imprisonment, and the woman procuring the illegal abortion risked a maximum sentence of 2 years. These restrictions included physicians who performed abortions in clinics.6

While Trudeau’s abortion legislation had improved upon the preexisting situation, and had opened doors for women to receive abortions legally, it was extensively thought that the changes did not go far enough. The most obvious problem with this policy is the age limitation. In a 2010 study, just over half of the teen pregnancy rate resulted in abortion. 7 With the far higher social stigma that was placed upon teenage pregnancy in the 1970’s and 1980’s, coupled with the decreased knowledge about contraceptives compared to today, there must have been numerous pregnant teenagers who were forced to give birth to unwanted pregnancies; or worse, sought out their own methods of abortion. Another problem was the ambiguity in the wording of this policy. The definition of “health” was never given by the government, so TACs were at liberty to decide if mental or emotional health mattered in their judgments.8 In addition to this, accredited hospitals were not forced to form TACs, or did not have enough doctors to form them. This was detrimental for rural areas, as these places were often those that clung tightest to increasingly out of date religious sexist norms, and small towns often did not have large hospitals with more than two or three doctors. The rural shortages and lack of anonymity led rural women to seek abortions in cities. The travel involved in this process cost a great deal of money, and was often entirely impossible for a pregnant woman seeking an abortion.9 The influx of rural women into city hospitals caused delays in service. In 1977, the average delay between first contact with a doctor and an abortion was eight weeks, and the health risks for the procedure increase with wait time.10 These delays were often ‘mysteriously’ avoidable for wealthy women. As before the amendments to the Criminal Code, their family’s money, power, and influence still allowed some women to get around the restrictions if they were in need. This created an inequitable situation where women from privileged families had greater access than poor women. In addition to this, abortions would often be refused to married women, unless it was a physically dangerous pregnancy. 11 At the bottom line, the decision to have a legal abortion after Trudeau’s reforms still did not belong to the woman that it most involved.

Clearly, the battle was not yet won. In the 1970’s, a simple coat hanger became a symbol of the injustice of the abortion laws, and of the women that had died from illegal abortions. The Toronto Star reported that 2000 women died in 1970 alone from illegal abortion, and another 20,000 had to be hospitalized due to complications; the year after Trudeau’s so-called ‘progressive’ reforms.12 Second wave feminism was a force which was at its peak during this time, and women were fighting for equality and sexual/reproductive rights all over the world. One of many examples of Canadian activism was the historic Abortion Caravan of 1970. A group of women organized by the Vancouver Women’s Caucus set off towards Ottawa, making stops along the way to speak publicly on sexual and reproductive freedom.13 They performed demonstrations and raised awareness, which helped their numbers grow as they continued onwards. They arrived at their destination on Mother’s Day carrying coat hangers, knitting needles, and a black coffin. Along the way toward Ottawa, the group of women would gather names of women who had died from these procedures and put the names within the coffin. They rallied for two days at Parliament Hill, some chaining themselves to chairs in Parliament, others burning effigies of the Prime Minister.14 The Vancouver Women’s Caucus was but one of hundreds of groups and individuals across the country rallying for reproductive justice, and collectively these groups were becoming louder and louder. The fight for abortion rights was becoming more public than it had ever been before.

Another sign that the abortion debate was gaining momentum in Western society was the famous Roe v. Wade case in the United States. In 1973, Roe, a pregnant Texan woman and her doctor went to court to challenge the Texan abortion law as unconstitutional. At the time, Texan law stated it was a crime to procure or perform an abortion unless medical advice was given that the abortion was needed to save the life of the mother.15 Roe won her suit, and the court found the Texan abortion laws violated women’s constitutional rights, mainly on grounds of the fourteenth amendment.16 The court stated that restricting abortion except to save a mother’s life violates the due process clause of the fourteenth amendment, which states

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.17

The Roe v. Wade case legalized abortion federally, while still allowing states the independence of formulating their own laws according to their priorities. According to many people, Roe v. Wade was not as progressive as it should have been, which was similar to the response Canadians had to the Trudeau reforms of the late 1960’s. However in a Canadian context, it symbolizes the social force of pro-choice activism as it grew over the course of the decade. It created a locus of inspiration for women’s movements in Canada: if abortion could be decriminalized federally in the United States, it could be done in Ottawa.

In the American case, the constitution was used to show that restrictive abortion policies act against women’s rights; the same method was applied in the Canadian fight for abortion rights. The introduction of the Canadian Charter of Rights and Freedoms would forever change the way policy was formulated and put into practice both federally and provincially. Rights for every individual citizen are permanently enshrined within its pages, guaranteeing in law fundamental human rights such as freedom on religion, assembly, security, mobility, and equality.18 All of these rights are inalienable, however, section 1 of the Charter states “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”19 The first section essentially captures the idea that in order to live in a cohesive and peaceful democratic society, sometimes reasonable limits must be placed upon rights, so that everyone may benefit as a whole. The introduction of the Charter heavily influenced the abortion debate as it unfolded over the late 1980’s and early 1990’s.

Dr. Henry Morgentaler is a name synonymous with abortion politics in Canada. He survived the Holocaust during the Second World War, and afterwards immigrated to Montreal where he received his medical license and became a general practitioner. Prior to the Trudeau-era reforms to the Criminal Code, Morgentaler had set up a private clinic in Montreal, and began illegally providing safe and sanitary abortions to thousands of women from all walks of life. He had decided the risk was worth it, stating to the Globe and Mail his personal reasoning; “The realization that a terrible injustice was being done to women and the conviction that it was necessary to change the situation to provide help for those who needed it…” 20 After the amendments to the Criminal Code, Morgentaler continued to operate his clinic and provide easily accessible abortions, openly defying the law. He was acquitted three times by Quebec juries; however the judge overturned the sentence of the first trial and sent the doctor to jail regardless of the jury’s whims. Eventually all charges were dropped.21 Morgentaler proceeded to provide abortions in his original clinic while opening others in various provinces throughout the 1980’s. He was arrested several times during this period but Canadian juries refused to convict him.22

Eventually his court battles, outspoken social activism and non-compliance to unjust laws led him and a few of his colleagues to the Supreme Court. The defendants argued that section 251 of the Criminal Code was unconstitutional based on sections 2(a), 7, 12, 15, 27 and 28, and that these infringements were not justifiable under section 1.23 The court investigated this central question and many other questions relating to the current abortion law. Morgentaler won his suit, and in the words of a Library of Parliament report titled Abortion in Canada: Twenty Years After R. v. Morgentaler;

Essentially, the majority agreed with the following: 1) section 251 of the Criminal Code infringed a woman’s right to security of the person, and the process by which a woman was deprived of that right was not in accord with fundamental justice (section 7 of the Charter); and 2) the state’s interest in protecting the fetus was legitimate, but the right to security of the person of a pregnant woman was infringed more than was required to achieve the objective of protecting the fetus (section 1 of the Charter)

This decision was supported by 5 of the 7 justices. Chief Justice Dickenson and Justice Lamer made one of the defining statements of the case in their supporting argument, stating “Forcing 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, is a profound interference with a woman’s body, and thus a violation of security of the person.”24 Their opinion centered closely on women’s Charter rights, while the second opinion written by Justices Beetz and Estey focused on the procedure of administering the requirements of section 251, and the significant delays caused by the inefficient, ineffectual system. The third supporting argument by Justice Wilson dealt with a woman’s “right to liberty” over private decisions concerning her reproductive abilities and her freedom of conscience; essentially, Wilson stated that a woman should be allowed to choose whether or not she believes abortion is aligned with her own morals and that the state needs to neutrally respect both viewpoints.25

Justice Wilson’s argument was the one which had the most relevance to feminist political thought. While Chief Justice Dickenson and Justice Lamer recognized section 251’s actions as infringing upon the rights of women, specifically the right to security of the person, Justice Wilson expanded upon this to make the point that section 251 encroaches upon a woman’s right to liberty and human dignity. By regulating abortion in this way, the Canadian government was dictating that Canadians (in this case, specifically Canadian woman) must adhere to an arbitrarily determined moral code that may or may not agree with any individual woman’s personal priorities or future goals. In her supporting decision, she points out that section 251

[asserts] that the woman’s capacity to reproduce is not subject to her control. It is to be subject to the control of the state…She is truly being treated as a means to an end which she does not desire but over which she has no control…Can there be anything that comports less with human dignity and self respect? 26

Although Justice Wilson did not explicitly discuss patriarchy, she considers social forces controlling and oppressing women within her argument, however she does discuss how a man is unable to make the choice (whether to have an abortion or not) for the woman, not only because it is outside of his own personal experience, but because he can “only relate to it by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.”27 In this statement, Wilson argues that women must be able to make choices concerning their own bodies by themselves without the permission or approval of men, because only they can speak for their own reality and their own experience; a statement which aptly echoes de Beauvoir’s philosophy. Justice Wilson recognized that the unconstitutionality of section 251 went far beyond faulty procedures and harming women’s aspirations. It was truly about women’s oppression and state control of reproduction. Wilson desired the laws to reflect women’s capacity to choose if and when to become a mother because of the reasons outlined above. In addition to this, she desired the government to allow for people to choose for themselves whether or not they felt abortion was true to their own individual morals. To underline this point, she made reference to section 2 (a) of the Charter, which is concerned with freedom of conscience and religion. She asserted that in addition to choosing whether or not to have an abortion, a woman must first be able to choose if abortion was right in her own religious or secular moral code, and that governments could not enforce laws based on one moral outlook at the expense of another in this particular case.28 Finally Justice Wilson, along with the other supporting Justices, affirmed that a woman’s claim to abortion was held in higher constitutional stature than the claims of society, the medical community, politicians, and the fetus itself.29 This distinction made it clear that any serious discussion of fetal rights over women’s rights to security of the person was officially unconstitutional. It was thought by some that the Morgentaler decision would be the final official word on the subject of abortion.

After many battles, fought by thousands of Canadian activists and the legal troubles suffered by Morgentaler and his associates, abortion in Canada was finally legalized in a clear majority decision by the highest court in the country. Many believe that this would and should have been the last word on the subject, that abortion would quickly become accessible to every woman in Canada according to her Charter rights. Unfortunately, this is a naïve dream. The court’s decision was politically contested very soon after the ruling was made by Prime Minister Brian Mulroney.

Within the year following this decision, Mulroney had laid the legislative groundwork to re-criminalize abortion. Throughout the 1980’s the Western world had been caught up in political neo-conservatism, and Canada was no exception. With his majority Progressive Conservative government, Mulroney passed Bill C-43, which would have “prohibited abortion unless a doctor deemed the pregnancy a threat to the woman’s physical, mental, or psychological health”.30 The bill failed on a tie Senate vote, this was attributed to the fact that the bill did not prohibit abortion enough for the anti-choice members, and it was not liberal enough for the pro-choice camp. This bill was the last significant federal legislative conflict against abortion. After the bill’s defeat, abortion was classed as a medical procedure, which is under provincial jurisdiction. Because each provincial government is sovereign over their individual health insurance plans and medical legislation, access varies widely across the country. The federal government has some oversight through the use of the Canada Health Act; however this legislation is rendered useless if it is not followed by the provinces or enforced by the federal government. This is precisely the situation New Brunswick has been in over the past decade.

1 No Choice: Canadian Women tell their stories of illegal abortion, (Toronto: Childbirth by Choice , 1998) pg.38-39.

2 International Women’s Health Program, “Sexual and Reproductive Rights and Health: Safe Abortion.” Last modified 2009.

3 No Choice, pg. 24

4 No Choice, 34

5 John English, Richard Gwyn, and Whitney Lackenbauer, The Hidden Pierre Elliott Trudeau: The Faith Behind the Politics, (Toronto: Novalis, 2004).

6 Arthur, 2009, pg. 2.

7Alexander McKay, “Trends in Canadian national and provincial/territorial teen pregnancy rates: 2001-2010,” The Candian Journal of Human Sexuality, 21, no. 3&4 (2013), pg. 169.

8Judgements of the Supreme Court of Canada, “R. v. Morgentaler.” Last modified January 28, 1988. pg. 68.

9 Ibid, pg. 71.

10Ibid, pg. 57-58.

11 Ibid, pg. 68.

12 Ormsby, Mary. “The ‘Abortion Caravan’ Succeeded. Or did it?” The Toronto Star, May 30, 2010.

13 Pro-Choice Action Network, “A Legal History of Abortion in Canada.”

14 Ormsby, 2010

15 Lawnix, “Roe v. Wade – Case Brief Summary.” Last modified 2012.

16 Ibid.

17 Teaching American History, “Ammendments to the Constitution of the United States of America.” Last modified 2012. http://teachingamericanhistory.org/library/index.asp?document=6.

18 Government of Canada, “Consitution Act 1982.”

19 Ibid.

20 Nick Rockel. “Henry Morgentaler fought a long battle to decriminalize abortion in Canada.” The Globe and Mail, October 26, 2010.

21 Howard Palley, “Canadian Abortion Policy: National Policy and the Impact of Federalism and Political Implementation on Access to Services,” Pubilis, 36, no. 4 (2006), pg. 571.

22 Ibid, pg. 572

23 R. v. Morgentaler, pg. 47.

24 Ibid, pg. 57

25 Karine Richer, “Abortion in Canada: Twenty years after R. v. Morgentaler,” Parliamentary Information and Reseach Service (2008), pg. 2-3.

26 “Abortion,” chap. 9 in Law and Morality: Readings in Legal Philosophy, ed. David Dyzenhaus and Arthur Ripstein (Toronto: University of Toronto Press, 2001).

27 Ibid, pg. 1014

28 Ibid. pg. 1016

29 Ibid. pg. 1019

30 “Will Harper’s abortion stonewall crumble around him?” Telegraph-Journal, April 5, 2013.

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    The Constitutionality of Abortion Policy in New Brunswick – Conclusion » Lousy Canuck

    […] / Works Cited Introduction Chapter 1: A Social and Legal History of Abortion in Canada Chapter 2: New Brunswick: Openly Defying the Canada Health Act […]

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