Divisiveness of the Issue
In practice, the abortion law had never been enforced against physicians in Canada, and therefore the defence was untried by Canadian courts. Physicians who had been performing abortions before the amendments had established an ad hoc review system varying widely between cities, provinces and regions. A subjective and inconsistent body of "health" definitions was legitimized and left to the medical profession to refine. The legality of an abortion was based upon local definitions of health and availability predicated upon where a woman lived, the religious and political orientation of health services providers in the area, service funding priorities, economic status of the woman and her ability to travel to obtain services. Abortion remained a divisive moral, legal, sociological, philosophical and demographic issue, condemned by some groups and supported by others as a moral issue to be decided by individuals, not the state.
The first physician prosecuted for performing an abortion was Dr Henry MORGENTALER. He had failed to obtain review of his decision to perform an abortion by a therapeutic abortion committee as required by the Criminal Code of Canada.
A jury acquitted Dr Morgentaler of performing abortions in 1973 but in 1975 the Supreme Court overturned the jury finding and he served a prison term. The Supreme Court, however, established that the defence of necessity was theoretically available for abortions performed by physicians outside the strict terms of the Criminal Code of Canada but not specifically available for Dr Morgentaler.
The issue polarized around the questions of whether a fetus had a right to "life" independent of its mother and whether a woman's "liberty" included a right to choose to terminate a pregnancy. Challenges under the Canadian Bill of Rights were brought by Joseph Borowski, a former Manitoba legislator, on behalf of fetal rights, and by Dr Morgentaler in defence to his prosecution. The Bill of Rights was strictly construed by the courts as not providing for court review of the substance of legislation and the rights challenges were not substantively dealt with.
With the patriation of the Canadian constitution in 1982, and the vesting of equality rights provisions of the Canadian Charter of Rights and Freedoms in 1985, a new series of constitutional challenges and test cases involving the fetal rights and choice positions, litigants again being Borowski and Morgentaler, began working their way through the courts, resulting in Criminal Code abortion provisions being struck down as an infringement of a woman's constitutional right to choose. In 1988 the Supreme Court struck down the law on the grounds that the Charter guaranteed a woman's right to the security of her person. The Court also found that this right was breached by the delays resulting from therapeutic abortion committee procedures.
The fetal rights issue was finally decided in the 1989 case Daigle v Tremblay, where the Supreme Court of Canada found that only a human being had constitutional rights, such rights commencing at the time of live birth. The Court also decided that the father of a fetus has no proprietary interest in a fetus and may not obtain an injunction to prevent a woman from exercising her constitutional right of choice to have an abortion. In May 1990 the House of Commons approved (140-131) a new law that would put abortion back into the Criminal Code, allowing abortions only if a doctor determined that a woman's health was threatened by her pregnancy. The bill died in the Senate in January 1991.
The courts also reviewed, under administrative law and the traditional constitutional law, various colourable attempts by provinces and municipalities under medical services enactments purporting to fall within provincial powers under the Constitution Act of 1867 to restrict or render difficult the ability of pregnant women to exercise a right of choice. All such attempts failed. The dispute shifted to political attempts to deny funding to private abortion clinics and to ban the establishment of clinics within provinces.
In the 1993 Morgentaler challenge of the Nova Scotia Medical Services Act, the Supreme Court of Canada struck down legislation banning abortion clinics. In 1996, the Alberta government, after being penalized under the Canada Health Act for permitting private billing practices at provincial abortion clinics, agreed to fund the clinics. The ultimate resolution by the Supreme Court of Canada after full intervention by both sides of the abortion issue has not, however, resolved the longstanding public debate about abortion. Some extremists purporting to support fetal rights have resorted to violence towards medical staff performing abortions in British Columbia, and to protests at abortion clinics across Canada. In June 1996, an Ottawa woman was charged with attempted murder of her fetus for shooting a pellet gun into the fetus 2 days prior to its live birth. This case will require further consideration of the stage of pregnancy at which legal protection for the fetus, if any, is provided.
Author LINDA LONG
Links to Other Sites
Supreme Court of Canada
The extensive website for the Supreme Court of Canada provides access to the Court's online library catalogue, biographies of Supreme Court Judges, an overview of Canada’s judicial system and related information.
Abortion rights: A timeline of developments
A CBC chronology of major events and issues related to the practice of abortion in Canada.