Thirty years later
Three decades after Morgentaler ruling, ‘we have a long way to go as a country’
It’s 1979. A 20-year-old student misses her period.
“I was in my third year of university. I used oral contraceptives but I got pregnant,” the woman, now in her late 50s, said in a recent interview from Montreal. “I hadn’t finished my degree. I wasn’t ready for a family.”
She avoided the French-language Catholic hospital where she lived in Moncton, N.B., and instead booked an appointment with a gynecologist at the city’s English-language hospital.
“If you were early enough, I heard he would perform an abortion. It’s where all the French girls went,” she says.
But there was a catch: she was told she had to be suicidal to obtain the procedure.
“I had to say I would kill myself. It had to be a life-or-death situation,” she recalls.
She declared herself mentally ill, but says now she felt lucky considering the difficulty some women had getting abortion services at the time.
“I was in a safe environment in a hospital. It wasn’t a backalley office somewhere,” she says. “I didn’t die and I wasn’t left infertile.”
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This January marks 30 years since the Supreme Court of Canada struck down the country’s abortion law as unconstitutional.
The Jan. 28, 1988, Morgentaler decision overturned a law that criminalized abortions unless a panel of doctors agreed a woman’s life or health was threatened by the pregnancy _ likely the rule that compelled a Moncton gynecologist in the 1970s to require a woman to declare herself suicidal.
The country’s highest court found the criminal law violated the Charter of Rights and Freedoms’ guarantee of life, liberty and security of the person.
“Bravo for the women of Canada!” Henry Morgentaler, doctor and abortion rights advocate, said outside the Supreme Court chambers. “Justice for the women of Canada has finally arrived!”
Three decades later, the landmark abortion ruling still stands as the country’s touchstone on abortion rights.
But the issue continues to be a source of polarizing debate, and voices on both sides have called for legislation: Anti-abortion groups want a criminal law banning or restricting abortion, while advocates of women’s right to choose say legislation is needed to improve abortion access and curb harassment against doctors and patients.
“Even though 30 years have passed since the abortion law was struck down in Canada, we unfortunately are still dealing with the same issues,” says Arlene Leibovitch, Morgentaler’s widow and owner of the Toronto and Ottawa Morgentaler clinics.
Anti-abortion groups rally outside abortion clinics, wielding graphic placards and intimidating doctors and patients, she says.
“The Morgentaler clinic in Ottawa has been subjected to some of the most vicious protesting in the province and women’s rights to privacy have been grossly compromised,” Leibovitch says. “It’s extremely stressful for both the staff and the patients to get basically attacked by a barrage of very vivid posters and signs and people yelling at them as they’re coming into the clinic.”
Ontario’s so-called bubble zone legislation _ aimed at creating safe access zones outside abortion clinics _ is expected to take effect soon. But she questions why it’s taken three decades for the province to act.
“How could this still be happening in this day and age when abortion has been legal for 30 years?”
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The Supreme Court’s watershed 1988 decision made Canada one of a handful of countries without a law either restricting or ensuring access to abortion.
It’s a legislative void some anti-abortion politicians and advocates have tried hard to fill. They argue that the intention of the court was not to remove all limits on abortion, but rather to ensure those limits didn’t violate a pregnant woman’s right under the charter.
But attempts to re-criminalize abortion have failed.
As justice minister in Brian Mulroney’s Progressive Conservative government, Kim Campbell introduced a bill in the late 1980s that would have made abortion a criminal offence unless performed by a doctor who believed the health or life of the woman was threatened.
The bill, which replaced the opinion of a hospital committee with one physician, was approved by the House of Commons only to be defeated in the Senate following a tied vote in 1991.
Since then, successive federal governments have sidestepped attempts to criminalize abortion. Several private members’ bills have attempted, and failed, to make aspects of abortion illegal, including a bill to criminalize inducing an abortion after 20 weeks gestation and a bill to make it an offence to injure an unborn child while committing an offence against the mother.
Abortion rights advocate Joyce Arthur argues that granting legal rights to a fetus is a slippery slope that could lead to restricting the rights of pregnant women in the future.
“We need to make sure antichoice (advocates) have no grounds to build on,” says Arthur, executive director of the Abortion Rights Coalition of Canada. “Without any restrictions, they don’t have a framework to build on.”
In other countries, Arthur says criminal laws that make abortions illegal after certain gestational ages are used as a foothold by anti-abortion activists to try to further limit abortion access. Yet abortion opponents argue the Supreme Court’s Morgentaler decision left the fetus unprotected.
“We literally are a lawless nation with respect to abortion,” says Jack Fonseca with Campaign Life Coalition, a group that opposes abortion. “A woman could legally abort her unborn child at any point before going into labour, right up to the moment of birth.”
The Toronto-based organization wants an outright ban on abortion with few exceptions.
Natalie Sonnen with LifeCanada, an anti-abortion group, says “any law at this point would be better than the current situation where abortion can be obtained throughout all nine months for any reason.”
But Joanna Erdman, Dalhousie University’s MacBain Chair in Health Law and Policy, says those claims are false.
“It’s really a red herring. It’s a total falsehood that someone just walks into a clinic in Canada and asks for a late-term abortion and gets it,” says Erdman, an associate professor at the university’s Schulich School of Law.
While there is no criminal law restricting abortion, she says it’s treated like any other medical procedure and is regulated by medical policies, codes of ethics and protocols.
“We have no unique criminal law provision on abortion because there are lots of laws that regulate abortion as a medical procedure,” Erdman says. “Suggesting that women are regularly accessing late abortions just doesn’t at all reflect the reality of abortion practice.”
In 2015, the Canadian Institute for Health Information recorded a total of 100,104 abortions across Canada in both clinics and hospitals.
Only hospitals, where about one-third of abortions are performed, report gestational age. About 2.5 per cent of abortions were induced at a gestation over 20 weeks, according to the federal agency’s figures.
However, Arthur says hospitals do the vast majority of lateterm abortions. As most clinics only do abortions up to 12 or 16 weeks, she estimates just over 0.5 per cent of abortions are done after 20 weeks.
“In practice, almost all abortions over 20 weeks are done for lethal fetal abnormalities. The fetus is not viable and won’t survive after birth,” Arthur says. “A small minority are done for other compelling reasons, such as a girl abused by her stepfather.”
Erdman adds that for the most part, late-term abortions are “absolutely tragic cases of wanted pregnancies in which there is a diagnosis. It’s absolutely cruel to force a woman to carry a stillbirth to term and not have a way to intervene.”
Meanwhile, finding a physician who is trained and willing to perform late-stage abortions makes them largely inaccessible. Lianne Yoshida, medical codirector of the Termination of Pregnancy Unit at the QEII Hospital in Halifax, says abortions later in pregnancy are limited for many reasons.
“The main one is surgical expertise. The procedure is more complicated and requires different equipment and skill set for the doctor to be able to do them safely,” she says.
The recurring anti-abortion stance that the lack of a criminal law will lead to women aborting a nine-month-old fetus is one Arthur calls “misogynistic and insulting.”
“It’s been refuted over and over again but they keep saying it,” she says. “It’s based on the assumption that women are so stupid and callous that they are going to have an abortion at nine months for any trivial reason and a doctors will do it. It’s nonsense and it’s infuriating, and it’s a form of hate speech against women and doctors.”
Arthur adds: “We’ve had no restrictions on abortion for 29 years so that itself is proof we don’t need any.”
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Early in his career, Morgentaler turned women seeking abortions away. It was illegal, and he didn’t want to break the law.
But it gnawed at his conscience, Leibovitch says, and in 1969 he opened his first abortion clinic.
“For Henry, the fact that women were dying was wrong and unnecessary. It’s a very simple procedure,” she says, noting that abortions up to 12 weeks take about two to three minutes.
Morgentaler was repeatedly arrested and thrown in jail for performing abortions. But juries repeatedly acquitted him, refusing to enforce a law perceived to be unjust.
Even after the landmark 1988 ruling, Morgentaler continued to advocate for abortion funding and access across the country despite death threats and the bombing of his Toronto clinic.
“Young people today have a hard time understanding how incredibly hard the fight was to achieve the rights that they have,” Leibovitch says. “Women were trying to self-induce abortions from unqualified doctors with devastating results. They were often subjected to perforation and a lot of them bled out or ended up with massive infections unable to have children in the future.”
While access to abortion has improved significantly since the Morgentaler decision, women in rural areas are often forced to travel some distance for the service.
“I think access has absolutely made huge strides but there are still barriers,” says Sarah Hobbs Blyth, executive director of Planned Parenthood Toronto.
Only one in six hospitals in Canada performs abortions and some provinces have no standalone abortion clinics at all. New Brunswick, meanwhile, continues to refuse to fund abortions at the province’s only clinic.
“We have had a significant and long-standing lack of leadership within executive branches of government to actually make access to abortion a barrier-free reality,” says Sandeep Prasad, an Ottawa-based lawyer and activist with Action Canada for Sexual Health and Rights.
For example, Mifegymiso, the two-step abortion pill, became available in France and China in 1988 _ the same year Canada decriminalized abortion.
Health Canada didn’t approve Mifegymiso until July 2015, and barriers still remain to its use _ it can only be prescribed up to nine weeks, and can be subject to a requirement for an ultrasound.
“It’s been available for 30 years and it’s just reaching the Canadian market now,” Prasad says, noting that while an ultrasound is recommended, there are other safe methods to rule out ectopic pregnancy and confirm gestational age.
“In many areas of sexual reproductive rights, we have a long way to go as a country.” ***
It’s been almost 30 years since that cold January day when the country’s highest court struck down the criminal law against abortion.
While there continues to be opposition to abortion, multiple polls in recent years suggest Canadian attitudes have shifted towards a woman’s right to choose.
Leibovitch credits much of the progress in the area of women’s reproductive rights to Morgentaler, who passed away in 2013.
“Henry Morgentaler was an extremely brave and courageous man who fought for what he believed in and for the rights of the people of Canada,” she says.
“He suffered through the Holocaust, lost almost his entire family, pursued a medical degree despite anti-Semitic climates that were still ongoing in Europe and he arrived in this country as an immigrant and struggled for decades so others could have rights.”