Abortion in Canada

Canada is one of only a few countries in the world with no laws limiting abortion. While some non-legal obstacles exist, abortion access in Canada is among the freest in the world.

Polls continue to show that a majority of Canadians believe abortion should remain legal in some circumstances (see Opinion polls, below). About 100,000 abortions are performed in Canada every year. Approximately 90 per cent of abortions are performed in the first trimester, with just 2 to 3 per cent performed after 16 weeks.

Legality

The Canadian courts have determined that a fetus has no inherent right to life in Canadian law, and no legal protection as a person until born alive. Additionally, the woman and her fetus are considered one and the same under the law.

The case of Chantale Daigle is one of the most widely publicized cases concerning abortion in Canada after the law regarding abortions was thrown out by the Supreme Court of Canada. It went before the Supreme Court of Canada in 1989. Daigle's ex-boyfriend obtained a restraining order against her having an abortion. While the restraining order was issued in Quebec, it was legally restricting Canada-wide. The case came before the Supreme Court of Canada, which ruled that only the women could make the choice; the father had no legal say in a woman's choice to terminate a pregnancy or carry it to completion.

Daigle had already had a late second-term abortion before the ruling of the Court. While the case was fast-tracked, the progress was so slow that a third-trimester abortion would have been required had Ms Daigle waited for the ruling to be handed down. The fact that Daigle had an abortion, in the United States, while the case was before the Supreme Court of Canada was not made public until after the ruling, although it was not totally unexpected. This is in contrast to the Roe vs. Wade case in the United States where Roe was forced to carry the baby to term. That case, however, was different from the Daigle case in that it was about whether abortion was legal. In the Daigle case, the question was whether a male partner has an equal say in whether a woman can obtain an abortion.

There have been several cases since then that have confirmed the decision of the court in Daigle.

Access

Abortions in Canada are provided on demand and available free of charge (as with all medical procedures) in hospitals across the country. Abortion funding for hospitals comes from the various provincial governments (their overall health expenses are however paid for in part by the federal government). One-third of hospitals perform abortions, and these perform two-thirds of abortions in the country. The remaining abortions are performed by public and private clinics. Hospital abortions are provided only under a general anaesthesia, which carries some risk in and of itself, while abortions that are performed in clinics are done with a local anaesthesia, which carries a lower health risk.

Chemical abortion is available in Canada on a limited basis using methotrexate and misoprostol; mifepristone (more widely known as RU-486) is not legally approved, and importation of that drug in Canada is currently illegal. Clinical trials were done in 2000 in various Canadian cities comparing methotrexate to mifepristone, after approbation by the federal government. While both drugs had overall similar results, mifepristone was found to act faster. (Source: "Results of the Canadian trials of RU-486") As of May 2005, it is unclear whether or when RU-486 will be approved for use in Canada.

Obstacles to access

While the provinces are required by the federal government to fund abortion clinics fully, Quebec and Nova Scotia provide only limited funding, and New Brunswick and Manitoba provide no funding for clinics. Dr. Henry Morgentaler launched in 2004 a judicial battle against the New Brunswick government, seeking abortion to be recognized as a constitutional right under the Canadian Charter.

Access in rural and northern areas, and especially in New Brunswick, Nova Scotia, and Prince Edward Island (PEI), is often restricted by the lack of nearby facilities, requiring women to travel long distances (often at their own expense) to obtain an abortion. Some hospitals refuse to perform abortions on out-of-province patients, in contravention of the portability requirement of the Canada Health Act. This can be especially troublesome for women in PEI, where no facilities currently perform abortions.

Additionally, as with all surgical procedures, a doctor's referral is required, which may be difficult to obtain in conservative areas. It has also been noted that the number of Canadian medical schools that give instruction in abortion procedures is decreasing, which could potentially create a shortfall in medical personnel skilled in this area.

Dr. Henry Morgentaler currently operates clinics in Edmonton, Winnipeg, Ottawa, Toronto, Montreal, Fredericton, Halifax, Nova Scotia and St. John's, Newfoundland. However, some of the provinces in which these clinics are located do not cover the partial or full cost of the abortion. While these are the best known clinics in Canada, there are many other clinics.

There is also difficulty with accessing third-term abortions. In Quebec, there is currently no doctor who will perform a third-term abortion unless the health of the mother is in great peril or there is a genetic problem. Currently Quebec sends women who seek to have third-term abortions performed to the United States. As Quebec is often more liberal in this area and would usually send someone to another province, it is likely that getting third-term abortions is difficult country-wide. Statistics have shown that it is most often the underpriviledged in Quebec who seek third-term abortions. Quebec is currently actively looking to hire a doctor to do third-term abortions, but has not been successful as of October 2004.

Aids to access

History

Abortion was completely banned in Canada in 1869. As in other countries, illegal abortions were still performed, leading to the deaths of many women every year. In 1892, abortion and the advertisement and distribution of contraception were made illegal in Canada.

The movement to liberalize Canada's abortion laws began in the 1960's. Then Justice Minister Pierre Trudeau introduced a bill in 1967 (amendment to Section 251 of the Canadian Criminal Code). The bill passed and became law in 1969, and provided for abortions when the health of the mother was in danger as determined by a three-doctor hospital committee. However, abortion still remained in the Criminal Code of Canada, unlike the U.S. law where after Roe vs. Wade abortion was no longer in the Criminal Code. This same bill also legalized homosexuality and contraception, and would be the subject of one of Trudeau's most famous quotations: "The state has no business in the bedrooms of the nation."

While many Canadians opposed the liberalization of abortion laws, others Canadians believed that the law did not go far enough, and that the rulings of the three-doctor committees were inconsistent and often untimely (taking perhaps several weeks). A Montreal doctor, Henry Morgentaler, not wanting to break the law, initially turned away women seeking abortions from his practice. Soon, however, he could not stand the suffering and desperation of those women; and he began performing safe abortions in his clinic in contravention of the law. In 1973, Morgentaler stated publicly that he had performed 5,000 abortions without the permission of the three-doctor-committees, even going so far as to videotape himself performing operations.

The Quebec government took Morgentaler to court twice, and both times juries refused to convict him despite his outright admission that he had performed many abortions. The government appealed one acquittal, and the appeal court overturned the jury's verdict. Morgentaler was sentenced to 18 months in jail. Public outcry over the appeal court's decision caused the federal government to pass a law (commonly known as the Morgentaler Amendment) preventing appeal courts from overturning a jury's not-guilty verdict. Pro-choice advocates pretended that Quebec government has taken exceptional steps to jail Morgentaler because he is a Holocaust survivor. Morgentaler was again acquitted at a third trial, causing the Quebec government to declare the law unenforceable.

Morgentaler's struggle prompted a nation-wide movement to reform Canada's abortion laws. In 1970, 35 women chained themselves to the parliamentary gallery in the House of Commons, closing parliament for the first time in Canadian history.

Upon his release from prison in Quebec, Morgentaler decided to challenge the law in other provinces. Over the next 15 years, he opened and operated abortion clinics across the country in direct violation of the law. Following a fourth jury acquittal in 1984, the federal government appealed the decision, and the appeals court reversed the decision.

Morgentaler, in turn, appealed to the Supreme Court of Canada. In a landmark decision, the Court declared in 1988 the entirety of the country's abortion law to be unconstitutional. The court noted that "[f]orcing 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" and that the law "asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state" were essentially a breach of the woman's right to security of the person, which is guaranteed under Canada's Charter of Rights and Freedoms.

The Court also found that the procedural requirements to obtain an abortion, as set forth in the law, were especially troublesome. Only accredited or approved hospitals could perform abortions, which imposed a barrier to local access. The law also specified that women wanting an abortion were required to consult a "Therapeutic abortion committee" (TAC), a committee of at least four physicians appointed by the hospital's board of members. The court found that the TAC was deeply flawed, in part because of the long delays caused by the TAC and that in many hospitals, the TAC were merely committees on paper and did not actually perform abortions.

In its decision (Morgentaler et. al. v. Her Majesty The Queen [1988] (1 S.C.R. 30) at 37), the Court stated:

"The right to liberty... guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life. ... The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state."

A large part of why the Supreme Court of Canada ruled against the abortion law in 1988 had to do with how amendments to the criminal code that allowed abortions (amendment to Section 251) the law worked. In order to have an abortion, a woman had to first have a doctor who was willing to give her information on the topic and refer her to another doctor, or to take the case him or herself. The abortion then had to be approved by a hospital's Therapeutic Abortion Committee (commonly known as a TAC), which was composed of three doctors. Pro-life groups attempted at times to have their members become the members of the TAC so that the hospital would no longer perform abortions.

The court noted that it was mostly always men that were deciding if a woman should have an abortion. Also, because some pro-life doctors would not take any case to a TAC, or would only take a very severe case, and because some of these doctors would not even refer a women to a doctor who would present the case to the TAC, there were barriers to women who wanted to have their applications considered by a TAC. It could take a long time for a woman to find a doctor that would take her case to the TAC. Finally, the TAC had to decide on each request for an abortion. These factors resulted in a time lag that meant that abortions were being performed much later than they could have been.

The Court also recognized that the rules resulted in unequal access to abortion to women based on the city, province and territory in which they live. The law also provided better access to middle class and affluent women. The existence of private clinics meant that women who had enough money could bypass the TAC system completely.

The court did, however, encourage the government to introduce a new and improved abortion law, which it attempted to do in 1989. This new bill, which threatened doctors with a two-year jail term if they approved an abortion when the mother's health was not in danger, was widely and loudly condemned by the country's doctors. While the bill was approved by the Canadian House of Commons, it was defeated in the Senate by a tie vote. This failure prompted the government to give up on legislating abortion entirely, leading to the unique situation of Canada having no abortion law whatsoever. However, even that attempt appeared to lead to tragedy: between the time the law was passed in the House of Commons and the time it was defeated in the senate, a 20-year-old student at the University of Waterloo bled to death after trying to perform an abortion on herself--apparently the first such case in years.

Some of the abortion clinics that have been set up by Morgentaler since the Supreme Court decision were opened to challenge provincial law on the medical financing of abortions in clinics.

Politics

Of the main federal parties, the Bloc Québécois and New Democratic Party are staunchly pro-choice while the Liberal Party of Canada and Conservative Party of Canada have both pro-choice and pro-life members (and neither party has an official position on abortion). More Liberal members are pro-choice than pro-life, and more Conservative members are pro-life than pro-choice. The ambiguity in the official stances of these two main parties has occasionally created disputes within the parties.

The recently-formed Conservative Party has, for instance, had to wrestle with combining the conflicting social policies of its two predecessor parties, the moderate Progressive Conservative Party of Canada and the more right-wing Canadian Alliance. Many socially conservative Alliance supporters were angered at the prospect of having an openly pro-choice party leader when Belinda Stronach entered the party's leadership election race in early 2004. More centrist Conservatives objected to the new party's perceived openness to anti-abortion legislation during the 2004 federal election. Part of the reason for the difficulty with party cohesion was that the election was held before there could be a policy convention. In March 2005 at a policy convention, in a narrow vote, the party voted to not introduce legislation on the subject of abortion. (Members can still introduce private members bills on the issue, which are free votes)

The Liberal Party, on the other hand, has a pro-life caucus which, while not publicly fighting to change party policy, has created a degree of uncertainty in how the party would handle the issue were it to be brought up in Parliament. Prime Minister and Liberal leader Paul Martin has indicated he would protect a woman's right to choose, but to what degree he would go in forcing his party to do so is not clear.

Although the issue is consistently rated as a low priority for most Canadians, abortion rights were raised during the 2004 federal election campaign after a Conservative Party candidate stated his personal support for mandatory abortion counselling. While the party denied any intention of introducing legislation to restrict abortion access, its perceived openness to such legislation was used by the Liberal Party as a wedge issue. The Liberal Party ultimately won a minority government, taking 37 per cent of the vote to the Conservative Party's 30 per cent, but abortion rights was not widely seen as a large factor in the outcome, as this is a divisive issue and could help or hurt both sides.

The Christian Heritage Party of Canada claims to be Canada's only pro-life federal political party. It has garnered from 0.3% to 0.78% of the popular vote at the elections since its founding in 1987.

Opinion polls

Opinion polls on the issue of abortion have shown mixed results. A Gallup poll in December 2001 asked respondents: "Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances and in what circumstances?" The results showed that 32 percent of Canadians believed abortion should be legal in all circumstances (down from 37% in 2000), 52 percent believed abortion should only be legal in certain circumstances and 14 percent thought abortions should be illegal in all circumstances, (up 9 percent from 2000).

In a poll conducted by the National Post in November 2002, 78 per cent of respondents answered "yes" to the question: "Should women have complete freedom on their decision to have an abortion?". A poll in October 2003 conducted by Leger asked about prenatal legal protection, and several abortion-related topics. 63% said they favoured legal protection for human life before birth and 69% favour informed consent legislation on abortion.

Among provinces, British Columbia and Quebec have the highest percentage who are pro-choice, and the Prairies have the highest percentage who are pro-life.

Pro-life movement

The pro-life movement in Canada is focused on the Campaign Life Coalition, REAL Women of Canada, and the Catholic Church.

Possibly due to spillover as a result of the increasingly social conservative makeup of the United States, the movement has been slowly increasing in Canada, and the opposing groups have seen increased membership in the 2000s, particularly outside of Quebec.

Crisis pregnancy centres

"Crisis pregnancy centres" and other offices claiming to offer counselling to pregnant women have been established by pro-life organizations such as "Birthright". These offices do not provide medical referrals or abortions, and may not be qualified to offer objective medical advice. The advertising for these offices discloses neither the identity of the sponsoring organization, nor the motives on which these services operate.

Pro-choice advocates claim that these offices use questionable tactics such as:

introducing unnecessary delays to makes abortions more difficult to obtain because of the increased medical risk,
using fear to persuade women that abortion will do medical harm,
using political or religious arguments to persuade women that abortion is morally wrong; and
pressuring women to carry unwanted pregnancies to term in order to provide a baby for adoption.

Pro-choice advocates argue that adoption is an imperfect solution for two main reasons:

According to the Adoption Council of Canada, there are already more than 70,000 children in the care of child welfare organizations across Canada; the claim that there are no Canadian children available for adoption is false.
Pressure on women to produce babies for adoption has many serious, long-term psychological consequences according to groups such as Exiled Mothers which claim to represent birth parents of adopted babies.

Attacks on doctors who perform abortions

Three Canadian doctors who perform abortions have been shot. All of the shootings occurred on or near November 11, which is celebrated as Remembrance Day in Canada, the day for remembering soldiers who have fought for Canada during wars.

November 8, 1994, Vancouver doctor Garson Romalis shot and wounded.
November 10, 1995, Dr. Hugh Short of Ancaster, Ont. targeted while eating breakfast in his home.
November 11, 1997 Dr. Jack Fainman of Winnipeg shot.

An American doctor, Barnett Slepian of Amherst, New York, was shot and killed on October 23, 1998.

It is believed that the shootings were done by an American sniper, James Charles Kopp, who has shot several doctors in the United States. James Kopp has been charged in the shooting of Dr. Short and the killing of Dr. Slepian.

In 1992, Morgentaler's Toronto clinic was firebombed and sustained severe damage. The event occurred at night, so no one was injured, although a nearby bookstore was damaged. Appointments were switched to another clinic in Toronto and no abortions were prevented.

External links

Neutral organizations

Pro-life organizations

Pro-choice organizations