Canada

ccess still the main

issue

0 years after abortion law

By KERRY MCCUAIG he January, 1988 Supreme Court deci- sion striking down the country’s abor- tion law as uncon- stitutional, was the single most impor- tant victory for women’s equality in the post war period.

Unfortunately it could also become one of the most short lived. Eighteen months after that historic ruling, the federal 80vernment has served notice that it intends to bring in new legislation restricting abor- Hon. That in itself is not surprising, but Complicating the struggle are differences among pro-choice supporters as to whether a new law would be a good thing.

This significance of the 1988 decision can

© measured by the state of abortion only a

Seneration ago. Prior to 1969, not only abortion, but birth control and the dissemi- Nation of any related information was ille- gal in Canada. True, the pill had been around for six years and condoms had long been available but neither could be mar- keted as birth control. Condoms were pro- Moted to prevent the spread of venereal disease, while many women were on the pill for “menstrual irregularities.” __ Abortions did take place of course. Dur- Ing the days of no health insurance, women with money and connections received the Procedure in hospital from doctors willing to book them in for a “dilation and curet- tage.” For those others, there was the back alley “alternative.”

The 1977 Badgley Report, the result of a

government-appointed committee investi- -

gating the application of the abortion law, revealed that prior to the law’s enactment, the number one cause of death of women during their reproductive years was compli- Cations arising from illegal abortions.

While the new women’s movement made the right to abortion one of their major demands, the Canadian Medical Associa- on also played a role in convincing the then Liberal government to regulate the Procedure. Its reasons were less than altruistic — they wanted clear guidelines and protection for their members.

The law made abortion the one medical Operation covered in the Criminal Code. Section 251 of the code forbade abortions, xcept when performed in an accredited hospital, after approval by a therapeutic abortion committee (TAC) of a least three doctors. The committee had to decide if the continuation of the pregnancy would endanger the life or health of the woman.

But Section 251 did not require hospitals to establish committees and most didn’t.

Ccess was further restricted by right wing 8toups who swamped hospital boards and dissolved the TACs. By 1983 only 30 per cent of Canadian hospitals had committees, and 18 per cent of these performed no abor- ons. The demand on hospitals performing abortions led to the imposition of quotas.

Cronto hospitals were getting 75 calls a

ay from women seeking abortions. They booked only six. Women who could find the money were forced to travel outside their communities.

_ While women were challenging the abor- tion law in their own way, it was Montreal Physician Dr. Henry Morgentaler whose Name would become irrevocably linked to Women’s right to choose.

Practising in a working class district of the city, Morgentaler, performed abortons ©n Women whose health was jeopardized by €xcessive child bearing. In the early ’70s he Was caught, arrested and tried.

Morgentaler wasn’t the first doctor to be

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arrested for “procuring a miscarriage.” What made his case different was the inter- vening emergence of the new women’s

movement which made his trial a political -

cause.

Morgentaler would not only be credited with having Canada’s abortion law declared unconstitutional — he was also instrumen- tal in injecting some democracy into the judicial system.

Acquitted by a jury at his first trial, the decision was overturned by the Quebec Court of Appeal. The doctor would spend 10 months in prison before the Supreme Court ruled that higher courts did not have the right to reverse jury decisions. (Jury decisions can still be appealed for irregulari- ties and a new trial-ordered.)

Rg ST It is unjust to expect women faced with an already stressful situation to have to deal with

the encumbrance of a law.

(SES WE TET

With Morgentaler’s release from prison and his second jury acquittal, the women’s and labour movement joined forces and openly established an abortion clinic in the premises of large Quebec union, giving notice to both the state and the right-wing that Morgentaler was not operating on his own.

Another arrest, jury trial and acquittal followed before in 1976 the newly elected Parti Quebecios government informed Ottawa its abortion law was unenforceable.

The number of women travelling to Quebec from the rest of the country promp- ted the pro-choice movement to urge Mor- gentaler to set up clinics in Toronto and Winnipeg in 1984. Brutal police raids and arrests enraged supporters. Another acquit- tal by a Toronto jury, inevitably followed by a Crown appeal brought Morgentaler once again before the Supreme Court. :

This time with the 1982 Charter of Rights and Freedoms in place, Morgentaler’s defence chose to challenge the constitution- ality of the law.

The Supreme Court concurred and in January, 1988 ruled that the delays and regional disparities caused by the TAC sys- tem jeopardized women’s health and there- fore her right to “security of the person” under the Charter.

In a parallel case arguing constitutional protection for the fetus, brought by Alliance for Life president Joe Borowski, the court ruled that in the absence of a law it would not be prudent for them to make a judge- ment on fetal rights.

While there was-a general call from the pro-choice movement for no new law,

Dr. Henry Morgentaler at 1980 rally in Vancouver.

many of their efforts were spent engaged in guerrilla tactics trying to protect the clinics from the antics of pro-life groups and their “Operation Rescue.” ‘

Pro-choice activists were also engaged on another front, fending off attempts by pro- vincial governments to circumvent the Supreme Court ruling by setting up road- blocks to the opening of clinics in their jurisdictions, or de-insuring abortion servi- ces.

Parliament was largely ignored. Groups such as the Canadian Abortion Rights Action League banked on the extreme polarization among MPs on the issue.

With a core of about 80 anti-choice MPs unwilling to countenance abortion under any circumstances, and another 60 pro- choice members refusing to entertain any restrictions on the procedure, there was a legislative stalemate.

The status quo remained in place until July, 1989 when a rash of court injunctions were sought by men trying to prevent their former partners from having abortions.

While all three cases were eventually won in the courts and the women had their abor- tions, the ensuing publicity did damage the pro-choice cause.

All the cases were based on the father’s right to intervene on behalf of the fetus. In the Toronto case of Barbara Dodd, the injunction was overturned in part because of discrepancies as to whether the plaintiff was the father — leaving questions as to the rights of men whose paternity is not in dispute.

In the Chantal Daigle case, the Supreme Court has yet to bring down its reasons for overturning the Quebec Court of Appeals decision that the fetus is a person under the Quebec Charter. It is unlikely that the courts will rule on the primacy of women’s rights over the fetus; rather it is likely to base its decision on jurisdictional grounds.

Meanwhile the pressure on MPs to com- promise around a law has become intense. In the week following the Supreme Court ruling a Gallup Poll found the lowest sup- port in a decade for the right to choose. Only 55 per cent of respondents felt abor- tion should be a decision between a woman and her doctor. A poll in the spring of 1988 had 69 per cent of Canadians backing that position.

While the majority of respondents, 89 per

. cent, support legalized abortion, a growing

number are calling for restrictions on the procedure. Behind the call for limits was the publicity surrounding the injunctions.

Dodd’s personal history of three abor- tions unnerved some in the pro-choice camp who view abortion as a last resort. More significant was Daigle’s late term abortion. Even committed choice suppor- ters have difficulties with aborting 21-week- old fetuses.

Significantly, the media debate around Daigle’s dilemma ignored the increasing threat to her health as the judiciary delayed her operation. Instead it chose to centre its attention on the growing viability of the fetus.

The fact that statistics show both the Dodd and Daigle situations to be highly atypical hasn’t figured largely in the debate. A very small number of abortions — only 0.3 per cent _— are performed after 20 weeks. The number drops to .03 per cent after 23 weeks. Doctors in Canada don’t do elective late term abortions.

1: aS aT

Choice coalitions in Quebec and English Canada have chosen October 14 as a Day of Action for Choice on Abortion. Se reer see eo ere

As for abortion being a form of birth control, the vast majority of Canadian women never have an abortion, and repeat abortions count for less than seven per cent of cases.

There is also a misconception among some pro-choice supporters that a new law would save women the pain of having their personal lives splattered across the media.

But even under the old law men still attempted to get injunctions preventing their partners from obtaining an abortion. Injunctions are civil cases and unless there is federal legislation giving women the inalien- able right to choose, the doors are still open for men to intervene.

While the January, 1988 decision gave Parliament the option to regulate late term abortions, it did not insist that it do so. Similarly, the 1972 Roe versus Wade deci- sion in the U.S. left individual states with the option to impose restrictions after the first trimester — and half do not.

Undoubtedly any restrictions on late term abortions would be subjected to the same constitutional challenge as prevailed over the old law. Women seeking late abor- tions are often young, economically disad- vantaged and/or live in remote areas. Ignorance about their own bodies often lead young women to deny their pregnan- cies. Lack of access to abortion services outside major centres presents financial obstacles.

A major reason for late term abortions is that a wanted pregnancy has come to endanger a woman’ life or health; or amni- ocentesis, which can not be done until after the 16th week of gestation has revealed a defective fetus.

It is unjust to expect women faced with an already stressful situation to have to deal with the encumbrance of a law.

Nor would a law guarantee access to abortion. Ottawa already has all the clout it needs under the Canada Health Act. The Act empowers the federal government to withhold funds from provinces which won’t provide, or try to de-insure, medical services — including abortion. The only missing element is Ottawa’s will to enforce the legislation.

The only group that appears to be unbending in the abortion debate is the anti- choice parliamentary faction who sum up their stand as “‘no compromises. No excep- tions.”

Less firm is the pro-choice side. Some of the 60 are in cabinet and the prime minister has said that while he’ll accept dissension in his caucus he won’t brook it from ministers. Liberal pro-choice supporters are actively seeking a compromise within the party. The New Democrats are expected to support their party’s pro-choice policy, but they don’t hold enough seats themselves to block any legislation.

Pro-choice coalitions in Quebec and Eng- lish Canada have chosen Oct. 14 asa Day of Action for Choice on Abortion. The rea- sons for free access are as compelling as they were in 1969. The majority will have to become vocal if Canada is to remain with- out an abortion law.

Pacific Tribune, September 11, 1989 « 3

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