Written by: Jill Koebel (she/her).
Edited by: Etienne Maes (he/him).
Presently, there is no law governing abortion in Canada. Abortions are currently regulated through provincial/territorial and professional bodies (1), but this has not always been the case.
Canada’s first criminal code was passed in 1892 and it contained laws prohibiting the administration and advertising of both contraception and abortion (2). In 1935, this code was updated to include a ban on information regarding sexually transmitted or sexually related diseases and infections (2). The maximum sentence for a physician or other person carrying out an abortion was life inprisonment, and the pregnant person’s penalty was two years (2). Of course, this didn’t mean abortions weren’t happening; wealthy individuals received relatively safe “under the table” abortions from physicians who did the procedure for cash. Those without means were forced to perform their own abortions or undergo unsafe methods which often resulted in infections or even death.
After years of resistance from reproductive rights activists, the Pierre Trudeau government amended the criminal code in 1969, making abortion legal in very specific situations (2). Abortions were only legal when the woman’s life was threatened, and the procedures could only happen in accredited hospitals with the approval of a panel of doctors known as a “therapeutic abortion committee” (2). However, access to these committees was limited outside of major cities and decisions were inconsistent across the country (3). Furthermore, these committees were often entirely comprised of men (3).
Reproductive rights advocate Dr. Henry Morgentaler saw these inequities and took action, opening an illegal abortion clinic in Montreal in 1969 (4). For the next 20 years, Dr. Morgentaler continued to open clinics in cities across Canada and battled the justice system, being arrested several times. Despite being found innocent by a jury on three separate occasions, the Crown successfully appealed the jury’s verdict and Dr. Morgentaler was sentenced to 18 months in prison in 1975 (5). Public outrage from this sentencing resulted in an amendment to the criminal code that stripped the ability of appeal courts to substitute a jury decision (5).
After his release from prison, Dr. Morgentaler continued to provide illegal abortions to patients across Canada. He was prosecuted again, and in 1988 his case R. v. Morgentaler made its way to the Supreme Court of Canada (6). He argued abortion laws violated Section 7 of the Canadian Charter of Rights and Freedoms which guaranteed “life, liberty and security of the person” (6). As a result, on January 28 1988 a landmark decision was made and abortion was decriminalized and left to be regulated on a provincial basis (7). After the ruling, Dr. Morgentaler continued his tireless fight for reproductive justice on the provincial level (7). In 2008 he was inducted into the Order of Canada, and after years of battling poor health, he died in 2013 (7).
Dr. Morgentaler has been described as a hero who changed the landscape of reproductive justice in Canada. It is important to note, however, that R. v. Morgentaler did not result in a law that guarantees access to abortion. Therefore, a political party could theoretically attempt to pass a new bill restricting abortion, although both major political parties in Canada have stated they have no desire to do so (7). Nonetheless, legal experts are concerned about the American right-wing cultural influences that have recently affected abortion laws in the US and their potential effects in Canada (8). Prime Minister Justin Trudeau has promised access to safe and legal abortions will be protected in Canada, but no new legislation to make abortion a right has been seen (8).
Now more than ever, we must reflect on the work of Dr. Morgentaler and his team. Thanks to their bravery, abortion clinics can provide free, safe and compassionate abortion services to Canadians. In order to ensure we continue to move forward with respect to reproductive justice in this country, we must call on our governments to protect our rights and increase access to safe abortions in Canada.
References:
1. Abortion Rights Coalition of Canada. The Canadian Abortion Provider Shortage – Now and Tomorrow . Abortion Rights Coalition of Canada. https://www.arcc-cdac.ca/on-the-issues/. Accessed August 9, 2022.
2. University of Toronto Libraries. Pre-1969: Abortion and birth control. The state in the bedroom – the evolution of reproductive rights in canada. https://exhibits.library.utoronto.ca/exhibits/show/stateinthebedroom/pre-1969. Accessed August 22, 2022.
3. Shaw D. 30 years post-morgentaler decision: The journey remembered. BC Women’s Hospital. http://www.bcwomens.ca/about/news-stories/stories/30-years-post-morgentaler-decision-the-journey-remembered. Published January 27, 2018. Accessed August 22, 2022.
4. CBC News. Abortion rights: Significant moments in Canadian history. CBCnews. https://www.cbc.ca/news/canada/abortion-rights-significant-moments-in-canadian-history-1.787212. Published March 27, 2017. Accessed August 22, 2022.
5. Abdi-Moradi S. Henry Morgentaler (1923-2013) . The Embryo Project Encyclopedia. https://embryo.asu.edu/pages/henry-morgentaler-1923-2013. Published 2017. Accessed August 22, 2022.
6. Long L. Abortion in Canada. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/abortion#:~:text=Prior%20to%201969%2C%20inducing%20an,abortion%20case%20occurred%20in%201879. Published February 6, 2006. Accessed August 22, 2022.
7. Gollom M. Analysis | Why Canada’s Roe v. Wade didn’t enshrine abortion as a right. CBC. https://www.cbc.ca/news/canada/abortion-rights-canada-morgentaler-court-1.6439612. Published May 4, 2022. Accessed August 22, 2022.
8. Lake H. How Roe differs from Morgentaler. CBA National Magazine. https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2022/how-roe-vs-wade-differs-from-morgentaler. Published May 5, 2022. Accessed August 22, 2022.
