COVER

ABORTION ON TRIAL

THE DEBATE OVER ABORTION TAKES ON A PERSONAL EDGE AS IT MOVES INTO THE COURTS

D’ARCY JENISH July 31 1989
COVER

ABORTION ON TRIAL

THE DEBATE OVER ABORTION TAKES ON A PERSONAL EDGE AS IT MOVES INTO THE COURTS

D’ARCY JENISH July 31 1989

On one level, the debate has been about nothing less than the beginning of life, an issue that has been joined with passion from coast to coast. On another, there was the human drama of two young women who met new friends in the past year, began intimate relationships and ended up making one of the most intensely personal decisions a woman can make—to have an abortion. Because of objections from both former boyfriends, the cases went to court. There, testimony and depositions revealed their most intimate secrets—and details of the mounting personal animosities between couples. At the centre of the storm were two unlikely symbols in the great debate: Barbara Dodd, a 22-year-old exotic dancer from Toronto, and Chantal Daigle, a 21-year-old secretary from Chibougamau, Que. Last week, Dodd made a stunning about-face, reunited with her lover, and said that she regretted having her abortion; Daigle, still awaiting a court decision, vowed to go to the United States to have an abortion if necessary. And, in Ottawa, Prime Minister Brian Mulroney intervened to say that Ottawa would put an end to the chaos created by the fact that there is no effective national law on abortion.

They met at a Montreal shopping centre last November and by February they were sharing her apartment in the east-end suburb of Pointe-aux-Trembles. Chantal Daigle, from the northern Quebec town of Chibougamau, became pregnant and had planned to marry Jean-Guy Tremblay, a 25-year-old auto service representative at the end of July. But the romance faded and, instead of preparing for her wedding, Daigle spent the past three weeks embroiled in a turbulent legal battle in an attempt to procure an abortion against Tremblay’s will. Her fight began when Tremblay obtained a court injunction to prevent Daigle from carrying out her intentions. By late last week, it had reached Quebec’s highest court, which postponed its decision as Daigle’s pregnancy passed its 20th week on July 21, the latest day of pregnancy on which abortions are routinely performed in Canada. But Daigle remained defiant. Should the court uphold the injunction in a ruling expected this week, she declared, she would go to an American clinic to terminate the pregnancy. Added Daigle: “My rights are my rights, and they are the rights of all women.”

Eighteen months after the Supreme Court of Canada declared the country’s abortion law unconstitutional, those rights are again under attack. In Toronto, Barbara Dodd went to the Supreme Court of Ontario and successfully fought an injunction filed by her boyfriend, Gregory Murphy. Then she had an abortion on July 11 at the clinic run by Dr. Henry Morgentaler (page 19). As well, in the past month, a man in Winnipeg applied for a court injunction in an unsuccessful attempt to prevent his ex-girlfriend from having an abortion. And with the battle over abortion focusing increasingly on individual women and their private dilemmas, the emotional pitch of the rhetoric between prochoice and anti-abortion activists has escalated. Those who support choice accused their opponents of using the courts to harass individual women. But anti-abortionists scented a change in judicial mood and predicted that new principles of fetal rights would soon be enshrined in law.

Tension: And, as tension between the contending factions mounted, so too did the pressure on Brian Mulroney’s Conservative government to replace the country’s lapsed abortion law. Some opposition MPs demanded that the government recall Parliament immediately to deal with the issue. With Justice Minister Douglas Lewis attending a legal conference at Cambridge University in England, Mulroney rejected that option. But after months of silence and inaction on abortion, the Prime Minister declared on July 20, “I think it is necessary to fill the legislative void, and we are going to do it.” In any attempt to enact new legislation, Mulroney must bridge serious divisions within his own party. Despite that, some observers argued that the latest turn in the battle left the government little choice. Jacques Shore, a lawyer with the Montreal firm Heenan Blaikie, is a specialist in health law and a director of the Quebec Society of Medicine and Law. Said Shore: “The government has to act. If they don’t, they will be perceived as having an incredible lack of backbone.”

Certainly, recent dramatic developments stand in sharp contrast to the situation in January, 1988. At that time, the Supreme Court of Canada in effect made abortion a private matter between a woman and her doctor when it struck down Canada’s abortion law in a case that arose out of a criminal charge laid against Morgentaler. But legal skirmishes have exposed to intense media and public scrutiny the private lives of Dodd and Daigle. In Dodd’s case, an Ontario Supreme Court Judge granted her boyfriend, Murphy, 23 an injunction preventing her from having an abortion. The Ontario Supreme Court overturned the injunction, and Dodd had her abortion. But then, in a dramatic reversal last week, she called a news conference to say that she regretted her decision (page 18). In the Winnipeg case, 27-year-old Steven Diamond applied on July 6 for a court injunction to prevent his ex-girlfriend from having an abortion; that application was turned down.

Prochoice activists lamented the plight of Dodd and Daigle, and denounced the tactics of the anti-abortion movement in interfering with what they insist are a woman’s private concerns. Said Robin Rowe, national co-ordinator of the Toronto-based Canadian Abortion Rights Action League (CARAL): “Next you’ll see some woman’s ultrasound on the national news, and her sexual history will be talked about on the subway.” For her part, Hilda Thomas, president of Everywoman’s Health Centre, a Vancouver abortion clinic, said: “What is happening to this woman [Daigle] is absolutely scandalous. Other countries must look at Canada and think we are in the Dark Ages.” In fact, Thomas’s own clinic has been under intense pressure from anti-abortionists who, defying a court injunction barring them from obstructing the clinic’s work, have mounted almost-daily demonstrations there since the beginning of the year (page 17).

Jubilation: But, for anti-abortionists across Canada, both the Dodd and Daigle cases caused jubilation because, in both instances, the judges who granted the injunctions did so in order to protect the rights of the fetus. Said Patricia Soenen, executive director of the League for Life in Winnipeg: “There’s a growing perception that there is another human being in the picture that we have to take into consideration.” And Gilles Grondin, president of the Quebec branch of Campaign Life, declared, “It is now recognized, in at least part of Canadian jurisprudence, that the fetus has a legal personality.”

But the legal and ethical arguments over abortion were in large degree overshadowed by the private dramas of both Dodd and Daigle. After five Quebec Court of Appeal judges declared on July 20 that they could not render an immediate decision because of the complexity of her case, Daigle bolted from the Quebec City courtroom. With the assistance of her lawyer, Daniel Bedard, she avoided a pack of reporters and fled to her hotel in a taxi. Two hours later, Daigle emerged to say that she would await the court’s decision, even though July 21 was the last day on which she could obtain a routine abortion in Quebec because of the advanced state of her pregnancy.

Abusive: At the same time, Daigle insisted that she was prepared to travel to a clinic in the United States, where abortions are sometimes performed at up to 26 weeks. She also rejected the offer of an anonymous anti-abortion activist from east-end Montreal who offered Daigle $25,000 if she would have the baby. Throughout the legal skirmishing, she adamantly refused to consider Tremblay’s openly expressed desire for reconciliation. And an affidavit prepared by her lawyer depicted their relationship as brief but tempestuous. The prim, petite and attractive Daigle, who is five feet tall, stated in her affidavit that she met Tremblay, a former nightclub bouncer who is more than six feet tall, last Nov. 26 and began to have sex with him in late December. Within the next month, he had proposed marriage and began pressuring her to stop using contraceptive pills. When they began sharing her apartment, she said, he became domineering, jealous and verbally abusive.

After the couple learned in late March that she was pregnant, Daigle contends that Tremblay became physically abusive and once threw her to the floor. By May, she wanted to leave, but in her affidavit she states that “I did not know how to go about it because he was always threatening me.” Daigle said that she decided to end the relationship after a July 1 quarrel on the balcony of their apartment, during which she claimed that Tremblay grabbed her by the throat and accused her of being “too social.” Two days later, family members arrived from Chibougamau, 700 km to the north, to help her move. On July 5, she told Tremblay that she was scheduled to have an abortion at a hospital in Sherbrooke, Que., on July 10.

Tremblay has since admitted that he decided to apply for an injunction to prevent the abortion after a co-worker at Versailles Ford, a car dealership in north-central Montreal, told him about the Toronto case involving Dodd and Murphy. Tremblay first obtained a temporary injunction in Quebec City on July 7 to prevent Daigle from having an abortion for 10 days. She learned about the injunction the following day while on her way to Sherbrooke, Que., to have the abortion. Their lawyers then argued the case on July 17 before Superior Court Judge Jacques Viens in the northern Quebec mining town of Val d’Or. But far from quashing the injunction, Viens made it permanent in a groundbreaking decision that recognized the fetus as a “human being” under Quebec’s Charter of Rights and Freedoms.

Viens based his decision largely on the provisions of the Quebec charter. Viens cited Article 1, which states, “Every human being has the right to life, as well as security, integrity and personal freedom.” He also relied on Article 2, which says, “Every human being whose life is in peril has the right to protection.” Viens argued that if those rights and freedoms applied only from birth, the charter would have used the term “persons” rather than “human beings.” In his ruling, Viens added that the Quebec charter “clearly intended to guarantee the right to life to every human being, and we cannot see how that cannot include the human fetus.”

War: While prochoice activists and lawyers were confident that Viens’s ruling would ultimately be overturned, they were clearly distressed by the new legal challenges. Indeed, CARAL’s Rowe conceded that the prochoice movement became complacent after the January, 1988, Supreme Court of Canada decision that appeared to guarantee a woman’s right to abortion. Said Rowe: “We knew the war would go on but we thought we had won the big battle.” Added Toronto lawyer Lynne Golding, who is a member of a loosely organized group called Tories for Choice: “The prochoice side was hoping the whole issue would go away after the Morgentaler ruling.”

Indeed, the initiative in the abortion battle has clearly passed to the anti-abortion movement. Most prochoice groups, Rowe said, are content with the status quo. They oppose a new federal abortion law because it may again attach criminal sanctions to the procedure and would certainly restrict the rights of women, she said. But by launching a fresh legal assault on abortion rights and creating the impression of an issue adrift in legal chaos, the antiabortion movement has succeeded in forcing the government to promise new legislation, Rowe added. Other critics, however, noted that the current lack of definition could produce a series of individual and contradictory abortion rulings by judges across the country.

With a new parliamentary fight over abortion imminent as early as this fall, the federal Tories and Liberals are both as deeply divided on the issue as the general public. And although the New Democrats have until now maintained a united front behind their policy of unrestricted access to abortion, some federal caucus members concede that they are having difficulty setting aside their beliefs. At the same time, the most recent poll on the subject by Gallup Canada Inc., taken in February, showed that 27 per cent of Canadians believe abortion should be legal under any circumstances, while only 13 per cent are opposed to abortion in all cases. Almost 60 per cent favor abortion, but with some restrictions on the practice.

Within the cabinet, anti-abortionists look to Deputy Prime Minister Donald Mazankowski as a supporter. Meanwhile, prochoice activists feel that they have a sympathetic ear in Justice Minister Lewis and Employment and Immigration Minister Barbara McDougall—the most influential female minister. One reason for Conservative caution is that abortion is a treacherous issue for the party, because many of the most ardent anti-abortionists are also Conservative voters. If the Tories are too soft on abortion, they could risk eroding some of their core support to more right-wing parties, including the Christian Heritage Party.

The Tories also risk alienating many backbenchers who are vociferously opposed to abortion. The rifts within the party were temporarily put on hold after the November, 1988, general election, when Mazankowski maintained harmony by appealing to anti-abortion backbenchers for a truce until the Free Trade Agreement and the budget had cleared the house. Now, the issue is again simmering, with many backbenchers calling on the government to enact abortion legislation.

Raped: Within the Liberal caucus, divisions over abortion run just as deep. Reflecting one view, Nova Scotia MP Mary Clancy said: “I will not see women go back to coat hangers. A flat ban is not going to work.” But Scarborough West MP Thomas Wappel said that abortion should be prohibited even in cases involving incest: “I don’t think that the solution to a 13-year-old girl being raped by her father is to compound that tragedy by killing an innocent baby.”

While many NDP MPs are strongly in favor of abortion, others are ambivalent about the issue. British Columbia’s Dawn Black, MP for New Westminster-Burnaby and the party’s status of women critic, said that she is unequivocally opposed to any legislation that would put abortion back into the Criminal Code. Black also denounced anti-abortionists as “zealots who will use any tactics in their single-minded quest for a ban.” Still, Nickel Belt MP John Rodriguez, a Roman Catholic, said, “I believe that from the moment of conception, a fetus has a soul, but I’m prepared to trust the judgment of individual women.”

Hints: In declaring his intent to enact a new abortion law, Mulroney provided only the broadest hints as to how the government will proceed. He said that the rights of both women and the unborn must be considered. Mulroney also said that he favors a free vote on the issue, but he would not provide a firm timetable. And he denied that the Tories have been trying to avoid the issue. The government has moved cautiously, said Mulroney, “so that the legislation is not struck down again by the Supreme Court.”

One thing is certain: legislators of every party will receive plenty of advice over the next few months from the anti-abortion movement. “All our efforts are now devoted to getting a good federal law,” said Karen Murawsky, one of two Campaign Life Coalition lobbyists in Ottawa. She estimates that there are currently about 70 committed anti-abortion MPs out of the 295 in Parliament. The coalition is hoping to add a third Ottawa lobbyist this fall and is continuing to attempt to influence the political process at other levels. Anti-abortion activists are joining federal riding associations to help nominate candidates sympathetic to their cause. They are also trying to elect anti-abortion majorities to hospital boards, a tactic that has been particularly successful in British Columbia, where they have stopped abortions from being performed at hospitals in five centres.

They are also turning to the courts for injunctions to prevent abortions and, more importantly, for rulings under civil law that will establish the rights of either fathers or fetuses. Paul-André Crepeau, a McGill University law professor and coauthor of the Quebec Charter of Rights and Freedoms, said that the Supreme Court ruling in the Morgentaler case merely removed abortion from the Criminal Code. “But if you decriminalize abortion you have only solved half the problem,” said Crepeau, “because the civil law is still there.” Civil law, which falls under provincial jurisdiction, deals with disputes between individuals and corporations in which there is no element of criminal behavior. “For the first time,” noted Montreal lawyer Shore, “these injunctions have put forward the right of the father with regard to the fetus,” employing principles of civil law. Now, anti-abortion lawyers express the hope that decisions asserting the rights under civil law of either the father or the fetus will increasingly have the effect of making abortions impossible.

Painful: No matter what gains the foes of abortion win in lower courts, they will be challenged by the defenders in higher courts. So too, whatever law Parliament eventually enacts is bound to face its own challenge in the same court that struck down the previous abortion statute. Indeed, the outlook for MPs as well as for the campaigners on both sides of the issue is for a protracted and painful fight over principles and political pragmatism. While it continues, more women are likely to find themselves, like Chantal Daigle and Barbara Dodd, at the centre of an intractable conflict where their personal lives become battlegrounds for a public cause.