CANADA

THE FINAL APPEAL

CHANTAL DAIGLE’S MONTH-LONG FIGHT FOR AN ABORTION GOES BEFORE THE HIGHEST COURT IN THE COUNTRY

LISA VAN DUSEN August 14 1989
CANADA

THE FINAL APPEAL

CHANTAL DAIGLE’S MONTH-LONG FIGHT FOR AN ABORTION GOES BEFORE THE HIGHEST COURT IN THE COUNTRY

LISA VAN DUSEN August 14 1989

THE FINAL APPEAL

CANADA

CHANTAL DAIGLE’S MONTH-LONG FIGHT FOR AN ABORTION GOES BEFORE THE HIGHEST COURT IN THE COUNTRY

It was a melodramatic tactic, even by the standards of the intensely emotional debate. In Ottawa, on Aug. 1, while the Supreme Court of Canada sat in an extraordinary session to determine whether it would hear Chantal Daigle’s appeal of a Quebec court decision that prevented her from having an abortion, protesters outside the court staged a mock baby shower for Daigle. While an airplane flew overhead trailing a banner that read “Garde ton enfant—Keep your baby,” demonstrators collected gifts, including plush toys, strollers and a playpen. The tactics outraged Daigle’s supporters. Said Robin Rowe, national co-ordinator for the Canadian Abortion Rights Action League: “It only confirms the fanaticism of those groups. It is despicable.” But anti-abortion campaigners, who said that they felt the tide of public opinion swinging their way, promised to intensify their tactics in the weeks ahead.

Inside the Supreme Court building, five justices deliberated for just 17 minutes before agreeing to interrupt their summer recess to hear Daigle’s appeal on Aug. 8. The hearing represented the climax of a heated month-long legal battle about an injunction sought by Daigle’s boyfriend that prevented her from having an abortion. At issue was the decision of the Quebec Court of Appeal on July 26 that, in a three-to-two decision, upheld a lower-court injunction—granted to Jean Guy Tremblay, 25, Daigle’s ex-fiancé. The Quebec court ruled that the legal rights of both Daigle’s fetus and the father must be considered.

Immediately following the Supreme Court’s

decision to hear the case, federal Justice Minister and government House Leader Douglas Lewis announced that the government would apply to intervene at the appeal hearing. In a legal document, known as a factum, that it filed with the court last week, Ottawa argued that only the federal government has the right to prohibit abortion. That surprised many observers because the Conservative government has not replaced the former abortion legislation that the Supreme Court struck down in January, 1988. Said Margaret Purcell, a vice-president of the Campaign Life Coalition, which wants a tough law banning abortions: “I am amazed to see that the government has found its tongue after 18 months of lawlessness.” In the end, the court granted intervener status to the federal government and seven other parties, including lobby groups on both sides of the debate and the Quebec government.

The federal government’s intervention in the case indicated that the Conservatives do not, after all, want provincial governments to have the power to prohibit abortions. Just last month,

Lewis openly speculated that the provinces might be best suited to deal with the issue, which has plagued the Tories for the past 18 months because of deep divisions within their own caucus. But the Daigle case—and the celebrated Barbara Dodd case in Ontario, in which a similar injunction was granted by a lower court and then overturned by the province’s Supreme Court—have shown that, in the absence of a federal law, provincial courts will provide a variety of interpretations if they step in to fill the void. In the wake of the confusion in the courts, Prime Minister Brian Mulroney renewed his promise that the government would introduce a new abortion bill soon after Parliament returns on Sept. 25.

Meanwhile, Mulroney has unofficially assigned a small group of cabinet ministers, representing a cross section of opinion on the

issue, to try to reach a consensus on what kind of legislation should be introduced to Parliament. Among those involved are Senator Lowell Murray, government leader in the upper chamber, and Status of Women Minister Barbara McDougall. One adviser to the Prime Minister told Maclean’s, “The one thing they are trying to do is keep abortion in the criminal code—not because they want it to be a crime, but because they want it to remain within federal jurisdiction.” But the Supreme Court declared the previous law—which limited access to abortion—to be a violation of the rights of women guaranteed under the Charter of Rights and Freedoms. As a result, most legal experts, including the respected Law Reform Commission of Canada, agreed that any new legislation would have to allow for abortion in the early stages of pregnancy.

By the time the court convened, Daigle, who last week was in seclusion at an undisclosed location, was to be into her 23rd week of the pregnancy—full term is roughly 40 weeks. That means that she can no longer easily have the abortion in Canada, where doctors will perform the procedure after the 20th week of pregnancy only if the mother’s health is threatened or if the fetus is abnormal. And the court would have to move

quickly to lift the injunction if Daigle is to be able to have an abortion in the United States, where the procedure is available up to 24 weeks. The advanced state of Daigle’s pregnancy worries even some who favor abortion as an option. Said Judy Rebick of the National Action Committee on the Status of Women: “No woman would choose to have an abortion this late, and I personally am uncomfortable with it in a number of ways.” But she added that, because Daigle’s case has been held up in the courts, she should still be permitted to have an abortion.

As well, aborting a 24-week-old fetus is much more complicated than performing an abortion in the first three months of pregnancy. Dr. Gilberto Higuera, 54, of the Midwest Gynecologists Clinic in Detroit, Mich., performs two or three late-term abortions on Canadian women every week. Higuera, who heard reports of Daigle’s case, offered to waive his normal $1,420 fee and perform the abortion if she wins her appeal. “Your society is about 15 years behind ours on this question,” said Higuera. According to Higuera, aborting a 24-week-old fetus carries the same risks as going through full-term labor and delivery.

The process begins with the insertion of a form of dried seaweed, called laminaria, into the uterus. The laminaria is left inside the patient overnight to moisten and expand, leaving the cervix partially dilated. The patient is then given intravenous doses of the hormone

Pitocin to induce labor—which lasts four or five hours—and to complete the dilation. During that time the patient is heavily sedated, and when delivery is about to begin she receives a general anesthetic. The fetus dies sometime during labor from suffocation due to the reduced oxygen supply brought on by the sedation and the anesthetic, said Higuera.

Daigle’s sister, Marjelaine Groulx, 30, said that Daigle intends to have the baby if the earlier injunction is upheld. “Chantal is not the sort of person who would disobey the law,” said Groulx. “She says she will have the baby and she will keep it if she has to.” But Daniel Bédard, Daigle’s lawyer, said his client is still optimistic that the court will rule in her favor. Said Bédard: “She simply cannot believe that justice will not be served. How many women can imagine not being allowed to have an abortion—not because the state says so, but because your ex-boyfriend says so?”

For his part, Tremblay was back at his job as a technician in the service department of a Montreal car dealership last week. He has said that he will not seek custody of the child if Daigle gives birth. But Tremblay was not answering questions about the case last week. Still, he made it clear that he planned to be in Ottawa this week—to hear the crucial next instalment of a personal crusade that has taken on national dimensions.

LISA VAN DUSEN