CANADA

ABORTION AGONY

CONTENTIOUS ISSUES REMAIN TO BE RESOLVED AFTER THE TOP COURT'S DECISION

BRUCE WALLACE August 21 1989
CANADA

ABORTION AGONY

CONTENTIOUS ISSUES REMAIN TO BE RESOLVED AFTER THE TOP COURT'S DECISION

BRUCE WALLACE August 21 1989

ABORTION AGONY

CANADA

CONTENTIOUS ISSUES REMAIN TO BE RESOLVED AFTER THE TOP COURT'S DECISION

The clock on the wall facing the bench of the Supreme Court of Canada read 2:15 when Edward Greenspan suspected that something dramatic was about to happen. As the principal lawyer for the Campaign Life Coalition, Greenspan was in the Ottawa courtroom to argue that the Supreme Court should uphold a Quebec court’s injunction preventing 21-year-old Chantal Daigle from having an abortion. The nine justices had been waiting since 2 p.m. for Daniel Bédard, Daigle’s lawyer, to return for the afternoon session of the court’s extraordinary sitting. “You can be late for your own funeral, but you cannot be late for the Supreme Court,” Greenspan said later. “If they get mad at you, there is nowhere else to appeal.” And, he recalled, he turned to a colleague and remarked, “The only conceivable reason this guy is not here is that she had the abortion.” Just five minutes later, Bédard entered the courtroom and, in a voice breaking with emotion, told the judges that Daigle had indeed already aborted her 22-week-old fetus. The stunning revelation forced Chief Justice Brian Dickson to adjourn the court for consultations with his colleagues. But, later that day, the nine justices returned to the chamber where they unanimously overturned the injunction anyway.

After her abortion in a Boston clinic on Aug. 1 and last week’s Supreme Court verdict, Daigle’s personal ordeal may be nearing an end. But the long-term impact of her case’s ascent through Canadian courts was far from clear. For one thing, the Supreme Court judges did not state their reasons for lifting the injunction—originally granted on the grounds that the fetus has rights as a distinct human entity —and are not expected to do so for several weeks. Even when they do, many observers believe that the court will refrain from ruling

on the highly contentious issue that lies at the heart of the abortion debate: how to reconcile the rights of the fetus with those of women. In the past, the court has said that it will not address that issue until Parliament enacts a law governing abortion. A select group of Conservative cabinet ministers was meeting last week to try to draft legislation that could stand a good chance of gamering the support of a majority of MPs.

But activists on both sides of the emotional abortion debate were quick to offer their own interpretations of the ruling. Said Norma Scarborough, past president of the Canadian Abortion Rights Action League (CARAL): “Other men would be crazy to try to seek injunctions now. The crisis situation has been exaggerated by the attention focused on this case, and we will continue to insist that there is no need for

an abortion law.” In fact, the country has been without abortion legislation since January, 1988, when the Supreme Court overturned the previous abortion law, and anti-abortion activists said that they would step up their pressure on politicians in Ottawa and the provinces for legislation banning abortions. Said James Hughes, president of the Campaign Life Coalition: “Brian Mulroney was trying to get the Supreme Court to do his dirty work so he could come out smelling like a rose. Now the court is going to heave the ball back into his gut, and he will finally have to face up to the political heat.” For Daigle, 21, a former Montreal secretary, the politics of the abortion debate had already been eclipsed by her private dilemma. Since July 7, when her former fiancé, Jean-Guy Tremblay, 25, first won an injunction from a Quebec lower court blocking her from having a

planned abortion, Daigle’s pregnancy had progressed to the point at which waiting for the Supreme Court ruling was threatening to take her past the stage where she could have an abortion without risk to herself. Lise Gratton, a nurse and counsellor at the Montreal Women’s Health Centre who helped arrange the abortion, told Maclean ’s that by the last week of July, while the Supreme Court assessed her request for an appeal, Daigle finally lost patience. As quoted in a British Sunday tabloid, Daigle said she had the abortion because she was “afraid the Supreme Court would insist I had the baby I did not want.”

At the time, Daigle was staying in hiding at a campground, said Lucien Cliche, another of her lawyers. After watching television reports on July 27 of 10,000 activists marching in downtown Montreal on her behalf, Daigle called the Montreal clinic and said she wanted to have the abortion. “She told us she was not happy about having to break the law,” said Gratton, “but she was not ambivalent at all—she wanted the abortion.” With that, Gratton and Marie-Paule Lanthier, another Montreal counsellor, made the arrangements and drove Daigle 400 km to a clinic in Boston. On Aug. 1, the day that the Supreme Court agreed to hear her appeal, Daigle—who had dyed her hair and crossed the border using an assumed name —had her 22-week-old fetus aborted. The abortion was paid for out of an $8,000 fund raised for Daigle by her supporters.

Daigle remained under medical supervision in Boston for three days. And even after returning to her mother's home in St-Denis-sur-Richelieu, northeast of Montreal,

Daigle withheld the news of her abortion from her lawyers. But on the morning of Aug. 7, just one day before the Supreme Court hearing,

Quebec provincial police informed Quebec Justice Minister Gil Rémillard that they had a report that Daigle had already had her abortion. According to police spokesman Robert Poëti, someone had tipped off police, but he refused to say who it was. Gratton, for her part, said that clicking noises during phone conversations in the past few weeks made her suspect that the Montreal clinic’s telephones may have been tapped.

Despite knowing of Daigle’s abortion, the Quebec government did not immediately inform the Supreme Court or other interested parties. Not until the lunch break on the day of

the hearing did Jean Bouchard, a Quebec government lawyer, tell Daigle’s lawyer, Bédard. Said Cliche, Bédard’s associate: “It is crazy that the Quebec government did not tell us sooner about what they knew. I suspect that they suddenly became worried that the court would quash the injunction, and then they wanted the information out so that the court would abort the appeal.”

According to Cliche, Bédard was so angry at Daigle when he learned of the abortion that he considered not returning to the court to continue pleading the case. When he did arrive, late for the afternoon session, he apologized to the court for Daigle’s action. At that point, the nine Supreme Court justices adjourned for 20 minutes before deciding that they, too, would allow the proceedings to continue. Later that afternoon, after hearing all arguments and deliberating for 58 minutes, the court set aside the injunction. The ruling outraged Tremblay, who vowed further action. “Chantal did not kill my child, but our child, and for _ that I will never forgive her,” 2 he said. “It is a murder she ~ committed, and she will pay one day.”

Late that afternoon, a distraught Daigle called Cliche from her mother’s home and complained that the media surrounding the house had made her a virtual prisoner. Said Cliche: “She was crying and said she had been hiding in her mother’s closet because of the cameras outside.” That night, Cliche spirited her away from the house and drove Daigle to a downtown Montreal hotel, and they walked along trendy Crescent Street unrecognized. “Chantal was like a child, so happy just to be able to walk the streets and see people again,” said Cliche. The next day, Daigle and Cliche drove to Ottawa where she met with her lawyers and arranged two exclusive interviews, one with the British tabloid, The Mail on Sunday, which paid her an undisclosed sum for the privilege, and the other with a reporter from the CBC’s French-language service, Radio-Canada.

By defying the Quebec injunction, Daigle may have left herself open to charges of contempt of court. But there were doubts about whether such an action could proceed in light of the Supreme Court’s clear ruling. Meanwhile, the focus of the abortion debate is shifting from the courts to Parliament Hill, where the Tories are desperately trying to find a legislative formula that will fill the legal void created when

the Supreme Court ruled that the previous legislation violated women’s constitutional rights in restricting access to abortion. In that atmosphere, the activists opposed to abortion under any circumstances, who call themselves pro-life, vowed to step up their lobbying efforts aimed at getting MPs to support a total ban. Among their tactics: encouraging MPs to view a graphic five-minute video of an abortion.

On the other side of the well-organized lobbying battle, those favoring unrestricted access to safe abortions nationwide, self-styled as pro-choice, also continued their crusade at the provincial level. The most pressing legal challenge will come this fall in Nova Scotia, where CARAL is contesting a new provincial law that bans private medical services. The law’s critics claim that the government’s real intention is to ban private abortion clinics, such as the Halifax clinic opened this year by Dr. Henry Morgentaler, who already runs clinics in Montreal, Toronto and Winnipeg. That clinic is not yet operating—it is currently offering counselling and making referrals—and supporters complain that some women in Atlantic Canada have been forced to hitchhike to Montreal in order to get an abortion. Said Anne Derrick, CARAL’s lawyer: “This has national implications. If Nova Scotia succeeds, other provinces may seek to copycat.” But opponents of the clinic defend the law. “We support anything that will keep Morgentaler out of Nova Scotia,” said Rev. J. B. Christensen, a spokesman for the Nova Scotians United for Life. “People are getting fed up. They have been calling us in recent days asking where to bring their donations.”

Despite the obvious passions stirred up by the debate, the government is more likely to seek a middle-of-the-road solution. Privately, senior Tory planners continue to indicate that the government will base its legislative proposal on the recommendations of the Law Reform Commission of Canada. Last April, the commission suggested making abortions easily accessible in the early stages of pregnancy but called for more restrictions after 22 weeks, when the fetus is close to the stage of medical viability— when it can be kept alive outside the womb. Said Mr. Justice Allen Linden, president of the commission: “Let us not forget that most of the country is not divided fifty-fifty between rabid pro-lifers and rabid pro-choicers. Most of us are in the middle and are saying to the government, ‘Please find a fair solution.’ ”

But other observers caution that not even a new federal law will end the controversy. Said Stephen Scott, a professor of constitutional law at Montreal’s McGill University: “The provinces still have some jurisdiction in this matter, and you have not seen the end of litigation. The great issues never go away.” Indeed, while Chantal Daigle’s own crisis may have passed, Canadians were still far from resolving their divisions over abortion.

BRUCE WALLACE and LISA VAN DÜSEN in

LISA VAN DUSEN

GLEN ALLEN