MARY JANIGAN February 8 1988


MARY JANIGAN February 8 1988



The staff members at Toronto’s Morgentaler Clinic were hoping for victory—but braced for defeat. When they learned last week that the Supreme Court of Canada had ruled that the federal abortion law was unconstitutional, the women leaped with startled joy, hugging each other and cheering. They put bottles of champagne into a tiny freezer to toast clinic owner Dr.

Henry Morgentaler’s victory against charges of conspiracy to procure illegal abortions. They congratulated Morgentaler’s companion, Arlene Leibovitch, who was visiting the clinic with their three-week-old son,

Benjamin Joseph, and danced triumphantly through the halls of the three-storey brick house.

Then, one jubilant staff member turned to a patient reclining in an easy chair outside the thirdfloor operating room.

“Do you know,” she asked, “that you have just had the first legal abortion in this clinic?”

The implications of that simple question were staggering. In a 5to-2 ruling, the Supreme Court in Ottawa had declared that Canada’s abortion law was unconstitutional because it violated a woman’s right to “life, liberty and security of the person.” The decision immediately wiped the abortion law off the books—making abortion a private matter between a woman and her doctor. It put federal and provincial politicians in the uncomfortable position of having to find a new social consensus on the divisive issue. And it indicated that the highest court in the land was prepared to use the Charter of Rights and Freedoms in bold new ways. Chief Justice Brian

Dickson’s surprisingly tough language underlined that determination. Declared Dickson: “Forcing a woman by threat of criminal sanction to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations is a profound interference with a woman’s body.”

Passions: With those words, the simmering passions in the constant, everdivisive abortion debate erupted across the nation. Even as the jubilant Morgentaler left the court with his lawyer, Morris Manning, to return to Toronto, two crowds began gathering in belowzero temperatures outside his clinic on

Toronto’s Harbord Street. Clustered around the entrance, joyous prochoice supporters chanted their approval of the court—and the determined Morgentaler (page 14). Across the street, separated by watchful Toronto police officers, anti-abortion demonstrators denounced the court—and condemned the clinic staff as “murderers.”

Those demonstrations reflected the moral and political chasm between the two sides. For the prochoice groups, the decision was an affirmation that women have control over their bodies, that they cannot be forced to give birth at the government’s behest. Said

Katherine Coffin, a national vice-president of the Canadian Abortion Rights Action League: “I cannot tell you when I have had a happier day. It asserts what women have been saying for 20 years: that the decision whether to bear a child is a fundamental human right.”

Blow: But from the point of view of antiabortion groups, the court’s ruling was an agonizing blow that sanctioned the slaughter of human beings—and diminished society’s respect for human life. Those groups promptly vowed to lobby for new laws to outlaw abortion. Some threatened political reprisals if politicians did not obey. As Laura McArthur, the president of the Right to Life Association of Toronto, maintained, “We have a long, hard road ahead of us, but we are certainly not going to back down.” Added Frank Foley, executive director of the national office of Campaign Life Coalition: “We intend to pull out all the stops.

There will be more clamor, more picketing.” And Rev. Ken Campbell, who runs the Choose Life Canada antiabortion group next door to Morgentaler’s Toronto clinic, declared, “Our commitment and our battle continue.” The effect of the Supreme Court’s ruling was to broaden the extent of a woman’s legal rights over her own body. It also removed the offence of abortion from the Criminal Code. Section 251, passed in 1969, had restricted abortions to accredited hospitals, and even then only in cases in which the majority of the members of a hospital’s therapeutic abortion committee certified that the pregnancy was a danger to the “life or health” of the

woman. But after last week’s ruling it is no longer an offence for a medical doctor to perform an abortion—or for a woman to seek one. Instead, abortion has become a medical issue concerning a woman and her doctor: a woman can now have an abortion if she can find a doctor to perform it.

Defiance: For the 64-year-old Morgentaler, it was the culmination of almost two decades of legal defiance, during which he had performed an estimated 20,000 abortions. Acquitted by three juries in Quebec and one in Ontario, Morgentaler nonetheless spent 10 months in jail in Quebec in the mid1970s on abortion-related charges. Indeed, before last week’s epic decision he had faced charges of conspiracy to pro-

cure illegal abortions in Ontario and Manitoba. Said Morgentaler, relishing victory after his long fight in the vanguard of the abortion debate: “There has been a tremendous step toward the enlargement of rights in Canada.”

Dilemma: The 200-page judgment also put the federal government in a profoundly difficult political dilemma. Among its options: draft another Criminal Code amendment to restrict abortions, or simply ignore the issue, leaving it up to the provinces to handle as a health issue (page 18). Three of the five judges who supported Morgentaler indicated that they would accept some federal restrictions on abortion—and thus some limits on a woman’s rights. If Ottawa does not draft a new amendment, individual provinces could decide to regulate abortion as a health concern—instead of a Criminal Code offence.

Replacing the law would not be a

simple matter. If the provinces or the federal government do introduce legislation, that legislation would, in turn, be open to constitutional challenge. Provincial health authorities oversee the practice of medicine, including the performance of abortions. But if a province passed additional regulations to control abortions, prochoice advocates could question whether those rules protect health or simply restrict access. Potential federal restrictions must also face the court’s new constitutional ruling: do they unreasonably interfere with the charter right to “life, liberty and security of the person”?

Providing a taste of the turmoil to come, federal Justice Minister Ray

Hnatyshyn said that the ruling “will put an onus on provincial health authorities” to act. B.C. Health Minister Peter Dueck promptly announced that his province’s medical services plan would pay only for abortions approved by a therapeutic abortion committee within an accredited hospital—the conditions provided for under the nownonexistent legislation. In contrast, justice officials in Manitoba and Ontario dropped all outstanding charges against Morgentaler. And Ontario Attorney General Ian Scott declared that it was up to Ottawa to act if it wanted to regulate abortion.

Whatever Ottawa or the provinces decide, the issue is not likely to go away. As Campaign Life’s Foley said: “This is going to be an election issue. This is going to push Meech Lake and free trade right to the back burner.” In contrast, Carolyn Egan, spokesman for

the Ontario Coalition for Abortion Clinics, bluntly declared that politicians must not draft another law. Said Egan: “Women will accept no more restrictions on their reproductive freedom.”

Power: That controversy underlined the power of the Canadian Charter of Rights and Freedoms to change Canadian society. And it indicated that the Supreme Court is increasingly willing to use that power. In a 1975 decision, the Supreme Court upheld Morgentaler’s conviction in the Quebec Court of Appeal for performing an illegal abortion. But last week the court made a complete about-face—citing the entrenched constitutional rights of the 1982 charter when it upheld the acquittal of Morgentaler, as well as his colleagues Dr. Leslie Smoling and Dr. Robert Scott, by an Ontario Supreme Court jury on a charge of conspiring to procure illegal abortions in the Toronto clinic.

The decision startled many legal and constitutional specialists because the court has generally interpreted the charter in a more conservative fashion. “I am surprised that they went that far,” said University of Toronto law professor Bernard Dickens. “This seems to be quite a bold application of the charter.” Added Wayne MacKay, a constitutional law professor at Halifax’s Dalhousie University: “This sends the message that the court has the courage and the will to take on controversial issues. They are making decisions that before were left to the elected level of government.”

Last week’s explosive case began in 1984, when an Ontario Supreme Court jury acquitted Morgentaler, Smoling

and Scott on charges of conspiring to procure illegal abortions. In 1985 the Ontario Court of Appeal overturned that acquittal—and ordered a new trial. When the case went before the Su-

preme Court in October, 1986, Morgentaler’s lawyer, Morris Manning, identified seven separate constitutional challenges to the 1969 abortion law. Manning argued that the law infringed on the division of federal and provincial powers—and violated seven clauses of the Charter of Rights and Freedoms.

Delays: Much of Manning’s case centred on his argument that the law created unequal access to abortion—coupled with distressing, often dangerous delays. Indeed, although Statistics Canada reported that 60,928 women had abortions in 1985, the breakdown ranged from 27,433 in Ontario to just 11 in Prince Edward Island. Robin Rowe, national co-ordinator for the Canadian Abortion Rights Action League, listed a battery of statistics for Maclean’s to back up her group’s contention that Canadian women did not have equal access to abortion

services: only three Sas-

katchewan hospitals performed abortions in 1986; only one Newfoundland hospital regularly performed abortions in 1987; and Prince Edward Island did

not provide abortion services at all in

1987. Declared Rowe: “It is incredibly inequitable—and it is deteriorating. There are whole areas of the country that are completely without access.” The seven judges rendered their verdict in four separate written decisions: three upholding Morgentaler’s acquittal and one objecting to it. (The remaining two justices—

Gerald Le Dain and Claire L’HeureuxDubé—did not hear the case.) In the strongest denunciation of the law,

Chief Justice Dickson, supported by Mr. Justice Antonio Lamer, ruled that the abortion law contravened the charter right to “life, liberty and security of the person” because under threat of criminal sanctions it forced a woman to carry a fetus. Dickson added that the abortion law also contravened that charter right because the committee system created delays that caused “a higher probability of complications and greater risk.”

He concluded, “The argument that women facing difficulties in obtaining abortions at home can simply travel elsewhere would not be especially troubling if those difficulties were not, in large measure, created by the procedural requirements of Section 251.” Concurrence: Mr. Justice Jean Beetz, with the concurrence of Mr. Justice Willard Estey, concentrated on the procedural requirements of the law— that abortions be approved by a hospital committee. Beetz concluded that they “significantly delay pregnant women’s access to treatment, resulting in an additional danger to their health.” Beetz acknowledged that the law was designed to protect the fetus—but he concluded that it was not a reasonable and justifiable attempt to accomplish that goal. Instead, he said that Parliament might consider a law that would put more restrictions on abortion “in the latter months of pregnancy as opposed to the early months.” Also supporting the majority decision, Madam Justice Bertha Wilson concluded that Section 251 infringes upon security of the person because “it asserts that the woman’s capacity to reproduce is to be subject not to her own control, but to that of the state.” She added that the law also violated the charter right to freedom of conscience because “the state here is endorsing one conscientiously held view

at the expense of another.” Wilson stipulated that protection of the fetus is a “perfectly valid legislative objective.” But, like Beetz, she added that Parliament should remember that the fetus has different stages of development: “This view of the fetus supports a permissive approach to abortion in

the early stages, where the woman’s autonomy would be absolute, and a restrictive approach in the later stages, where the state’s interest in protecting the fetus would justify its prescribing conditions.”

In the dissenting opinion, Mr. Justice William McIntyre, with the concurrence of Mr. Justice Gerard La Forest, declared flatly that “no right to

abortion can be found in Canadian law, custom or tradition, and the charter does not create such a right.” He declared that the procedures required by the law were not unfair because Parliament did not intend to grant an abortion to every woman who wanted one. Concluded McIntyre: “Historical-

ly, there has always been a clear recognition of a public interest in the protection of the unborn.”

Conflicts: While the anti-abortionists and the prochoice forces mustered their arguments, many Canadians could only ponder the wrenching conflicts of life. Many would likely feel great sympathy with the plea of Archbishop James Hayes, president of the Canadian Conference of Catholic Bishops, who said in Ottawa, “We need to create a society that

supports life and enables children to be raised with dignity; a

society that puts other

people’s rights and needs ahead of personal

life and gain; a society that respects human life at every stage of its development.”

But many would also respond to

the touching story that Vancouver

surgeon William McCallum, 78, recounted last week. In 1948 a young, unmarried woman came to him, begging for an abortion and pleading that her pregnancy would destroy her life and her family. “I refused to do it,” McCallum recalled. “I was one of these people who felt she should get herself out of the mess she had got herself into. I presumed to be God.” The young woman killed herself; a month later, her father killed himself. Forty years later, in retirement in the Vancouver suburb of Langley, McCallum applauded the Supreme Court ruling. “Now women have really come into their own,” he mused. “It is no longer possible for some damned man to deny her what she should have.” Between the doctor and the archbishop, there can perhaps be understanding. But there is no middle ground. And that is a dilemma that the Supreme Court is unlikely to ever resolve.