Perhaps only in defence lawyer Morris Manning’s dreams did it seem possible that the Supreme Court of Canada would actually strike down the abortion law. To others as deeply involved in the Morgentaler case, last week’s decision came as a total shock. Codefendant Dr. Robert Scott was so pessimistic about the outcome that he did not want to spend $100 to fly to Ottawa from Toronto on Jan. 28 to hear the ruling. He said that he was sure that it would be “like paying to get kicked in the teeth.” At the victory party for Morgentaler that night, the joke going around was that Madam Justice Bertha Wilson, whose assenting judgment read in parts like a feminist manifesto, must have sent her fellow justices home to talk to their wives whenever they balked on the 16-month path to their landmark decision.
Message: After almost 20 years in which the government and the courts have billed the abortion law as a workable compromise between female and fetal rights, it was simply shocking to see it judged as a bad law that prevented access to abortion when it purported to allow it. And by throwing Section 251 out of the Criminal Code, the court delivered a message that even the most dedicated anti-abortionist cannot afford to ignore. Five out of seven judges—a clear majority of the court—actually ruled that the power currently vested in the therapeutic abortion committee system would be more justly put into the hands of individual women. They acknowledged that the state had a legitimate interest in protecting fetal life at some undefined point in a pregnancy. But they also said that the current law undercut a woman’s right to “life, liberty and security of the person” in its attempt to protect the fetus. And they considered no law was better than the law on the books, at least until the federal government could determine how to enact a new one that
Anne Collins is the author of The Big Evasion: Abortion, the Issue That Won’t Go Away.
would not sacrifice women’s rights.
That is a strange way to achieve something as important as freedom of choice—but no one who endorses the judges’ decision is about to quibble. Even if federal legislators do the unlikely and try to draft a new law in a probable election year, there is no going back. The law has treated women as though they were children who had to be protected from their own irresponsible impulses—and then suddenly noticed that they were all grown up. Now, the judicial door has been pried open wide enough to let the reality of women’s lives enter, a reality vastly different from the one in which the judges’ mothers lived.
Part of that reality is that most women need to or want to work outside the home. But no one has yet found a way of preventing childbearing and work from running on a collision course except by controlling female fertility. The contraceptive revolution signalled by the introduction of the birth control pill means that women need no longer accept children as an inevitable consequence of heterosexual relationships. Most believe they should be able to decide whether or when to have children—but they do not yet have the perfect means of preventing pregnancies. In the technological and psychological shortfall between what women need or want to do and what they are able to do, abortion has become the logical backup to contraception, an intrinsic part of the way that many people now think about reproduction.
Neither Gerald Emmett Cardinal Carter, the Roman Catholic Archbishop of Toronto, calling the Supreme Court decision “uncivilized,” nor scandalized opponents such as anti-abortion crusader Joseph Borowski is going to be able to do much about that essential change. But they can intensify the pains of working through the court’s decision. Morgentaler, who finally won after 18 years of fighting in the courts, is joyous with relief but he is under no illusion that the last word has been said on abortion. Roe vs. Wade, the 1973 U.S. Supreme Court decision that guaranteed
a woman’s right to abortion, turned out to be the red flag that recruited most U.S. anti-abortionists to their cause. The U.S. debate has since turned to trench warfare fought town by town, state by state, regulation by regulation, and U.S.
Supreme Court nominee by nominee. If the balance of judges on the U.S. court shifts at the same time it hears one of the many challenges to Roe vs. Wade, U.S. women could find themselves legally deprived of those rights. Such a decision would bring chaos in its wake but it would not halt abortion—it would drive it underground.
The equipment that has been developed to perform safe early abortions is simple and portable, and many Americans are trained in its use.
Threat: Trench warfare of a similar sort is probably in store for Canadians. Shocked and dismayed by the tossing out of the old law, anti-abortionists may petition and protest for a new and tougher one. But any new law would have to be framed very carefully. As Chief Justice Brian Dickson and Mr. Justice Antonio Lamer wrote, “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 and thus an infringement of security of the person.” Despite Justice Minister Ray Hnatyshyn’s assurance about federal policy initiatives, it is hard to imagine politicians drafting a new law when they have a chance of passing some responsibility for such a contentious issue to the provinces, the medical profession or even to women.
Any action that the government
might take, short of enacting a new tough law, would be interpreted by the anti-abortion movement as defeat. But while anti-abortionists have always been within their rights in believing that abortion is the wrong solution to unwanted pregnancy, the ethical heart of the abortion issue does not lie in deciding who is a killer and who is not. It lies in understanding responsibility for self and others. The abortion issue has been fought for so long as a contest of rights that it is hard to think about it in any other way. Its intractable nature is evident in public opinion polls. Over the years since the law was reformed in 1969, the percentages have remained fairly constant: just under 20 per cent of Canadians say they are opposed to all abortion; roughly 25 per cent favor a
woman’s right to choose; and the rest float in a limbo in which abortion seems right in some cases and wrong in others.
Relationships: But buried in that final category is a larger meaning that bears on the abortion debate. Four juries looked at the particular circumstances that caused women to seek abortions from Morgentaler clinics, and none of them was able to convict the doctor. Seven Supreme Court judges looked at the circumstances under which women seek abortion in Canada, and five of them decided it was right to overturn the law. What becomes clear from those findings is that pregnant women seldom view abortion as an abstract question of right or wrong. They struggle to make decisions in the context of their relationships to their families, to the possi-
bilities of caring for a new life, to their jobs, and sometimes to themselves.
Scott, at his “victory” press conference last week, had the grace to say that as far as he was concerned it wasn’t a victory, and that he hoped people might come together to work on eliminating some of the causes of unwanted pregnancy and abortion. Interviewed on CBC’S The Journal, Laura McArthur of Toronto, a longtime anti-abortionist, was told by host Bill Cameron that she seemed to be groping for something positive to say about the decision. McArthur replied that she had the “right to grope.” If only that process could produce one new thought: that the way to put an end to the abortion debate is to work toward bettering the conditions under which women bear children.
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