Few issues during the past two decades have so inflamed public passions, divided communities and baffled lawmakers. And last week, abortion was once again the focus of troubling, rancorous debate both in Canada and the United States. The reason: a series of narrowly split decisions by the U.S. Supreme Court upholding the constitutionality of a Missouri law that severely restricts access to the procedure. The judgment ignited angry demonstrations across the United States—and legal observers said that several court challenges still pending might eventually curb American abortion rights even further. In Canada, while some prochoice groups expressed dismay at the U.S. court’s ruling, anti-abortionists were clearly elated. Said Elizabeth Green, president of the 1,000member Vancouver Right to Life Society: “This case is a turnaround in judicial thinking.” Meanwhile, contradictory rulings in two abortion-related cases in Toronto and Winnipeg further intensified the debate.
The July 3 rulings in Washington, D.C., struck at— without fundamentally challenging— the Supreme Court’s own 1973 landmark decision that in effect legalized abortion across the United States. In its latest rulings, the court upheld Missouri’s right to forbid public hospitals and public employees to perform abortions. The judgment amounted to a major shift that touched off immediate and widespread reaction.
Anti-abortion legislators in several states—notably Florida, Louisiana, Mississippi and Minnesota—said that they would try to pass similar laws in their states to severely cut back on abortion rights.
The 200,000-member National Organization for Women—which argues that abortion decisions should be left up to individual women—began planning a rally in Washington this fall which, said president Molly Yard, would “turn this country upside down.”
Last week’s furor in the United States came at a time when Prime Minister Brian Mulroney’s Conservative government was still apparently undecided on whether to introduce legis-
lation to replace the abortion section of the Criminal Code that the Supreme Court of Canada struck down in January, 1988. That section had permitted abortions in accredited hospitals if approved by a three-member therapeutic abortion committee. But the court ruled that the provision was unconstitutional because it subjected women to unnecessary and arbitrary delay. Six months later, the Mulroney government tried to find a basis for compromise legislation by introducing a motion in the House of Commons proposing that access to abortion be relatively easy in the first three months of a pregnancy, but more difficult in the later stages. The motion was defeated as were two amendments—one favoring abortion on demand, the other advocating that it be illegal except when the pregnancy endangered the mother’s life.
Now, Ottawa may be ready to allow the provinces to decide when and how abortions can be performed. So far, Ottawa has avoided the issue, largely because, as Justice Minister Douglas Lewis told Maclean’s last week, the 295-member House of Commons reflects the divisions in the country. For that reason, said Lewis, “it is really unclear whether you could ever get wide agreement on any form of law”—or one that could survive yet another court challenge. Lewis told Maclean ’s that he would decide on a course of action by the fall.
The legislative options open to the government, said Lewis, included doing nothing, prohibiting abortion unless performed by a qualified doctor under certain circumstances, or some other restrictive approach. But even if a new law is drafted, he added, it would be “reasonable to suggest” that its restrictions would not apply to the first three months of pregnancy because such a limitation would likely violate the charter of rights. In the meantime, said Lewis, it appeared to him that the U.S. Supreme Court was “saying that women still have the right to abortions, but the states have the right to control whether public funds are used to pay for them.” The question in Canada, he added,
“is whether the federal government should try to prevent a situation where there is patchwork access to abortion across the country.” Said Lewis: “I think in Canada we are seeing a shift in the importance of the issue from the federal level to the provincial level.”
In Toronto, a bitter legal struggle developed over an attempt by a 22-year-old woman to obtain an abortion. Mr. Justice John O’Driscoll of the Ontario Supreme Court issued an injunction forbidding Barbara Dodd, who is 14 weeks into her pregnancy, from having an abortion anywhere in the province. O’Driscoll granted the order at the request of the woman’s 23year-old former boyfriend, Gregory Murphy, who said that the couple had planned the pregnancy together. O’Driscoll—who once wrote an article strongly opposing abortion— gave no reasons for his decision. Meanwhile, 29-year-old Christen Mucciacito of Toronto told reporters that he had been seeing Dodd at the same time as Murphy and that the unborn baby might be his.
Later, the Ontario Supreme Court scheduled a July 10 hearing of an appeal by Dodd against O’Driscoll’s decision. Dodd’s lawyer, Clayton Ruby, said that he would ask the court to set aside the injunction on the grounds that it conflicted with the Supreme Court of Canada decision voiding the abortion section of the Criminal Code.
The question of fetal rights was further muddied when Mr. Justice Aubrey Hirschfield of the Manitoba Court of Queen’s Bench denied a request by Steve Diamond for an injunction ordering his former girlfriend from having an abortion. Hirschfield said that the 20-yearold woman, who was not identified in court,
had absolute control over her body.
Indeed, since the Supreme Court threw out the federal law 18 months ago, some provincial governments have edged into the resulting legal vacuum. In British Columbia—whose 11,000 abortions annually give it the highest per capita rate among the provinces—Premier William Vander Zalm’s Social Credit government announced in February, 1988, that the provincial Medical Services Plan would no longer pay for the procedure. The B.C. Supreme Court then ruled against the policy. In Nova Scotia, the Canadian Abortion Rights Action League plans to ask the Nova Scotia Supreme Court in August to disallow a provincial government regulation introduced last March that bans abortion outside of hospitals—a moved aimed at Dr. Henry Morgentaler’s Halifax clinic, which has so far confined itself to referring women to institutions that carry out abortions. Morgentaler, who set up Canada’s first free-standing abortion clinic in Montreal 20 years ago, successfully sued the New Brunswick government to recover the medical fees paid by women who travelled to his Montreal clinic. Concluded Lewis: “There are varying attitudes toward access to abortion at the provincial level, and
that is significant because it is the provinces that basically control the facilities.”
Last week, Canadian reaction was divided over the U.S. Supreme Court decision. Action
League national vice-president Katherine Coffin of Halifax said that she hoped the ruling would have “minimal effects” on Canadian courts and legislators. But she added that its broader implication was that “they’re continually eroding women’s right to choose.” She said: “I think it’s time to take to the streets. What will they take away next? Our right to vote?” The federal government, Coffin said, should act to prevent the provinces from narrowing access to abortion. Patricia Tanner, spokesman for the anti-abortion group Nova Scotians United for Life, said that provincial control of abor-
tion services would “at least give people some control over what happens in their own area.”
In Winnipeg, anti-abortion activist and former Manitoba cabinet minister Joseph Borowski, who last March failed in his attempt to have the Supreme Court rule that a fetus had a constitutional right to life, said that “the American decision is going to affect courts and politicians around the world.” He said that he
had contacted Mulroney, telling him “to get off his butt and bring in legislation recognizing what everybody already knows—that the unborn baby is a person.” If the government has not responded by the fall, said Borowski, the anti-abortion movement would begin “increasing the pressure.”
Meanwhile, the reaction of Manitoba’s prochoice groups to the stand taken by the U.S. Supreme Court was more restrained than Borowski’s. Frances Telford of the Manitoba Coalition for Reproductive Choice said that the U.S. decision “will spur the antichoice people on.” Federal politicians, she said, were in a “no-win situation, so why would they take on anything when they now can slough it off on their provincial counterparts?” Ann Nacci, a spokesman for the Morgentaler clinic in Winnipeg, said that the clinic was “gearing up” to receive women from Minnesota and North Dakota, where tighter abortion laws were predicted in the wake of the U.S. Supreme Court action.
In Vancouver, Hilda Thomas, the president of the Everywoman’s Health Centre Society, which has been operating the province’s only free-standing abortion clinic since last Nov. 4, said that the U.S. Supreme Court was “whittling away all the rights American women fought very hard for since the 1970s. We are not going to allow similar action to take place in Canada.” Added Thomas: “The Mulroney government will duck. The U.S. decision has given them the idea that they can get out from under by passing it on to the provinces.”
The Vancouver Right to Life Society’s Green said that she believed the federal government had no intention of introducing an abortion law to replace the one the Supreme Court struck down. Ottawa, said Green, “thinks this battle can be won by not doing anything, and the prolife people will just get used to the killing. Well, they’re wrong. One of the primary effects of the U.S. decision is to encourage prolifers.” The change in judicial philosophy reflected in last week’s pronouncement, she said, makes it “very obvious” that the U.S. Supreme Court is moving in the direction of reversing itself completely on the 1973 decision—known as Roe vs. Wade—that legalized abortion.
The status of Roe vs. Wade could be further affected by three more cases that the nine justices of the U.S. Supreme Court are scheduled to hear this fall. Two revolve around the rights of teenagers to obtain abortions without their parents being involved. The third has to do with the costly licensing requirements facing clinics that perform the procedure in the first three months of a pregnancy. Legal observers say that, in each case, the court could reach conclusions that would have the effect of turning the clock back 16 years—and turning up the heat once more on an issue that already seems to many to be beyond solution.
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