CANADA

ABORTION IN THE COURTS

THE POLITICIANS DEFER TO THE JUDGES IN A CASE THAT HAS RAISED PASSIONS ACROSS THE NATION

BRUCE WALLACE August 7 1989
CANADA

ABORTION IN THE COURTS

THE POLITICIANS DEFER TO THE JUDGES IN A CASE THAT HAS RAISED PASSIONS ACROSS THE NATION

BRUCE WALLACE August 7 1989

Until last week, Ottawa stockbroker Louise Tardif, 32, had never attended a demonstration. But then, the Quebec Court of Appeal ruled that 21-year-old Chibougamau, Que., native Chantal Daigle’s fetus was a living human entity—upholding an injunction that prevented her from terminating her 21-week-old pregnancy. The next day, Tardif walked four blocks from her downtown office to join 300 other protesters on the steps of the Supreme Court of Canada building. Standing quietly on the periphery of chanting activists, Tardif said that she feared the federal government might pass a law that would restrict a woman’s right to have an abortion. She added: “I watched other cases where injunctions were turned down, so I thought that common sense would continue to prevail. But now it hasn’t, and I am part of the silent majority which has decided that, when your freedom is affected, you have to do something about it.” Later, the Supreme Court of Canada agreed to a special session this week to hear Daigle’s application for an appeal.

The much-anticipated Quebec court ruling on the Daigle case heightened the already inflamed emotions between those who oppose abortion under any circumstances (the self-styled prolife group) and those who favor it as a legal option (who call themselves prochoice). The Ottawa protest was one of several demonstrations across the country organized by the recently revitalized forces favoring abortion on demand. In Montreal, 7,000 marchers turned out to condemn the Quebec Appeal Court’s ruling, while in Toronto 600 protesters held a rally. For her part, Daigle immediately had her lawyer petition the Supreme Court of Canada for an appeal. The prospect of another legal battle tempered the initial exultation of those who oppose abortion. “This is not the time for a victory parade,” said Karen Murawsky, an Ottawa lobbyist for the Campaign Life Coalition. “One life has been saved, but now we need a law that will save the lives of all unborn children.”

But despite the intense pressure on Prime Minister Brian Mulroney’s government to end the legal confusion brought about by the 18-month-long absence of a federal law on abortion, there was little sign that any legislation could reconcile the diversity of deeply held convictions on the issue. In fact, there was a chance that the legislative quandary could become even more difficult if the Supreme Court upheld part or all of the Quebec court’s judgment.

In its landmark 3-to-2 ruling, the Appeal Court recognized Daigle’s fetus as “not an inanimate object nor the property of anyone, but a living human entity distinct from the mother.” Writing for the majority in a decision that may have an effect on other court decisions, Mr. Justice Yves Bernier, 73, also declared that a woman’s right to an abortion is not an absolute right that can be exercised at any time up until giving birth. And, in a passage that shocked some women’s groups, Bernier noted that the legal interests of fathers must also be taken into account when considering whether an abortion should be performed. Said Norma Scarborough, past president of the Canadian Abortion Rights Action League (CARAL): “The logic of the decision, which gives a man the right to compel a woman to carry a pregnancy to term, is outrageous.”

Still, the long-term legal significance of the ruling was unclear pending a Supreme Court decision on whether it would, in fact, hear Daigle’s appeal and rule on the merits of the Quebec judgment. Although Quebec clinics and hospitals continued to perform abortions after the ruling, the Quebec Medical Association advised doctors to consult lawyers on how to protect themselves from possible lawsuits. But other experts argued that the judgment was not a sweeping rejection of abortion rights. “The Quebec court made it clear that the advanced stage of Daigle’s pregnancy had a bearing on how they ruled,” said Stephen Scott, a constitutional lawyer at McGill University in Montreal. “It is not as if stringent rules have now been imposed on abortion, nor have they defined the scope of the rights of either the father or the fetus.”

For Daigle, the national significance of her celebrated case could not distract from her deepening personal dilemma. Her legal battle began when her former fiancé and the father of the unborn child, Montreal car dealership employee Jean-Guy Tremblay, 25, sought an injunction on July 7 that prevented her from having an abortion. By last week, the legal process had taken Daigle into her 21st week of pregnancy. As a result, even if she wins an appeal at the Supreme Court, Daigle cannot have an abortion in Canada, where doctors will not perform the procedure after 20 weeks of pregnancy unless the mother’s health is threatened or the fetus is abnormal. Indeed, the court, which would have to reconvene from summer recess if it decides to hear Daigle’s appeal, would have to rule unusually quickly in Daigle’s favor for her even to be able to have the abortion in the United States, where some doctors will abort fetuses up to 24 weeks old. Last week, Daigle refused to say whether she would defy the injunction if she loses her request for an appeal or, in the event that the Supreme Court agrees to hear it, the deliberations appear likely to last past her 24th week.

Daigle’s lawyer, Daniel Bédard, blamed the federal government for his client’s predicament. Said Bédard: “If Parliament had said 22 or 24 weeks is the maximum limit at which a woman can have an abortion, then she probably would have made a decision earlier.” But MPs in all three parties are so sharply divided over what kind of law—if any—is needed, that most observers, including Justice Minister Douglas Lewis, remained skeptical that the government will be able to draft any bill that would get a majority of MPs’ support. For his part, Mulroney repeated his pledge last week to introduce legislation after Parliament returns on Sept. 25, but refused to say what direction the government would take until after the Supreme Court has dispensed with the case.

In fact, the Tory government has been paralysed on the abortion issue ever since the Supreme Court struck down the previous criminal law in January, 1988, on the grounds that it violated the rights of women. Since then, justice department lawyers have sent the cabinet an array of draft bills aimed at regulating access to abortion without infringing on the constitutional rights of women. But senior ministers, who discussed the question again as recently as July 24 at a meeting of the cabinet’s top-level priorities and planning committee, remain split over what kind of legislation should be tabled. Some, such as Status of Women Minister Barbara McDougall, are seen as supporters of a woman’s right to choose in the matter of abortion. Others, including Deputy Prime Minister Donald Mazankowski, are viewed as sympathetic to the demands of antiabortionists. Many cabinet ministers may be forced to compromise their beliefs because Mulroney has hinted to reporters that, unlike MPs who will be allowed to vote according to their conscience, cabinet ministers may be required to support the government’s bill.

Increasingly, government officials said that the Tories may try to dodge a political backlash by developing a law based on the recommendations made last April by the independent Law Reform Commission of Canada. In a paper titled “Crimes Against the Foetus,” the commissioners outlined a compromise solution that would make some abortions illegal. The commission suggested allowing abortions in the early stages of pregnancy, provided that a woman and her doctor believe that bearing the child would cause the mother psychological harm. But the commission recommended restrictions on abortions once the fetus reaches 22 weeks—at the 24-week age it is now possible, due to advances in technology, for a premature baby to survive outside the womb. The commission also rejected making any provision for fathers’ rights to decide on abortions. Said Mr. Justice Allen Linden of the Ontario Supreme Court, president of the commission: “We debated that question and decided against it. What kind of father would force a woman to deliver a baby?”

But as the battle moved through the courts and headed for the political theatre of Parliament, neither side appeared ready to accept a middle-of-the-road solution. Said James Hughes, national president of the Campaign Life Coalition: “With the Daigle case, people are finally focusing on the rights of the baby. Now is the time to get a law that would support a total ban, not for compromise.” Since 1979, the coalition has targeted most of its resources into politics at the riding level and claims credit for helping defeat such pro-abortion candidates as Conservative Maureen McTeer and Liberal Lucie Pépin in the last federal election. Said lobbyist Murawsky last week: “I have limited faith in relying on the power of public demonstrations. If MPs are pro-abortion, we have to work to throw them out of their jobs.”

But since last November’s election, the coalition has turned its efforts toward fierce lobbying of Ottawa’s new MPs. Hughes said that those opposed to abortion now count more than 100 MPs solidly in favor of a law that would ban abortion except in certain cases. And they have identified another 50 MPs whom they say are wavering. In the past, the coalition’s lobbying—which included making the graphic anti-abortion film Silent Scream available on Parliament’s closed-circuit video channel—has convinced some MPs, notably Ontario Liberal Donald Boudria, to embrace its cause.

But crusaders on both sides of the issue noted last week that the current storm has emerged with stunning speed from an unlikely source. Anti-abortion activists conceded that Tremblay—who responded to an accusation by Daigle that he had used physical violence against her by saying that he never hit her “hard enough to leave marks”—is not an ideal spokesman for their position. Said Hughes, whose organization paid part of Tremblay’s legal costs: “I hear some of the strange things he says, and I think to myself, ‘Good heavens.’ But we just have to deal with those cases which walk our way.”

One such case was that of 22-year-old Toronto exotic dancer Barbara Dodd who, having had an Ontario court overturn a no-abortion injunction obtained by her ex-boyfriend, had the operation on July 11—then startled her family and supporters a week later by saying that she wished she had not gone ahead with it. Last week, Dodd, accompanied by Gregory Murphy, 23, the ex-boyfriend with whom she has reconciled, stood outside the Quebec City courthouse where the judges were deliberating Daigle’s case. She handed out photocopies of a letter that she had addressed to Daigle, urging her not to have an abortion and to “think about the baby inside of you begging for life.”

On the other hand, despite the current chaotic legal situation in Quebec, where fathers’ rights are to a degree now recognized, the proabortion forces still insist that no law is needed. Said CARAL’s Scarborough: “It may be dangerous to let things continue without a law. But we are so absolutely convinced that we are going to win in the end that we are going to hold the line on our position that we are better off without legislation.” And the NDP, which has promised that its 43 MPs will vote along party lines, maintains that no law is needed because abortion is a matter to be decided between women and their doctors. Last week, NDP women’s critic Dawn Black said that the only law the party would ever support would be one that entrenched those rights, without criminalizing abortions at any stage of pregnancy.

By galvanizing their supporters into action last week, the pro-abortion network also demonstrated that it is not politically moribund or without influence. “Once the old law was struck down, the prochoice side was just hoping that the whole issue thing would go away,” said Virginia Richards, who founded the Vancouver chapter of the loosely based Tories for Choice last year. “We were remiss in not taking a noisier stand.”

The high emotion surrounding the Daigle case—and the possibility that other court battles may ensue—has ensured that the unfolding debate will be loud and acrimonious. And when Parliament confronts the issue in the fall, many MPs may realize that only by compromising on an abortion law will either side manage to achieve any of its aims. Admitted antiabortion Liberal Boudria: “I am not saying I cannot put a bit of water in my wine. But other MPs will have to come our way, too.” Still, in the feverish emotions generated by Chantal Daigle’s trials, there was little hint of a search for common ground.