Seldom in politics are the choices so emotional or the divisions so complete. When the Senate voted last week on whether to put abortion back into the Criminal Code, the outcome closely reflected the fractured state of Canadian public opinion on the issue. Many senators wanted no law at all. Others wanted even tougher restrictions on abortion than were contained in the Conservative government’s proposed Bill C-43. Their disagreement left Canadians with no national policy on abortion and uncertain over whether the procedure would be widely available.
Faced with a bill attempting to strike a delicate compromise between the opposing goals, the Senate balked.
Freed from party discipline, an unlikely alliance of senators opposed to the bill for contradictory reasons narrowly defeated it in a 43-to-43 tie vote—a clear majority of Senate votes is required for a bill’s passage. With that, said Justice Minister Kim Campbell, the federal government was giving up its attempt to find a political middle ground on the issue of prenatal life and death.
But even with Ottawa on the sidelines, few observers expected the ongoing debate over abortion to subside.
Activists on the so-called pro-choice side, which favors leaving the decision on abortion to the pregnant woman, expressed delight that the Senate had defeated a bill that would have required a doctor’s consent for the procedure.
But they also acknowledged that in the absence of federal legislation, some provinces may attempt to limit abortion on their own. At the same time, opponents of abortion in the so-called pro-life movement also claimed victory in seeing the end to what they considered to be overly lenient legislation.
Said Karen Murawsky, an Ottawabased lobbyist for the Campaign Life Coalition, for one: “We are happy the bill was defeated, but it is just a small step. We need a better pro-life law to protect the unborn.”
But it is extremely unlikely that the Tories will produce any law. For one thing, Campbell herself expended tremendous political capital in support of the bill that the Senate rejected. Its defeat marked the end of a three-year attempt by Ottawa to reassert federal control over abortion. The Tories had struggled to draft legislation ever since the Supreme Court declared the previous federal abortion law unconstitutional in January, 1988, on the grounds that the threat of criminal punishment
could force women to carry a fetus to term—a violation of their constitutional rights. Last May, the House of Commons passed Bill C-43, which would again have made abortion illegal, except when a single doctor stated that a woman’s physical, mental or psychological health was threatened by her pregnancy.
The most devastating blow to the bill came from doctors. The law provided for penalties of up to two years in jail for any physician
who performed an abortion but could not prove that the patient’s well-being had been threatened. Many doctors complained that anti-abortionists would use such a law to launch a blizzard of civil suits against those who performed abortions. On Jan. 17, Judith Kazimirski, chairman of the Canadian Medical Association, told a Senate committee studying the bill that 54 doctors had already stopped performing abortions in anticipation of such harassment. But Campbell told Maclean’s that the doctors were “blackmailing Parliament.” Still, many Progressive Conservative senators acknowledged that the doctors’ complaints
contributed heavily to the bill’s defeat.
And doctors were among those who most welcomed that outcome. Gynecologist Thomas Orr was one of four doctors in Sault Ste. Marie, Ont., who stopped performing abortions last June. But with last week’s assurance that the procedure would remain outside the Criminal Code, Orr said that he and his colleagues will resume the practice. Said Orr: “I think all gynecologists across Canada will be comfortable performing abortions again.” And in Edmonton, Dr. Henry Morgentaler, the Toronto-based abortion campaigner who was the defendant in the case that led to the 1988 Supreme Court decision, called the Senate vote “wonderful.” Morgentaler said that he had lobbied senators vigorously to defeat the “pernicious” bill, adding that now “more doctors will be willing to work in an abortion clinic without the threat of prosecution.”
But the bill’s defeat clearly does not ensure equal access to abortion across the country. Some politicians, including Campbell, predicted that without a federal law in place, individual provinces might act themselves to fill the legal void. Ontario, for one, has already indicated that it plans its own laws intended. to expand access to abortion. And last week, Ontario Health Minister Evelyn Gigantes said that the province would recruit more doctors to perform abortions. By contrast, noted Lorenne Clark, an associate professor of law at Dalhousie Law School in Halifax, “in some provinces, such as Prince Edward Island, there is no positive right to safe abortions.” Said Gilles Létoumeau, president of the Law Reform Commission of Canada, which argued strongly in favor of the bill: “We will see serious variations from province to province. This will leave Canadians without uniform standards.”
In Ottawa, the defeat of the bill had political repercussions as well. Alç though senators were free to vote ±i according to their consciences, many 1 senior Tory loyalists expressed bitters' ness towards the seven Conservatives I who voted against the bill. Other To! ries accused Campbell and her staff of ” being complacent about the political threat to the bill. Indeed, some suggested that Campbell, who has said that she is personally pro-choice, had “secretly hoped” the bill would be defeated. But the minister vigorously denied those criticisms. “Anyone who thinks they are doing me a favor by voting against this bill is wrong,” she told Maclean’s two days before the vote, adding: “We need this law.” In the final hours, Campbell took that message to any senator she encountered. But her last-ditch effort was ultimately unsuccessful as the bill foundered on the very divisions of opinion it was designed to bridge.
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