In the wake of the Supreme Court ruling, abortion became a publicly-funded medical service. It was available in many hospitals ; as well as in private clinics, such as those established by Morgentaler in major urban centers. However, services are not uniformly available across the country.
This is particularly true in rural areas and in parts of Atlantic Canada. In Canada, the provinces administer public medical services. See Distribution of Powers. With this power, some provincial governments have tried to ban private abortion clinics; or refused to fully fund them out of the public purse.
It struck down the provincial law banning abortion clinics in that province. After the penalties, the provinces agreed to fully fund the clinics. In New Brunswick , private abortion clinics have been unable to obtain public funding. This makes access to the procedure more difficult there. In Prince Edward Island , no abortion services were available at all as of However, PEI women seeking publicly-funded abortions can obtain them in nearby New Brunswick hospitals.
Since the ruling, abortion has continued to be a hot-button political issue. Opinion surveys consistently show Canadians divided on the matter. The remaining 21 per cent would not affiliate with either camp. As a result, federal political parties and governments since have generally avoided abortion as a topic of parliamentary debate.
They prefer to let the Supreme Court have the last word on the subject; rather than enact new legislation that could either formalize the existing system, or change it in some way. Several individual members of Parliament have introduced private members bills in recent decades — on both sides of the abortion debate. None have made it through the House of Commons and therefore have not become law.
The abortion issue received arguably its highest profile in decades in , when it was championed by pro-life candidate Leslyn Lewis during the Conservative Party leadership campaign that summer. A unilingual lawyer with no experience in government, Lewis had little chance of becoming leader.
Nevertheless, the social conservative made banning some abortions a central part of her campaign. Her surprisingly strong showing at the convention — she led the popular vote on the second ballot before falling off in subsequent voting — illustrated the viability of abortion as an issue within the Conservative Party.
Designed in part to improve access to abortion, the drugs act by inducing a miscarriage. Unlike with other medical drugs, the federal government requires doctors to dispense Mifegymiso directly to patients; rather than sending them with a prescription to a pharmacy.
However, those rules may be loosened in some provinces. Doctors are also required to take an online training course before they can dispense it. Search The Canadian Encyclopedia. Remember me. I forgot my password. Until the nineteenth century, abortion was a common-law offence and was criminal only if it occurred after "quickening. The actual time of quickening or being "quick with child," has always been an arbitrary one, but it is usually taken to be when the mother herself feels or thinks she feels movement this can vary from the sixteenth to the twentieth week or when somebody examining her can feel or see some movement.
The law on criminal abortion was first codified in England in , when the abortion of a quick fetus became a capital offence, while abortions performed prior to quickening incurred lesser penalties. In , the distinction as to quickening was dropped, together with the death penalty.
In , the still current Offences Against the Person Act was passed, making clear for the first time that a women procuring her own abortion was also guilty of a crime. The first Canadian criminal law on abortion was passed in It incorporated pre-Confederation provincial statutes, and provided for a penalty of life imprisonment for the person procuring the miscarriage.
While such statutes reflected societal and religious objectives of protecting the fetus, they were also influenced by concerns about the mother's health. Nineteenth century abortions were medically dangerous and, in a less regulated society with little concept of health care programs, often performed by non-physicians.
Because the British legislation prohibiting abortion made no provisions for the mother's life or health, it was increasingly challenged by the medical and legal communities. In , the British Medical Association set up a special committee to consider the medical aspects of abortion. It recommended that the law be revised to allow for some therapeutic abortions.
Also in , a British doctor, Dr. Aleck Bourne, reported to the authorities that he had, with the consent of her parents and for no fee, terminated the pregnancy of a 14 year-old girl violently raped by four soldiers. A test case ensued. In the Bourne case, in his instructions to the jury, Mr. Justice Macnaghten said that an abortion could be performed in good faith to protect the life and health of the mother, and that no clear distinction could be made between a threat to life and a threat to health.
The Bourne defence was subsequently adopted by most common-law jurisdictions, and would probably have been applicable in Canada prior to the abortion law. As abortion gradually became decriminalized, in the s and after, the first legal regimes dealt with indicators, the presence of which would permit an abortion.
This approach has been described as "indication-regulation. Various countries decided that various indicators were sufficient for a legal abortion, but the continuum of indicators is usually taken to be somewhat as follows:. The Court held that, while the fetus was not a "person" entitled to independent constitutional protection, the state did have an interest in protecting potential life.
It said that during the first trimester, when abortion is less hazardous to a woman's health than carrying a child to term, the state could only require that a licensed physician perform the medical procedure. During the second trimester, the state had a compelling interest in protecting the mother's health, and could regulate her access to abortion procedures in her own interest. It is this concept of the right of the state to protect maternal health that has generated some of the fiercest legal battles in the past decade or two in the United States.
During the third trimester, the Court ruled that the interest of the state in preserving the fetus became compelling. This argument is largely based on the premise that at this point the fetus becomes viable, but the logic has not gone unchallenged by either the pro-choice or the anti-abortion movement.
Approaches to abortion law were greatly influenced by the thalidomide tragedy of the s, and most modern abortion law is based on indication-regulation, time-regulation as approved in Roe v. Wade , or a combination of the two. Where time-regulation is concerned, the importance of the state concern in protecting the fetus normally increases dramatically as the chance of independent existence for the fetus increases. Viability, however, is a concern only when considering the balance between the interest of the state in protecting the fetus and the rights of the mother.
Neither the pro-life nor the pro-choice movement considers viability to be an issue in terms of protecting independent fetal rights. Viability, in any case, is a medical and not a legal concept. The British courts recently dealt with this issue in C. British law prohibits the destruction of "the life of a child capable of being born alive," and the Court of Appeal found as follows:. At the [18th to 21st week] the cardiac muscle is contracting and primitive circulation is developing.
Thus the fetus could be said to demonstrate real and discernible signs of life. On the other hand, the fetus, even if it is then delivered by hysterotomy, would be incapable of breathing either naturally or with the aid of a ventilator. It is not a case of fetus requiring a stimulus or assistance. It cannot and will never be able to breathe. The Canadian Medical Association defines an induced abortion as the active termination of a pregnancy before fetal viability: "According to current medical knowledge, viability is dependent on fetal weight, degree of development and length of gestation; extrauterine viability may be possible if the fetus weighs over [grams] or is past 20 weeks gestation, or both.
In , Parliament amended the Criminal Code in a number of important respects, including specifying in section then section when an abortion could be legally performed. The existing section, which made it an offence to procure the miscarriage of a pregnant female, was retained, but a number of new subsections were added.
The most important, subsection 4 , stated that the criminal sanctions against abortion would not apply to a doctor performing an abortion or a female obtaining one if the abortion had been previously approved by the therapeutic abortion committee of an accredited or approved hospital, and was also carried out in an accredited or approved hospital.
A therapeutic abortion committee had to comprise at least three doctors, none of whom could at the same time perform abortions. The therapeutic abortion committee was required to certify in writing that, in the opinion of a majority of its members, the continuation of the pregnancy would or would be likely to endanger the life or health of the female. No further definition of "health" was given, and there was even some uncertainty as to whether or not the word included mental or psychological health.
Instead of defining the circumstances in which an abortion was permissible, Parliament stated that abortion was legal if a therapeutic abortion committee said it was legal. In short, in Parliament replaced judicial control after the fact with medical control before the fact. Given Bourne , an abortion performed to save the life of the mother or to prevent a serious threat to her health would probably have been defensible before Indeed, the decision of the Supreme Court in the first Morgentaler case in seemed to suggest as much.
The Court held that Dr. Morgentaler could not use the Bourne , or necessity, defence because the existence of therapeutic abortion committees meant that only in the most exceptional circumstances would it be necessary to breach the Criminal Code to protect the mother. Having such committees, which could give prior approval for abortions, meant that doctors who performed abortions need not run the risk of a criminal charge; however, it also meant that they could not substitute their own judgment for that of the committee, except in cases of emergency.
As the law came into effect, it became evident that the interpretation of the words "would or would be likely to endanger [the] life or health" of a pregnant female varied widely across the country.
Additionally, the uneven distribution of hospitals with therapeutic abortion committees gave rise to concerns as to whether legal abortions were equally available to women in various parts of the country.
Even if four separate doctors could be found who felt that a female's health was endangered, a legal abortion could not be performed in the absence of a therapeutic abortion committee appointed by an accredited or approved hospital.
Consequently, in a Committee on the Operation of the Abortion Law was appointed "to conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions [was] operating equitably across Canada" and to make recommendations "on the operation of this law rather than recommendations on the underlying policy. It found, quite simply, that "the procedures set out for the operation of Abortion Law are not working equitably across Canada.
The debate over abortion had not been resolved but had, to some extent, been shifted from the criminal law to local communities and the medical profession. The procedure for obtaining a legal abortion under the law depended entirely upon access to a therapeutic abortion committee at an accredited or approved hospital. In turn, access to a therapeutic abortion committee depended upon the distribution of eligible hospitals, the location of hospitals with therapeutic abortion committees, the use of residency and patient quota requirements, and the distribution of obstetrician-gynaecologists within and among provinces.
Sharp regional disparities in all of these factors meant the Criminal Code procedure for obtaining a legal therapeutic abortion was in practice illusory for many Canadian women. The Committee found that there was much concern among physicians about the definition of health, and little uniformity as to how the concept was interpreted. The definition of the World Health Organization was recognized by the Government of Canada, several provincial governments and the Canadian Medical Association.
It stated: "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. There was also considerable variance across the country in the way the issue of "consent" was handled. The age at which a young, unmarried female is deemed capable of giving consent to medical care and treatment is within provincial jurisdiction, and the Committee found that uncertainties in provincial laws had been allowed to affect the hospitals' consent requirements for carrying out abortions.
In provinces where the age of consent to other medical procedures was lower than the age of majority, for example, a substantial number of hospitals required a woman to have reached the age of majority in order to consent to having an abortion.
The Committee also noted that although there was no known legal requirement for the consent of the father to a therapeutic abortion, more than two-thirds of the hospitals it surveyed which carried out abortions required the consent of the husband. The issue of consent is an interesting example of the constitutional problem with respect to abortions.
The federal government, using the criminal law power, had legislated that abortions approved by a therapeutic abortion committee would not be subject to the Criminal Code prohibition against abortions. Prior approval by such a committee would be an absolute defence to any criminal charge. The standard set was danger to the mother's life or health. If a therapeutic abortion committee, having formed the opinion that the life or health of the female was or was likely to be endangered by the pregnancy, further required that the parents of an unmarried minor or the husband of the woman should consent to the procedure, it would be denying a woman access to a legal abortion for reasons unrelated to the Criminal Code.
The constitutional issue is not so much that abortions were unevenly available across the country, but that there was unequal access to a criminal defence. This inequality in the application of the criminal law, moreover, was brought about to some extent by differences in provincial health regulation standards.
The Badgley Committee also inquired whether hospital employees were required to participate in therapeutic abortion procedures regardless of their personal views. It found that this was normally dealt with as an employer-employee issue, rather than as an issue of conscience. The general policy of hospitals was that, within designated job categories, employees were expected to accept the general duties assigned to them.
The Committee underlined that "the options are few concerning induced abortion The critical social choices are between two sensitive issues, induced abortion and family planning.
In , the Charter of Rights and Freedoms came into effect, and in Dr. Henry Morgentaler together with two other doctors was charged with unlawfully procuring miscarriages in his Toronto clinic. By the time the case reached the Supreme Court, the numerous legal issues had been effectively reduced to whether the abortion provisions of the Criminal Code infringed in an unjustified way a woman's right to "life, liberty and security of the person" guaranteed by section 7 of the Charter.
The relevant sections of the Charter read:. Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with fundamental justice. Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
When a court decides that legislation violates a Charter right, such as the right to security of the person, it then looks to section 1 to see whether the violation is a reasonable limit demonstrably justified in a free and democratic society. This involves two steps: first, the court addresses the issue of whether the legislative purpose or objective is of sufficient importance to warrant overriding a constitutionally protected right or freedom; second, the court assesses whether the means employed are proportional to the objective and whether they are reasonable.
The Morgentaler decision is difficult to summarize because the majority wrote three different decisions. All, however, agreed that:. At the risk of oversimplifying, the Court found that the legislation interfered with the security of the person of a woman in limiting, by criminal law, her effective and timely access to medical services when her life or health was endangered. This criminalization was not in accordance with fundamental justice.
For all the reasons noted by the Badgley Committee and testified to by numerous experts, access to the certificate of a therapeutic abortion committee, which provided a valid defence to criminal charges, was not equally available across the country. In addition, the procedure set out in the Criminal Code could cause extensive delays, which further endangered the woman's life or health, and it was fundamentally unjust to require a woman to impair her health in order to remain within the law.
A point worth noting is that the decision was founded upon the rights of pregnant women, although the defendants were all physicians. This was because the Court held that the physicians had standing to challenge the constitutionality of the abortion law, under which they were liable for conviction, whether or not the constitutional argument advanced directly affected them. If procuring a miscarriage had been an offence only for the doctor, and not for the woman involved, the Morgentaler decision might have been worded quite differently.
The three majority decisions were written by Chief Justice Dickson, Mr. Justice Beetz, and Madam Justice Wilson. Though the decisions came to the same conclusion, their logic differed noticeably. The Chief Justice found that the abortion law infringed women's security of the person by forcing them "to carry a foetus to term contrary to their own priorities and aspirations," as well as causing delays which increased the physical and psychological trauma involved.
Since the therapeutic abortion committees were "a strange hybrid, part medical committee and part legal committee," it was no help to say that "health" was a medical term. He felt that the term "health" was insufficiently defined in the Criminal Code. A clear legal standard was necessary when the committee's decision had such direct legal consequences. Beetz J. The standard in the abortion law became entrenched as a minimum when section 7 of the Charter was enacted:.
The gist of section 4 is, as I have said, that the objective of protecting the foetus is not of sufficient importance to defeat the interest in protecting pregnant women from pregnancies which represent a danger to life or health. He also held, as did Wilson J. Wilson J. She noted, however, that security of the person might involve more than physical or psychological security, and she based her judgment as much on the right to liberty as the right to security of the person.
According to Wilson J. It should be noted, however, that the state is required only to respect such decisions, or to refrain from interfering with them, not to approve or facilitate them. She held that deciding whether or not to terminate a pregnancy was "essentially a moral decision, a matter of conscience. Therefore, it could not be in accordance with fundamental justice.
While recognizing that a fetus is potential life from the moment of conception, she felt that "in balancing the state's interest in the protection of the fetus as potential life under s. All of the majority decisions specifically noted that the Court had not been asked to decide whether a fetus is included in the word "everyone" in section 7 of the Charter and would therefore have an independent right to "life, liberty and security of the person.
The question of possible fetal rights under the Charter was addressed in Borowski v. Attorney General of Canada. Borowski argued that section 7 of the Canadian Charter of Rights and Freedoms gives a fetus an independent right to life because the word "everyone" includes the fetus, and that the abortion law therefore violated fetal rights by allowing legal abortions. Independent fetal rights are very different as a legal concept from the societal right to protect the fetus recognized in Morgentaler.
In the Borowski case, the Saskatchewan Court of Appeal examined the history of the fetus at common law, and the language of the Charter.
Concluding that the fetus had never been a person or part of "everyone" at Anglo-Canadian law, the Court decided that, had Parliament wished to effect such a major departure from tradition as creating fetal rights, it would have used very clear and unambiguous language. The decision was appealed to the Supreme Court but was not heard until October , after the Morgentaler decision had already invalidated the relevant section of the Criminal Code.
The question raised by Mr. Borowski as to the constitutionality of that section was therefore moot. During the summer of , several men in Ontario, Manitoba and Quebec took their former female companions to court, asking for an injunction against a planned abortion. Prince Edward Island has long been a battleground for abortion rights. Under the previous law, PEI had one TAC; it was dismantled in , having approved no procedures for the previous four years.
Between and , PEI residents had to travel out of province to access abortions at one of two pre-approved Maritime hospitals — and at their own expense until Yet, as this one clinic has a capacity well under the annual demand, many women and girls are still paying out-of-pocket expenses to travel to neighbouring provinces for abortions.
One Nova Scotia patient recently described the restricted options Atlantic women still face when securing a procedure. By comparison, Ontario has been perceived as a more progressive province. Even though Ontario was one of the leaders in establishing TACs under the law, 46 percent of Ontario hospitals had no committee and 12 of the participating hospitals did not approve a single procedure from to Even after a government-commissioned task group reported in that access to abortion services was inadequate, Ontario made little effort to improve affordability and availability for all its residents.
The Ontario government of Bob Rae sought to improve access in by placing the five abortion clinics active at the time under the Independent Health Facilities Act , a move that made abortions performed there fully funded.
But no later government has sought to amend the Act since, so procedures in clinics set up more recently have yet to be fully paid for.
Additionally, all 13 clinics operating today are located in or near metropolitan centres, making their services largely inaccessible for northern residents. Furthermore, if these facilities have any reduction in provincial funding, they are at risk of potential absorption into the much larger Catholic hospitals. For example, the Wellesley Hospital in Toronto was forced to suspend all abortion services in after its merger with St.
Unlike women in PEI, Ontario women rarely encounter the abortion debate on the political stage, but they face challenges of geographic and financial inaccessibility instead. Across Canada, even with the introduction of Mifegymiso a medical abortion pill that can be taken outside a clinical setting , the health care system has overwhelmingly failed to produce the desired results of privacy and accessibility. As with surgical abortions, Mifegymiso is still primarily obtained at urban clinics; in more rural areas, few patients can find doctors willing to prescribe it.
Even though this medical alternative is available to help alleviate accessibility issues in larger provinces such as Ontario, the stigma surrounding abortions within the medical community still causes significant barriers to reproductive health services for women.
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