Abortion in Canada

Abortion in Canada is not limited by law. While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion.

Polls continue to show that a majority of Canadians believe abortion should remain legal in some circumstances (see Opinion polls, below). Over 110,000 abortions are performed in Canada every year, that represents a ratio of about 30 abortions to every 100 live births. 90% of abortions are performed in the first trimester, with just 2 to 3% performed after 16 weeks.

Legality
The Supreme Court of Canada has deemed abortion a Criminal Law matter that is within Federal jurisdiction. Consequently, provincial legislatures have very little power to regulate abortion, even if done indirectly. Thus, the discussion on the law on abortion in Canada turns almost entirely around the state of the Criminal Law.

Section 287 of the Criminal Code is the abortion provision drafted by Trudeau and passed in 1969. Prior to 1969, taking steps to cause an abortion was an offence liable to life imprisonment. However, the Trudeau scheme made an exception for abortions performed in a hospital with the approval of that hospital’s three-doctor therapeutic abortion committee. The committee would have to certify that the pregnancy would be likely to endanger the life or health of the mother. The term health was not defined, and therapeutic abortion committees were free to develop their own theories as to when a likely danger to “health” (which might include psychological health) would justify a therapeutic abortion.

In 1988, the Supreme Court of Canada in the Morgentaler decision declared this entire section to be of no force or effect because it was held to violate section 7 of the Canadian Charter of Rights and Freedoms. Section 7 states that: “Everyone has the right to life, liberty, and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The majority of the Court held that “the structure of the system regulating access to therapeutic abortions is manifestly unfair. It contains so many potential barriers to its own operation that the [exception] it creates will in many circumstances be practically unavailable to women who would prima facie qualify”. As such, the provision was held to violate the principles of fundamental justice and was struck down, leaving Canada with a legislative vacuum to this day.

The court did not consider the question of whether the unborn were included in the “everyone” who have the right to life. The court was to hear Borowski later that week with that very question as the central issue, but the case was rendered moot by the decision in Morgentaler which struck down the provisions that were to be challenged. The court has never considered the issue. Early attempts to fill the legislative vacuum failed politically, and no government has since dared to touch the issue.

The majority of the Court in Morgentaler did not go so far as to find that section 7 contains a substantive right to abortion. The seeds of this argument are arguably found in the decision, but as such, it was only explicitly argued by Wilson J and not for the majority of the court. Strictly speaking, the court found it unnecessary to consider whether the substance of section 7 implies a right to abortion, but instead made its decision on narrow and merely procedural grounds. The practical result is that it is still open to Parliament to impose some restrictions on abortion within the present jurisprudence and without the use of the Notwithstanding clause. However, such restrictions would surely be met with vehement opposition, and the Court could very well explicitly read-in a right to abortion into the Charter in a future decision. On the other hand, a future court could echo the dissent of La Forest and McIntyre JJ or go further: “The proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s. 7 of the Charter or any other section.”

The end result, then, is that there is no Criminal regulation of abortion in Canada.

The case of Chantale Daigle (Tremblay v. Daigle [1989] 2 SCR 530) is one of the most widely publicized cases concerning abortion in Canada after the law regarding abortions was thrown out by the Supreme Court of Canada. It went before the Supreme Court of Canada in 1989. Daigle's ex-boyfriend obtained a restraining order against her having an abortion. While the restraining order was issued in Quebec, it was legally restricting Canada-wide. The case came before the Supreme Court of Canada, which ruled that only the woman could make the choice; the father had no legal say in a woman's choice to terminate a pregnancy or carry it to completion.

Daigle had already had a late second-term abortion before the ruling of the Court. While the case was fast-tracked, the progress was so slow that a third-trimester abortion would have been required had Ms Daigle waited for the ruling to be handed down. The fact that Daigle had an abortion, in the United States, while the case was before the Supreme Court of Canada was not made public until after the ruling, although it was not unexpected. This is in contrast to the Roe v. Wade case in the United States where Roe had carried the baby to term. That case, however, was different from the Daigle case in that it was about whether abortion was legal. In the Daigle case, the question was whether a male partner has an equal say in whether a woman can obtain an abortion.

There have been several cases since then that have confirmed the decision of the court in Daigle.

Access throughout Canada
Abortions in Canada are provided on request and funded by Medicare, to Canadian citizens and permanent residents (as with most medical procedures) in hospitals across the country. Abortion funding for hospitals comes from the various provincial governments (their overall health expenses are however paid for in part by the federal government). One-third of hospitals perform abortions, and these perform two-thirds of abortions in the country. The remaining abortions are performed by public and private-for-profit clinics.

Medical abortion is available in Canada on a limited basis using methotrexate and misoprostol; mifepristone (more widely known as RU-486) is not legally approved, and importation of that drug in Canada is currently illegal. Clinical trials were done in 2000 in various Canadian cities comparing methotrexate to mifepristone, after approbation by the federal government. While both drugs had overall similar results, mifepristone was found to act faster. As of May 2005, it is unclear whether or when RU-486 will be approved for use in Canada.

Access by province
While the provinces are required by the federal government to fund abortion clinics fully, Quebec and Nova Scotia provide only limited funding, and New Brunswick provides no funding for clinics.

Until 2004, Manitoba did not fund private abortion clinics. However, in July of 2004 the province's only private abortion clinic was purchased by a non-profit organization, which then successfully sued the provincial government to pay for abortion procedures there. In December of 2004, a Manitoba judge ruled that the province must pay for all therapeutic abortions.

In 2004, Dr. Henry Morgentaler launched a judicial battle against the New Brunswick government, seeking to have abortion recognized as a constitutional right under the Canadian Charter.

Access in rural and northern areas, and especially in New Brunswick, Nova Scotia, and Prince Edward Island (PEI), is often restricted by the lack of nearby facilities, requiring women to travel long distances (often at their own expense) to obtain an abortion. Some hospitals refuse to perform abortions on out-of-province patients, in contravention of the portability requirement of the Canada Health Act. This can be especially troublesome for women in PEI, where no facilities currently perform abortions.

A doctor's referral is not necessary, although an independent ultrasound usually needs to be done. The number of Canadian medical schools that give instruction in abortion procedures is decreasing, which could potentially create a shortfall in medical personnel skilled in this area.

Third-trimester abortions are not generally available. For instance, in Quebec, there is currently no doctor who will perform a third-term abortion unless the health of the woman is in great peril or there is a genetic disorder. Currently the province sends women who seek to have third-term abortions performed to the United States. Quebec is currently actively looking to hire a doctor to do third-term abortions, but has not been successful as of October 2004.

Access in British Columbia (BC) is governed by the Access to Abortion Services Act, which limits political demonstrations outside of abortion-providing facilities, doctor's offices, and doctor's homes to set distances.

History
Abortion was completely banned in Canada in 1869. As in other countries, illegal abortions were still performed, leading to the deaths of many women every year. An early example received much attention during the abortion trial of Emily Stowe (1879). Another such case, Azoulay v. The Queen, reached the Supreme Court in 1952. In 1892, abortion and the advertisement and distribution of contraception were made illegal in Canada.

The movement to liberalize Canada's abortion laws began in the 1960s. Then Justice Minister Pierre Trudeau introduced a bill in 1967 (amendment to Section 251 of the Canadian Criminal Code). The bill passed and became law in 1969, and provided for abortions when the health of the woman was in danger as determined by a three-doctor hospital committee. However, abortion still remained in the Criminal Code of Canada, unlike the U.S. law where, after Roe v. Wade in early 1973, abortion was no longer illegal. This same bill also legalized homosexuality and contraception, and would be the subject of one of Trudeau's most famous quotations: "The state has no business in the bedrooms of the nation."

While many Canadians opposed the liberalization of abortion laws, others believed that the law did not go far enough, and that the rulings of the three-doctor committees were inconsistent and often untimely (taking perhaps several weeks). A Montreal doctor, Henry Morgentaler, not wanting to break the law, initially turned away women seeking abortions from his practice. Soon, however, he could not stand the suffering and desperation of those women; and he began performing safe abortions in his clinic in contravention of the law. In 1973, Morgentaler stated publicly that he had performed 5,000 abortions without the permission of the three-doctor-committees, even going so far as to videotape himself performing operations.

The Quebec government took Morgentaler to court twice, and both times juries refused to convict him despite his outright admission that he had performed many abortions. The government appealed one acquittal, and the appeal court overturned the jury's verdict. Morgentaler was sentenced to 18 months in jail. Public outcry over the appeal court's decision caused the federal government to pass a law (commonly known as the Morgentaler Amendment) preventing appeal courts from overturning a jury's not-guilty verdict. Morgentaler was again acquitted at a third trial, causing the Quebec government to declare the law unenforceable.

Morgentaler's struggle prompted a nation-wide movement to reform Canada's abortion laws. In 1970, 35 women, including Jackie Larkin, chained themselves to the parliamentary gallery in the House of Commons, closing Parliament for the first time in Canadian history.

Upon his release from prison in Quebec, Morgentaler decided to challenge the law in other provinces. Over the next 15 years, he opened and operated private abortion clinics across the country in direct violation of the law. Following a fourth jury acquittal in 1984, the federal government appealed the decision, and the appeals court reversed the decision.

Morgentaler, in turn, appealed to the Supreme Court of Canada. In a landmark decision, the Court declared in 1988 the entirety of the country's abortion law to be unconstitutional. The court noted that "[f]orcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations" and that the law "asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state" were essentially a breach of the woman's right to security of the person, which is guaranteed under Canada's Charter of Rights and Freedoms.

The Court also found that the procedural requirements to obtain an abortion, as set forth in the law, were especially troublesome. Only accredited or approved hospitals could perform abortions, which imposed a barrier to local access. The law also specified that women wanting an abortion were required to consult a "Therapeutic abortion committee" (TAC), a committee of at least four physicians appointed by the hospital's board of members. The court found that the TAC was deeply flawed, in part because of the long delays caused by the TAC and that in many hospitals, the TAC were merely committees on paper and did not actually perform abortions.

In its decision (Morgentaler et. al. v. Her Majesty The Queen [1988] (1 S.C.R. 30) at 37), the Court stated:

"'The right to liberty... guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life. ... The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state.'"

A large part of why the Supreme Court of Canada ruled against the abortion law in 1988 had to do with how amendments to the criminal code that allowed abortions (amendment to Section 251) the law worked. In order to have an abortion, a woman had to first have a doctor who was willing to give her information on the topic and refer her to another doctor, or to take the case him or herself. The abortion then had to be approved by a hospital's Therapeutic Abortion Committee (commonly known as a TAC), which was composed of three doctors. Pro-life groups attempted at times to have their members become the members of the TAC so that the hospital would no longer perform abortions.

The court noted that it was mostly always men that were deciding if a woman should have an abortion. Also, because some pro-life doctors would not take any case to a TAC, or would only take a very severe case, and because some of these doctors would not even refer a women to a doctor who would present the case to the TAC, there were barriers to women who wanted to have their applications considered by a TAC. It could take a long time for a woman to find a doctor that would take her case to the TAC. Finally, the TAC had to decide on each request for an abortion. These factors resulted in a time lag that meant that abortions were being performed much later than they could have been.

The Court also recognized that the rules resulted in varying levels of abortion availability, depending on the city, province or territory. The law also resulted in middle class and affluent women having better chances to obtain an abortion. The existence of private clinics meant that women who had enough money could bypass the TAC system completely.

The court did, however, encourage the government to introduce a new and improved abortion law, which it attempted to do in 1989. This new bill, which threatened doctors with a two-year jail term if they approved an abortion when the woman's health was not in danger, was widely and loudly condemned by the country's doctors. While the bill was approved by the Canadian House of Commons, it was defeated in the Senate by a tie vote. This failure prompted the government to give up on legislating abortion entirely, leading to the unique situation of Canada having no abortion law whatsoever. Between the time the law was passed in the House of Commons and the time it was defeated in the senate, a 20-year-old student at the University of Waterloo bled to death after trying to perform an abortion on herself, the first such case in years.

Some of the private abortion clinics that have been set up by Morgentaler since the Supreme Court decision were opened to challenge provincial law on the medical financing of abortions in private clinics.

Politics
Of the main federal parties, the Bloc Québécois and New Democratic Party are staunchly pro-choice while the Liberal Party of Canada and Conservative Party of Canada have both pro-choice and pro-life members (and neither party has an official position on abortion). Traditionally, more Liberal members are pro-choice than pro-life, and more Conservative members are pro-life than pro-choice. The ambiguity in the official stances of these two main parties has occasionally created disputes within the parties.

The recently-formed Conservative Party has, for instance, had to wrestle with combining the conflicting social policies of its two predecessor parties, the moderate Progressive Conservative Party of Canada and the more right-wing Canadian Alliance. Many socially conservative Alliance supporters were angered at the prospect of pro-choice Belinda Stronach winning the leadership election in early 2004, while some Conservatives objected to the new party's perceived openness to pro-life legislation during the 2004 federal election. In the March 2005 policy convention, in a narrow vote, the party voted to not introduce legislation on the subject of abortion. (Members can still introduce private members bills on the issue, which are free votes)

The Liberal Party, on the other hand, has a pro-life caucus which, while not publicly fighting to change party policy, has created a degree of uncertainty in how the party would handle the issue were it to be brought up in Parliament. Proof of the pro-life opinions within the Liberal party, Liberal MP Paul Steckle introduced in June 2006 a bill that if passed, would make abortion after 20 weeks gestation a criminal act. The bill has not been acted on since its introduction.

Although the issue of abortion rights has popped up from time to time in Federal elections as a wedge issue, the issue is consistently rated as a low priority for most Canadians. The Christian Heritage Party of Canada claims to be Canada's only stated pro-life federal political party, but has never had a member elected to parliament.

Opinion polls
Most Canadians oppose the idea of making abortion illegal. In that sense, it might be said that Canadians are generally pro-choice; however some polls suggest that a majority of Canadians may favour some legal restrictions on abortion.


 * In a Léger poll taken September 2001, 46.6% of respondents say they are personally "for" abortion, while 37.6% say they are personally "against" abortion. In the same poll, 54.5% of respondents agreed with the idea that "only women should have the right to decide to have an abortion," while 38.5% disagreed.


 * A Gallup poll in December 2001 asked respondents: "Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances and in what circumstances?" The results showed that 32% of Canadians believed abortion should be legal in all circumstances (down from 37% in 2000), 52% believed abortion should only be legal in certain circumstances and 14% thought abortions should be illegal in all circumstances, (up 9% from 2000).


 * In a Léger poll taken January 2002, 47% of respondents said abortion was "not immoral," while 41.8% said it was.


 * In a poll conducted by the National Post in November 2002, 78% of respondents answered "yes" to the question: "Should women have complete freedom on their decision to have an abortion?".


 * A poll in October 2003 conducted by Leger asked about prenatal legal protection, and several abortion-related topics, 63% said they favoured legal protection for human life before birth and 69% favour informed consent legislation on abortion.


 * In a Gallup Canada poll taken September 2004, 54% of respondents said they personally thought abortion was "morally acceptable."


 * In a Gallup Canada poll taken April 2005, 52% of respondents say they would like to see Canadian abortion laws "remain the same," 20% say they would like the laws to be "less strict," while 24% say they would like the laws to be "more strict."


 * In an October 2005 Environics poll, commissioned by Life Canada, when asked "at what point in human development should the law protect human life," 30% of respondents said "From conception on," 19% said "After three months of pregnancy," 11% said "After six months of pregnancy," and 33% said "From the point of birth."


 * In an April 2006 Leger poll, 34% of respondents said they found abortion "immoral," behind paedophilia, extra-marital affair, prostitution, alcohol abuse, sexual relations before the age of 16, pornographic films and blasphemy.

Among provinces, British Columbia and Quebec have the highest percentage who are pro-choice, and the Prairies have the highest percentage who are pro-life.

Pro-choice movement
While the absence of any law forbidding abortion could give the impression that the pro-choice movement would be satisfied with the status quo, the pro-choice movement is still quite active as it wants all abortions to be fully funded with government funds, and it wants abortion to be easily available everywhere in Canada, instead of being mostly concentrated in large urban centres.

Henry Morgentaler has traditionally been, and still is widely seen as the one individual personifying the Canadian pro-choice movement, but organizations such as the Canadian Abortion Rights Action League (CARAL) and the Pro-Choice Action Network have also significantly contributed to advance the pro-choice movement's agenda in Canada. However CARAL has recently folded, paving the way for a new pro-choice organization, the Abortion Rights Coalition of Canada, with their focus being on the objectives mentioned above. Feminist or pro-feminism organizations also contribute to promote the pro-choice approach.

The Canadian affiliate of Planned Parenthood, now known as the Canadian Federation for Sexual Health, is also pro-choice and while it does refer pregnant women to abortion providers, it does not have a history (unlike its American counterpart) of engaging in widespread litigation in favour of legalized abortion.

Pro-life movement
The goal of the pro-life movement in Canada is to first change the general culture's stance on abortion, and then eventually support legal restrictions to abortion. The pro-life movement in Canada is focused on the Campaign Life Coalition, REAL Women of Canada, the National Campus Life Network, LifeCanada, and the Catholic Church. The Canadian Centre for Bio-Ethical Reform is also a leading Pro-Life group. They have initiated several controversial campaigns, such as setting up a photo display of aborted fetuses at university campuses and on trucks. These campaigns have received both heavy criticism and approval.

The movement has been slowly increasing in Canada, and the opposing groups have seen increased membership in the 2000s, particularly outside of Quebec.

Crisis pregnancy centres
"Crisis pregnancy centres" and other offices provide counselling to pregnant women have been established by pro-life organizations such as "Birthright". These organizations, as part of their counselling, provide pregnant women with alternative choices to abortion. The advertising for these offices discloses neither the identity of the sponsoring organization, nor the motives on which these services operate; but under government legislation, the counsellors are not permitted to directly advise an individual to not obtain an abortion. However, in recent years, a trend has emerged in the United States in which such centres offer free ultrasounds to the woman, on the premise that seeing a picture of the fetus will make her less willing to consider abortion. There is also considerable controversy surrounding this move, as the volunteer performing the sonogram is typically not a trained medical professional, and may cause some injury to a woman in the process. Moreover, there is a greater chance of the woman suffering emotional trauma due to such interventions, possibly requiring psychological counselling afterward.

Roman Catholic response
The Roman Catholic Church in Canada has been an outspoken critic of abortion. According to the Canadian Conference of Catholic Bishops, "Abortion is killing Canada's future". Statistics do show that the number of children being born in Canada would not allow it to sustain its population level if migration were not an important factor as well.

Attacks on doctors who perform abortions
Three Canadian doctors who perform abortions have been shot. All of the shootings occurred on or near November 11, which is observed as Remembrance Day in Canada, the day for remembering the contributions of service men and women in both the World wars and on peacekeeping operations.


 * November 8, 1994, Vancouver doctor Garson Romalis shot and wounded.
 * November 10, 1995, Dr. Hugh Short of Ancaster, Ontario targeted while eating breakfast in his home.
 * November 11, 1997 Dr. Jack Fainman of Winnipeg shot.

In 1992, Morgentaler's Toronto clinic was firebombed and sustained severe damage. The event occurred at night, so no one was injured, although a nearby bookstore was damaged. Appointments were switched to another clinic in Toronto and no abortions were prevented.

Neutral organizations

 * Public Health Agency of Canada, reproductive health FAQs
 * Women's Health Matters, Sexual Health centre, unplanned pregnancy

Pro-life organizations

 * LifeSite Canada
 * Canadian Physicians for Life
 * Canadian Centre for Bio-Ethical Reform
 * Crisis Pregnancy Centers of Canada
 * National Campus Life Network
 * Birthright
 * Fathers For Life
 * Newfoundland Right to Life
 * LifeCanada
 * Catholic Civil Rights League of Canada
 * Vote Life, Canada!

Pro-choice organizations

 * Pro-Choice Action Network
 * Canadian Abortion Rights Action League
 * Childbirth by Choice Trust
 * Planned Parenthood Alberta
 * Planned Parenthood Edmonton
 * Morgentaler clinic