Why the abortion law was changed
Article By On April 1, 2009 am30 11:33 am In Abortion,Announcements,Politics
Interim editor Paul Tuns looks at the agitation in the 1960s in favour of abortion and the political debate leading up to passage of the Omnibus Bill in 1969. In the May edition of The Interim, he will examine the rapid growth in acceptance of abortion and the consequences of abortion on demand in the 40 years since the Omnibus Bill took effect.
It is well known that the Pierre Eliot Trudeau government amended the Criminal Code to widen the abortion law in 1969, but the political change did not occur in a vacuum. The decade-long campaign waged by professional organizations, some religious groups and the media set the stage for changes to the Criminal Code to make legal abortion possible.
Before Confederation, Canada was governed by British law. In the English common law, abortion was treated as a grave matter (referenced in criminal law by Henry de Bracton in 1640 and Edward Coke in 1717) but it was not until 1803 in Lord Ellenborough’s Act that the British Parliament codified in law a prohibition against abortion. Abortions committed before quickening was treated less severely than abortions carried out after quickening. Furthermore, although not treated as tantamount to murder, doctors and women could be prosecuted and sentenced to prison.
Punishments were made more lenient in 1828 (Lord Landsdowne’s Act) although the 1837 Offenses Against Persons Act dropped the distinction of before and after quickening. In 1861, Section 53 of the English Offenses Against the Person Act consolidated more than a half century of changes to abortion law, made it a felony for a woman to use any noxious substance or any device to “to procure a miscarriage” with up to life imprisonment. The abortionist could also face life in prison. While the law clarified many matters, it remained unclear whether an 1846 law report permitted abortion to save the life of the mother with the adjective “unlawfully” appearing before abortion, perhaps indicating that under some unspecified circumstances, ending a pregnancy was permissible. By tradition, abortion to save the life of the mother was permitted.
When Canada became an independent country, we continued to be governed by English common law. In 1869, Canada’s Parliament enacted the first Criminal Code, which prohibited abortion as well as the sale, distribution and advertisements of contraception. In 1955, the law was clarified to mirror changes in British abortion law, and there was no doubt that abortion was not even permitted in cases to save the life of the mother.
The first major publication to advocate changes to Canada’s abortion prohibition was Chatelaine, a women’s magazine. In August 1959, in an article entitled “Should Canada change its abortion law?” author Joan Finnigan said that the law had to be changed because women were having illegal back alley abortions, endangering their lives in the process. Feminists claimed that in the 1930s and ’40s, as many as 500 women died of unsafe, illegal abortions each year. There is little evidence to support such figures.
Chatelaine was soon joined by the Globe and Mail and the United Church Observer. A United Church minister Rev. Ray Goodall, wrote in Chatelaine in March 1963 that the law was morally wrong and cruel, and that there is no human life in the embryo. A similar article appeared in the Observer two months later. The Vancouver-based minister’s byline, as well as the Observer banner, gave a religious veneer to the abortion advocacy. The implicit message was that Christian values were amendable to the times. Rev. Goodall’s liberal view of abortion reflected the increasingly permissive stance of the United Church, which had as early as 1960 supported abortion to protect the health of the mother. By 1966, the UCC was supporting abortion as birth control.
For two years already, the Globe and Mail ran editorials calling for an amendment to the Criminal Code. The paper became the leading voice for abortion, at times running as many as three editorials per month in favour of widening the abortion law. In September 1961, it said “women should be permitted to make their own moral decision” about abortion. Many editorials singled out the Catholic Church for criticism, chastising it for attempting to impose its supposedly archaic morality on the country. Indeed, in September 1963, the paper wondered “how far the law should be based on a code of morals or ethics, which is in turn based on religious belief…” For the next six years, it would use the slightest news angle to wax in favour of abortion.
Two major professional organizations also began clamoring for changes to the Criminal Code. In 1963, the Canadian Bar Association and the Canada Medical Association began to agitate to a widening of the law to permit what they claimed was going on anyway in many hospitals: illegal abortions carried out to save the life or protect the health of the mother. As Fr. Alphonse de Valk says in Morality and Law in Canadian Politics: The Abortion Controversy (1974), this was not part of an orchestrated plot, but rather started as “spontaneous actions of unrelated semi-public bodies.” Later, the CBA and CMA would meet to discuss their proposals to change the law, to find common ground, and co-ordinate efforts to lobby politicians and move public opinion.
The process of reviewing the association’s position on abortion began with resolutions in committees, discussed at length with hearings, briefs and presentations. From the first proposal to examine the issue to its final reports, the process took three years.
When the CBA’s Section on Criminal Justice postponed a decision in late 1963, the Globe and Mail attacked the body for stalling. The paper invoked the “needless deaths” from illegal abortions. The CBA would later endorse amending the Criminal Code to protect doctors from prosecution when the committed an abortion to protect the life or health of the mother, when the pregnancy was the result of rape or incest or to prevent the birth of a “deformed” or “defective” child . The debate was often acrimonious, with belittling criticism of anyone who presented a religiously based pro-life perspective and arguments that while individuals have the right to their own opinions, they do not have the right to impose their morality on others through the force of law.
In May 1963, the CMA initiated a special committee to examine sterilization and therapeutic abortion. The terms of the discussion on medical indications for abortion and the legal framework for carrying out abortions effectively ruled out the possibility that no change in the law was necessary. The committee members were known advocates of changes to the law and later it would be revealed in the CMA Journal that most, including its volunteer chair Dr. Donald M. Low and Dr. Douglas E. Cannell, were already committing illegal abortions (the committee’s presentation to Parliament was described by one observer as “the biggest gathering of criminal abortionists ever held in Canada”). The CMA’s committee made it clear that they were as concerned about protecting doctors who did abortions as it was the women seeking them.
It was unclear why such legal protection was necessary. Larry D. Collins, a professor of political science at St. Francis Xavier University, noted in a 1982 article in the journal Atlantis, that prior to 1969, governments “simply refused to enforce the Criminal Code’s absolute ban on abortion against hospital-based doctors who maintained the polite fiction that they only performed abortions required on medical grounds.” Edward O’Brien, a founder of the Emergency Organization for the Defense of the Unborn, a (mostly Toronto-based) pro-life group, wrote in The Interim in 1983, that Ontario’s Attorney General Arthur Wishart had a policy of not prosecuting abortionists thus setting the stage for “the selective enforcement of the law” in the province. Collins reported that a federal department of Health and Welfare official told him that fraud was routine (“There was ‘emergency appendectomies’ in Catholic hospitals and ‘menstrual irregularities’ requiring D and Cs (dilation and curettage)”) yet there is “no record of prosecutions against validly licensed individual doctors.”
Still, the CMA endorsed changing the Criminal Code to allow abortion to protect the life and health of the mother and in cases of rape and incest. In 1966, it opposed abortion to prevent the birth of a child with genetic anomalies, accepted such abortions by 1967.
Also during the 1960s, the legal profession in the United States was beginning to examine liberalizing abortion law south of the border, just as the British Parliament was looking at permitting abortion in the United Kingdom. As Fr. de Valk noted, the mass media and cultural influence from America and Canada’s historic ties to England provided added pressure to widen the abortion law. By the mid-’60s, Canadian politicians were openly discussing liberalizing the divorce and contraception laws, which like abortion was pat of the Criminal Code. Eventually, the three issues, as well as many others, would be lumped together in a pair of Omnibus bills.
In 1966, Lester Pearson’s Liberal minority government moved discussion of divorce, contraception and abortion to a Standing Committee of the House of Commons — a decision Fr. de Valk says in his book would be unimaginable without the “authority of the CMA and the CBA resolutions.” He also says that there was little chance Prime Minister Lester Pearson would have considered opening the abortion issue were the moral issues of birth control and divorce not already on the table and “receiving a sympathetic hearing from the public.” (That said, Edward O’Brien, writing in The Interim, strongly hinted that Pearson had his eyes on liberalizing abortion because his son-in-law was one of the Toronto doctors committing illegal abortions whom Ontario Attorney General Wishart was refusing to prosecute.)
Toronto Liberal MP Ian Wahn, who introduced a two-part private member’s bill liberalizing abortion and contraception, would enthusiastically declare that “reform was under way.” Meanwhile, in Ontario, Stephen Lewis, an NDP member of the provincial parliament, introduced a bill to liberalize abortion law, although it died on the Order Paper in 1967. He would not need to reintroduce the matter at Queen’s Park with the political momentum favoring changing the law at the federal level.
The federal discussion would take place in the Standing Committee on Health and Welfare, signaling that politicians thought abortion to be more of medical issue than a legal one, despite its presence in the Criminal Code.
At the same time, the United Church of Canada and the Anglican Church of Canada (taking its lead from the Anglican Church in England) would begin to soften their opposition to abortion, favoring exceptions for the life and health of the mother, in (the rare) cases where pregnancy is the result of criminal assault, and to prevent the birth of children with deformities. Soon after, the United Church officially supported abortion without reservation. Other church leaders and organizations, including the Presbyterians, that addressed the parliamentary hearings would end up endorsing abortion in at least limited circumstances. Only the Catholic Church — the Canadian Catholic Conference (the bishops), the Catholic Hospital Association and the Catholic Women’s League — would mount a sustained opposition to the proposed changes, although Fr. de Valk says that it has feeble and too little, too late. In his book, Morality and Law in Canadian Politics, he says that having capitulated on contraception and divorce and having reacted long after public agitation for the reform of abortion law was in high gear, the Catholic Church utterly failed to provide the necessary leadership to pro-life Canadians requiring principled arguments and a courageous example.
Meanwhile, feminist groups began organizing. The Central Ontario Women’s Institute called the abortion law archaic and the National Council of Women of Canada came out in favour of removing abortion from the Criminal Code altogether — the first organization to do so, in 1964. In 1965 and 1966, the NCWC petitioned the government to take abortion out of the Criminal Code, saying the law was “confused, conflicting, outdated, and in certain instances, cruel and unjust.” Joining others in looking moderate despite its radical stance, the council called for a Royal Commission to examine the issues around liberalizing the abortion law. This was necessary, the council said, to bring the law “into conformity with the realities of Canadian life” — those illegal abortions that advocates repeatedly trumpeted as the vanguard for change. Of course, Planned Parenthood chapters across the country joined the chorus for liberalizing the abortion law.
It should be noted that the number of illegal abortions is a matter of controversy and even advocates at the time had difficulty settling on a figure. Estimates ranged from 20,000 to 300,000. The cliché of the back alley abortion death is even harder to figure out. However, it is well established that abortion supporters concoct numbers to make abortion appear normal and everyday as well as widespread danger to women procuring unsafe abortions. Toronto MP Ian Wahn cited as the primary reason for his private member’s bill, the routine violation of the existing strictures.
But Dr. Bernard Nathanson, the former abortionist and co-founder of the National Association for the Repeal of Abortion Laws, has admitted that the U.S. figure of one million illegal abortions being committed every year before Roe. v. Wade was a number picked out of thin air. Canadian advocates have sometimes taken 10 per cent of the U.S. figure to come up with a comparable statistic of 100,000 illegal abortions committed in Canada each year in the 1960s. The fact is nobody knows, but research into hospital records and death certificates indicates that even the low-end estimates were probably too high.
Individual members of the CMA were slowly admitting that abortions were being illegally but routinely committed in the hospital and the Globe and Mail reported in April 1967 that Toronto’s Women’s Hospital had committed a dozen of them in 1966, 11 for psychiatric reasons. The paper ran two editorials in three days calling again for amendments to the law and then ran another story reporting that six Toronto hospitals had committed a total of 50 abortions, but speculated that the number may be twice the total.
Certainly illegal abortions were being carried out, many of them in hospitals. But 20,000 or 200,000 seems too many. Still, the fabricated numbers galvanized politicians, professional organizations, and segments of the media (in 1967, Maclean’s chimed in, favoring liberalizing the law). No doubt, public opinion would follow. By the time the Omnibus Bill was introduced in 1968, every major Canadian newspaper that weighed in on it, favored the bill to some degree, although none as frequently, vocally or unambiguously as Canada’s national newspaper, the Globe and Mail.
Now, lobbying for abortion took a new turn, with the feminist groups hinting that codifying the status quo was insufficient, that abortion was a matter of choice. Feminist groups noted that many of their political opponents were men, as they cast the fight for abortion as part of the women’s liberation movement. The Globe and Mail began articulating a concept of abortion as a right. The pro-abortion movement was providing every argument they could muster.
In May 1967, the Pearson government, during the Speech from the Throne, committed itself to liberalize divorce laws but made no mention of abortion. The Globe and Mail would attack Pearson’s oversight in a column by Jean Howarth, who blamed pressure from the Catholic hierarchy for the prime minister’s “timidity”.
In October, hearings began in the Standing Committee on Health and Welfare. They would continue through to the Christmas break, resume in January and conclude in March. The total transcript of the hearings is 865 pages.
The first hearing was on NDP MP Grace MacInnis’s bill, that reflected the work of the CBA and CMA — permitting abortion to protect the life and health of the mother, in cases of rape and incest, and when there was the possibility of a “defective” child — although she preferred taking abortion out of the Criminal Code completely. MacInnis cited a Gallup survey that showed that 71 per cent favored legaliation of abortion. She invoked “backstreet bungling and butchery.” She cited the century old laws Canada operated under, with the unarticulated presumption of change for change sake.
But the Vancouver MP raised the ire of many when she argued in favour of abortion in order to “work toward quality population in this country.” She said that it was not a “good thing for Canada to allow those beings” — children conceived in rape or incest, children with disabilities — “to come into the world.” Joseph O’Keefe, a Liberal MP from St. John’s, noted that such eugenic population “quality control” had already been tried by Adolf Hitler just a generation earlier in Germany. In backtracking a bit, MacInnis explained that such children “have no chance for a normal life.”
From then on, the hearings would focus on what to do about illegal abortions. The hearings would push any consideration of abortion to the following year. As the Christmas recess approached, the committee rescheduled the last presentation, which was supposed to be from the Catholic bishops. While most presenters were in favour of widening the abortion law, the Emergency Organization for the Defense of the Unborn made a strong pro-life presentation. The chair accused Dr. Philip Cooper of Ottawa of lying about babies crying hours after they were supposedly aborted — a fact reported by Time magazine. More importantly, Cooper warned that by widening the abortion law, Parliament risked devaluing human life more broadly. He predicted that legalizing abortion in limited circumstances would lead to euthanasia, widespread eugenic abortion and abortion-on-demand for convenience, not health considerations. Asked by NDP MP Stanley Knowles if he really thought a modified abortion law would open the door to many abortions and perhaps euthanasia, Cooper replied: “When we blaze a trail, we do not know how far other people are going along that trail.”
The Catholic bishops were originally scheduled to present on Dec.19, but that had been cancelled two weeks earlier. Instead, on Dec. 19 — less than a week before Christmas — the committee issued an interim report supporting revision of the Criminal Code to permit abortion. It proposed further research (which was in order considering that only about half of the presenters had been given a hearing up to that point) and acknowledged that the government might enact its own legislation.
By now Pierre Eliot Trudeau had been named Pearson’s justice minister. The Globe and Mail, the only daily paper to provide regular coverage of the hearings, trumpeted the interim report, stating in a front-page headline: “Trudeau gets green light for easing abortion law.” The same day as the Globe report — one day after the interim report was released — the government notified Parliament of its intention to liberalize the abortion law in an Omnibus Bill. Just hours before most members would travel home for the Christmas holidays, the bill received first reading.
The Omnibus Bill was 72 pages and featured more than 100 clauses on issues as diverse as contraception, divorce, homosexuality, and abortion, to passport regulations and jury rules, to permitting lotteries and relaxation of marijuana laws.
The Omnibus Bill maintained abortion as a criminal offense (Section 251 of the Criminal Code) but permitted it when an application for an abortion was accepted by the majority of a three-person therapeutic abortion committee. The abortion had to be carried out in a hospital. The TACs were required to consider not only cases where a mother’s life was in danger, but when her health was “would” or “would be likely” affected by the continuation of the pregnancy. The health of the mother was insufficiently defined, so the emotional health of the mother could be a consideration. It soon became evident that the TACs were rubber-stamping almost every application, and abortion soon became the second most common surgery after tonsillectomies.
By the time the hearings were over in March, the committee heard from 93 witnesses, read 35 briefs and considered numerous petitions and resolutions. In its March 13 final report, it acknowledged that there was concern over the definition of health — the indication was that Canada would use the World Health Organization’s definition of health to include physical, mental, emotional and psychological health, thereby permitting any abortion that would be requested. But the report made it clear that the WHO definition was too expansive so while it maintained physical and mental health, it explicitly rejected abortion on socio-economic grounds.
Lester Pearson resigned the leadership of the Liberal Party and Pierre Elliott Trudeau, a relatively new and little known Liberal until he was named justice minister and made a name for himself handling the controversial abortion file, would replace Pearson as party leader and prime minister that Spring. The Omnibus Bill — C-195 — died on the Order Paper when Parliament prorogued to permit the leadership race and Trudeau won his own majority in June.
Trudeau would ask Paul Martin Sr. to take his old job as justice minister but Martin refused, specifically because as a faithful Catholic he could not accept responsibility for re-introducing the Omnibus Bill. Martin was appointed to the Senate and John Turner, a Catholic representing an Ottawa riding, was named the justice minister. On July 6, Turner announced he would re-introduce the Omnibus Bill. He said “The prime minister is committed to it and so am I.”
Turner would insist that abortion was both a matter of personal conscience and that the changes were merely clarifying. He insisted the amendment to the Criminal Code would not promote abortion. He absurdly argued that the bill “does not authorize the taking of fetal life; it does not promote abortion. It simply removes certain categories of abortion from the present place they have on the list of indictable offenses.” He maintained that abortions would be reserved for women facing serious health risks. But Turner also said that there was a difference between sin and crime, with the former being a matter of personal morality and the latter an issue of public order.
Second reading began in January 1969 and after often bitter debate, Turner agreed to a separate vote on abortion on May 9 to remove the clause from the Omnibus Bill. Only the Ralliement Creditiste was unanimous in its opposition to abortion. Just two Liberals opposed the abortion measure, compared to 85 who wanted to maintain it. Seven Progressive Conservatives voted to keep abortion in the bill, 25 wanted it remove, and 40 abstained from voting. One NDP voted to remove the abortion clause while 15 opposed doing so. When, five days later, the entire Omnibus Bill was voted upon for the final time, only one Liberal (Gordan Sullivan of Hamilton) opposed it.
Some pro-lifers recognize May 14 as a Day of Infamy — the day in which Parliament decided to remove legal protection for the unborn child. The Globe and Mail however, found reason to celebrate, with an editorial entitled “It was a great day.” But the battle was not over.
Abortion battle rages
In 1967, Henry Morgentaler, a Montreal obstetrician-gynocologist, urged the government to repeal the Criminal Code provision on abortion, although he wouldn’t publicly defy the law for another two years. (It was later revealed that he did commit illegal abortions in 1968.) After the Omnibus Bill was passed in 1969, Morgentaler flouted the requirement that abortions be carried out in a hospital with the approval of the therapeutic abortion committee. The following year, he was arrested and charged with conspiracy to commit an abortion. He would be charged on at least five separate times for breaking the abortion law’s minimal restrictions.
Morgentaler’s disobedience of the law wasn’t idiosyncratic. Abortion advocates disliked the restrictions in the Criminal Code and Morgentaler led an unholy crusade to change the law, ultimately succeeding in having the Supreme Court throw out Section 251 in 1988. In 1970, the Woman’s Caravan, attempted to galvanize feminist opposition to any restriction on abortion and in 1974, the Canadian Abortion Rights Action League was founded to promote abortion “rights”.
The battle over abortion had just begun, but the consequences would be soon evident.
Next month: The consequences of 40 years of abortion
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