The Nuances of the Abortion Debate

So...go figure...I’m going to dive head first into one of the most divisive debates that exists in Canada.   Full disclosure, I am personally prolife, but I also recognize that carte-blanche restrictions on abortion is about as useful as prohibition on alcohol.  The reality is that the premature termination of pregnancies has been around for nearly 2500 years.   

Pragmatically speaking, some degree of on-demand abortion is here to stay.  I believe that the majority of the Canadian public does not like the idea of abortion, but they also would not to see a woman’s right to choose to be banned.   I also realize (speaking for myself) that as a male, I can’t really ever appreciate the complexity and the moral questions that females face on this topic.    This debate is definitely prone to very, very emotionally charged rhetoric, and it is my sincere hope that at some point, we as a nation can have a rational discourse about this issue.

So...why post about this topic?  There are several reasons.  One of the stems from a conversation with someone who has some insights into the social conservatives within the Conservative caucus.    Afterwards, I had another conversation with someone who is somewhat active in the pro-life movement.   Then there is the Abacus Data poll  which suggests that the debate over this issue contains lots of shades of grey.   Finally, in 2013, I believe that this will be a flashpoint year as this is the 25^th Anniversary of R vs. Morgentaler.

I don’t think I am the type of person that will be an advocate for prolifers; but as a matter of public policy (which I think a federal government will have to address at some point in time), I am interested in how we got to this point with this issue in our political discourse.    So...here goes:

1)      Perhaps the most fascinating aspect of this was when abortion was integrated into the criminal code in 1969.  What’s fascinating about this was that the sponsor of the bill was then justice minister, Pierre Elliot Trudeau, in 1967.    Bill C-150, amongst other things, decriminalized homosexuality but it also enshrined the legality of abortion (section 251 of the criminal code).  However, amendments of the criminal code were such that:

a.       Abortions could only be done in a hospital, and

b.       They could only be done after the approval of the hospital’s Theraputic Abortion Committee (TAC) after consideration of the woman’s health.

2)      As a result of this, there became a patchwork approach to how abortions could be conducted.  A woman’s doctor could only refer to the TAC, or in some cases a doctor of a hospital would would refer to the TAC.  Some TACs were rubber stamping these requests, while others would grill the woman.
3)      Enter Henry Morgentaler.  I won’t get into his advocacy of choice issues, but essentially, he felt that abortions could be conducted outside hospitals and instead in standalone abortion clinics,  and in direct contravention of the Criminal Code that required TAC approval(s).
4)      In 1982, the British North America Act, 1867 was repatriated to become the Constitution Act, 1982.  The first thirty five sections of the Constitution Act form the Canadian Charter of Rights and Freedoms.   Section 7 of the Charter deals with the critical language of “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.”
5)      In 1986, the Supreme Court heard the arguments by Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott suggesting that the Criminal Code provisions from 1969 were against the Charter with respect to abortion.  The doctors had been running an abortion clinic in Ontario for some time.  The Ontario Court of Appeal had previously sided with the government, and subsequently the doctors appealed to the High Court.
6)      On January 28, 1988, the High Court struck down the 1969 legislation, by a 5-2 decision on the grounds that The entire section 251 of the Criminal Code (how abortions should be conducted) violated Section 7 of the Charter, and that “The evidence discloses that there is no justification for the requirement that all therapeutic abortions take place in hospitals eligible under the Criminal Code. In this sense, the delays which result from the hospital requirement are unnecessary and, consequently, in this respect, the administrative structure for therapeutic abortions is manifestly unfair and offends the principles of fundamental justice.” (page 115)
7)      So...while the High Court affirms a woman’s right to choose and strikes down the hospital TAC structure as unconstitutional, the ruling does not address whether Section 7 of the Charter contains a right to abortion.    I think this is critical as the court only struck down the previous application of how abortions could be conducted and not the greater issue of whether there is constitutional and charter permissibility of restrictions on abortions.   
8)      In 1988, near the end of the first Brian Mulrouney mandate, a free vote was held on a new bill that would legalize abortion on demand to the first trimester, and further ban after the second trimester under the threat of criminal prosecution.   On July 28, 1988 both pro-life (because the legislation was too lax) and pro-choice MPs (because it was too restrictive) voted down this bill 147-76.
9)      Early in the second Mulrouney mandate, in 1989, a new abortion bill was introduced that would criminalize forms of abortion.  What is interesting about this bill is that cabinet was whipped, so Red Tories such as Joe Clark and Flora MacDonald were required to vote in favour of the legislation.  On May 29, 1990, this vote passes by nine MPs.  The legislation goes to the Senate to be voted on.
10)   At around this time the GST debate was heating up substantially.   As the Liberal dominated Senate was blocking the GST being passed into law, Mulrouney used a new tactic.  On September 27, 1990, with the consent of Queen Elizabeth II, the Prime Minister used his reserve powers to appoint eight new senators to overcome the Liberal majority and to pass the GST legislation.
11)   In February 1991 the Senate, for the first time in 50 years, tied voted on the abortion bill that was passed in the House.    As a result of the tie, the bill died right there.
12)   Given the public outcry over the GST debate, appointment of senators, and the ongoing issues over Meech Lake (and soon to be the Charlolettetown Accord), the government felt that it was too divisive to deal with the abortion issue.

Since this time, excluding the debate around the funding of abortion services under the Canada Health Act, there has been no changes to the legal vacuum around abortion.    Presumably, there appears to be some constitutional room to create “reasonable” restrictions on abortion that would be consistent with Section 7 of the Charter, but that would involve a ramping up of the rhetoric, and at this stage (like it has been over the last twenty years), there is no reasonable climate in Canada to have a debate.   The Prime Minister has made it very clear that he does not want to open up the debate which I think is the prudent course of action given the lack of a reasonable climate regarding debate.

I do wonder, though, how the Prime Minister would respond if the debate were forced on him and the Conservative Government.