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Abortion in Canada is not limited by criminal law but by the Canada Health Act. While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces.
Early in Canadian history, all abortions were illegal. The Criminal Law Amendment Act, 1968-69 introduced by Pierre Trudeau's Liberal government, legalized abortion as long as a committee of doctors signed off that it was necessary for the physical or mental well-being of the mother. In 1988, the Supreme Court of Canada ruled in R. v. Morgentaler that the existing laws were unconstitutional and struck down the 1969 law. The then governing Progressive Conservatives attempted, but failed, to pass a new abortion law, and since then Canada has had no criminal laws governing the subject, and abortion is a decision made by a woman with her doctor. Without legal delays, most abortions are done at a very early stage.
In 2005, 97,254 abortions were reported in Canada; it is estimated that this number "represents approximately 90% of all abortions performed in Canada involving Canadian residents". This number has been decreasing since at least 1998. This represents a ratio of about 30 abortions to every 100 live births.
Abortion was completely banned in Canada in 1869. As in other countries, illegal abortions were still performed, and some cases charged that this led to the deaths of women. 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 both cases, the alleged abortion provider was ultimately acquitted of responsibility for the woman's death. Pro choice activists like Marilyn Wilson, former executive director of the Canadian Abortion Rights Action League claim, "Illegal abortions were common, but often of poor safety. Several hundred women per year died from botched abortions."
The movement to liberalize Canada's abortion laws began in the 1960s. Former Chief Coroner of Ontario Morton Shulman recalls that in the sixties, abortion could be legally performed only to save the life of the mother, so there were practically no legal abortions. He stated that the pregnant daughters of the rich were sent to a reliable physicians who did abortions for cash. He estimated that these physicians did twenty to thirty abortions per week. Woman who were not rich were left to perform an abortion on themselves or go to what he called a "nurse" abortionist. Their method was commonly pumping Lysol™ into the woman's womb. The mortality rate was high and the infection rate over 50%. He added, "By the time I became Chief Coroner I had had the unpleasant experience of seeing the bodies of some dozens of young women who had died as a result of these amateur abortions."
Chief Coroner Shulman decided to publicize the results of Canada's abortion laws. He instructed his coroners to call a public inquest into each abortion death. He describes one case that he believes was the turning point, that of 34-year-old Lottie Leanne Clarke, a mother of three children, who died of massive infection in 1964 after an illegal abortion in spite of medical treatment and antibiotics. At the inquest into her death, the jury recommended that the laws about therapeutic abortion be revised. Dr. Shulman added that a federal government committee should review the question of abortion and the law. Newspapers published editorials recommending the reform of the abortion law. In 1965, the Minister of Justice, Guy Favreau, wrote to Dr. Shulman that the recommendation would be considered in the program to amend the Criminal Code. The eventual amendment closely followed the recommendations of the coroners' juries.
In 1967, Justice Minister Pierre Trudeau introduced a bill (amendment to Section 251 of the Canadian Criminal Code). The bill, known as the Criminal Law Amendment Act, 1968-69, was passed on May 14, 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.[dubious ] 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."
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 bill 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 pregnant woman. 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 1975 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." The Committee, known as the Badgley Committee after its Chair, reported in January 1977. It found, quite simply, that "the procedures set out for the operation of Abortion Law are not working equitably across Canada." In large part, this was because the intent of the law was neither clear nor agreed upon. Access to abortion as set out in the Criminal Code was not available for many women due to variations in distribution of hospitals and doctors and in whether Therapeutic Abortion Committees were set up and in doctors' interpretations of "health" for women, ages of consent, and parental notification requirements. The report recommended better family planning to reduce the number of unwanted pregnancies; but their main conclusion was that abortion services were not being delivered as required.
By the 1982 there were 66,319 legal abortions in Canada. The 1969 law was interpreted differently by different doctors and hospitals, leading to uneven access. The standard was the physical or mental well-being of the mother, to be decided by a hospital's Therapeutic Abortion Committee. However, there was no requirement for a hospital even to have a TAC or for it to meet, and only about one-third of hospitals had one. Some committees took a very liberal stance and allowed almost all requests, while others blocked almost all requests. Access to legal abortions was easy in major metropolitan areas, but much harder outside of large cities. In the province of Prince Edward Island the lone Therapeutic Abortion Committee shut down and there were no legal abortions in the province after 1982. The Therapeutic Abortion Committees often took days or weeks to make their decisions, pushing a pregnancy further along than it would have been otherwise. The women were not seen by the committee and had no right to appeal a decision. Abortion rights advocates also protested that the choice should be made by the woman, not a panel of doctors.
Because of the lack of facilities in smaller provinces or rural areas, women were often forced to travel to major cities at their own expense. In all of Newfoundland there was only a single gynecologist who performed abortions, and many women had to pay some $1000 to fly to Toronto or Montreal to get an abortion. Many other women chose to travel to the United States, where after Roe vs. Wade abortions became available at many private clinics. In 1982 4,311 Canadian women travelled to the United States for an abortion.
In defiance of the law Dr. Henry Morgentaler began performing abortions at his clinic without approval of a Therapeutic Abortion Committee and 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, as part of the Abortion Caravan, 35 women 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 Ontario government appealed the decision. The Ontario Court of Appeal set aside the acquittal and ordered a re-trial.
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 approve abortions.
In 1988, the Supreme Court of Canada decision in Her Majesty, The Queen in Right of Canada v. Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott, indexed by the court as R. v. Morgentaler, declared the entirety of Section 231 of the Criminal Code 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”. Noted barriers included all-male TACs, Doctors who did not wish to refer matters to TACs, and geographical and financial differentials in treatment. 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 majority of the court in Morgentaler did not find that there was a substantive right to abortion under Section 7, as this was only explicitly argued by Wilson. The court found it unnecessary to consider whether the substance of section 7 implies a right to abortion, but instead made its decision on procedural grounds.
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 Manitoba MLA Joe Borowski, but the case was rendered moot by the decision in Morgentaler, which struck down the provisions that were to be challenged. In two further cases, Tremblay v. Daigle (which found a fetus has no legal status in Canada as a person) and (R. v. Sullivan  1 SCR 489), relied on the born alive rule, inherited from English common law, to determine that the fetus was not a person; and Sullivan could not be charged with murder of a fetus; and Daigle could not seek standing in court as the guardian of a fetus.
Following the Supreme Court decision, the Mulroney government made two attempts to enact a new abortion law.
In the spring of 1988, the government first attempted to find a compromise solution that would give easy access to abortion in the early stages of pregnancy and criminalize late term ones. The motion in the House of Commons was defeated 147 to 76, voted against by both MPs who opposed easy access to abortions and those who opposed adding any abortion rules to the criminal code.
The Supreme Court decision became an important issue in the 1988 federal election later that fall. Both the Progressive Conservative and Liberal parties were sharply divided on the issue and neither party advanced a concrete platform on the abortion issue. Prime Minister Brian Mulroney declared he was opposed to "abortion on demand," but gave no details on what that meant legally. Liberal leader John Turner stated that MPs should be allowed to vote their conscience, but refused to give his own opinion on the issue. NDP leader Ed Broadbent had a firm position that abortion is a medical matter, not a criminal one, and should be left to a woman and her doctor. The Mulroney government was returned in the 1988 election.
In 1989, the government introduced a much stricter bill in the House of Commons. If enacted, it would ban all abortions unless a doctor ruled the woman's life or health would be threatened. Anyone found in violation of the law could be imprisoned for up to two years. The House of Commons passed the new bill by nine votes, with the cabinet being whipped in favour and most pro-life members supporting it. In June 1990, a teenager from Kitchener, Ontario, was injured during a botched abortion performed in a man’s home. Several days later, a Toronto woman, Yvonne Jurewicz, died from a self-induced, coat-hanger abortion.
These cases were reported in the news and the latter case was discussed in Parliament. NDP member Ms. Marzari pointed out,
"For our purposes, though technically speaking the bill has not been proclaimed, Bill C-43 is, in the minds of the public and in the minds of women, now law. In fact, while we're dancing on the head of a pin and counting ourselves as angels, a woman in Toronto has died — she bled to death — three weeks ago. Her name was Yvonne Jurewicz, she was 20 years old and was probably afraid to go to the doctor and afraid to go to the hospital after she tried to abort herself. This is the sad fact of Bill C-43. While we debate the minor points of whether or not the Lieutenant Governor or the Governor-General of Canada has picked it up, we know that young women in this country are under the impression they will be considered criminals if they show up in an emergency ward door hemorrhaging."
Reform Party MP Deborah Grey, who supported the bill, denied that this death, the first known death from illegal abortion in Ontario in twenty years, could have anything to do with the publicity surrounding the passing of Bill C-43. But in Ontario, the connection was made. MPP Mr. R. F. Johnson suggested to the Premier, Mr. Peterson, that Ontario announce it would not start any third-party prosecutions against women or doctors, to prevent any further tragedies and to reassure doctors that they could go on providing services to the women of Ontario. A few months later, the bill failed in the Senate on a tie vote. Under the rules of the Senate, a tie meant the measure was defeated. The defeat was somewhat unexpected since it was the first time since 1941 that the Senate, whose members are appointed, had outright defeated legislation passed by the House. Nonetheless, in the wake of the controversy surrounding passage of the Goods and Services Tax the Progressive Conservative government did not wish to provoke a contest of wills with the Senate and announced it would not re-introduce the legislation. The fact that no subsequent government has re-visited this decision has been what has led to the unique situation of Canada having no abortion law whatsoever. Abortion was now treated like any other medical procedure, governed by provincial and medical regulations.
The 1989 Supreme Court of Canada case of Chantal Daigle (Tremblay v. Daigle  2 SCR 530) is one of the most widely publicized cases concerning abortion in Canada after the law prohibiting abortions was overturned by the Supreme Court of Canada. 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 Supreme Court of Canada 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 Ms Daigle would have been in the third-trimester had she 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 pregnancy 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.
In Morgentaler, the court had determined that, while the state has an interest in protecting the fetus "at some point", this interest cannot override that of the pregnant woman because: "the right to security of the person of a pregnant woman was infringed more than was required to achieve the objective of protecting the fetus, and the means were not reasonable." Two further cases addressed the "interest in the fetus". In Dobson (Litigation Guardian of) v. Dobson, a grandfather attempted to act on behalf of a child born with cerebral palsy, supposedly resulting from a car accident in which the mother was the driver. He attempted to sue the mother with negligence in driving. The mother was in favor of the suit succeeding, as it would have provided her with funds to raise her disabled child, while her insurance company was defending the suit through subrogation. Citing the City of Kamloops v. Nielsen, the Court decided that courts cannot impose a duty of care on a pregnant woman toward her fetus as it would interfere with the exercise of her autonomy rights during pregnancy, and the difficulty in defining a standard of care in pregnancy. Only a legislature can do this. In Winnipeg Child & Family Services (Northwest Area) v. G . (D.F.), [I997] 3 SCR 925 M, courts determined that a pregnant woman addicted to solvents could not be civilly committed for treatment.
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 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 January 2014, it is unclear whether or when RU-486 will be approved for use in Canada.
While the Canada Health Act has been interpreted by the federal government as requiring provinces to fund abortion clinics fully, Nova Scotia provides only limited funding, and New Brunswick and Prince Edward Island provide no funding for clinics.
Until 2004, Manitoba did not fund private abortion clinics. However, in July 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 2004, a Manitoba Justice ruled that the province must pay for all therapeutic abortions. This was overruled in 2005 by the Manitoba Court of Appeal because the trial Justice should not have made a decision based on written documents only. Leave to appeal to the Supreme Court of Canada was denied. The same plaintiffs have launched a new court challenge to the government practice of not paying for therapeutic abortions outside of hospitals.
Quebec used to fund only in part abortions done in private facilities. A 2006 judgment concluded that this practice did not conform to the Act respecting the Régie de l'assurance maladie du Québec; it was initially decided that abortion in private facilities would only be fully paid for if a woman could show that she attempted to obtain an abortion in the public system and could not obtain one. In January 2008, the government decided to fund all abortions without any limitations.
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 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 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 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. The province sends women who seek to have third-term abortions performed to the United States. Quebec is 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.
Of the main federal parties, the New Democratic Party, the Liberal Party of Canada, and the Green Party of Canada are all staunchly pro-choice; While the Conservative Party of Canada has both pro-choice and pro-life members (and has stated that members would be allowed to vote their conscience on any vote concerning abortion). Traditionally, more Conservative members are pro-life than pro-choice.
The Conservative Party, has had to wrestle with combining the conflicting social policies of its two predecessor parties, the moderate Progressive Conservative Party and the more right-wing Canadian Alliance, which merged in 2003. 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 during the 2004 federal election to the new party's perceived openness to legislation that would restrict abortion rights. 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.)
The Liberal Party, on the other hand, has a few pro-life members, but any potential new Liberal MPs have been told by their current leader that they will have to vote according to the party's pro-choice policy rather than according to their own conscience when it comes to matters of abortion. 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.
On October 19, 2012, pro-life protester Patricia Maloney expressed concern over 491 cases of failed abortions that resulted in live-births between 2000 and 2009. The finding reported to Statistics Canada did not include detailed information on how long each fetus survived after removal or how many would have been possible to save. Further complicating the issue is the fact that Canada, unlike the United States, does not have a law confirming or denying the legal rights of a baby who survives abortion. On January 23, 2013, Conservative MPs Wladyslaw Lizon, Leon Benoit and Maurice Vellacott wrote a letter requesting that the RCMP investigate how many of the 491 live-birth abortions meet the definition of homicide set forth in the Criminal Code. When CBC and The Canadian Press used the phrase "investigate all abortions performed after 19 weeks gestation", Vellacott accused the media outlets of false reporting and acknowledged that abortion in Canada is fully legal. The CBC / Canadian Press story was subsequently corrected. The move drew approval from Dr. Eike-Henner Kluge, former director of ethics and legal affairs for the Canadian Medical Association who said that doctors should "do they best [they] can for what is now a person in the eyes of the law." However, Dr. Douglas Black, president of the Society of Obstetricians and Gynaecologists, said that the situation is not one of homicide, but rather allowing babies "to pass away, depending on what the circumstances are, sometimes in their mom's arms."
In the absence of law limiting abortion, the pro-choice movement in Canada focuses on establishing abortion as a component of provincial health care plans, to ensure it is available in all regions, especially for those couldn't afford it otherwise.
Dr. Henry Morgentaler was widely seen as the one individual personifying the Canadian pro-choice movement, but organizations such as the Canadian Abortion Rights Action League (CARAL), Canadians for Choice and the Pro-Choice Action Network also contributed significantly to advancing the pro-choice movement's agenda in Canada. CARAL folded, and been replaced by the Abortion Rights Coalition of Canada, whose focus is 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.
The pro-life movement is concerned that there are no legal restrictions against abortion in Canada, and that abortions are funded by provincial health care programs, even if the abortion is not for therapeutic reasons. A medical reason for obtaining an abortion is no longer required in Canada (except in Prince Edward Island) since the 1988 removal of abortion from the Criminal Code.
The pro-life movement in Canada is represented by the Catholic Church, Alberta Pro-life, Campaign Life Coalition, REAL Women of Canada, Abortion in Canada, Action Life (Ottawa) Inc., among other organizations.
Crisis pregnancy centres and other offices provide anti-abortion counselling to pregnant women. They have been established by organizations such as Birthright. These organizations, as part of their counselling, provide pregnant women with alternative choices to abortion. Under government legislation, the counsellors are not permitted to directly advise an individual to not obtain an abortion, although many Crisis pregnancy centres will not train volunteers who believe that abortion is acceptable.
Three Canadian doctors who perform abortions have been shot. Many 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.